Volume 123 — Maine Reports

<p>Ordinary care only is required of a driver of an automobile on a public way, which has accidently caught afire, to prevent the fire from communicating to and damaging other property. '</p> <p>The duty of a person driving an automobile along a public way, on discovering an accidental fire to be burning it, to prevent such fire from spreading and doing damage to other property, is measured by the standard of ordinary care.</p>

On exceptions. An action of assumpsit on account annexed to recover commission as a broker, under an oral contract of agency, in effecting a sale of a farm for defendants. Defendants contended that under the Statute of Frauds the action could not be maintained because the time for the termination of the contract was not definitely stated, and more than a year had elapsed since the making of the contract before action was brought.

On appeal. This is an appeal from a decree of a sitting Justice affirming the finding of the Chairman of the Industrial Accident Commission and the awarding additional compensation to William H. Collins for permanent impairment to the left hand.

<p> An award by appraisers under afire insurance policy authorised to “appraise the loss or damage stating separately sound value and damage” is not invalida,ted by unauthorized parenthetical clauses, being mere surplusage, unless such clauses affect those parts of the award which are authorised and valid to the prejudice of the excepting party. The insured is not guilty of laches in not tendering to the insurer tiui salvaged part of the property, where a valid award is rejected and repudiated by the insurer without reasonably exercising his option to take the salvage. </p> <p>Unauthorized and invalid parts of an award arc to be treated as mere surplusage, unless such parts affect, to the prejudice of the excepting party, the portions of the award which are authorized and valid.</p> <p>In the instant case the appraisers, by the parenthetical clause, apparently undertook to state the legal rights of the parties; or possibly they attempted to modify such rights. The language employed is ambiguous, but in no event can this unauthorized undertaking by the appraisers have influenced their judgment as to sound value or damage.</p> <p>The defendant claims further that the plaintiff’s case is barred by her neglect to offer or tender to it, the salvaged part of the automobile. Not so, however, where as in this case, the insurer fails to seasonably exercise his option (to take the salvage) and rejects and repudiates a valid awhrd.</p>

<p> A tax assessed upon land owned by another at the time of enforcement is, prima fade, a primary obligation upon the land, but the person against whom the tax is assessed may become primarily liable by covenant for title or special covenant to pay the tax, but such obligation is contractual and such person is not subject to arres t on an assigned capias execution to reimburse a subsequent owner of the property for the payment of the tax to relieve it of the lien. An injunction will not issue against such owner of the land holding such assignment of the execution in absence of evidence or admission of threats or intent to'employ it illegally. </p> <p>When a tax is assessed against a person upon land which at the time of enforcement of tax is owned by another, the primary obligation is prima facie upon the land. The person taxed, however, may become primarily liable by covenant for title or special covenant to pay the tax.</p> <p>Even in cases where the individual taxed is primarily liable his obligation is contractual, and the land owner paying the tax to save his property from the tax lien, cannot take from the tax collector an assignment of the capias execution and enforce his right to reimbursement by arrest.</p> <p>But though the land owner has taken such assignment of the execution it cannot be assumed that he intends to use it illegally. In the absence of evidence or admission of threats or intent to so employ it, an injunction will not issue.</p>

On motion for a new trial and exceptions. This is an action to recover for pauper supplies furnished by plaintiff town to one John Luce and family, who, it is alleged, fell into distress in that town, having their pauper settlement in defendant towni The general issue was pleaded and a verdict of $360.84 was returned for plaintiff. Defendant filed a general motion for a new trial, and also excepted to the exclusion of certain evidence. The case is fully stated in the opinion.

On appeal and exceptions. An appeal from a decree of the Judge of the Probate Court for the county of Piscataquis, made December 5, 1922, relieving one John E. Farnham from guardianship and restoring to him his property. Exceptions also were taken pertaining to the admission of testimony. The case is fully stated in the opinion.

On motions. Two actions tried together, the plaintiffs being husband and wife. The action by the wife to recover damages for personal injuries alleged to have resulted from the negligence of defendant, and the action by the husband to recover expenses and for loss of services of his wife.

On exceptions. On complaint for unlawful possession of intoxicating liquors the respondent was tried before a jury and the presiding Justice refused to grant a motion for a directed verdict for the respondent, and exceptions were taken. Counsel for the respondent contended that the testimony did not sustain the venue; that is, that the evidence did not show that the unlawful possession took place within the limits of Cumberland County. The case is stated in the opinion.

On report. An action of assumpsit to recover two hundred and fifty-five dollars and interest for “stenographer’s transcript” alleged to have been furnished to defendant by plaintiff upon a written order. Defendant filed the general issue and under (a brief statement alleged fraud.

