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With the exception of this statutory provi- testator's estate does not prevent the en. sion, the rule in Indiana seems to be the same forcement for nis benefit of the liability of as elsewhere, as it is held in State v. Wabash sureties on the bond for the default of his *R. Co. 115 Ind. 466, 1 L. R. A. 179, 17 N. E. coexecutor, when the bond is joint and several 909, that, where a corporation is in the hands in form. of a receiver, who has full possession of its property and entire charge of its affairs, the

(June 27, 1903.) corporation cannot be prosecuted for crimes or misdemeanors committed by the agents or serv

N DEMURRER to the complaint in an ants of the receiver.

action brought to enforce the alleged liaIII. Conclusion 8.

bility of sureties on an executor's bond. The few instances in which this question has Ovcrruled. previously arisen, with possibly one exception,

The facts are stated in the opinion. fully sustain the decision in PARMENTER v. BARSTOW, although in several cases it is inti- Mr. Irving Champlin for plaintiff. mated, and in one, an English case, expressly Messrs. Edwards & Angell, for defendheld, that the trustee may seek and have reim- ants: bursement from the trust fund, under the proper

Executors giving a joint or joint and sevcircumstances, for a personal judgment recovered against him for the tort or negligence of

eral bond are primarily liable for the devas& servant, and paid by him.

tavit of each other, and neither can maintain Receivers, although treated generally as trus- an action as a beneficiary under the will tees, are in a class by themselves as to their against the sureties on the bond for a devasliability for the torts of employees. The cases

tavit of the other. are practically unanimous that they are liable

Miller v. Steward, 9 Wheat. 680, 7012. L. officially only, not individually, except in the event of their individual fault, and that any ed. 189, 195; Lafayette v. James, 92 Ind. judgment recovered against them is payable out 240, 47 Am. Rep. 140; 24 Am. & Eng. Enc. of the funds in their hands as such receivers. Law, p. 749, note 1, Suretyship; Hoell v. When engaged in operating railroads many de Blanchard, 4 Desauss. Eq. 21; Jeffries v. cisions hold them officially to the same rules of liability that control common carriers, and Lawson, 39 Miss. 791; Stephens v." Taylor, statutes providing for liability for personal in. 62 Ala. 269; Newton v. Newton, 53 N. H. juries and relating in terms to railroad corpo 537; Boyd v. Boyd, 1 Watts, 365; Jamison rations only have been by many courts construed v. Lillard, 12 Lea, 690; Clarke v. State, 6 to include receivers engaged in operating rail; Gill. & J. 288, 26 Am. Dec. 576; Babcock v. roads also. Two states, however, Georgia and

Hubbard, 2 Conn. 536; Eckert v. Myers, 45 Texas, by a stricter construction, excluded receivers from liability under statutes relating in Ohio St. 525, 15 N. E. 862; Brazer v. Clark, terms to railroad corporations only, but in both 5 Pick. 96; Towne v. A minidown, 20 Pick. states special legislation was afterwards passed 535; Dobyns v. licGovern, 15 Mo. 662; Anto remedy the situation. The doctrine urged derson v. Miller, 6 J. J. Marsh. 568; Green in a few instances, that receivers are within the

v. Hanberry, 2 Brock. 403, Fed. Cas. No. 5,same rales of liability as public officers, has met with practically uo approval, for, as one court 759; Ames v. Armstrong, 106 Mass. 15; points out, the rule granting immunity to public Sparhawk v. Buell, 9 Vt. 41; Woerner, Am. officers from liability to individuals when exe- Law of Administration, $ 258; Williams, cuting their public duty is limited to those who Exrs. 7th Eng. ed. p. 529, note a 1, p. 1820, are strictly public officers, and parts of the gov: note y; 3 Redf. Wills, p. 93; Croswell, Exrs. ernmental agency of the state, entirely distinct from individual gain or profit.

