Irving Browne Isaac Grant Thompson.

The American reports: containing all decisions of general ..., Volumes 1-12 online

. (page 32 of 51)
Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 32 of 51)
Font size
QR-code for this ebook


cannot give vitality to the judgment. lb.

66. A resident of Mexico married a wife in Texas, and took her to his

home. She resided with him for two years, when she came to Texas and insti-
tuted proceedings for divorce against him for cruel treatment. He appeared
and defended. Held^ that the divorce might be granted, although similar
causes might not be ground for divorce in Mexico. 1870. Shreek v. Shreek
(82 Tex. 678), V, 261.

67. Bffsot of d«oree in oth«r 8tat«s. A husband deserted his wife in Ohio,
where both parties, up to the time of the desertion, were domiciled, and where
she remained. To a petition by the wife for divorce and alimony, the husband
set up a decree of divorce obtained by him in Indiana, under proceedings in
compliance with the statutes of that State, but in which there was no jurisdic-
tion of the person of the wife except by constructive service, and of which she
had no actual notice. Held, that her domicile remained unaffected by the
desertion of the husband, and that the decree was no defense to her petition
for alimony. 1869. Cox v. Cox (19 Ohio St. 602), U, 416.

68. Where a husband and wife were married in Massachusetts, and the

husband went to Dlinois and filed his bill in equity, and the wife appeared and
put in an answer denying the equities of the bill, but afterward, by collusion



Digitized by



Google



244 MARRTAGR

a decree of divorce was entered as though no answer had been interposed, the
divorce is valid in New York» and the wife is entitled to many again, 1871.
mnnier v. Kinnier (45 N. Y. 585), VI, 182.

69. Where a person, a resident of this State, went into another State

for the purpose of procaring a divorce from his wife, who was, daring all the
time, a resident of this State, and was never served with process nor appeared
in the action, Tield, that the decree so obtained was void, and that the record of
the judgment was not conclusive as to jurisdiction. 1871. Bbjftnan v. Hoffman
(46 N. Y. 80), VII. 299, and note, 802.

60, To an indictment for bigamy defendant set up a divorce obtained

by his first wife in Indiana. The record in the divorce case recited that the
parties were residents of Indiana. Held, (1) that the evidence was admissible
to show that they were not such in fact ; (2) that if the parties were not such
residents the divorce was void and no defense to the indictment. 1872 People
V. DaweU (25 Mich. 247), XII, 260, and noU, 274.

61. Alimony pending action. In an action for divorce, brought by one claim-
ing to be a wife, KUmonj pendente lite, and an allowance for expenses, will not be
allowed, where marriage in fact is denied by the answer, until the actual exist-
ence of the marital relation is proved or admitted. In passing upon the ques-
tion of a marriage, however, the court is not confined to the allegation of the
complaint and the denial of the answer. If the matter contained in other
papers, or shown by legitimate proofs, make out, in the jud^^ent of the court,
a fair presumption of the fact of marriage, it has the power to grant .alimony,
pending the action, and expenses of the action. 1872. BrinkUy v. Brinkley
(50 N. Y. 184), X, 460.

62. For the purposes of an application for temporary alimony, etc, the

fact of marriage need not be so conclusively established as is required for obtain-
ing permanent alimony. If the plaintiff makes a reasonably plain case of the
existence of a marriage, although it is denied by the defendant, she should be
furnished with the means of temporary support and of conducting the suit,
until the truth or falsity of her allegations can be ascertained by the truths
formally taken in thet»se. /&.

63. When the facts undisputed are such as that, from them, a presump-
tion arises that the parties were married, so that the afl9rmative rests upon the
defendant to repel that presumption, the court has jurisdiction and power to
grant temporary alimony and expenses, although marriage in fact is denied,
and the opposing papers show facts irreconcilable with the existence thereof,
or of matrimonial cohabitation, lb.

64. A denial, in the answer, of an allegation in the complaint that the

plaintiff was, at the time of exhibiting her complaint, an actual resident of this
State, does not, of itself, take, from the court the power of awarding temporary
alimony and expenses. Neither will an allegation in the answer that the plain-
tiff had. before bringing the action, brought another action for the same canse,
against the defendant, in a court of another State, which is still pending, have
that effect, lb.



Digitized by



Google



MARRIAGE. 245

66. When may be granted to wife after it hat been decreed to hniband.

Where the husband has already obtained a diyorce, the coart maj, in its dis-
cretion, grmt a like divorce to the wife for the purpose of making an andllarj
decree, securing to her proper portions of the common property. 1870. StilpTien
V. StUphm (58 Me. 608), IV, 805.

