author: Wright, J.

text:
    Merlin Jackson, Receiver of the Union Insurance Company, v. Abner S. Roberts and Hollis D. Perkins.
    In an action upon a premium note, it is incumbent upon the plaintiff to give some evidence of the existence of losses which render an assessment proper.
    Such evidence of loss, and a settlement and allowance of the same, as would conclude the company whilst engaged in its proper business, will be sufficient where the action is by a receiver, etc.
    So, also, a judgment recovered against the company is sufficient evidence of loss.
    It is unnecessary to show the particular loss for the payment of which the assessment is made.
    It is sufficient if it be shown that losses have accrued during the time the defendant’s policy was in force, and that defendant’s note was assessed to meet them.
    The makers of premium notes may be assessed for losses happening to members who insure and pay the premiums in cash in advance.
    Appeal from judgment of Supreme Court. The action was brought to recover the amount due on a premium note made for $250 to the Union Insurance Company, payable at such time or times as the directors of the company might require, agreeably to their act of incorporation. The answer denied the allegations of the complaint, and, as a further defense, set up that the note was obtained on a misrepresentation as to the solvency of the company.
    The cause was referred to the Hon. Ransom Balcom. On the trial, the plaintiff gave evidence tending to prove the making and delivery of the note; his appointment as receiver; that the note was assessed to pay losses accruing while the • policy accompanying the note was in force; and that notice of the assessment was duly served. One or two objections were" made in the progress of the trial to the reception of evidence, and at the close of the case there was a motion for a nonsuit. The referee found as facts: That on the 22d of July, 1852, the defendants made the premium note in suit for $250, and delivered the same to the insurance company; that such note was given on application by defendants for insurance in said company, dated that day, and a policy of insurance was, by the said company, issued to the defendants for the sum of $1,000, upon their property, for the period of six months, beginning on the 22d of July, 1852, and terminating January 22d, 1853; that by an order of the Supreme Court, made on the 6th of June, 1853, the plaintiff was appointed receiver of the property and effects of the said insurance company, and that he gave the usual and ordinary bond, and such as was ordered by the court in the order of his appointment; that by the judgment and decree of the Supreme Court, made on the 28th of June, 1853, the Union Insurance Company was declared insolvent, and restrained from proceeding in business, and the effects of said company sequestrated, and the plaintiff confirmed in his appointment as receiver; that on the 20th of June, 1854, the said receiver made an assessment on the premium notes belonging to said company, and assessed the defendant’s note to its full amount; that on the -2d of October, 1854, the Supreme Court, by an order that day made, confirmed such assessment; that the defendants had not any personal notice of the doings, concerning the making and confirmation of the said assessment as aforesaid; that the said receiver published a notice in the Mohawk Talley Register for five weeks, beginning on the 6th day of July, and ending on the '3d of August, 1854, and a copy of such notice is set forth in the case; that a portion of the losses contained in said assessment, were for losses happening to persons who were insured in the cash department of the said company, and to persons who gave no premium note to said company, and who paid a cash premium in advance in lieu of a premium note; and the remaining portion of the losses which was assessed, happened to parties who had given a premium note to said company at the time of the insurance; that the said company, by the terms of its charter, was organized on the plan of a mutual insurance company; that the plaintiff, on the trial, made no proof of any losses having happened to said company, except as appears by the testimony of A. L. Walrath and the exhibit annexed thereto.
    As a conclusion of law, the referee found that the plaintiff was entitled to judgment against the defendant for the amount due upon the note, with interest. There was no exception to these findings of fact or of law. The referee also, in a separate report, found as facts that the plaintiff has proved all the material allegations contained in the complaint, and the same are true; that the defendants have not proved the second or affirmative defense contained in the answer, and the allegations contained therein are untrue. The sum of $240 principal is due from the defendants to the plaintiff upon the note mentioned in the complaint upon which this action is founded. The interest on said note, from the 2d day of September, 1854, to this date, is $75.10. The total amount due on said note from the defendants to the plaintiff is $315.10. Conclusion of law: The plaintiff is entitled to judgment against the defendants for the sum of $315.10 damages besides costs.
    To this report the defendants excepted: 1. To all that part which finds the plaintiff has proven all the material allegations contained in the complaint, and that the same are true. 2. To all that part that finds any amount due from the Jefendants to the plaintiff on the note mentioned in the complaint. 3. To all that part which finds as á conclusion of law that the plaintiff is entitled to judgment against the defendants for $315.10 damages, besides costs.
    On the trial, to prove the fact of an assessment having been made of the defendants’ note to its full amount, an exemplification of an assessment made June 20, 1854, by the receiver, with the receiver’s certificate that he had ascertained the extent and amount of the losses and unpaid liabilities of the company, and settled and determined the sums to be paid by the several members of the company as their respective portions of such losses and liabilities, was introduced in evidence. ■ ^
    The plaintiff, also, offered in evidence a notice of said assessment as published in the Mohawk Valley Register, with the affidavit of one of the proprietors of the paper that it had been published therein five weeks successively.
    The defendants’ counsel objected to the reading of the notice, as published, in evidence, on the grounds: 1. That in its form and contents it did not comply with the statutes or with the requirements of the by-laws of the company. 2. It was defective in not stating when the publication will become complete, so that the readers, can know when the thirty days will begin to run on which the premium note makers may pay. 3. The notice is defective in not stating as to .which department the defendants’ note belonged. 4. That the publication of the notice in question cannot be proven by affidavits. The referee overruled the objection, and the defendants excepted. (It is now conceded by plaintiff’s counsel that this notice was defective, but he claims that notice by publication in a newspaper was. unnecessary.)
    The by-laws of the company were offered and read as evidence. Section 17 is as follows: “ Notice of assessment shall be given either by the secretary by publishing in one or more newspapers, printed in the county where the members reside, three weeks successively, thirty days prior to the time fixed for payment, or by giving due notice thereof by an agent of the company, or by mail, addressed to the members thereof, at such post-office as may be indicated by their application, as may be most convenient, or likely to give actual notice.”
    The order of the Supreme Court directing the assessment was read in evidence; which order directed the receiver to give to the person liable tó be assessed notice of the amount of his assessment by depositing such notice in the post-office at Fort Pjain, directed to such person at his place of residence, as far as such place of residence can be ascertained from the books of said corporation.
    A witness, named Walrath, testified, on commission, that he was a clerk for the insurance company prior to the appointment of the plaintiff as receiver, and was the receiver’s clerk afterwards at various times, and in June, 1854; that the defendants’ note in action was assessed by the plaintiff, as receiver, on the 20th day of June, 1854; that he aided the plaintiff in making said assessment, and mailed notice of the assessment to the premium note maker; that he mailed notice of said assessment to the defendants himself; the notice was mailed at Fort Plain, where the plaintiff resided, in July or August, 1854; the notice was directed to the defendants, at Fredonia, FT. Y., that being their residence, as far as could be ascertained from the books of the company.
    A record or schedule of losses in the company, in which the date of the loss, the number of the policy, the names and residence of the insured, the amount insured, and the amount paid or adjusted to be paid thereon by the company, was stated, was produced in evidence; and Walrath testified that the same was made from claims for losses by fire and otherwise against said company, some of which claims were allowed by the company and some by the receiver; that the receiver’s assessment of the defendants’ note was to pay some of said losses and expenses; the losses and expenses which accrued within six months from the 22d July, 1852. Fie could not specify the particular losses, but the same appear in the record of losses.
    (The record or schedule to which the witness referred showed that for the six months from the 22d July, 1852 (the term of time for which the policy of insurance accompanying the note in action was in force), the losses which accrued, and were adjusted to be paid, amounted to over $8,000.)
    It was admitted by the plaintiff, at the request of the defendants, that a portion of the losses for which the defendants’ note was assessed were for losses happening to parties who insured on the cash plan, the party so insuring giving no premium note to the company, but paying a cash premium at the time of effecting the insurance. And that the other losses assessed were upon policies where premium notes were taken.
    At the close of the testimony the defendants’ counsel moved for a nonsuit on the grounds: 1. That the losses happening on the cash policies, where no premium note was given by the party insured, cannot be assessed on the premium notes of the parties who insured on the premium note plan. 2. That the proofs in the case do not establish, as against these defendants, that any losses have happened or judgments obtained against the company which are properly assessable upon the note made by the defendants. 3. That the proofs in the case do not establish that any assessment has been made on the note of the defendants. 4. That the complaint alleges that the note of the defendants was assessed in full; and the assessment as published shows that the note was assessed for only 68 per cent. 5. That the plaintiff cannot recover on the defendants’ note without an assessment. 6. That by the proofs in the case, taken in connection with the statutes in relation to mutual insurance companies, and, the charter and by-laws of this company, the plaintiff has not made out a cause of action against the defendants. 1. That the plaintiff has failed to show his appointment as receiver of the said company.
    The referee refused to grant the motion for a nonsuit, and the defendants excepted.
    Judgment being entered in the report of the referee, the defendants appealed to the General Term of the Supreme Court, where the judgment was affirmed. He now brings an appeal to this court.