On exceptions. An action of trespass quare clausum. The plaintiff for several years occupied as a tenant the second floor in a brick block owned by defendant, situate on Main Street in Lewiston, the first or street floor being occupied by defendant and his son, as co-partners, as a boot and shoe store.

On appeal. The petitioner, a resident of Eastport, was employed in a furniture and undertaking store, and was a member of the East-port volunteer fire department, and paid as fireman, twenty-five dollars a year. On November 27, 1921, in the evening, claimant responded to a fire alarm, the Episcopal Church being on fire.

On exceptions. These two actions on the ease were brought under B. S., Chap. 30, Sec. 13, to recover damages suffered by plaintiffs in having had their buildings burned by a fire spreading from a fire kindled by one Everett M. Grant on adjoining land owned by defendant, plaintiff's claiming that said Grant acted as the agent of defendant, and acted negligently in kindling or setting the fire on defendant’s land.

On report on agreed statement. An action of assumpsit on an implied contract. The plaintiff was employed as a clerk by defendant in his office as the Register of Deeds for Waldo County at an agreed compensation which was paid to her weekly by the County Treasurer from the allowance for clerk hire.

On appeal. A bill in equity brought by plaintiff against her husband to recover seventy-five thousand dollars worth of bonds in the possession of her husband, alleged to be the property of plaintiff, and also to have the husband declared trustee as to certain real estate standing in his name and alleged to have been purchased by him with funds belonging to the wife.

• On motion for a new trial. An action of assumpsit on account annexed to recover for certain milking machines and accessories, sold and delivered to defendant. Plea the general issue. The case was tried before a jury and a verdict for eight hundred and fifty-one dollars and ninety-eight cents was rendered for plaintiff, the amount claimed in the writ being three thousand ninety-eight dollars and sixty-one cents, and plaintiff filed a general motion for a new trial.

<p> Where an employer files an assent to the Workmen’s Compensation Act as to a part only of his employees upon the ground that the work in which they are engaged is a separate business and files an insurance policy as to such employees, which assent and policy is approved by the Industrial Accident Commission, the employer cannot be held to be an assenting employer except as ■ ' to the employees engaged in the work covered by the assent, nor the insurance carrier be held beyond the terms of its contract of indemnity. </p> <p>The assent of the employer in the instant case and the insurance policy filed covered only such men as were engaged on what is described in the evidence as Job Plan 3083.</p> <p>The finding of the Commissioner that the deceased was at the time of the accident engaged in work connected with Job Plan 3083 is not sustained by any evidence introduced before him at the hearing, and unless it can be properly sustained by information obtained by him ón a view of the plant, the appeal must be sustained;</p> <p>A decision, however, based in any part upon evidence obtained upon a view cannot stand. The Act expressly provides that his decisions must be based upon evidence presented before him. A view may be proper under certain conditions, but it can only be had for the purpose of better understanding the evidence when presented. His final findings must be grounded on evidence presented under such circumstances as afford full opportunity for comment, explanation and refutation by an opposing party.</p> <p>In order that no injustice may be done, however, and evidence if any there be tending to show that the deceased was engaged in work relating to Job Plan 3083, the case will be remanded for further hearing.</p>

Ón exceptions. The respondent was convicted on an indictment for an attempt to commit a criminal assault upon a girl nine years of age. During the trial exceptions were taken to the admission of testimony by the mother of the child giving the details of a statement made to her by the child about a week after the last assault. A general motion for a new trial was also filed. The case is fully stated in the opinion.

On appeal. A petition under the Workmen’s Compensation Act of Mary Ann Kelley as dependent widow of Justin Kelley, who, it is alleged, while in the employ of Emerson & Stevens Manufacturing Company, at Oakland, Maine, was injured by a metal die falling and striking on the top of his right foot and later gangrene developed in the foot and on July 5, 1921, about four months after the alleged accident, he died.

<p>When three respondents are indicted and ivied jointly and have, separate counsel, and one respondent takes the stand ,i¡n,his own, behalf and in his testimony , incriminates another of .the three, the counsel for that other "is entitled to cross-examine 1 him,’. ''</p>

On exceptions by respondent. The respondent was tried upon an indictment charging him with having received stolen goods knowing them to have been stolen.