& Admrs. § 588; Schouler, Exrs. & Admrs. An exception to the general rule exists in $ 406. Indiana, where it is provided by statute that the statutory action for killing or injuring stock Stiness, Ch. J., delivered the opinion of may be brought against the company, notwith

the court: standing the road is being operated by a receiver at the time the injury occurs. But, as

The ground of the demurrer to the decto other actions for the tort or negligence of laration is that Joseph W. Smith, for whose employees of receivers, so far as appears, the benefit the action is brought, was a coprinrule is the same as elsewhere. M. M. M. cipal with Henry W. Smith on the bond in

suit, and a coexecutor with said Henry W. MUNICIPAL COURT

Smith on the estate of Sheffield Smith;

that said action is therefore by one of the Albert A. WHALEY et al.

principals on a bond against the sureties

thereon, to recover from said sureties for the (........R. I...... .)

default of his coprincipal, and is not mainThat a legatee is also an executor of tainable. The bond is joint and several.

NOTE.--As to lability of surety on adminis- Pub. Stat. 1882, chap. 184, $ 10, in force trator's bond, in an action against him for the at the time this bond was given, provided : wrongful acts of one administrator, brought by “Every executor... shall give bond,”. one who has become the owner of a coadminis

etc. trator's ciaim as distributee, see Nanz v. Oakley, that it has been customary, when so desired,

Under such a provision we understand 9 L. R. A. 223, with note on several executors considered as one person.

as it would be allowable, for several exec


utors to give separate bonds. In most cases, , 288, 26 Am. Dec. 576; Ames v. Armstrong, however, the custom has been, as in this 106 Mass. 15; and Sparhawk v. Buell, 9 Vt. case, for joint executors to give joint and 41,-are frequently cited to show the joint several bonds.

| liability of coexecutors, but they are all suits "On a joint bond all the obligors must be of legatees or creditors, who without ques. sued; but on a joint and several bond a tion can hold them jointly on a joint and creditor may sue all jointly or one separate several bond. ly for the whole ainount. It is the same as The real plaintiff in the case at bar is a though all had given a joint bond and each legatee, but the question is not whether he a separate bond, and the creditor could elect could sue if he were that and nothing more, on which bond he would sue.” Bouvier, but whether, though he is a legatee, he can Law Dict. title Joint and Several; 2 Woer- sue, being also a coexecutor. ner, Am. Law of Administration, 2d ed. 8 Aside from the cases of creditors and lega558; 3 Wms. Exrs. Am. ed. Rand. & T. 243; tees cited by the defendants, in which courts 3 Redf. Wills, 2d ed. p. 282.

have spoken of the joint liability of coexecThe defendant claims that Joseph W. utors under joint and several bonds, and Smith, being a principal, cannot sue the rep- others which are distinguishable on other resentatives of a coprincipal or a surety, be- grounds, we find but two which seem to cause he himself is liable, and he would thus support the contention that in no event can be suing for his own default. As stated by one executor sue his coexecutor. Woerner, supra, an executor was not re- In Stephens v. Taylor, 62 Ala. 269, the quired by common law to give bond, and was court held that two or more executors ennot liable for the malfeasance of a coexec- tering into a joint and several bond for the utor, unless he had concurred in it, or there faithful performance of their duties are liahad been a joint possession of the estate ble for the acts and defaults of each other, from which it could be inferred that one had unless the bond shows that they did not in. yielded to the control of another who had tend to become bond for each other's desquandered the property. Except as it may faults; that the sureties to such a bond bebe modified by statute, the rule in this country is the same,—that one executor is not ful administration of the estate by their

come responsible to claimants for the faithliable, as such, for waste committed by his coexecutor, nor for assets which the latter principals, the executors, and each of them, received and misapplied without the knowl

and the principals, and each of them, come edge and consent of the former. By force under obligation to hold the sureties harmof modern statutes, however, this rule now

less against any default on the part of the applies, practically, to liabilities of coexec- principals; that there are the duties towards utors as between themselves or on account one another that spring out of the relation ing, since the requirement of a bond pro- created by the bond. This states very plaintects legatees and creditors. There can be ly the position taken by the defendants in no question that on a joint bond all ex

this case. ecutors would be jointly liable, for that is The same rule is held in Hoell v. Blanchthe condition of the bond. The question, ard, 4 Desauss. Eq. 21, with the addition therefore, comes upon the distinction be- that a coadministrator cannot hold a surety tween a joint and a joint and several bond. for default by another administrator, though