      H. R. Mygatt, for the plaintiff.

      George Barker, for the defendants.
   Wright, J.

There are no questions open for review, as the case is presented, unless in respect to the regularity of the assessment, and the notice required to be given of it. Indeed, it may be doubted whether the latter question is raised by any proper exception. On the trial, it is true, the receiver proved, under specific objections of the defendants, the publication of a notice of assessment in the Mohawk Valley Register, which is now conceded to have been defective, but which it is claimed was not required by any statute, or by the charter or by-laws of the company. An exception to the introduction of this superfluous piece of evidence (if it is so) can hardly be said to raise the point whether there had been a compliance with the by-laws in the manner of giving notice; and not elsewhere was the point distinctly raised. It may be, however, that if the by-laws prescribed a publication in a newspaper as the only mode of notification of an assessment, and the giving of such notice was a prerequisite to a recovery in the suit, the exception to the refusal to nonsuit would bring the question before us.

1. The referee finds that the receiver of this insolvent company, to whom the defendants gave their premium note, on the 20th of June, 1854, made an assessment on all the premium notes belonging to the company, and assessed the defendants’ note to its full amount. He did not, however, find specifically what the losses were that called for the assessment, but referred to certain evidence in the case as all the proof made by the plaintiff on that subject. A ground on which the nonsuit was moved for was, that the prqof did not establish, as against the defendants, that any losses had happened, or judgments obtained against the company, which were properly assessable upon the note made by the defendants ; and this is now their principal point. I am of the opinion that it is not tenable.

' In an action on a note like the present it is undoubtedly incumbent upon the plaintiff to give some evidence of the existence of losses which rendered the assessment proper. He is not required, however, to show the existence of the several fires by which the several insured parties had sustained losses. As was said in Sands, Receiver, v. Kimball, Executor (an unreported case in this court), “ evidence which would have concluded the company whilst it was engaged in its proper business,” as “ a loss and its settlement and allowance, or a judgment recovered against the company, will he sufficient.” In People's Mutual Insurance Company v. Allen (10 Gray, 297) it was held that the record of losses kept by a mutual insurance company was sufficient prima facie evidence that such losses had occurred in an action to recover an assessment laid upon the members. In this case, a record of losses for which the assessment was made, showing the amount of insurance in each instance, and the sum at which the loss was adjusted, either by the company or the receiver, was produced and proved by a witness who was clerk of the company during the whole period the defendants’ policy was in force, and down to the time of the company’s dissolution, and who was afterwards the receiver’s clerk This witness stated that, of his own knowledge, the record was made from claims for losses by fire and otherwise against the company, some of which claims were allowed by the company, and the others by the receiver; that it contained a list of losses in the company, and the date of loss, the number of policy, the names and residences of the insured, the amount insured, and the amount paid or adjusted to be paid thereon, by the company or the receiver; that the assessment of the defendants’ note was made to pay the losses which accrued within six months from the 22d July, 1852 (the period that the ' defendants’ policy was in force); that he could not specify the particular losses, but that the same appear in the record of losses, which he identifies and annexes to his deposition. By reference to the paper, it is seen that losses accrued and were allowed for the time the defendants’ policy was in force, to over the sum of $8,000. Thus it was shown that losses accrued during the life of the defendants’ policy, which had been adjusted, and the defendants’ note assessed to meet them. It is true, that the witness stated that he could not specify the particular losses that the defendants’ note was assessed to pay; but this was unnecessary. It was enough that losses "had accrued during the time the defendants were insured, and which had been settled and allowed as claims against the company, and for which their note was liable to contribute, to justify the assessment. The testimony of the witness, in connection with the paper referred to and proved by him, was ample proof of these facts; and it would have been error to have nonsuited for the reason suggested by the defendants’ counsel.

2. In respect to notice of the assessment. The company was organized under the general act of April, 1849, which gave no directions as to the form of assessments, and its charter was silent on the subject. That act, however, empowered the companies organized under its provisions to make such by-laws, not inconsistent with the constitution or laws of the State, as might be deemed necessary for the gov-eminent of its officers and the conduct of its affairs. (Laws of 1849, ch. 308, § 12.) A by-law of the company provided that notice of an assessment “shall be given, either by publishing in one or more newspapers printed in the county where the members reside, three weeks successively, prior to the time fixed for payment, .or by giving due notice thereof by an agent of the company, or by mail, addressed to the members thereof, at such post-office as may be indicated bj their application, as may be most convenient or likely to give actual notice.” In 1853, and subsequently to the adoption of this by-law, in remodeling the general act for incorporating mutual insurance companies, it was provided that “ the directors shall, as often as they deem necessary, after receiving notice of any loss or damage by fire sustained by any member, and ascertaining the same, or after the rendition of any judgment against said company for loss or damage, settle and determine the sums to be paid by the 'several members thereof, as their respective portions of such loss, and publish the same in such manner as they shall see fit, or as the bylaws shall have prescribed.” (Laws of 1853, ch. 466, § 13.) The requisites of this statute relate, it may be assumed, to the manner as well as the substance of the assessment, and cannot be disregarded, in either respect, by the directors or the receiver who may succeed them. After making the assessment, the directors shall “ publish the same as they shall see fit, or as the by-laws shall have prescribed.” It may be conceded, for the purposes of this case, that when the by-laws prescribe a mode, or different modes, of publishing the assessment, the directors, or receiver, have no discretion to adopt any other.- The by-laws of the Union Insurance Company directed the assessments to be published in either of three ways, viz.: by inserting a notice thereof in one or more newspapers printed in the county where the members reside,, or by giving notice by an agent of the company, or by mail, addressed to the members thereof, at such post-office as may be indicated by their application, as may be most convenient or likely to give actual notice. The receiver pursued the latter mode. The witness Walrath testifies that he aided the receiver in making the assessment, and mailed notice thereof to the premium note makers; that he mailed himself, at Fort Plain, where the receiver resided, a notice of the assessment, directed to the defendants at Fredonia, N. Y., that being their residence, as ascertained from the books of the company. This was all that the plaintiff was required to do, either by the statute or by-laws. The by-laws did not prescribe that notice of assessment should be given only by publishing the same in a newspaper of the county where the member resided. This would have been onerously expensive and impracticable, as the members were scattered throughout 'the different counties of this and other States. Nor does the phrase of the statute “ publish the same ” mean that there can be no publication except through the medium of a newspaper. There is, therefore, no objection to the assessment, if the point be deemed raised in the case, on the ground of defectiveness of notice to the defendants.

3. The point was made on the argument that no right of action is given to the company on the assessment, until a personal demand of the same is made of the premium note maker; and there was none in this case. The answer is that there was no such objection urged on the trial. Had it been, it might have been obviated by proof of a personal demand of payment before suit brought.