66. Impotency. When the wife Is possessed of an organic defect rendering
coition imperfect and conception impossible, which defect existed at the time
of the marriage, and is conceded to be permanent, the marriage contract is void
ab initio, on the gronnd of impotency, and a deed of separation volnntarily
entered into by the husband and wife will not bar a subsequent application by
the husband for a divorce a vinculo on the gronnd of such impotency. 1870.
J. G, V. H. (?. (88 Md. 401), UI, 188.

67. Desortion. The fact that a husband has for more than five years inten-
tionally abandoned all matrimonial intercourse with his wife, against her con-
sent, and has refused her his companionship and the protection of his home, is
sufficient to entitle her to a divorce for desertion, notwithstanding the husband
has from time to time contributed to her support. 1870. Magrath v. Magrath
(108 Mass. 577). IV, 579.

68. Decree may be vacated for fraud. A man obtained a divorce from his
wife, at a former term of the court, by false testimony, on a libel of which she
had no actual notice, knowledge of which he fraudulently kept from her and
of which the court had only apparent jurisdiction founded on his false allega-
tion of domidle. ffeld^ that the court had power to vacate the decree of divorce.
1871. Bdion v. 3Uon (108 Mass. 500), XI, 898.

69. Courts have the same power over Judgments in divorce suits as in

other cases, and will vacate and set aside a decree that has been obtained by
fraud or imposition. 1871. ^dam# v. ^dawjw (51 N. H. 888). XII, 184.

70. Divorce by special statote. A special statute authorizing a court to
decree a divorce between parties named, which, under the general law, the
court had no power to do, is unconstitutional, as granting a special exemption
from the general laws. 1870. Simondi v. Simondi (108 Mass. 572), IV, 576.

71. Writ of supplioavlt. Where a person has ground for a divorce a met%9a
because of ill treatment, a writ of supplicavit will not be granted although the
petitioner has conscientious scruples against applying for a divorce. 1868.
Adam v. Adam (100 Mass. 865), I, 111.

VI. Dower.

72. In mortgaged premises. Where the wife unites with the husband in a
mortgage of real estate belonging to him, and the property is sold under a
decree of foreclosure, she is entitled to dower in the surplus only after the
payment of the mortgage. 1869. Bank of Commerce v. 0%mm (81 Md. 8d0).
1.60.

73. Where the purchaser of the equity of ledemptSon redeems the

property, the widow is only entitled to dower by eontribntlng her portion of
the mortgage debt. Jb,



Digitized by



Google



246 MAREIAGE.

74. The wife's inchoate right of dower, in lands, which were mortgaged

at the time her husband became the owner thereof, ceases at the sale of the
lands, daring the life time of the hasband, onder a power in the mortgage.and
she is not entitled to a share in the surplus. 18^. Nev^uUlY, LynnFioeCenU
Savings Bank (101 Mass. 428). Ill, 387.

76. Where a husband purchased lands, giving his note as security for the
purchase price, and afterward, by his sole deed, reconvejed the lands to the
▼endor as a satisfaction of the notes, ?ield, that the wife's right of dower did
not attach. 1869. Hugunin t. Cochrane (51 lU. 802), II, 808.

76. Inchoate right — nature o£ Before the act of 1868-69 of the legislature
of North Carolina, a widow was entitled to dower in such lands only as the
husband should die seized of. By this act the law of dower was changed so
as to give the widow dower in all lands of which the husband was seised
during coverture. Held, that this act did not prevent a husband, married
before the act, from selling lands also owned before the act ; and that an agree-
ment to pay the wife a certain sum for her right of dower, on such sale, was
void as to creditors, for want of consideration. 1873. SuUon v. A$kew
(66 N. C. 172), VIII, 500.

77. Insane widow. The committee of an insane widow cannot elect for her
between a devise in lieu of dower and her dower without sanction of the court
1870. Kennedy v. Johnston (65 Penn. St. 451), III, 650.

78. Ralease of dower — eflEisct o£ If a married woman of sufficient mental
capacity, without duress or misrepresentation as to the nature of the instru-
ment, joins in a deed of her husband to release her dower, and suffbrs it to be
delivered to the grantee, she cannot afterward avoid it on the ground that she
was induced to execute it by fraud or undue influence of her husband, or of
another co-grantor, without showing that the grantee knew of or participated
in the fraud. 1871. White v. Graves (107 Mass. 825), IX, 88.

79. A wife, for the purpose of releasing dower, joined in her husband's

conveyance, which the grantee failed to record. Afterward a subsequent
creditor of the husband recovered judgment against him, and the land so con-
veyed was sold on execution. Held, that, though the prior conveyance wis
thus avoided, the right of dower was barred. 1870. Morton v. Noble
(57 111. 176), XI, 7.