Having said that upon a joint bond there claiming in a different right,-exactly the would be an obvious joint liability, it fol- case before us. The reasoning of the court lows that if there is only the same liability is that the relation between a principal and on a joint and several bond there is no dif- surety is very different from the relation beference between the two. Yet there is a tween a surety and creditor; that a princiwell-recognized distinction between them, pal is bound to stand between his surety and such as we have already pointed out. If,

the surety's responsibility in that character. then, by reason of the several obligation, one It is to be noted, however, that the bond may be sued alone, it follows that either party may sue the other in a distinct right. appears to have been a joint, and not joint As several bonds, the sureties are sureties

and several, as in Stephens v. Taylor. As a severally of each executor, as they might be joint bond, we think there can be no doubt on separate bonds. Only in this way can ef- as to the doctrine of Hoell v. Blanchard, but fect be given to the provision of severalty it does not reach the point of this case. in the bonds. Most of the cases relied on

Towne v. Ammidown, 20 Pick. 535, was a by the defendant are distinguishable from bill by a surety on a joint and several bond the case at bar. Jeffries v. Lawson, 39 for indemnity from the heirs of a deceased Miss. 791; Jamison v. Lillard, 12 Lea, 698; coexecutor who had been guilty of no deBrazer v. Clark, 5 Pick. 96; Boyd v. Boyd, fault. Obviously, it was held that the heirs 1 Watts. 365; Clarke v. State, 6 Gill & J.'were not liable.

In Vanz v. Oakley, 120 N. Y. 84, 9 L. R. It is the general rule that one executor, A. 223, 24 N. E. 306, a suit was brought on on accounting, is not held by the acts of ana joint and several bond in which an admin- other, in which he has not participated or istratrix had joined with a coadministrator. as to which he has not been negligent. McThe latter had the entire management of the Kim v. Aulbach, 130 Mass. 481, 39 Am. Rep. estate, and had converted to his own use 470; Wilson's Appeal, 115 Pa. 95, 9 Atl. 473; about $4,000 belonging to the estate. The Paulding v. Sharkey, 88 N. Y. 432; Re Adadministratrix was also the sole heir and ams, 51 App. Div. 619, 64 N. Y. Supp. 591; next of kin of the intestate. Upon her Hall v. Carter, 8 Ga. 388; Ormiston v. Oldeath her coadıninistrator was charged by the surrogate with the amount, and ordered cott, 84 N. Y. 339; Sparhawk v. Buell, 9 to pay it over to her administrator. Suit Vt. 41 (by Redfield); Gaultney v. Nolan, 33

Miss. 569. was brought against the coadministrator, and execution returned unsatisfied, where

If the joint executors are not liable for upon the action was brought against the the devastavit of each other, we see no satsurety on the original bond by the admin isfactory reason why one should not be enistrator of the coadministratrix and heir. titled to sue for his separate and personal The court held that he was entitled to re

claim. cover. Numerous authorities are reviewed The defendants urge as a reason that the by the court, and the underlying reasons up- plaintiff is thereby suing his own sureties, on which the decision is based are that the whom the law regards with peculiar tenderpurpose of a bond is to insure the discharge ness. It is true that sureties are, and of the duty reposed in the persons ap- should be, protected as far as possible, and pointed; that it was not intended to change that a principal cannot sue his sureties for the liability or relation of the persons ap- his own default. But if a several bond is pointed from that which existed independ- equivalent to a separate bond it follows that ently of the bond; and that joint admin- in a separate suit the sureties are those of istrators are liable for joint acts and sever- the coexecutor pro hac vice, and hat they ally liable for their own acts.