4. One of the grounds for a nonsuit was that the defendants’ note was improperly assessed to pay losses happening to parties who insured for a cash advance premium and received cash policies therefor. The point was not made on the argument ; but if it had been, it would have been unavailing. In White, Receiver, v. Havens (20 How. Pr., 177), it was adjudged by this court that the assessment of a premium note maker to pay losses happening to members who insured for a cash advance premium was not objectionable.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Barber G. Buel v. The New York Central Railroad Company.
    A passenger, who is injured in attempting to leave the cars on seeing two. trains ■ approaching each other at such a speed as to make a serious collision inevitable, is not to be deemed guilty of negligence.
    Although he is upon the platform of the cars, attempting to escape, at the time he was injured, he is not standing or riding upon the platform in such a sense as to excuse the company under the regulation prohibiting passengers from standing or riding on the platform when the cars are in motion.
    Appeal from judgment of the Supreme Court. The action was to recover damages for injuries received by the plaintiff, while a passenger on the defendant’s railroad, in October, 1857, by a collision of trains on the route between Rochester and Batavia.
    The cause was tried at the Genesee Circuit, in Hovember, 1858, before Mr. Justice Davis and a jury. It appeared from the evidence that on the evening of the 9th of October, 1857, the plaintiff was a passenger on a train of cars of the defendant’s passing west from Rochester through Bergen, between Rochester and Batavia. He occupied a seat in the second passenger car, near the center, and upon the south side. Upon reaching Bergen the train was run on a switch, where it remained fifteen minutes waiting for a train due there from the west. It then started west, and had proceeded but a short distance when the train from the west was discovered coming at the speed of about twenty-five miles an hour. The engine attached to the train on which the plaintiff was, was reversed, but not in time to enable it to be backed wholly down on the switch, and avoid a collision. The collision occurred, driving the cars of one of the trains from forty to sixty rods over the ties, killing at least one man on the down train, jamming up the train going west, and breaking off some of the platforms of its cars.
    The plaintiff had remained in his seat all the time the train was at Bergen. He sat facing the engine, by a window that was open. When his train stopped, and commenced backing down, he looked out of the window and saw the approaching train, and men jumping from the cars. He left his seat, and hurried to the forward door of the car as fast as he could to escape. As he opened the door, and set his right foot on the platform, the collision occurred. He was thrown forward and partially stunned; he tried to get up, but could not use his right leg; it was broken in four places below the knee, and his ankle and knee were bruised. He was taken to the Bergen station, and from thence to the hotel, where he was attended by a surgeon, and where he remained nine or ten weeks. He suffered severely for the first three weeks; after three weeks, had pain at intervals ; after five or six weeks sat up in a chair occasionally; and at the end of seven weeks he got upon crutches and left his room. It was about'five months before he got to his home in Michigan. In addition to the fractures and bruises, the injury obstructed the circulation in the leg, producing varicose veins to a considerable extent. The plaintiff was thirty-five years old, and a farmer accustomed to labor. Previous to the injury his health had always been good; he was robust, active, healthy, a great worker, and very vigorous. After the injury, and up to the time of the trial, he had not been able to work much; his leg was constantly swollen, and after exercise, pained him at night.
    The ear in which the plaintiff was seated at the time of the accident was about two-thirds full of passengers. There seems not to have been an unusual commotion in this car at the time of the collision, and those who remained in their seats were uninjured.
    There were posted in the several cars of the train passing west printed notices prohibiting passengers from standing or riding on the platforms of any car, &c., and that safety and convenience required that passengers should keep their seats.
    Hpon the plaintiff resting, the counsel for the defendant moved for a nonsuit on the grounds: 1. Because the plaintiff had failed to show any negligence on the part of the defendants. 2. Because the proof showed that the plaintiff was not without fault on his part, and that his own negligent acts contributed to produce the injury of which he has complained.

      The coui't refused the nonsuit, and the defendant excepted.
    On the trial the plaintiff called Dr. Thompson as a witness in his behalf. He testified that he had been a physician and surgeon for thirty years, and had known the plaintiff for twenty year’s, having been his father’s family physician; that he visited the plaintiff at Bergen about a week after the injury, and made two visits soon afterwards. He found that the leg had been broken in four places; in one place the bone was broken into a number of pieces; knee and ankle and heel were very much bruised and discolored. He examined the leg again in January, and also in June following; the soft part of the leg was very much injured; the injury seemed to have obstructed the circulation, producing varicose veins to a considerable extent; the leg is swollen now (at the time of the trial), and always has been since the injury; swollen and tender, and sinking on pressure.
    The plaintiff’s counsel then put this question to the witness : “ State your opinion, as a medical man, as to the permanency of this injury.” This question was objected to by defendant’s counsel as incompetent, and the court overruled the objection, and the defendant excepted. The witness answered : “ I think it will always be an imperfect limb.”

      Question by jplaintijp s counsel: “What degree imperfect, including disability and pain?” Objected to, overruled, and exception as before. Answer: “I think he will never be capable of performing labor to the same extent as formerly, or that a common man woidd; if he exercises hard he will fail; that he will not be able to labor generally; in hard labor he will fail; as age advances it will be as bad or worse than it is now; it will perhaps improve for five or six years if there is no hard usage.”
    The counsel for the plaintiff also inquired of Dr. O. P. Clark, who examined the plaintiff’s leg on two or more occasion (the last time the day before, the trial), his opinion as to the permanency of the injury, to which inquiry the counsel for the defendant objected, as incompetent. The objection was overruled, and defendant excepted. The witness answered : “ My opinion is, he will always suffer inconvenience from that injury; I think it will always give him trouble; always pain him more or less; I doubt whether the fracture of the leg will ever be as perfect as the other parts; these injuries I regard as permanent.”
    The counsel for the defendant, among other things, requested the judge to charge the jury:

      First. That as the plaintiff was injured on the platform of the car, in violation of the printed regulations of the company (the defendant), he is not entitled to recover.
    . But the judge refused so to charge, and the defendant excepted.

      Second. That the plaintiff leaving his seat, and going to the forward end of the car into the apprehended danger, was not the exercise, on his part, of ordinary care and prudence.
    The judge refused so to charge, and the defendant excepted.
    The jury found a verdict for the plaintiff. Judgment being entered, on appeal to the Supreme Court it was affirmed. The defendant appeals to this court.

      J. H. Mortindale, for the plaintiff

      S. T. Fairchild, for the defendant.
   Wright, J.

It is not now claimed, as it was on the motion for a nonsuit, that the evidence failed to show negligence on the part of the defendants. Indeed, a grosser case of careless conduct is seldom presented to a court and jury. The train in which the plaintiff was a passenger had been run on the switch at Bergen, to await a train from the west which was due there. After waiting some fifteen minutes the train was irregularly started, the conductor getting oñ the engine. It was a dark and foggy night. The train had proceeded, some forty rods when the western train was seen approaching at a rate of speed of about twenty-five miles to the hour An effort was made, by breaking up and reversing the engine, to get the up train back on the switch, but before this could be effected a collision of the trains occurred. The case then was, that on a dark and foggy night, trains of the defendants running in opposite directions, out of time, and one of them, at least, at an unusual rate of speed, near a station, run into each other, occasioning destruction of property and periling the lives of the passengers. Ho casualty can occur on a railroad which manifests grosser carelessness than a collision of trains which are running towards each other, out of time, and at a rate of speed which prevents their being stopped in season. And that was just this case.