80. Dower is not barred by the wife's release executed by joining in

her husband's deed which is afterward set aside as fraudulent and void against
creditors. 1872. Jfa«<m<5y v. 5bran (49 N. Y. Ill), X, 385.

81. A deed of premises from a husband and wife to a third party, and

a deed of the same premises back to the wife, were set aside as fraudulent ae
to creditors. Held, that the wife's inchoate right of dower was not merged in
the greater estate acquired by the last conveyance. lb,

82. At common law, adultery was no bar of dow«r, and, by the statute of
Westminster (18 Edw. 1, 1, c. 84), elopement or departure by the wife willingly
from her husband, as well as adultery, is necessary to make the bar compleu
1869. EUder v. Beel (62 Penn. St. 808). I 414.



Digitized by



Google



MARRIAGE — MASTER AND SERVANT. 247

83. J. E., the hasband of A. E., after marriage, removed to another

dtate — A. E. not accompanying him. While there, he procured a divorce, on
the groand of the adultery of A. E. Subsequently, he became seized of certain
real estate in Pennsylvania, to which he- returned, and married another woman.
A portion of this estate was conveyed by him to J. R., who purchased in good
faith and without knowledge of J. E.'s prior marriage — the second wife join-
ing in the conveyance. In the meantime A. E. was living and cohabiting with
another man, claiming to be his wife. J . E.'s second Mrife having died, he
became reconciled to A. E., and lived with her. Upon J. E.'s death, A. E.
brought action for her dower in the real estate conveyed to J. R. Held, that
she was entitled to dower, and that she was not estopped from claiming the
same by reason of her acts and declarations, which could not have influenced
J. R. in the purchase. i6.

MASTER AND SERVANT.

I. LlABILITT OF MASTER TO THIBD PBR80NB.
IL LlABILITT OP MABTER TO 8EBTANT.

L LlABILITT OK MASTER TO THIRD FBR1M>N.

1. Th« tMt of a iiiast«r*B responriMMty for the act of his servant is,
whether the act was done in the prosecution of the master's business ; not
whether it was done in accordance with the instructions of the master to the
servant. When, therefore, the servant, while engaged in the prosecution of
the master's business, deviates from his instructions as to the manner of doing
it, this does not relieve the master from liability for his acts. 1872. Oaagrove
V. Ogdm(4B N. T. 25S), X,861.

2. For acts done in th« ooima of th« employment A master is liable
in a civil action for injuries occasioned by the unlawful act of his servants,
done under a mistake of facts, or a mistake of judgment upon the facts, in the
course of the business of the master, although the servant in doing the act
departed from the instructions of the master. 1871. Higgins y Watervliet
Turnpike and Railroad Company (46 N. T. 28), VII, 298, and note, 298.

3. Where the conductor of defendant's car, under a mistake of facts or

of judgment, wrongfully ejected plaintiff from the car, hdd, that the defendants
were liable. lb,

4. Defendant was the keeper of a gun store. His servant, a clerk in

the store, while engaged, during defendant's absence, in exhibiting a gun to
a customer, loaded it, contrary to defendant's orders. In so doing it was acci-
dentally discharged and shot the plaintiff, who was on the opposite side of the
street. Hdd, that the defendant was liable for the injuries. 1872. Garretten
V. Diunekel (50 Mo. 104), XI, 405.

6. In an action against the owner of a horse to recover damages for

injuries sustained by reason of the negligent riding thereon by his servant,
held, that the fact that the servant was, at the time of the injuries, engaged in
the general employment of a third person was not a sufficient defense, unless
the relation of such third person to the subject-matter of the business in which
the servant was at the time engaged was such as to give him exclusive control



Digitized by



Google



248 MASTEB AND SEBVAKT.

of the mean* and mAimer of aooomplishiiig it, and exdusTe diieetiQa of the
person emplojed therefor. 1860. KMbaU t. OuMkmam, (108 Umm. 194), IV, 538.

6. The pUuotiff; while riding on defendant's h or se-csr, vpon SnTixstioo

of the driTer sad ss a passenger without hire, was injniwi, witiioitt faoltoa her
part, through the negligence of the driver, in the coarse of his emplajmeat.
Held, that defendant was Uable. 1871. WOUm ▼. Middlmm BaOromd C0, (107
Mass. 108), IX, 11.