are not sued by the plaintiff as his sureties The same rule has been applied to joint

or for his default. If, also, bonds are to seand several notes. In Beecham v. Smith, cure the beneficiaries of an estate, there is EI. BI. & El. 442. It was held that a maker of a joint and several note who was one of ficiary, who happens to be an executor,

no just reason why the interest of a benethe payees could sue a comaker on his several promise. Lord Campbell, Ch. J., said: should not be protected, as well as others, "The contract sued upon is the several con

from acts for which he is not chargeable. tract of the defendant, and the fact that it is said that he should not be able to sue, there is also upon the same instrument a

because, being a coexeoutor, he has the duty joint contract by the three makers is no de- and opportunity to know what is done, fense.” Coleridge, J., said: "Practically which a mere creditor or other beneficiary there are three promissory notes signed by does not have. There is force in this arguthree different parties, and the note declared ment, and a court should hold an executor on is not that signed by the plaintiff, to clear proof of diligence and good faith but that signed by the defendant.” To the on his part. Still, two executors cannot same effect is Faulkner v. Faulkner, 73 Mo. always have possession of money at the 327.

time. Sickness, absence, or other In State ex rel. Wyant v. Wyant, 67 Ind. causes may prevent one from having con25, where the statute required separate stant oversight; and in such a case it would bonds, but the administrators executed a be hard law, as between the two, to deny a joint and several bond, the court construed remedy to the innocent against the guilty. it as separate bonds, and sustained a suit we fail to see why the beneficiary may not by one against the other administrator and

sue the executor in default, although, by sureties. While the case is largely con

virtue of the bond, both might be sued by trolled by statute, it is nevertheless in point upon the question whether an administrator

a creditor or legatee. Thus, the relation of can sue his coadministrator on his several executors is preserved between themselves obligation. In Pringle v. Pringle, 130 Pa. and as to creditors; due effect is given to 565, 18 Atl. 1024, an executor was allowed the form and obligation of the bond; only to sue, as an individual, his coexecutor, who the one in default is held to answer; and had received all the assets, for a debt due the rights of all beneficiaries are protected. from the testator to him. It was not a suit We think that this result is best sustained on a bond, but it is in point to show that an in reason and authority. executor is not, by virtue of his office, de

The deinurrer to the declaration is over. barred of a personal right.




Fannie C. HARRINGTON et al., Respts., obliged to cross, and in failing to attempt to

stop when he discovers one approaching, are

questions for the jury. LOS ANGELES RAILWAY COMPANY, 9.

A person negligently causing an inAppt.

jury may be guilty of wantonness if he acts recklessly, without regard to the rights of

others. (140 Cal. 514.)



1. The rule that a person operating

(October 8, 1903.) street car has a right to assume that one approaching the track will not place himself on it at such a time as to

of the Superior Court for Los Angeles be injured by the car does not apply where persons engaged in a bicycle race are seen County in favor of plaintiffs in an action approaching the track along a narrow path brought to recover damages for the alleged at such a distance from the car that, even negligent killing of their intestate. Afshould they discover its approach, it is doubtfirmed. ful if they could stop or leave the path in

The facts are stated in the opinion. time to avoid collision with the car. 2. A street car company is liable for

Messrs. Bicknell, Gibson, & Trask, the death of a bicycle rider racing in for appellant: city streets in violation of an ordinance, The conduct of the motorman cannot poswhere the motorman, knowing that he is in sibly be brought within the rule which experil, drives his car forward onto the narrow

cuses contributory negligence upon the part path by which the rider must cross the tracks when he might have stopped the car and let of the person injured. him pass in safety, while the rider, after dis

Bolin v.

Chicago, St. P. M. &0. R. Co. covering the presence of the car, does all he 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. can to avoid a collision, but is unsuccessful, 446; Tesch v. Milwaukee Electric R. & Light and is killed by colliding with the car.

Co. 108 Wis. 593, 53 L. R. A. 618, 8. To bring one within the operation

of the rule that one having the last 84 N. W. 823; Watermolen v. Fox Rivclear chance to avoid an injury is

Electric R. & Power Co. 110 Wis. liable for it, notwithstanding the negligence 153, 85 N. W. 663; Hager v. Southof the person injured, it is not necessary that ern P. Co. 98 Cal. 309, 33 Pac. 119; Murphy he should know that injury is inevitable if

v. Deane, 101 Mass. 455, 3 Am. Rep. 390; he fails to exercise care, but it is enough if the circumstances known to him are such as

Holmes v. South Pacific Coast R. Co. 97 Cal. to convey to the mind of a reasonable person 161, 31 Pac. 834; O'Brien v. McGlinchy, 68 a question as to whether the other person will Me. 552. be liable to escape the threatened injury.