But it is insisted that, although the defendants’ negligence caused the injury complained of, the plaintiff should have been nonsuited, because his careless conduct contributed to produce it. The misconduct alluded to is, that, upon seeing the approaching train and men jumping from other cars to avoid the impending danger, he left his seat and rushed to the forward door of the car with the view of escaping himself, and had stepped one foot upon the platform at the instant of the collision. This, it is said, was such negligence as to have required the court to nonsuit the plaintiff. That is, as a matter of law, a passenger in a railroad car, who sees that he is placed in peril by the culpable conduct of the managers of the road, and judges correctly that a collision is inevitable, is guilty of a wrong, if he does not control the instinct of self-preservation, and sit still, and take the chances of safety. This is not the law. Seeing the danger in which he was placed, the plaintiff was justifiable in seeking to escape injury by leaving the car. His act was not the result of a rash apprehension of danger that did not exist. .By the merest chance, the passengers in the same car with him, and who did not, like him, see the approaching collision, and who retained their seats, escaped uninjured. Although doubtless much excited, I do not think even that there was an error of judgment as to the course pursued to secure safety. A moment of time earlier would have enabled him to leap from the car, thus affording a probable chance of escape. But if he misjudged in this respect, the circumstances did not, as matter-of law, charge him with negligence, or want of ordinary prudence. Seeing the approaching train, and that a collision, with its consequences, was inevitable, it was not the dictate of prudence to have deliberately kept his seat without an effort at self-preservation. There is no man, under the circumstances, retaining his senses and acting with ordinary prudence, that would not have exerted himself in some way to escape the great peril. It was not to invite, but to escape injury that he left his seat, and rushed to the door of the car; and an instant of time more would have enabled him to effect his purpose. That other passengers, who neither saw or had notice of the impending danger, remained in their seats, and, by chance, were uninjured, is no evidence that they judged rationally, or judged at all, as to what prudence required, or that the plaintiff misjudged, and acted rashly. At all events, it was for the jury, and not the court, to say whether the plaintiff’s conduct, in view of the circumstances, was rash or imprudent, or amounted to negligence.

The court was requested to charge the jury, that as the plaintiff was injured on the platform of the car, in violation of the printed regulations of the company, he was not entitled to recover. This was properly refused. The statute exempts a raiboad company from liability to a passenger who shall be injured while on the platform of a car, &c., in violation of the printed regulations of the company posted up at the time in a conspicuous place inside of its passenger cars then in the train; provided the company. at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers. (Laws of 1850, ch. 140, § 46.) There was, in this case, a printed regulation, pursuant to this statute, posted in a conspicuous place inside the car, prohibiting passengers from standing or riding on the platform of any car. But neither the statute or the regulation has any application to a case like the present one. The plaintiff was not standing or riding on the platform at the time of the collision, but was hurrying as fast as he could to leave the car, in order to escape an imminent peril. The statute was intended to prevent the imprudent act of standing or riding on the platform, but not to absolve railroad companies from responsibility for every injury which might happen at that place, when a passenger is passing over it, while justifiably entering or leaving the cars.

Medical witnesses, who had attended upon and made frequent examinations of the plaintiff, even down to the day before the trial, were allowed, under objection, to give their opinions as to the permanency of the injury; and in the case of Dr. Thompson, upon his answering that he thought the injured leg would always be an imperfect limb, to state to what degree imperfect, including disability ancl pain. This was not error. The objection was to the incompetency of the testimony, and not to the incompetency of the witnesses to express their opinions on the subject of inquiry. It was not incompetent. The plaintiff was entitled to. be compensated for the pain, and suffering, and disability resulting from the injury. In estimating the damages, the length of time an existing injury will continue must necessarily be considered; and there is no way of arriving at a conclusion on the subject, except by obtaining the facts, and the opinions of medical men. The question is peculiarly one of medical skill and experience.

I am of the opinion that the judgment of the Supreme Court should be affirmed.

Porter and Potter, JJ., did not sit; all the other judges concurring,

Judgment affirmed.


text:
    James Salter v. Daniel H. Ham and Obadiah Holmes, impleaded with others.
    Where the plaintiff files his complaint alleging-a partnership, and asking for an accounting by the defendant, if he does not establish the existence of the partnership, he will not be entitled to the accounting.
    The mere relation of creditor of the defendant is not, of itself, sufficient to entitle the plaintiff to an accounting.
    . Whether two or more persons associating in business, are partners, as between themselves, depends upon their intentions, as legally ascertained.
    Appeal from judgment of Supreme Court. The action was ■by the plaintiff, claiming to be a copartner with the defendant Ham in manufacturing and vending a medicine called “ Dr. Ham’s Invigorating Spirit, or Dyspepsia Remedy,” for an accounting, in respect to the copartnership business.
    The complaint alleged that in December, 1855, Ham was carrying on the business in the city of Hew York, and that about that time the plaintiff entered into an agreement in writing with him, as follows:
    “This agreement, made, entered into and concluded, on 11th December, 1855, by and between D. H. Ham, of the first part, and James Salter, of the other part, witnesseth: That whereas the said Ham is the discoverer and manufacturer of a certain medicine known and called Dr. Ham’s Invigorating Spirit;’ and whereas the said Ham has not sufficient means to manufacture the same in quantities sufficient to meet the public demand: now, therefore, the said Salter agrees to loan and advance to the said Ham the sum of $500, for the term of one year from the date hereof, in the manner following: -The sum of $200 at the time of signing this agreement, and the further sum of $300 on or before the 1st day of March next; to secure the payment of which, said Ham has assigned, transferred and set over, and by these presents does assign, transfer and set over to the said Salter all and singular the bills and receipts enumerated and set forth in the schedule hereunto annexed, marked A; hereby constituting and appointing the said James Salter his true

