Page images

larizing, or cven, in special cases, for the purpose of correcting crroneous allegations therein, it can never be resorted to to supply the omission of a material allegation.

III. In Equity':-The rule in cquity is that exhibits become part of the plcadings, and serve to help out allegations therein, in case they do not give some necessary particulars of the writing esiibited, or do not state its effect with accuracy : Brown 2'. Roluyne, 16 Ga. 67; Bolton v. Flourncy, R. M. Charlt. (G...), 12; ; !!intier z'. Branch Bank of Mobilc, 23 Ala. 762; Suryet v. Byers, i Hempst. 715; Armitage a'. Wickliffe, 12 B. Mon. (ky:). 188. As a corollary such an exhibit will, on demurrer, control tinc allcgations of the complaint: Buckner v. Davis, 29 Ark. 447. Yet, if the bill show a cause of action on its face, the court will not look to the exhibit for the pur. pose of contradicting its allegations, and so making a demurrer effective: Terry v. Jones, 44 Miss. 540; Holman r'. Patterson, 29 Ark. 357

Some few cases have controverted this vicw. In King v. Trice, 3 Ired. (X. C.) Eq. 568, it was attempted to assimilate the cquity rulc to that of the common law, and it was held that the contents of the exhibit should be set out sufficiently in the pleading to which it is attached. “The purpose of annexing cxhibits is not to enable the pleader to make the pleadings mere skeletons, not in theniselves containing the facts and points in controversy, but to obtain an admission of their genuineness from the other side, and for greater certainty as to their contents, and as aiding in the construction from the context." So, in Buck v. Fisher, 2 Colo. Ty. 182, it was held that complainants who suc as representatives of an estate should show that they are such in the bill, and it is not sufficient that the fact should appear in an exhibit attached thereto. This may be true of a fact in which the right to maintain the action depends; but in regard to any other facts the equity rule undoubtedly is, as shown by the cases cited above, that an exhibit beconics part of the pleadings, and will aid them, not merely by explaining and supplementing them, but by supplying omissions therein.





Pirsons riling in private achichis, ctc., at irritation of owner.

The Supreme Court of Montana in Whittaker v. City of llelena, 35 Pac. Rep. 904, has recently added itself to the few courts which uphold the crroncous doctrine that a person who is riding in a privatc vehicle at the invitation of the owner is chargcable with the contributory negligence of the latter. This decision is not supported by any independent reasoning, but rests wholly on the authority of Prideaux v. Mineral Point, 43 Wis. 513. That case argues the matter as follows:

Onc voluntarily in a private conveyance voluntarily trusts. his personal safety in the conveyance to thc person in control of it. Voluntary entrance into a private conveyance adopts. the conveyance, for the time being, as one's own, and assumes the risk of the skill and care of the person guiding it. Pro hac vice, the master of a private yacht, or the driver of a private carriage, is accepted as agent by every person. voluntarily committing himself to it."

This case, however, stands almost alone, and is opposed to an overwhelming weight of authority, as was clearly shown by an annotation on this very subject in Vol. 32 of this MAGAZINE, p. 763; and is morcover opposed to every principle of law and justice. One person cannot be held responsible for thc acts of another unless there is some relation between them that will make thosc acts in legal effects the acts of the fornier. The only relations that have this csscct are those of principal and agent, including master and servant, and that anonymous relation, akin to conspiracy in criminal law, which exists between those engaged in the prosecution of a joint enterprise, and by which each, though cqually a principal with the others is also, to all intents and purposes, the agent of each of them.

It is manifest that this latter relation cannot cxist between the driver of the vehicle and the one who rides in it at his invitation. That point has never been scriously urged, and could not well be, in face of the plain facts. Nor is it much more reasonable to hold that the driver is the agent of the one riding with him. In order to constitute the relation of principal and agent, there must be a right in the former to control the latter. A free agent has no principal, And in cases like the one in point it will hardly be contended that the passenger, as we may call hini, has any right to control the motions of the driver. He may remonstrate, he may refuse to ride with him, he may, in short, use any and all means of persuasion at his command, or even use words of control, but the driver • is under no obligation to obey him, and it is this obligation to obey that constitutes control in the legal sense.

