DALHEIM 'II. LEM6N.
it'to forwa!d it at once,'and, if'it were possible, without break,to its destination. If, in its transit, it were taken at some intermediate point by an agent of the telegraph company, who was also, at that point, an agent of the railway company, and operating the wires of both, it would, in the absence of any instructions, have been an unwarranted interference on his part with the government's right of choice, to have undertaken to make the change. It was not for him to determine which of its two subsidized systems was to be employed. He was bound to know that the message which had thus come over the wires of his company was being transmitted at special rates, and had no authority, by transferring it to another system, to alter those rates for any portion of the route; Which of the two systems it was. on the whole, for the best interest of the government to employ, was a matter to be determined by its agents; not by those oitha defendants. Nor does it seem reasonable to applyany different rule where the dispatch was delivered at a station on the line of the road where the operator was an agent of both companies. The presentation of the dispatch on a Western Union blank, (and also, in the case of prepaid messages, the payment of the special rate,) without any direction to use the railway system, was notice to him, which he could not disregard, to give to the message the advantages which accrued from its transmission by' the Western Union lines. Verdict directed for defendants.
(Circuit Court, D. Minnesota, Fourth, Division. Maroh 7, 181l1.)
MASTER AND SERVANT-INJURIES TO CONVICT EMPLOYE-CONVICT. LABOR.
In the ,year 1.888 the defendants entered into a contraot with· the state of Minnesota to erect,.a building forming part of the state-prison at Stillwater. In the ereotion thereof, by arrangement between the prison authorities and the defendants,·the labor .of the plaintilf, who was a conVIot in state-prison, was availed of, the benefit thereof going to the defendants. By the fall ofa scalfold on whi'Oh plaintiif 'waS standing while engaged in plastering the interior of the bUilding, the plaintilf,was injured, and, upon the expiration of his sentence, he brought suit . against to recover f(jr the injuries callsed by the fall of the scaffold. Held, that the provisions of the act of the legislature of Minnesota, approved March 8, 1887,forbidding the out of convict laboJ:, would not prevent the relation of master and servant from existing between the parties, if the defendl\Dts knowingly received the benefits of plaintilf'slabor; and that the fact that plaintilf. being a convict, was not entitled to compensation for his labor, was immaterial.
SAME-DAMA.GES-DISABILITY DURING PERIOD 01' IMPRISONMENT.
Held, further, that, so far as the injUry alfected plaintiff's ability to labor dur" lng the period of his imprisonment, he could not recover therefor.
At Law. A1·ctander & Arctander, for plaintiff. Fayette Marsh, for defendants.
SHIRAS, J., (oraUycharging jury.) In this case ofChitrles Dalheim Vll. F. A. Lemon lind others, composing the defendant firm, the plaintiff v,45F.no 4-15
vol. 45. reoover damagea'against:the him for iQjpries which he ,ca98OO to him by an ;8.c,qident in falling, fJ:(fp}ll-scaffold, which accident, iHs charged in, th 13 petition, was due to negligence of the defendan1:$. On the par,t,. of the defendants, negligence is denied, and it is &lao ,g,;\!erred upon their behalf that the himself contributed, by wapt of proper oare· upon his part, to this&:cident, and that he, therefore, cannot recover. You will see, gentlemen, that the case, therefore,.is one which ,is pased upon a charge of, negligence. In other words, the questions presented and to be determined by you turn upon these &llegations made by the respective parties Qf, against the defendants, and against the plaintiff. Before paasi,ug to the particular questions which the ;case presents, and which it ianecessary for you to consider and determine, perhaps it would be well for: me to advise you as to the rules of law that apply generally to cases ofmaster and servant, ar employer and employe.. The general rule is., as has, been stated by counsel in your,hearing, that an employer or master is.chargedwith the dutyoffurni,ahing the servant or employe a reasonably safe place and safe appliances in which and with which to do the work required, ,of him. The law requires the master or employer to exercise ordinary care to furnish ,a safe placen.nd safe appliancel!l. Now, what ilil meRI;lt ,by ordinary Cilre is that ll,mount of skill" prudence, and foresight that ordinarily prudent men should exercise under.,thelike circumstances;, and, where those circumstances are such that they may involve the life or limb of'human beings, the amount of skill and foresight that ordinary prudence requires should be exercised is greater that when human life or limb are not put in jeopardy. The