      and lawful attorney, with full power to collect, adjust and settle the same. The said Salter agrees that he will pay over to the said Ham all moneys collected on said bills or receipts as fast as he shall receive the same, the said Ham giving to him new receipts for the amount so paid over to the said Ham. And the said Ham, in consideration of the said loan of $500, agrees to invest the said sum in spirits and articles necessary to manufacture the said Invigorating Spirit, and to manufacture and put the same on sale, and to pay over to the said Salter one-fourth part of the net profits arising from the sale and manufacture of said article, after deducting all expenses attending the manufacture and sale of the same. It is agreed between the parties that the said Ham snail have the right at any time to sell out said business upon paying to the said Salter the said sum of $500 and dividing the profits as aforesaid. It is agreed by the parties that a regular set of books shall be kept by the said Ham, in which shall be set down all purchases made and all sales effected, as well as all articles sent out to be sold on commission, and that the said Salter shall at all times have free access to the same. It is further agreed by and between the parties that if said Ham shall desire to sell out said business at any time during this agreement, he shall give to the said Salter the first privilege of purchasing the same, at as low a price and on as favorable terms as he would sell the same to any one else. And it is further agreed between the parties that said Salter shall receive one-fourth of the profits as aforesaid so long as the said Ham shall continue to manufacture the same, or until he shall sell out said business.”
    The complaint then alleged the payment to Ham, on or about the 1st February, 1856, of the $500, in compliance with the agreement; that the plaintiff permitted Ham to take all moneys collected on the bills and receipts assigned to plaintiff by'Ham, as fast as they were collected; that Ham did not keep any proper account books; that he received all moneys collected in the business, and kept such loose and unintelligible entries thereof that the plaintiff has never been able, and is not now able, to tell what amount of moneys have been collected, nor how the affairs of said business have all along stood or now stand; that a large amount of profits was realized during the existence of said agreement, but what amount the plaintiff is unable to tell or ascertain; that Ham refuses to give any account of such profits, and has never paid said profits or advances or any part thereof to plaintiff and that the plaintiff and said Ham acted under said agreement from the execution thereof until on or about the 11th February, 1856.
    The complaint then further averred, that on or about the 11th February, 1856, Ham promised the plaintiff that he should have a half interest in said business in the profits and property thereof, and represented that he considered bim having an interest in it to that extent; and that in consideration thereof, the plaintiff at various times between the 11th of February, 1856, and 5th of August, 1861, advanced to Ham to be used in said business various sums of money amounting in the aggregate to $2,000, on which advances he has received back the sum of $493 in all; that as an inducement to make said advances Ham made said representations and promises to plaintiff as aforesaid; that the plaintiff has never been able to ascertain what moneys have been collected or received frpm persons owing or indebted to the firm and business, or how the affairs of said business stand, or what profits have been realized; that Ham now holds good claims against responsible debtors to the firm, amounting in the aggregate to the sum of $15,000 or $20,000; that said Ham wholly refuses to account to the plaintiff in said partnership affairs, or to pay the share of profits belonging to him or any part thereof; that the plaintiff and Ham carried on the business as aforesaid from 11th of February, 1856, until 10th of Jánuary, 1862, when a fire occurred and destroyed a great part of the property of the firm, from which time it has ceased to carry on the business; that the firm holds two policies of insurance on said property, one of $2,000 in the St. Harks Fire Insurance Company, and another for the same amount in the Relief Fire Insurance Company, on which the firm will be legally entitled to the full amounts by reason of said fire; that plaintiff has requested Ham to let him hold one of said policies, which he refuses to do; that the plaintiff holds nothing of the firm property except receipts of agents, amounting to about $2,000, which he holds as security for the money advanced under the written agreement, but what can be realized on the same he knows not; that Ham now refuses to account or recognize the plaintiff as having any interest with him in said business, and collects all moneys due to said business and firm, and holds all the evidences of indebtedness as aforesaid; that Ham is endeavoring to obtain the whole of said money, both from the ordinary debtors to the firm, and the money due on the said policies, and all the firm property, and detain the share of the plaintiff from him and defraud him out of the same; that the defendant Holmes claims some interest in said partnership, by reason of some alleged agreement for moneys, he alleges, he advanced to said Ham, but said plaintiff never authorized said agreement and does not know of the same.
    The judgment demanded was that the defendant Ham account to plaintiff; that the defendants be enjoined from interfering with the partnership property; that a receiver be appointed, and that Holmes’ interest, if any, be adjudicated in the suit.
    The defendant Ham answered, admitting the making of the agreement of 11th December, 1855, and the loan therein mentioned; and averred that to secure said loan lie transferred to plaintiff the bills and receipts mentioned in the complaint; that such bills and receipts were collected by the plaintiff and his agent, and they amounted to over the sum of $500. He denied making any contract with the plaintiff other than the written agreement. He further denied ever making any agreement with the plaintiff upon the subject of admitting, or to admit him as a copartner with the defendant in the said business, or giving him a share or interest therein, or in the property, proceeds or profits thereof, as a copartner. He alleged that he conducted the business himself under the name of D. H. Ham & Go., without reference to the plaintiff, and under an arrangement with the defendant Holmes; that the plaintiff’s office was in the same building with his own, and that various sums of money have passed from time to time between the defendant and the plaintiff as loans and repayments; the plaintiff, as a neighborly act, occasionally lending money to the defendant, and in each instance the defendant soon thereafter repaying the same, and that all such occasional loans were fully paid to plaintiff.
    The defendant Holmes also answered, alleging that he was a copartner with Ham; that he owns and is entitled to the one-half part of the property, things in action and effects of the firm of D. H. Ham & Co., and of its business; and that he did not know that the plaintiff had the claim or interest set forth in his complaint. As to all the matters mentioned and set forth in the plaintiff’s complaint, he has no knowledge or information thereof sufficient to form a belief, and he therefore controverts the same.
    The case was referred to Philo T. Buggies, Esq., to hear and determine the issues joined therein, including the taking and stating of all necessary accounts. The referee found as facts:'
    That the defendant Daniel H. Ham carried on the business in the complaint in the action mentioned, during the time therein stated, under the name and style of D. H. Ham & Co., and that during part of that time the defendant Obadiah Holmes was a copartner therein.
    That the plaintiff and defendant Ham entered into the written agreement bearing date December 11, 1855, mentioned in the complaint in this action, a copy of which is therein correctly set forth.
    That the plaintiff paid to said Ham the sum of $500, in compliance with said agreement.
    That the verbal agreement set up in said complaint, to the effect that the said plaintiff should have one-half of or any share in the profits of the said business, was not made, nor was there any agreement or understanding by or between the plaintiff and the defendant Daniel H. Ham that the plaintiff should become a member of the said firm, or be a partner with said defendant in said business, or have any interest therein as such; nor did the said plaintiff act as such co-partner.
    That there was no agreement or understanding by or between the said parties to the effect that the plaintiff should have any interest in the two policies of insurance in the said complaint stated, or in the property, stock or money of the said firm in the said complaint referred to, and in respect to which an accounting is claimed.
    The referee found and decided, as matter of law, that the said written agreement is not such as constitutes the plaintiff a copartner with the defendant Ham; that the said plaintiff was not a copartner of or with the said Daniel H. Ham, or a member of the firm of D. H. Ham & Co., and that he is not entitled to an accounting in respect to the matters in the said complaint stated and set forth; that it does not become necessary in this action to determine the relative rights and claims of the defendants Ham and Holmes touching the matters aforesaid.
    And the referee further found and decided, as matter of' law, that the defendants Ham and Holmes were entitled to judgment against the plaintiff for them costs in the action.
    Judgment being entered at the Special Term in conformity with the report of the referee, the same was affirmed at a General Term of the Supreme Court. From this judgment of affirmance, the plaintiff appeals to this court.

      C. N. Black, for the appellant.

      Joseph Neilson, for .the respondents.
   Wright, J.

To entitle the plaintiff to have an account and distribution of the property, stock and money referred to in his complaint, the relation of partners must have existed between himself and the defendant Ham during the time therein stated. If he was not such partner, or a member of the firm of D. H. Ham & Co., he had no right to an accounting in respect to the business and property of Ham or of such firm. The preliminary question then was, whether, from December, 1855, to January, 1862, the plaintiff and Ham were partners, inter sese, in the business of manufacturing and vending the drug or medicine called Dr. Ham’s Invigorating Spirit.”

The facts found negative the existence of any partnership between the parties, unless it were constituted by the written instrument of December, 1855. Ham is found to have carried on the business himself during the period for which an accounting was claimed, except that for a part of the time the defendant Holmes was a copartner with him. The verbal agreement set up in the complaint as having been made in February, 1856, to the effect that the plaintiff was to have one-half, or any share, in "the profits of the business, the referee finds, was not made, nor was there any agreement or understanding between the plaintiff and Ham that the former should become a member of the firm of D. H. Ham & Go., or be a partner with the latter in the business, or have any interest therein as such; nor did he act as such copartner. The plaintiff is, therefore, driven to rely upon the writing of December, 1855, as constituting him a partner with Ham, not only whilst the agreement was acted under by the partners (which, it is alleged in the complaint, was about two months), but also down to January, 1862, when the fire occurred which destroyed the manufacturing establishment.

Whether two or more persons are partners, as between themselves, is determinable chiefly by a reference to their own intention. How, what was intended by the agreement of December, 1855 ? ' Was it that the plaintiff, by loaning to Ham the sum of $500 to purchase materials for manufacturing his medicines, should become a partner indefinitely in the general or future business ? Such intention, I think, cannot be inferred from the terms of the agreement, construed in the light of the surrounding circumstances and conceded facts. TTa.m was manufacturing his medicine, and had agents engaged in vending it in this and other States. The plaintiff agrees to loan him $500 for one year, and, as security therefor, he assigns bills and accounts against his agents for more than the amount of the loan, and at the same time stipulates to invest the sum in articles necessary to manufacture the medicine, and to manufacture and put the same on sale, and pay over to the plaintiff one-quarter of the net profits arising from such manufacture and sale. The plaintiff advanced the-money about the 1st February, 1856, and it is admitted in the complaint that the parties acted under this contract from the execution thereof until about the 11th February, 1856 (a period of two months), when it seems to have been abandoned. There were other provisions of the writing, indicating that Ham was to solely carry on the business. He might sell it out any time during the year for which the credit was to run, upon paying the plaintiff his §500 and one-fourth of the profits, if any, arising from the sale of the medicine to be made from ingredients purchased with that money; and if he chose to sell out, he was to give the plaintiff the first privilege of purchasing, at as low a price and on as favorable terms as he would sell the same to any one else.