7. J. 8., the agent of defendants, was trayeUng for them under no par-
ticular orders as to the mode of traveling he should adopt. At W., without
disclosing his principals, he hired of plaintiA, who were UTerj-stable keepers,
a team and boggy. At St. M., while the horses were standing in front of a
store in which J. 8. was transacting bosiness as agent for defendants, the horses
took fright and broke the bridle hj which they were hitched, bat were caught
before any damage was done. The horses were then tied by a halter, which
was fastened around the neck of the near horse. J. 8. took the broken bridle
to a shop to be repaired, and after finishing his business at the store he under-
took to lead the team to the shop by the halter around the neck of the near
horse On the way one of the buggy wheels struck a stone, thereby causing
some paper boxes to be thrown out of the buggy and frightening the horses,
and J. 8. not being able to hold them by the halter, they broke away and caused
damage to the buggy, harness, and to one of the horses, for which action was
brought. Held, that J. 8. was negligent; and that defendants were responsible
for the damage resulting from his negligence. 1871. Pickeiu r, DiedUr (2i
Ohio 8t. 212), VIU, 55.

8. For willliil miscondnct of servant — damages. The plaintiff, a passenger
in defendants' railway car, gave up his ticket to a brakeman, who was author-
ized to demand and receive it. Shortly after the latter approadied plaintiff,
denied that be had received his ticket, and assaulted and grossly insulted him.
In an action against the railway company to recover damages, held that the
defendants were liable, and that plaintiff could recover exemplary damages.
(Taplst, J., dissenting on the question of damages.) 1869. Ooddard y. Grand
Trunk RaUway Co. (57 Me. 202). II, 39.

9. Plaintiff and wife were rightfully seated as passengers in one of the

cars of defendant, a common carrier of passengers. By the procurement and
order of the conductor, they were forcibly ejected therefrom* and thus received
injuries for which action was brought. Held, that defendant was liable, not-
withstanding the willfulness or wrongful motive of the conductor In doing the
act complained of. 1871. Passenger Railroad Co. Y.Toung (21 Ohio St. 518),
VIII, 78, and noU, 80.

10. Plaintiff was a passenger on the steamboat of defendants, common

carriers, when the steward and some of the table waiters wrongfully assaulted
and injured him. Held, that the defendants were liable. 1870. Bryant v.
Rich (106 Mass. 180), VUI, 811, and note, 816.

IL A passenger upon defendants' boat was assaulted and injured by an

officer of the boat. Held, that defendants were liable. 1871. Sheriey v. Bil
Ungs (8 Bush. Ky. 147), VIII. 451.



Digitized by



Google



MASTER AND SERVANT. 249

la. The plaintiff, a paasenger on defendants' road, applied to the baggage

master to have his trunk checked, which not being promptly done, the plaintiff
became angry and used threatening and abusive language, whereupon the bag-
gage master seized a hatchet and struck him. Held,thB,i the company was not
liable. 1869. The LUiU Miami Railroad Co. v. Weimore (19 Ohio St. 110), II, 878.

13. Plamtiff was a passenger in a street car, and, wishing to alight, passed

out upon the platform and asked the conductor to stop the car, telling him that
she would not get out until the car had come to a full stop ; whereupon he, and
w&ile the car was in motion, threw her from the car with great violence, break-
ing her leg. Held, a wanton and willful trespass, for which the company was
not liable. 1871. leaace v. The Third Avenue Bailroad Company (47 N. T.
122), VII, 418, and note, 428.

14. The conductor of a street railroad car was authorized by the com-
pany to remove every passenger fh>m the car who should refuse to pay the
fare. While attempting to remove plaintiff, a paasenger, for non-payment of
fare, the conductor struck him in the face, for which he brought action against
the company. HM, that the company was liable, if the jury should find that
the act was without malice or ill feeling toward plaintiff. 1872. Jaek$on v.
The Second Avenue Railroad Company (47 N. T. 274), VII, 44a

16. A was the owner of certain ]^remises, which he leased to B. Sub-
sequently A and his servant, C, attempted to enter upon the premises by force,
and, in the conflict which ensued, C shot B, who soon afterward died of the
wound. In a civil action by the representatives of B against A to recover,
under the statute, damages for the wrongful killing of their intestate, the
judge refused to charge that, ** If the jury believe that C fired the shot which
caused B's death, with the premeditated design to efllect his death, A is not
liable for his act." ^0^, error. 1871. iVoMr v. 2^sman (48 N. Y. 566), III, 740.

16. For use of unneoessary force. Where the ejection of a passenger fh>m
a railroad car is justified by his conduct, but the conductor uses unnecessary
force and violence in effecting it, occasioning injury, the company is liable.
1871. Higgine v. WatervUet Turnpike, ete,, Co. {46 N. T. 28), VU, 298.