general rule, however, is, as I have stated, that the master or employer is required to exercise ordinary prUdence; that degree of prudence and care that ordinarily prudent men should exerCise, underlike circumstances, in furnishing' a safe place and safe appliances for employe or servant to wQrk If the master fails in that, then he is in law deemed to be guilty of negligence, because Dl:lgligence is the fanure to exercise the degree of care and prudence which the law exacts under the facts of a given case. There is a correlative duty also placed upon the sen-ant or employe. He also is required to exercise upon his part the same degree of care,-that is, ordinary care; sl1ch a degree of care as an prudent man should exercise for his own protectipn.The masteror employer is nota guarantor, absolutely, of the safety ·of the servau.t or employe; It is not, therefore, sufficient in cases of this ,kInd for ,the plaintiff to show that he was in the employ of the defendant at a given time, thaHhe accident happened, into any employand that he received,aq !injury. " l;'ersons ment take' upon themselves the burden and risk of those hazards, risks, and dangers that ordinarily pertain to the business, when properly carried on. They do not assume the risks and hazards that are caused by the negligence of the master or employer. But they do assume all the risks and hazards that pertain to the business when it is carried on in an ordinarily,prudentvvay. Therefore, as 1 said to you in the opening, case that turns upon this question or charge of negligence.
.'.!. hALHEiMlI' 1.1£M&N.
"c'))naj>plying' tliesegenerlll rules to the clasebfcases: that we have before us:bere, there is" this modifidation or matter'that IS to:'be taken into acC(1)unt. As r have said, the duty and obligation is upon the m'aster to use "ordinary' care," as :1 have defined it to you, to furnish asufe place for the employe to work in.' If, for instance, iua given case, the work that is to be done is putthlgplastering upon:a building, or erecting a building, and' it: is necessary, in order to enable the employe W:reach the place where he has to do, the work, that a scaffold should be built for him tostn.nd upon, ord.ibllrlly the duty is upon the master to use :the degree of that I have named, to erectaproperand safe scaffold or place upon ,!hich the employe may place himself or stalid, wben·heis engagedih !the work that is required at his hallds. But, if it appears ina giveu"case tbat' the servant or the employe him. selfiis·tbe one 'who puts up the Ilcaffold,ol' engages in putting it up with others, so· that· he himself is responsible or in part for the characu,riof the 'scaffold, then, although it may turnout that the scaffold was aodthat there wasilegligencein putting it up, nevertheless if,under tbefacts- of a given 'case, it appears that the employe himself is responsible also, as well as the master, for this insufficient condition of the scaffold, then we have a case for the application of the rule of what is termed in law "contributory negligence," And that principle is this: that :the law does not attempt to separate the consequences, where an accident has occurred through the co-aeting negligence of two parties. If the defendant is negligent, and the plaintifi' also is negligent, and through the combined effect of the negligence of both parties an accident happens, then neither party can recover against the other. The law doell not undertake to separate out, or try to find out, who is in the greater fault or the lesser fault. But the principle of the law is that where the negligence of both parties contributes to the producing of the accident, then neither one can call the other to accouht, but each party must bear whatever the consequences may have boon to him of the particular accident. Therefore, as I have said, when in a given case the work that is to be done requires the erection of scaffolding, primarily the duty and obligation is upon the master to use ordinary care; that degree of care that should be exercised in the erection of a scaffold of that particular kind; to use ordinary care to see that it is erected, so that it will furnish areasonllbly safe place for the employe or servant to work upon. Then, upon the other hand, if in the given case it appears that in the erecting of the scaffold the employe himself was engaged in it, while in a general sense it is true the scaffold is erected for the master, and to be used in carrying out the business of the master, nevertheless, if the employe or servant himself was the one who put the scaffolding up, or aided in doing so, so that it was partly through his negligence that the scaffold was insufficient, then, as I have said, we have a case presented of what is known in law as a case of "oontributorynegligence/' and that would dafeat the right of the employe to recover; even though he may have r& ceived an injury by the scaffold falling down.