This agreement, I think, cannot be construed to create a • partnership even in respect to the specific medicine manufactured from the ingredients to be purchased with the §500 advanced; and certainly it was not intended that the covenant should reach the general or future business, or the fruits of other money to be used or invested. It was a mere arrangement for a loan, upon security for a fixed period, with profits by way of interest. It did not impose upon the plaintiff the duties or clothe him with the powers of a partner. There was no joint ownership of the partnership funds according to the intention of the parties. The $500 loaned under the agreement was not a contribution to the capital of the firm as such; nor was it put into the business at the risk of the business. The plaintiff was, in no event, to participate in the losses of the adventure. With respect to third persons, Salter might be held to be a partner in the particular transaction, but as between himself and Ham the relation was that of creditor and debtor. Salter loans to Ham five hundred dollars for a term, upon security, and by way of indemnity for the use of the money it is agreed that it shall be invested in ingredients for manufacturing the Invigorating Spirit (a business which Ham was then carrying on), and upon the manufacture and sale of the article, if any profits accrued over and above the expenses of manufacturing and selling, Salter was to receive one-fourth of such profits. This seems to me to be the obvious intent and meaning of the agreement. ¡Neither in terms or by implication is any partnership relation created as between themselves.

But if the agreement contemplated a partnership in respect to so much of the medicine as should be manufactured and sold from the investment of the $500, there would be no reason for holding that the judgment of the court below was erroneous. It was not claimed oí suggested that theie should be an accounting as to this stale transaction. Indeed, it is plain that there could have been no profits growing out of it, as the thing was abandoned eleven days after the money was advanced. But there is still another answer. The action was not in respect to the written agreement, but to obtain, upon a proper administration of the copartnership estate of D. H. Ham & Co., the plaintiff’s constituent portion of the assets, as a member of the firm, remaining after the fire in January, 1862. It was the ordinary action by a partner in reference to such estate; hence Holmes and the insurance companies were made parties. The action was tried and treated throughout upon that theory, the plaintiff seeking as preliminary to the relief sought to establish the partnership, and the written agreement was only used, or attempted to be used, as a piece of evidence on that issue. It was not founded upon the covenant of December, 1855, nor was any accounting claimed or proposed before the referee in respect to such covenant alone.

As, therefore, the plaintiff was not Ham’s partner, or a member of the firm of D. H. Ham & Co., or had any interest in the property which was the subject of the action, save possibly as a creditor, he had no right to an accounting, and his complaint was properly dismissed.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.


author: Potter, J. Davies, J.

text:
    Michael Kenny v. The People.
    The act in relation to jurors, &c. (eh. 322, 1858), so far as it relates to the summoning of jurors in the county of Kings, is general, and requires that they shall be summoned by the commissioner of jurors to be appointed for the county.
    Such act virtually abrogates all authority in the sheriff to summon jurors to serve in the courts of Kings county.
    Under such act, after exhausting the first panel, a new panel may be summoned forthwith to attend said court upon one day’s notice. (2 K. S., pp. 419, 420.)
    Voluntary intoxication can furnish no excuse or immunity for crime; and so long as the offender is capable of conceiving a design, he will be presumed, in the absence of contrary proof, to have inteuded the natural consequences of his own acts.
    Weit of error to the General Term of the Supreme Court of the second district. The plaintiff in error was convicted of the crime of murder in the first degree at a court of Oyer and Terminer held for the county of Kings in July, 1863. The record was brought to the General Term of the Supreme Court by writ of error. The judgment was affirmed at the General Term, from which it is brought by writ of error to this court.

      C. E. Pratt, for the plaintiff in error.

      S. D. Morris, for the defendant in error.
   Potter, J.

The first question raised in the case in behalf of the plaintiff in error is a challenge to the array of jurors. After the regular panel of petit jurors, duly drawn and summoned to attend the said court, had been exhausted, the said court ordered a new panel of petit jurors to be drawn by the commissioner of jurors for the county of Kings, and to be forthwith summoned by him, by a notice of at .least one day, to attend the said court on the first day of July, 1863, on which last mentioned day the said commissioner of jurors returned a panel of petit jurors, drawn in pursuance of the said order, in the presence and with the assistance of the justices of the Court of Sessions of said county. After the said panel of jurors had been called, the following challenge to the array was interposed on behalf of the prisoner: The defendant challenges the array of' the panel of the jurors returned this first „day of July, 1863, and the panel to try the defendant ordered under an order of this court during the session of the present Oyer and Terminer, after the regular panel had been exhausted; because such jurors have not been drawn according to law, in this:

1. That the drawing of said jurors has not been made pursuant to the provisions of the act of the legislature of the State of New York, passed April 17th, 1858, and in compliance therewith.

2. That said jurors have not been ordered and drawn pur-' suant to section 15 of said act.

3. That said jurors have not been summoned by the sheriff of Kings county.

4. That no order to the commissioner of jurors had been given by the judge who was to preside at the present Court of Oyer and Terminer previous to the commencement of the term of this court and opening of the court.

5. That there is no power in the court, during the present term of this court, to order the commissioner to summon jurors for service in this court.

Upon the legal issue presented upon this challenge the court held the challenge not to be good, to which the plaintiff excepted.

The act of the legislature, above referred to, makes special provision in relation to the selection, summoning and drawing of jurors in Kings county, among which provisions is one, found in the 15th section of the act, making it the duty of the judge who is to preside at the court to direct by an order under his hand what number of jurors shall be drawn for said court. This order should be made, of course, previous to the drawing, which, it is directed by the section, shall be fourteen days before the holding of the court; but the section also provides that, if no such order has been given, then 132 jurors shall be drawn. In this case no such order, prior to the court, was given, and the statute was complied with fully by drawing the number, in such case prescribed, 132. In this there was no error; the provision that the judge make a previous order is directory. It is insisted that the order made in court, after exhausting the first panel, directing a new panel to be forthwith summoned to attend the said court, upon one day’s notice, was unauthorized by this special-statute, and the five several objections above are the grounds of objection specified. The first four of these objections are true, as matter of fact. The order of the court was not made pursuant to the act nor to the 15th section of said special act. It is not claimed that the order made in court was in pursu-ance of the provisions of that section or of that act. Whether it was legally and properly made is a question that will be discussed under the examination of the last ground of objection.'

It is also true that the new panel of jurors was not summoned by the sheriff of Bangs county. The act of 1858, so-far as it relates to summoning jurors in the county of Kings, is general, and requires that they shall be summoned by the commissioner of jurors to be appointed for the county. Sec-' tion first of that act so provides, and section 41 of the same act provides that the manner of summoning under that act shall supersede all other methods; it virtually abrogates all-authority in the sheriff to summon juries for the courts in Kings county.

The fact that no order to the commissioner of jurors had been given by the judge who was to preside, previous to the court, was immaterial. The act of 1858 was not a repeal of another statute, which expressly conferred that power upon the court, as will be noticed in passing upon the next following ground of objection.

The last of these objections is: “ That there is no power in the court, during the present term of this court, to order the commissioner to summon jurors for service in this court.”

If the court had the power to order a new panel, as we have already shown, the summoning must have been by the commissioner. Confining ourselves, then, to the specific objection, the only question to be examined is the question of power in the court to order a new panel. The Kevised Statutes, vol. 2, pp. 419, 420, marg. paging (vol. 3, 5th ed., 718), provides that “ When a sufficient- number of jurors, duly drawn and summoned, do not appear, or cannot be obtained to form a jury, the court may order the sheriff to summon from the bystanders, or from the county at large, so many persons qualified to serve as jurors as shall be sufficient.” By no express provision, that I am aware of, has this power been abrogated, and by no necessary implication has this power been affected, except so far as the special statute, in relation to the county of Kings above cited, substitutes the commissioner of jurors for the sheriff in the summoning of jurors. The act of 1861, chapter 210, amending the Revised Statutes in relation to drawing jurors in certain cases, expressly excepts the county of Kings from its effect. I think, therefore, the challenge to the array of jurors, for neither of the reasons presented, was well taken.

Four points are made in the case, upon exceptions taken by the prisoner’s counsel, to the refusal of the judge to charge the jury. The requests to charge are as follows:

1. “ Intoxication does not furnish immunity of crime, but may be considered in determining what degree of crime has been committed.”

2. “That intoxication may be considered in determining whether the homicide was committed by premeditated design.”