“Reckless” and “wanton” are not synony. 4. Ruling out a question to a motor

mous. Recklessness is an element in wanman whose car collided with a bicyclist as to whether or not he would have tonness,—at least an extreme degree of reckmoved his car forward if he thought that he lessness is; but it is not the only element. was endangering life is not reversible error, Wantonness includes, besides, an element of where he is subsequently permitted to testify moral turpitude which is not involved in that he thought that by so doing he would

mere recklessness. avoid a collision, and that it would be dangerous to stop.

28 Am. & Eng. Enc. Law, p. 594. 5. Intent to injure is


On petition for rehearing. to render one liable under the rule that he is Messrs. Dunn & Crutcher, also for apresponsible for an injury who has the last pellant: clear chance to avoid it.

The decision of the department erroneous6. That a person who has negligently

placed himself in peril negligently ly holds the doctrine of "last clear chance” fails to discover that fact does not re applicable to the facts in this case. This lieve one who, knowing of the peril, negli- court has always confined that doctrine to gently injures him, from the operation of the cases where the negligence of the plaintiff rule that the one having the last clear chance and defendant is distinct and independent.

to avoid an injury is liable for it. 7. A party cannot complain of the

Holmes v. South Pacific Coast R. Co. 97 court's modification of an instruction to Cal. 161, 31 Pac. 834; Everett v. Los which he is not entitled.

Angeles Consol. Electric R. Co. 115 Cal. 8. Whether or not one participating 105, 34 L. R. A. 350, 46 Pac. 889, 43 Pac.

in bicycle races which are part of 207; Seyo v. Southern P. Co. 137 Cal. 405, the festivities of a holiday is guilty of

70 Pac. 279. negligence in failing to look out for the approach of street cars on a track which he is Having failed to look, Harrington was NOTE.—As to doctrine of last clear chance, just as negligent as if he had looked and

seen. see also Bogan v. North Carolina C. R. Co. 55 L. R. A. 418, and note.

Glascock v. Central P. R. Co. 73 Cal. 137,


17 Pac. 518; Carlson v. Atchison, T. & S. F. "If it is even fairly debatable” whether R. Co. 66 Kan. 768, 71 Pac. 587; Dwajakow- Harrington acted with ordinary prudence, in ski v. Central R. Co. (N. J. L.) 55 Atl. 100; the light of his knowledge, after discovery Judge v. Elkins, 183 Mass. 229, 66 N. E. of his danger, the question was one for the 708; Wilman v. People's R. Co. (Del.) 55 jury, and is not determined by the result Atl. 332; Keenan v. Union Traction Co. 202 which befell him. Pa. 107, 51 'Atl. 742; Hackney v. Illinois O. Liverpool, L. & G. Ins. Co. v. Southern P. R. Co. (Miss.) 33 So. 723; Shatto v. Erie R. Co. 125 Cal. 434, 58 Pac. 55. Co. 59 C. C. A. 1, 121 Fed. 678; Rich v. Harrington had a right to assume that Evansville & T. A. R. Co. (Ind. App.) 66 the motorman would heed the signals and N. E. 1028.

stop the car. It would have been, all the Mr. Charles L. Batcheller, with circumstances considered, a highly reasonMessrs. Hunsaker & Britt, for respond able supposition, and whether it might propents:

erly be indulged was, at least, a question Although the deceased by some degree of for the jury. negligence, perhaps, placed himself in a po- Weingarten v. Metropolitan Street R. Co. sition of peril, yet the defendant's agent, the 62 App. Div. 364, 70 N. Y. Supp. 1113. motorman, was aware of the danger, and did There was no "contemporaneous and acnot exercise ordinary care to protect him. tive negligence of Harrington” for the conThe liability of defendant for Harrington's clusive reason that the motorman had the death, follows as matter of law.