,In all cases, gentlemen, in which human testimony is brought before a jury, they are called upon to determine the credibility of the witnesses, rule is that, where and the weight of their testimony. And the witnesses are brought before you, you view their demeanor, their mode of testifying, their or want of frankness, whichever it may be, and you have a right to take into account the means of knowledge that they ,have. You have a right to take into account, in determining their credibility, what interest, if any, they may have, pecuniary or otherwise, i;o., the, event of the suit. You have a right to take into account the oircumliitailces that have been developed in the trial of the case before you thataffact the general character and moral reputation of the witnesses, as affecting their character for truth and veracity·. Therefore if, in a g\vencase, it appears that any of the witnesses who are brought before you have been convicted of a serious crime, that is a matter that parties are entitled to prove as a matter of fact before the jury, and it isforthejury to take that fact into account in determining upon the credibility of a But, taking into account all the facts and circumstances that have been developed in a given case, it is for the jury, applying and giving due weight to these considerations, to determine the credibility of the witnesses, and what weight is to be given to their testimony. In this particular case,. gentlemen, now on trial before you, there is no conflict in the testimony as to many of the facts. There is no conflict in the evidence, and it is not questioned between the parties that the defendants, as a firm, had a contract for the erection of the building that was Jrnown as the" Solitary Buildingj" or" Solitary-Cell Building," in the state-pIlison at Stillwater,in this state, and that this btlilding was in the process of erection in t4e month of October, 1888. There is no conflict in the evidence, and no dispute between the parties but that the plaintiff was at that time an inmate of the state-prison, being there serving out a sentence upon aconvicti9u, that had been 4litd against him in a courtJn this state. He was therefore. a convict; an inmate of the stateprison. There is no C9nflict evidence, either, gentltllnen, thathe was engaged about the 10th day of October, 1888, .at the time of ,the happening of this accident, in and about the plastering of this building, or the cells that were in it; this building that is spoken of as the "Solitary-CellBuilding." 'rhere is no conflict eithel1 in the evidence, gentlemen, but that at the time named he went upon the scaffold that was er(Jcted in that building; that the scaffold broke and fell down; and that the plaintiff fell through to the floor below, and xeceived an injury of greater or. less extent. Upon those matters, as I have said, there is really no dispute between the pl,trties. The first question in dispute is as to whether or not the plaintiff has made out the charge of negligencellgainst the defendants upon which he seeks to recover. Some question has been made in the course of the trial as to the relation which really existed between the plaintiff and the dewhether, or :no, under the facts and circumstances that surrounded the pa':ties, it could be .as a matter of law, that this reIa-
DALHEIM V. LEMON.
tion of master and servant or employer and employe existed, so that the general rule that I have already mentioned in your hearing could be held applicable to the case; and reference has been made to a statute that has been passed by the legislature of the state of Minnesota regulating convict labor,-a statute which in general terms was passed for the purpose of preventing labor from being contracted out to other parties, thus enabling them to obtain cheap labor, and thus get an advantage over other persons who are compelled to have their work done by laborers who were not convicts, and who are entitled to charge, of course, the full market price for their labor. But I charge you in this case, gentlemen, that this statute does not affect the case. The evil which was intended to be remedied by that statute is not a matter that is involved in this case. No matter what that statute may be, if in fact the relation of master and servant, or employer and employe, did exist between the plaintiff .and defendants, then their rights are to be determined by that fact, regardless of the existence of this statute. Now, gentlemen, assuming that you will find from the evidence that the defeudants were engaged in. this business of putting up this solitarycell building, and that in process of carrying on the work the necessity arose that they should have plastering done upon the walls of the building, then, if in the doing of that they directly, or through their agent or person representing them, procured the labor and services of the plaintiff, and the other convicts who were there, to go upon that building and do that work, and the work was done for the defendants, then the work that was done by the plaintiff