<p> Ordinarily the claim of duress per minas must be sustained by threats which create a reasonable fear of loss of life or of great bodily harm or of imprisonment of the person to whom the threats are made, but there are exceptions to this rule based upon the nearness and tenderness of family relations and the obviously restraining force of family ties, and the exception may include the case of father and son. </p> <p>In this case the facts when carefully analyzed do not show that the plaintiffs have sustained the burden of proving that the confession of the son as to embezzlement was obtained by duress and threats of criminal prosecution.</p> <p>Nor have they sustained the burden in proving that they themselves paid the money by reason of threats of the criminal prosecution of the party who was the son of one plaintiff ’and the nephew of the other.</p> <p>In addition to other evidence in favor of the defendant, the fact that while the alleged acts took place on June 28 and 29, 1911, no complaint was made nor suit brought until June 26, 1917, just three days before the action would be barred by the statute of limitations is of compelling significance.</p>

<p>On motion for a new trial by plaintiff. An action of trover brought by the trustee in bankruptcy of Benjamin Applebaum against the defendants to recover the value of a certain stock of merchandise consisting of wall paper and paint purchased by the defendants from the said Applebaum in violation of the provisions of the Bulk Sales Act, so called, R. S., Chap. 114, Sec. 6. The case was tried by a jury .and a verdict for defendants rendered. The plaintiff filed a general motion for a new trial.</p> <p>The case is fully stated in the opinion.</p>

<p>A .holder .of a note given as collateral security is a holder for value, .under the Uniform . ■ Negotiable Instruments Aci, thus abrogating the former doctrine in this State.</p> <p>The doctrine formerly held in this State that the holder of a note given merely as ' collateral security for a'preéxisting debt, without parting with any right or extending-any forbearance or giving any new consideration, is not to be regarded ; as a holder.for value,'has beep.abrogated by Section 25 of the Uniform Negoti- . able Instruments. Act. The plaintiff in this case is. a holder for value.</p> <p>The plaintiff is also a.Jholder .in,,dpe course before maturity and.without .notice o,f any infirmity. The mere lack’ of an Internal Revenue stamp did not render . the instrument incomplete or irregular on its face within’ the meaning of the ’’hTego’tiable’ Instruments Act.' '</p> <p>In thé insthnt'cáse thé questions of fact were found by the presiding Justice, and : his findings wére conclusive. ' '</p>

<p>On report. The respondents were indicted for adultery and found guilty by a jury. The respondent, Lois E. McAuley, was-fined three hundred dollars and paid. The respondent, Harry M. Cole, was sentenced to State Prison for eighteen to thirty-six months, who filed a general motion for a new trial which was denied by the presiding Justice and respondent appealed to the Law Court, where the appeal was denied. Respondent then filed a motion for a new trial on the ground of newly-discovered evidence and by agreement the case was reported to the Law Court.</p> <p>The case is fully stalled in the opinion..</p>

<p>On exceptions. A proceeding in the form of an action in assumpsit in which plaintiff seeks to recover commissions alleged to be due for the sale of a timber or wood lot. The instrument purporting to be a writ, dated September 13, 1922, presents no evidence whatever of having been issued by authority of the court, as it bears no seal of the court and has no attesting signature of the clerk of any court. The defendant waived service, appeared and pleaded the general issue. When the case was called for trial and before it was opened to the jury, the defendant filed a motion to quash the writ and dismiss the case which was granted by the court and the writ quasbed, and plaintiff entered exceptions.</p> <p>The case is fully stated in the opinion.</p>

<p>On appeal. On May 21, 1918, claimant while in the employ of the American Woolen Company at Fairfield as a tender on a picking machine suffered a compensable accident which resulted in the loss of his right hand at the wrist. The parties entered into an agreement for specific compensation for one hundred and twenty-five weeks which was approved by the Commission August 24, 1918, and paid, the last payment being November 18, 1920.</p> <p>On January 21, 1921, claimant filed a petition for compensation for total incapacity which was finally dismissed by the Law Court, 121 Maine, 72, for there was no authority therefor under the statute in force at the time of the accident. On April 5, 1923, claimant filed a petition for compensation for partial incapacity which was awarded and respondent! entered an appeal.</p> <p>The case is fully stated in the opinion.</p>

On appeal. Claimant was totally incapacitated by an injury on April 5th, 1922, and on April 15th, 1922, an agreement was entered into between the employer and claimant, duly approved, that under Section 14 of the Workmen’s Compensation Act, compensation should be paid and was paid according to the terms of the agreement.

On report on an agreed statement. An action of assumpsit to recover $569.20 which plaintiff alleged was due him for extra work done and material furnished on a State-aid Highway in defendant town in connection with an alleged contract with defendant town to construct certain State-aid road in said town, said contract having been signed by two of the selectmen of the town.

On exceptions. An action to recover on two promissory notes, one for $2,500.00 and interest, and the other for $1,593.00 and interest, brought against defendant corporation and Hyman Margolin as trustee.

On report. An action of Forcible Entry and Detainer to recover certain real estate situated in the town of East Livermore and described in the writ. Defendant pleaded the general issue and under a brief statement set up title in herself and the case was automatically removed to the Superior Court for Androscoggin County from the Livermore Falls Municipal Court where the action originated.

<p>An appeal from a decree in his favor was sustained by this court. Graney’s Case, 121 Maine, 500.</p>