3. “ If the jury believe that the accused was in a state of mind from intoxication that rendered him incapable of premeditation or design, they must find manslaughter.”

4. “If the jmy find the accused was in a state of mind, although caused by the voluntary use of intoxicating liquor, that his judgment was obscured or impaired, so that he was incapable of knowing the degree of violence he was perpetrating, or properly calculating its effects, they must find for the lesser offense, manslaughter.”

In order to show the application of these propositions to the case, it is necessary to present some of the leading facts established by the evidence. A fair abstract of these is found in the opinion of the justice who delivered the opinion in the case, in the Supreme Court, as follows :

“ The prisoner is a ear driver. On the'night of the 21st of April, at eight o’clock, with his wife and two small children, he entered the grocery store of Frederick Mohrmann, at the corner of Fulton and Albany avenues, in the city of Brooklyn, and purchased some groceries for his family use. While there he commenced speaking about some railroad conductor with whom he had a quarrel about two hours previous. His wife said the conductor was a nice man, and did not want to do him any harm. He told her in an angry tone not to interfere in his business, and he quiet, otherwise he would punch her. He thereupon struck her in the face and kicked her. Mohrmann came from behind the counter and told him to leave the store—that he wanted no fighting, and if he did not stop he would put him out. Kenney said he could not put him out. Mohrmann made the attempt and failed. He thereupon called the witness, Rink, to assist him, and by their joint efforts he was removed from the store to the street, and the door locked, and while this was being done he declared he would kill the Dutch son of a bitch — meaning Mohrmann. The prisoner then threw stones through the windows and doors of the store, and said he wanted his two children. The door was opened by Mohrmann and the children put out into the street, and the door closed again. He also threw coal, a coal shovel, a measure, and with a stone of about twenty pounds weight, smashed open the door, and came into the store. Here he took up a saw and a piece of ham and threw them at Mohrmann and struck him with them. The prisoner went again into the street, and the door was again shut against him. He broke the door in once more and came into the store. There was in the store what the witnesses call a meat bench, upon which was lying a large knife. The prisoner seized this knife and struck the bench once, then rushed into the room behind the store, when he met the deceased, John Ravensburg, a person residing with Mohrmann at the time, and with whom the prisoner had no words or controversy, and struck him three blows or thrusts with the knife, two of which entered the chest and the other one the abdomen of the deceased, who died therefrom almost instantly. The prisoner at once became quiet, consulted with his wife where he should go, and as to the best means to escape. She recommended him to go to East Brooklyn, and he left the scene of the murder, going in that direction, after telling his wife that if any policeman made inquiry to say he had not been about there that night.” “ The proof leaves little doubt that the prisoner was in a state of intoxication more or less at the time, but otherwise in the full possession of his senses, and quite conscious of what he was doing. There was also proof to show that while sober he was a civil man, but when drunk unusually vicious.”
“The court instructed the jury, among other things, that voluntary intoxication furnished no immunity nor excuse for crime, that even where intent is a necessary ingredient in the crime charged, so long as the offender is capable of conceiving a design, he will be presumed, in the absence of proof to.the contrary, to have intended the natural consequences of his own act, and when one, without provocation, kills another, with a deadly or dangerous instrument, no degree of intoxication, short of that which shows that he was at the time utterly incapable of acting from motive, will shield him from conviction. In the present case the jury would consider, from the conduct and acts of the prisoner in the afternoon, as disclosed by the testimony of those who were with him, from his going into the store for the purpose of making a purchase of family groceries and supplies, and the other circumstances attendant, and immediately consequent on the transaction, whether he was capable of acting from motive or not; that the principal question to be determined by the jury, if they found the prisoner guilty of killing the deceased, was whether the crime was murder or manslaughter. To convict of murder it was necessary that the killing should have been perpetrated from a premeditated design to effect the death of the deceased or of any human being; it was therefore sufficient to convict, if the intention of the prisoner was to kill the storekeeper, although he may not have intended to kill the deceased; if that intention existed, although it was conceived and formed immediately before the fatal act was committed, the offense was murder; if, on the other hand, the act was committed without a design to effect death, in the heat of passion, then the crime would be reduced to manslaughter. It therefore became material for them to consider whether such intent had been satisfactorily proved. To determine this, it was proper that the manner, acts, and conduct of the prisoner, prior to the act, his declaration that he would kill the storekeeper, his acts after that declaration, the instrument used, and the manner in which it was used, and his acts, conduct and statements immediately after the offense was committed, and upon his arrest, should be taken into view and carefully considered, and as the testimony showed that the prisoner was angry, and in a passion, at the time of his struggle with the storekeeper, and when he was put out of the store, it was especially important for them to consider what length of time elapsed after that, before the fatal act was committed, in determining whether he was acting under the impulse of passion, without any intention to kill, or whether such intention had been formed, and in fact existed when the fatal act was committed. If such intention was shown, they would find the prisoner guilty of murder; but if not, then they would convict him of manslaughter only.”

To each of the requests, made by the prisoner’s counsel above stated, the court declined to accede, except so far as is embraced and covered by the said charge, and refused to charge the jury as so requested, further or otherwise than as is charged, to which decision and refusal the counsel for the prisoner then and there duly excepted.

The whole charge of the judge is given, in order that the distinct points in the requests to charge may be seen. The charge is plain, clear, and conceded to be unobjectionable. Ho exception was taken to it. It was as favorable to the prisoner as he was entitled, from the case as it appears in all that was charged. The prisoner was indicted under the 5th section of the act of 1862, ch. 197, for murder in the first degree, and was convicted of that crime, that is: of a premeditated design to effect the death of a human being.” It is not claimed that this act would he murder in the second degree. If it was not willful or premeditated murder, it would be manslaughter in the third degree, for the reason that the blows were struck in the heat of passion, without any design to effect death, or manslaughter in the fourth degree, for the reason that the person was in such an extreme condition of insensibility by reason of intoxication, or otherwise, that he was incapable of acting from volition. This latter condition is not claimed in behalf of the prisoner, and there is nothing in the evidence to show that he was not capable of reasoning, or competent to control his will. How, then, would it have been proper for the judge to have charged the jury, that intoxication might be considered by them in determining what degree of crime had been committed? It is not claimed that there was any intoxication, but such as was voluntary. There was no previous provocation. The proposition was not that the jury might consider the intoxication of the prisoner upon the question whether the blows were struck in the heat of passion, but to determine what crime had been committed. “ This,” as was well remarked by Denio, J., in The People v. Rodgers (18 N. Y., 20, 21), “would be precisely the same thing as advising them that they might acquit of murder on account of the prisoner’s intoxication, if they thought it sufficient in degree.” This proposition in effect is what the court was requested to charge in the first and second propositions of the prisoner’s counsel. If we are right in this view, the case of The People v. Rodgers, and the opinions delivered therein, and authorities therein cited, are conclusive, and control this case. The principle involved in the propositions or requests to charge in this case, cannot be distinguished in effect from that. The rule established in that case, and in fact, the uniform rule found in all the cases is: “ that where the act of killing is unequivocal and unprovoked, the fact that it was committed while the perpetrator was intoxicated, cannot be allowed to affect the legal character of the crime.” The requests to charge, therefore, that the jury might consider intoxication (without reference to the degree of intoxication) in determining what crime had been committed, or whether homicide had been committed “by premeditated design,” were properly denied by the judge.

The third request to charge, while it is subject to the same objections as are the first and second, would, in addition to those objections, if charged, be equivalent to saying to the jury that if the prisoner, by his voluntary intoxication, had rendered himself incapable of premeditation or design, that the law would not impute to him the offense which would otherwise be its legal character. Harris, J., in the case of The People v. Rodgers, said: “I am not aware that such doctrine has before been asserted. It is certainly unsound.” Indeed I have doubts whether the charge of the judge in this respect was not more favorable to the prisoner than the rule would justify. It may fairly be implied from the charge that the judge intended to instruct the jury that there was a degree of voluntary intoxication that would shield from conviction, for an act, which, if committed when sober, he might be convicted.