and the other convicts that were working with him was done in carrying out the contract which the defendants had entered into for the erection of that building; and, if that was done with the knowledge of these defendants or the person who may have represented them in the doing of that work, those facts, if proven, would justify you in finding that the relation of employer and employe or mas':er and servant did exist between the parties at that time. . Some reference has beerimade to the fact that the plaintiff, by reason of his being a convict, had lost his right to charge for his services; to contract for pay, or to receive pay. It seems tome, as I have already said to you, that that cuts no figure in this case. It is not a question as to whether or no the plaintiff stood in such a position that he himself could directly receive the money value of his services. The relation of master and servant can be created by reason of the fact that the lIuts received the value of the labor of the plaintiff. If the relation was such that the work that the plaintiff did was received by the defendants f?x their benefit, then you see, really and in fact, the plaintiff was ing for the benefit of the defendants. Now, when that relation if one person is working for the benefit of another, and that other pertl':'ll is receiving the benefit of that labor, is going to receive it, and hi fact does receive it, that will create the relation of employer and employe; The case stands just as it would in the case of a minor. You know; that under the general principles of the common law a "on who is under age is not entitled to the proceeds of his labor l except-
.i,ng WJ:der certain ,mhe parent or guardian is the OIle who i,sentitled to receive pay for the services rel)Qered by:the minor. The minor cannot cillim it; cannot get the money. It must be paid over to the guardian or to the father. Yet it does not follow because a minor person goes intothe employ of another to work for him, although he cannot sue and recover for his wages, and although his wages would be, payable to somebody else, that40es not take the minor out from the protection of the law, nor relieve the master or employer from the duty that is imposed upon the master or employer of furnishing a reasonably safe plac.e for their employes to work. Therefore, gentlemen, this case is to be, viewed, as said to you, as all other cases are that arise the employer and the employe, orthe master and servant, provided you find under the evidence in the case that the plaintiff was engaged upon the work; under such circumstances as that the benefit of his labor went to the benefit and advantage of the defendants.. Assuming, then, that you will find under the evidence in this case that this relation did exist between the parties, then inquiry is, first, what was the. duty and oQligation that lay upon these defendants in regard to this scaffolding? The law upon that subject I ,have already given youi that if this work was to be done, if this plastering was requiredto be done upon the walls of this building, and the defendants were engaged ip. having it done, and if the circumstances were such as that their employes or their servants, those who were working for them, would have to have a scaffolding built for them to go upon in order to enable them to reach up upon the w1,ll1s, then primarily the duty was upon the defendants to use ordinary care to see to it that a reasonably safe scaffolding was erected. If they did use that ordinary care, did use ordinary skill and foresight in the putting up of thatscafiold, used proper materials in Quilding it, and built it in such a way as that it would be reasonably safe, if they did use that degree of care, and nevertheless the accident happened, then, as I have said, it would be an accident that was not due to the negligence ofthe defendants. It would be then what we call a "pure accident,," for which no person would be held responsible. If the evidence slJ,tisfies you that the defendants used all the care that they should have done,.,.-that is, used due care, ordinary care, in the selection of proper materials and the mode in which the scaffold was that is all that could be required of them, and the charge of negligence would not then be made out against them, and in that case your investigations need go no further,and your verdict must be for the defendants. If, however, the evidence satisfies you that there was not ordinary care used in the erection of the scaffold, that due care was not used in the selection of proper materials, and that the scaffold, when completed, .and the plaintiff and others went upon it, was not then in a reasonably safe conditioqto be by the plaintiff and others for the purposes for which they went upon it,-for carrying the weight of these people who were to be upon it, and of the material which was going to be upon it, and was in fact placed upon it, carrying the weight that it did carry,-then that would justify you in finding that the scaffold was