last clear opportunity to avoid the accident. Esrey v. Southern P. Co. 103 Cal. 541, 37 Williams v. Delaware, L. & W. R. Co. 155 Pac. 500; Herbert v. Southern P. Co. 121 N. Y. 158, 49 N. E. 672; Esrey v. Southern Cal. 227, 53 Pac. 651; Fox v. Oakland Con- P. Co. 103 Cal. 541, 37 Pac. 500; Cooley, sol. Street R. Co. 118 Cal. 55, 62 Am. St. Torts, 2d ed. p. 811; Beach, Contrib. Neg. Rep. 216, 50 Pac. 25; Cunningham v. Los 2d ed. $8 24, 25, 33 ; *Fox v. Oakland Consol. Angeles R. Co. 115 Cal. 561, 47 Pac. 452; Street R. Co. 118 Cal. 55, 62 Am. St. Rep. Williams v. Southern P. R. Co. 72 Cal. 120, 216, 50 Pac. 25; Bishop, Non-Contract Law, 13 Pac. 219; Crowley v. City R. Co. 60 $$ 462, 463; Meeks v. Southern P. R. Co. 56 Cal. 628; Schierhold v. North Beach & M. Cal. 513, 38 Am. Rep. 67; Schierhold v. R. Co. 40 Cal. 447; Needham v. San Fran- North Beach & M. R. Co. 40 Cal. 447; cisco & 8. J. R. Co. 37 Cal. 409; Maumus Crowley v. City R. Co. 60 Çal. 628; Broun v. Champion, 40 Cal. 121; Lemasters v. v. Lynn, 31 Pa. 512, 72 Am. Dec. 768; RichSouthern P. Co. 131 Cal. 105, 63 Pac. 128; mond v. Sacramento Valley R. Co. 18 Cal. Shearm. & Redf. Neg. $ 99; Cooley, Torts, 351; Kline v. Central P. R. Co. 37 Cal. 406, p. 674; Bishop, Non-Contract Law, $$ 466, 99 Am. Dec. 282; Fernandes v. Sacramento 467; 1 Thomp. Neg. Rev. ed. 1901, § 207; City R. Co. 52 Cal. 45; Inland & Seaboard Valin v. Vilıcaukee d N. R. Co. 82 Wis. 1, Coasting Co. v. Tolson, 139 U. S. 551, 35 L. 33 Am. St. Rep. 17, 51 N. W. 1084; Kansas ed. 11 Sup. Ct. Rep. 653. P. R. Co. v. Whipple, 39 Kan. 531, 18 Pac. If the plaintiff is acting in violation of a 730.

statute or ordinance at the time of the acciNegligence is the omission to do some i dent, and such violation proximately conthing which a reasonable man, guided by tributes to the injury, he is guilty of conthose considerations which ordinarily regu- tributory fault, and is as much debarred late the conduct of human affairs, would do, from recovery as in other cases of conor doing something which a prudent and tributory negligence. But, if such violation reasonable man would not do; it is not abso- did not so contribute to the injury, it is no lute or intrinsic, but always relative to defense. some circumstauces of time, place, or person. Shearm. & Redf. Neg. § 104; Hall v. Rip

Needham v. San Francisco & S. J. R. Co. ley, 119 Mass. 135; White v. Lang, 37 Cal. 423.

Mass. 598, 35 Am. Rep. 402; Steele v. BurkIf the danger be great and threatening, hardt, 104 Mass. 59, 6 Am. Rep. 191; then a high degree of skill and care is Neanow v. Uttech, 46 Wis. 581, 1 N. W. requisite in order to avoid or prevent it; and 221. in case of great danger great care and caution will be but ordinary care.

Angellotti, J., delivered the opinion of Brown v. Lynn, 31 Pa. 512, 72 Am. Dec. the court: 768.

This action was instituted by the plainIt is the duty of the motorman of an elec- tiffs, the widow and minor children of Artric car to use great care to avoid injury thur E. Harrington, deceased, for damages to a wheelman in a public street,- -even if alleged to have been sustained by them by the wheelman is himself negligent.

reason of the death of deceased, which death Louisville R. Co. v. Blaydes, 21 Ky. L. was alleged to have been caused by the neg. Rep. 480, 51 S. W. 820.

ligence of defendant. A verdict was ren

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