There is no trust in the acceptance of an invitation to ride that will exonerate another whose negligence contributes to the injury. It is difficult to see what is mcant by the word trust in such a connection. Neither does the rider accept the conveyance for the tinie being as his own, for this implies control, and there can be no control from the very nature of the case. It would be much more reasonable to hold that the hirer of a public hack or cab adopted that conveyance as his own, and in fact the hirer in such casc docs cxcrcise some control, at least as to his destination. But in this latter case, the mcrc fact of hiring, by the almost unanimous assent of the authoritics, docs not make the driver the agent of the hirer; and this doctrine has been affirmed by the Supreme Court of the United States : Littlc w. Hackett, 116 U. S. 366.

A fortiori, then, one who rides in a privato conveyance on invitation cannot in any sense of the word make the conveyancc his own, or make the driver his agent. To quote the language of a well-considered casc, onc on all fours with the casc under discussion, and in which the whole ground was carcfully reviewed, “where, as in this case, the passenger has no control over the driver, and docs not own the vehicle, and is without blame, and there is no ground in truth and reality for holding him to be the principal or master, there is neither

rcason nor justice in holding him bound by the contributory negligence of the driver:" R. R. 7. Llogeland, 66 Md. 149.

There is the additional consideration that there has never been an attempt to extend this doctrine to the case of direct negligence on the part of the driver. Yet a master is responsible for the negligence of the driver of his own carriage; and is the driver is the agent of the invited passenger for contributory negligence why not for all other purposes? “It is a poor rule that won't work both ways," as the author of the annotation herctoforc alluded to very justly remarks; and that maxim applies with great force to the present case. Certainly, to hold that the driver is an agent for one purpose, and not for another, is inconsistent to a marked degree, and would secm to betray a consciousness of the inherent weakness of the former position.

The question, therefore, does not seem to have had full presentment or consideration in the Montana Case; and it is to be hoped that when it comes before the court again, if that should happen, that the present decision will be overruled, and a doctrinc announced more consonant with authority, with reason and with justice.

The forcgoing remarks apply only to the imputation of nogligence as matter of law, resting on the relation between the parties. The passenger may be negligent on his own part, by riding with a driver known to be reckless or in a vehicle known to be unsafc, by not keeping a proper lookout for danger, or by encouraging the driver to expose them both to risk. But these are wholly different considerations, and do not apply to or affect the question of imputation.



Trustee cx-malificio following trust funds.

An interesting opinion was handed down by the Supreme Court of the United States in January last in the case of Angle v. Chicago, St. Paul, etc., Ry. Co., reported in 151 U. S. 1.

Inglc had contracted with what the opinion calls the Portgage Company to complete the construction of its road within a time specified by the Legislature of Wisconsin as a condition upon which a certain land grant to the company depended. He was pushing the work vigorously and apparently, would undoubtedly have finished it within the specified time. A rival company, called the Omaha Company (the dcfcndan:), was desirous of securing the grant for itself and by outragcous frauds compassed its designs by inducing the Legislature to pass an Act before the time allowed the Portgage Company had cxpired revoking, the grant to that company and bestowing it upon the Omaha Company. The result of their cfforts was that Angle's work was arrested, his material seized by the creditors who were supplying them, his laborers scattered and all profit which he would have received was lost to him. He thereupon sued the Portgage Company in an action at law. and obtained judgment, and upon execution being returned nulla bona, hc filed his bill in equity to reach the land in question in the Omaha Company's hands. The defendant filed a dcmurrer to the bill, the cffect of which was to admit the fraud and conspiracy charged, i.e., that thc officers of the Portgage Company had been bribed by the Omaha Company to betray their trust by placing the entire outstanding stock of the former under the control of the latter, and that the Legislature had been induced by false allegations as to the progress of the work to revoke the grant to the Portgage Company and to bestow it upon the Omaha Company. The defendant relied upon the Act of the Legislature as a bar to subjecting this land which had been given to them to the debts of the company from which it had been taken away. The argument was that to allow the plaintiff to recover was to impeach thc validity of the Act contrary to the established rule that whenever an Act of the Legislature is challenged in court the inquiry is limited to the question of power, and does not extend to the matter of expedicncy or the motives of the legislators, or the rcasons which were spread before them to induce the passage of the Act, a rule which rests upon the principle of the independence of the

« PreviousContinue »