insufficient, and that there was negligence in erecting it in this insufficient condition. This duty, -gentlemen, of seeing that proper appliances are furnished, and proper places are provided in which to work, as, for instance, in this case, the erection of a proper scaffold, is one which the parties' whose work is being done cannot evade. The roaster cannot evade the duty by delegating it to some subordinate; some agent who represents hiro. For in that case the subordinate, or the agent, or foreman, or whatever name may be given to him, stands in the shoes of and represents the master himself, and the negligence of the subordinate, of the representative or of the agent, is in the eyes of the law the negligence of the master himself. Primarily it is the duty of the master to use this ordinary care, and if he delegates it to another party he is still hound to see to it that the otber person exercises the same amount 6f care. And if the person representing him fails in doing it, it is the same as though the master himself had failed directly in doing it. Then, gentlemen, if you find that the scaffold was insufficient, and that due care was not exercised in the putting of it up, and that from the use of improper materials, or for any other reason, it was not a sufficiently safe scaffold, so that thereby unnecessary risk and hazard was thrown upon those who were expected to go upon it for the purpose 'of performing the work that was expected of them, then the next question that comes up in the case is whether the piaintiffhimself participated in the erection of that scaffold under such circumstances as that he would be held guilty of contributory negligence, or that he had such knowledge of the character of the scaffold, and of the manner in which it was huHt,as that he would be held chargeable with contributory negligence' in using it 01' going upon it, under the circumstances tha.t have appeared in the evidence before you. Now, upon this question,asto whether the plaintiff himself aided in the erectionofthat sca.ffold, or controlled that matter, the parties are at issue before you, and it is for you to determine that question under the evidence in the case. On behalf orthe plaintiff it is claimed that he did not have supervision of the matter; did not have any control over the mode of erection of this scaffold; and that while he was in and about the building, at the time of the erection of it,-and he himself testifies, I believ.e, that he went down by direction of the agent, Richardson, and got some pieces of material which might be used in the erection of the scaffold, and' called the attention of Richardson to it, and so on, according to the testimony before you,-that he himself was not charged with the duty of erecting this scaffold, or of looking after it, and had really nothing to do with it. On behalf of the defendants, it is claimed, on the other hand, that the pla;intiff did have practically the control; that he and the others who w.ere working with him in erecting this scaffold selected out the pieces of timber that were put into it; that he had had experience as a plasterer before he went to state-prison,llnd, according to his own testimony upon the stand, he had been called upon frequently to build scaffolds, and knew generally about their character .arid the needs of tbesame; while the scaffold was,of course, erected for the defendants, and to be used in and about their business, nevertheless that the
plaintiff'himself participated ana aided in the building of the scaffold under such circumstances as that he must be held liable to have contributed to the insufficient character of it, so that he should be held to be guilty of contributory negligence. Now, as I have already said to you, gentlemen, a person who by his own negligence contributes to the accident by which he is injured cannot recover. His own negligence defeats his right of recovery, no, matter how negligent the other party may have beE(n. Now, what was the fact under the evidence in this case? It is for you to determine. If this plaintiff did not have anyto do with the erection ofthis scaffold, in the sense of having any direetion over it; did not participate in the erection of it, so that he (;night not to be held to have aided in the construction of it,-then, upon that 'particular ground, it could not be said that theoharge of contribuiorynegligence was made out againsthim. But, on the other hand, if you are satisfied, by a fair and reasonable preponderance of evidence, that i lll fact the plaintiff did aid in the erection of that scaffold, and in the. selection of the material that was in it, so that was one of the parties ,who built the scaffold insucb a sense that he knew about it, and would be held, therefore, in that seuse, directly responsible for the characterof thescaffold itself, that would justify you in finding that he was guilty o.fcontributory negligence, and that would defeat his right of recovery. Ji'urthermore, gentlemen, even though the evidence may not satisfy you that the plaintiff built the scaffold, or so