17. A railroad company employed a contractor to construct, ** under the
general supervision of the chief engineer of the company/' a portion of its
road ; and the sub-contractors and their employees committed various trespasses
and Injuries on the lands of plaintiffs. Held, that the company, not having
directed the acts complained of, nor having any control over the persons who
committed them, and the injuries not being the natural result of the work con-
tracted to be done, plaintiff could not recover of the company ; notwithstand-
ing the statutes provided that the company should be liable " for trespasses
and injuries to lands and buildings adjoining, or in the vicinity of its road,
committed by a person in its employ or occasioned by its order." The statu-
tory provision does not embrace the acts of contractors. 1871. Baton v. Euro-
pean dt Northern RaQway Co. (69 Me. 620), VIU, 480.

18. A municipal corporation Is liable for the negligence of Its servants in
leaving unguarded an excavation In a public street whereby one Is Injured.
1869. Ofirer v. Worcester (102 Mass. 489), UI, 485.

32



Digitized by



Google



250 MASTER AND SERVANT.

II. LlABILITT OF MASTER TO 8BRYANT.

19. For negligence of oo-iervant Plaintiff's intestate was employed hj
defendant — a railroad company — as a common laborer, for the purpose of
loading and unloading freight cars. While thus engaged he was ordered bj
the depot superintendent to couple a freight car with other cars attached to' a
locomotive ; and, having to go between the cars for this purpose, tbe engine
was so carelessly managed that he was crushed to death. The duty of coupling
the cars was entirely different from that for which deceased was hired. HM,
that plaintiff could recover. 1869. Lalor v. Chicago, Burlington and Quine^
R.R. Co. (52 111. 401), IV, 616.

20. In an action by plaintiff against a railroad company to recover for

the death of the intestate, while in the employ of the company, caused by the
carelessness of an engine-driver, held, that the following instruction contained
the rule of law applicable to the case : *' If the jury believed, from the evi-
dence, that both the deceased and the engine-driver, at the time deceased was
injured, were in the employment of the railroad company, and that their ordin-
ary occupations in such service bore such relations to each other that the careless
or negligent conduct of the engine-driver endangered the safety of the deceased,
then such danger was incident to the employment of the deceased, and the
plaintiff cannot recover." 1870. Chicago and Alton B, B, Co, v. Murphy (53
111. 836), V, 48.

21. In an action against a railroad company, by a servant, for injuries

received in consequence of the negligence of a fellow servant, an engineer,
held, that if the company used proper care in selecting a competent engineer
they were not responsible for the injury to the fellow servant, who was aware
of the subsequent habitual carelessness of the engineer, unless actual knowl-
edge of such carelessness was brought to the officers of the company. 1870.
Davis V. Detroit and Milvoaukec B, R Co. (20 Mich. 105), IV, 864.

22. The conductor of a train of cars was injured in consequence of tbe

mismanagement of the locomotive by a fireman who had been placed in charge
of the engine by the agents of the company. In an action for damages against
the company, held, that they were responsible on the ground that they were
" negligent or unmindful of their duty in employing competent and skillful
servants in the execution of their business, and injury resulted therefrom to a
fellow servant." 1871. Harper v. 2%s Indianapolii and 8t. Louie B. B. Co,
(47 Mo. 567), IV, 853.

23. — Defendant, a corporation, employed a competent agent,' whose duty it
was to engage men for its service. The agent hired one W., as foreman, who
was competent and skillful at the time, but who subsequently acquired habits
of intoxication, which were known both to the agent and to the plaintiff. W.,
while intoxicated, directed two incompetent men to erect a scaffold, which they
did so unskillf ully, that, while plaintiff, an employee of defendant, was upon
it in the discharge of his duties, it fell, injuring him. In an action to recover
damages, held, (1) that defendant was chargeable with the negligence of its
agent in retaining W. in its employ after knowledge of his incompetency ;
,2) that it was a question for the jury whether plaintiff was guilty of contributory



Digitized by



Google



MASTER AND SERVANT. 25J

negligence in remaining in defendant's eeryice after knowledge of the incom-
petency of W. 1873. Laning v. If. T, Cent, R, B, Co. (49 N. Y. 521), X, 417.

24i A master is bound to use due care and diligence in the selecltion and

employment of his agents and servants, and for want of such care and dili-
gence he is responsible to all other servants for any damage that may thence
arise. 1872. Massy.Pao^fie R. R,Co.(4BMo,lQ7),yiU,126,

26. A minor son of plaintiff was killed while in defendant's employ,



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 32 of 51)