participated in the building of the same as to be held guilty of contributory negligence under the rule that I have just given you, nevertheless, if the evidence satisfies you that he knew of the character of it, knew of its nature, then there is, another question for you to consider. As I have already said to you, there is always the duty placed upon the servant that he must exercise ordinary care for his own protection. If an employe comes to a scaffold that he would be required to go upon in the doing of his work, and if he knows that it is insufficient and risky, and that if he goes upon it he will suhject himself to risks. or hazards on that account, then, ordinarily', ifhe chooses to go ahead, with that knowledge, he is himself 'guilty of contributory negligence in that regard, because he has failed to exercise the degree of care that the law exacts of him. It will not do for a man to sim ply say: "Well, the master is responsible to me. I know this is an insufficient scaffold, arid there is danger of its falling dowll' but I will take the risks. If I am hurt, I can hold the master." That will not do. The law says to him: "If you know that that is an insufficient scaffold, and that there is danger to life or limb in using it, you ought not to use it or go upon it. If you do, you take the risks." Now, in :determining what the facts are in this case, under the relation of the. parties, as to the duty and obligation that the law imposes, you may take into consideration the circumstanees that surrounded the plaintiff. As I have already said to you, there is no dispute but that the plaintiff was a convict. Of.course he was not as free an agent in: illflnyrespects, to say the least, as. he would have been if he had not been a convict. Of course you Und(;lfstandthat) and it is not necessary
for me to elaborate upon it. He was there under charge and under control. Now, being under such control, if the scaffold was an insufficient one, and he knew it, but he was compelled, nevertheless, to go upon it, notwithstanding that knowledge, by the pressure which could be ariel was put upon him in fact, if there was obedience required of him by anyone there having a right to exact obedience, and he yielded to that and went upon the scaffold, then it would free him, you see, from the charge of contributory negligence, because he would not be a free agent. Because, if a man is compelled to go tnto a dangerous place, and does go, it would not be right to tum around and charge him with negligence in going,if he was not a free agent in that regard, and was forced to go. Is there anything, gentlemen, in the evidence in the case that satisfies you-while it is true that the plaintiff was a convict, and was there', therefore, under the control, of course, of the rules of the prison, compelled to obey the orders of the warden, the deputy-warden, or the guards Of persons who might be placed over him in that regard-is there anything in the evidence that satisfies you that that authority was in fact exeroised upon him at the particular time, so as to require him to go upon that scaffold at that time? You have heard the evidence in the case which has been adduced upon that point, and it is for you to say what the facts are. If the evidence satisfies you that the plaintiff knew of the insufficient character of the scaffold, knew of the bad material that may have been placed in it, if such material was placed in it, knew; in other words, that the scaffold was unsafe and insufficient for the purpose for which it was erected, and he then went upon 'it, then, as I have said to you,' that justifies ydu in finding that he would be gUilty of con:. tributory negligence. But the plaintiff has met that by saying that if he was required to go there by the exercise of authority upon him" why, tht'n, he should not be held liable for contributory negligence, and I ,charge you thatthat is the law. You are to determine, however, whether the fact is that that authority was in fact exercised upon him, or whether any option was given him. Was he working there just as though he was a free man, and not a convict, with that scaffold there before him? Was he there generally W do that work, to look after that plllstering, and therefore free to have gone upon that scaffold, if he had desired to; or to have objected to it"if he had desired to, or was he forced to go upon it simply by reason of the fact that here was this authority over him that compelled him to go, which he, under the circumstances, could not be expeoted to resist? These are the circumstances, gentlemen, that you must take into account, if you find that this scaffold was insufficient, and that the plaintiff knew it, in dett'rmining whether or not he shall be held guilty of contributory negligence in, nevertheless, going upon the scaffold under those circumstances. . I do not know, gentlemen; that there is any other light that I can give you, so far as the law is concerned, upon the pivotal facts in this case. You are the judges of the facts. You are to determine all tions of fact, including the ultimate question whether the verdict should be for the plaintiff or the defendants. Of course you understand that
in cllargingyou, if tIle 'court refers to Dlatters a&beil1g iacts, I do thafsiplply: .becauseI:am compelled to do it to illustrate the principles of law.that I havegiv(Jn you, and. that Ida not to you any opiriS:ol1!qpoIl the of fact. It is for you to settle all of fact iJ.1. the ease. If, unller the instr;uctions that I have $ivell;'Y:ou,.you. find,forthedefendants, of course all you have to say is to;S9:(i,nd. by your ·.... But if you find upon the. f/,lcts and the law, as PlloV&: given it tQ you, in favor of the plaintiff, then the further duty is upon you of. amount of damages that are to be to the plaintiff. In caseS. of this ,kind, the rule is oompensati0I1.. (The plaiotiffisentitled to be compensated, 1;lrst, for the pain and suffering which he has, l3u.ffered in the past, and which he may suffer in the. future, as a result. of the accident or injury thathereceivedj and alsoforits eft'ect upon his ability,tp earn ll,loneysinpe he left the peniqpto this time, and. wllateyer effect it. may have upon him in particular in the future.Youw:ill unqerstand, gentlemen, that 80 farM thatj;he injury he JPay.have .I;e,ceived may have had upon. ll.bility to lll.bor dming the term of llis, you cannot ,l;plPpimsate him '<;If that,becll:use"l\s has. beep. aaJd to you by counsel, he entitled to theWaglls he might earn. They·pelonged to the state ofMinpesofu.. 1 .'J'herefQre would be no pelos,S to tbe, tbathe W,flS deprived :gf ;his a!:?ility to earn that it, he would n()t have.S,?tJt ips no loss: to hipl peculliaril:y. to be deprived oOt. But, for the. pain and .s1,ltler,ing that he zpay hiL"e been subjected to' from : time' accident. to tbis tirpe,and which lllay be him future, tbat; er;ttitled to for. Tlwn b.e.is entitled to. be compensated: fairly for; thee,ffect that this inmay. have upon his abUity to earn money from left pp to the pl:eSl},ut time, and in the future.,. . in that,. gentlemen,: you ,will take into a(:couilt the.lige of the party and his llobility to Ip()lley, what ability wa&to earn money before he receiyedth19 inJulJ'!, and:wqatltis ability tq, e8(1,"Il mqney nO'Yis, in how I;quqh; bis abHity to earn money RY theinj1,lry which you rqay,find WIlS caused to him bythisaccidlilntol ,As yOUCl\llSee"gent).emen, in lit case of this kind, 'yqupave no e"idence before .you ·by whicb you can fix the exact amountofdaniages, or even approximate it. It is not like fignringup the caused toa party by the dEistruction of his property, where its. can be proved before you, !tis a mathas. be submitted to the sound comm.0n· sen,seand .good judgter ,qf a jury. Alld ;y<;m must into account /l.ll, tbe matters and contingencies that you know belong to af1aiJ:s·. No one can tell wjllJiw.Hurnan life is uncertain"'i .No 011e can tell ..wli1,efher, if this man .blid not received thieinjury, be would haye contip1,lfld to bEl able to earn the tbat.he has testified that he did earn ·before. There matters. Now, .. giving due weigbt to·them
all, and then you must fix upon such fair sum as in your judgment will fairly compensate the party' for the pain and suffering that he has endured, and may endure in the future, and for the pecuniary loss occasioned to him by the effect of tIllS accident upon his ability to earn money since the time that he left the penitentiary until the present time, and so far as it may effect his ability to earn money in the future.
(Circuit Court, 8. D. New York. February 2,1891.)
CUSTOMS DUTIES-APPRAISERS' ]}EOISION-REVIEW-RETUBlf.
On to reviewtl\e lloOtlon of the board of Kenem) appmlsers In the classification of imported merchandise, under Act Cong. June 10, 1890, "to simplify the laws in relation to the collection of the revenues," a return of such board, III which the only fact certi1iediathat",sUk is the component material of chief value,· is i!J.\Ipflicit\nt, and will be sent back for a further descriptiol1 of the articles.
At Law. Motion for further return of board of general appraisers under the ACt of June 10, 1890, entitled "An act to simplify the laws in relation to the colletltion of the revenues." Chaa. Ourieand W. Wickham Smith, for petitioner. ,Edward M'ttc1wU, U. S. Atty., and Henry O. Platt, Asst. U. S. Atty., for collector. '
LACOMBE. 'Circuit Judge. There is nothing in the return to sbow what these goods are. The only fact certified by the board of appraisere' is that" silk 'is the component material of chief value." Both the coun· sel for'theiIpporter and districtattorney move to send the return bllC?k to the boarcl for a further statement. insisting that there are not suffi.. cient facts found to enable either Elide to present its view of the case. This seems· to be so. Had the board also certified that the articles were cotrectly Q6scribed in the invoice cir entry, Of .in the appraisers'" re-: turn, there might be Bufficient, but, as it is, there is nothing to show really are. Motion granted. what the