The fourth request to charge seems to be most objectionable of all. It might fairly be implied from a charge made in the language of that request, that though the act was committed by premeditated design, if the prisoner’s judgment was so obscured by liquor that he was incapable of knowing the degree of violence he was perpetrating, or properly calculating its effects, they might find it an offense of a lower grade. What adds to this objection is, that the evidence presents nothing upon which to base such a charge. There is no feature of the case, in the facts or evidence, to warrant a jury to infer that the prisoner was in a state that rendered him incapable of understanding, or that his judgment was obscured or impaired by intoxication. It would have been improper for the court to charge the jury upon a hypothesis, not presented by the evidence and unwarranted by law, if the evidence did sustain the hypothesis. As was said in The People v. Rodgers, “ if by a voluntary act the party temporarily casts off the restraints of reason and conscience, no wrong is done him if he is considered answerable for any injury which in that state he may do to others or to society or, in the language cited from Plowden, in the same case, “ if a person that is drunk kills another this shall be felony, and he shall be hanged for it, and yet he did it through ignorance, for when he was drunk he had no understanding or memory, but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby.” (Plowd., 19.)

The crime 'committed in this case, as was remarked by Brown, J., was committed with circumstances of brutality and atrocity almost unexampled.” The evidence justifies the verdict of the jury; the evidence is clear that the prisoner was sober enough to commit an act to bring himself within the meaning of the law defining murder in the first degree, “ a premeditated design to effect the death of a human being;” that he was sober enough to force his way into the building where his intended victim was, to trace him from room to room; to seek to provide himself with a murderous weapon fitted for the intended work; of announcing his intention, and of executing his purpose by a repetition of fatal blows, and of planning and executing an immediate escape from • justice. The law would indeed suffer reproach that did not hold such a man sober enough to suffer the penalty of his crime when fairly convicted. I am of opinion that no legal error was committed on the trial, and that the proceedings should be remitted to the Court of Oyer and Terminer, to sentence the prisoner anew.

Davies, J.

The plaintiff in error was indicted and convicted in the Kings county Oyer and Terminer, in July, 1863, of the crime of murder in the first degree, and the conviction was affirmed at the General Term of the Supreme Court. The prisoner has now brought a writ of error to this court. It is now urged on the part of the prisoner that the conviction should be reversed on the ground of error in the Oyer and Terminer, in overruling the challenge by the prisoner to the array. The array was challenged on the grounds that after the regular panel of petit jurors, duly drawn and summoned, had been exhausted, the said court ordered a new panel of petit jurors to be drawn and summoned, forthwith, by the commissioner of jurors of said county, by a notice of at least one day, and who on the next day returned a panel of petit jurors, drawn in the manner directed by law; and there-, upon the counsel for the prisoner interposed a challenge to the array, that said jurors had not been drawn according to law, in this: that the drawing of said jurors had not been made pursuant to the provisions of the act of April 17, 1858, and in compliance therewith; that said jurors had not been ordered and drawn pursuant to section 15 of said act; that said jurors had not been summoned by the sheriff of Kings county; that no order to the commissioner of jurors had been given by the judge who was to preside at 'said. Court of Oyer and Terminer previous to the commencement and opening of said court; that there was no power in the court, during its then present term, to order the commissioner to summon jurors for service in that court. The district attorney demurred to said challenge, and the demurrer was sustained and the challenge overruled.

, A brief reference to the provisions of the statutes will show that these objections to the array were untenable. Section 5 of Laws of 1853 (ch. 338) declares that the several courts, held in and for the county of Kings, may order a new panel or an additional number of grand or petit jurors to be drawn • at any time during the sitting of said courts, and such new panel or additional number of jurors may be so drawn without any previous publication of notice, and the jurors so drawn shall forthwith be summoned by the sheriff, by such notice as the court shall direct, to attend said court at the time specified in said order. This act, in á previous section, directs the county clerk of the county to draw the requisite number of jurors to attend the courts therein.

By an act passed on the 17th of April, 1858 (ch. 322), it was declared by the first section thereof, that the selection and summoning of jur'ors in’the county of Kings, should thereafter be performed by one officer, to be known as commissioner of jurors of said county. It is thus seen that bv this latter act, that the duties theretofore performed by the county clerk of that county, in the selection of jurors for the various courts to he held therein, and by the sheriff of said county in summoning of said jurors, were devolved upon, and thereafter were to be performed by the commissioner of jurors of said county, and all the powers theretofore exercised by either of said officers in relation thereto, were thereafter to be discharged by the commissioner of jurors created by said act, except so far as the same were modified thereby.

It was therefore competent for the court during its session to direct an additional number of jurors to be selected and drawn for the then present term thereof, pmsuant to the act of June 8, 1853, and to direct that they be summoned by the commissioner of jurors of said county. That was the only officer in said county after the passage of the act of April 11, 1858, authorized to select and draw and summon jurors for the several courts held in said county, whether the same were the regular or usual panels drawn and summoned anterior to and in anticipation of the sitting of the various courts therein, or such new panels or additional number of jurors, as said courts might find necessary, in the due administration of justice, to require and order.

The requests to charge, made by the prisoner’s counsel, were properly refused by the court. The law, upon the points suggested, has been settled by adjudication in this court, and no reasons are presented why the doctrine thus enunciated should be reviewed or disturbed. The case of The People v. Rodgers (18 N. Y., 9) was well considered, and the doctrine then declared should be rigidly adhered to. Judge Deeto, in the opinion of the court, declares that all the authorities agree upon the main proposition, namely, that mental aberration, produced by drinking intoxicating liquors, furnishes no immunity for crime.

In Brown's Case (Lew. C. C., 75, A. D. 1823) the prisoner was indicted for a rape, and urged in his defense that he was in liquor. Holkoyd, J., in addressing the jury, said: “ It is a maxim in law that if a man gets himself intoxicated he is answerable to the consequences, and is not excusable on account of any crime he may commit when infuriated hy liquor, provided he was previously in a fit state of reason to know right from wrong. If, indeed, the infuriated state at which he arrives should continue and become a lasting malady, then he is not answerable.” In the Case of Rex v. Carroll (7 Carr, and Payne, 145) the prisoner was tried in 1825 at the Central Criminal Court for murder. It appeared that shortly before the homicide the prisoner was drunk. His counsel, though he admitted that drunkenness could not excuse from the commission of crime, yet submitted that in a charge for murder the material question being whether the act was premeditated or done only with sudden heat and impulse, the fact of the party being intoxicated was a proper circumstance to be taken into consideration, but this was repudiated by Pakke, J., and concurred in by Littledale, J".

In the Case of Rodgers (supra), the prisoner’s counsel requested the court to instruct the jury that if they were satisfied that by reason of intoxication there was no intention or motive to commit the crime of murder, they should convict the defendant of manslaughter only.” Such in substance were the requests to charge in the case at bar. The Court of General Sessions refused to charge as requested in Rodgers' Case, and this court held the refusal to be right, and said : “ If by this request the counsel for the defendant meant, as the request seems to have been interpreted by the Supreme Court, that the jury should be instructed to take into consideration the intoxication of the defendant in determining the intent with which the homicide was committed, the proposition is not law. It has never yet been held that the crime of murder can be reduced to manslaughter, hy showing that the perpetrator was drunk, when the same offense, if committed by a sober man, would he minder.” That precise proposition, thus condemned by this court, was embraced in the fourth request of the prisoner’s counsel for the judge to charge. It was in these words: “ If the jury find the accused was in a state of mind, although caused by the voluntary use of intoxicating liquor, that his judgment was obscured or impaired, so that he was incapable of knowing the degree of violence he was perpetrating, or of properly calculating its effects, they must find for the lesser offense, manslaughter.” The court properly refused so to charge, and the previous requests were only modifications of the same general idea, namely, that the state of intoxication might he taken into consideration by the jury, by which the crime of murder could be reduced to manslaughter, if they found the prisoner was under the influence of intoxicating liquors at the time he committed the crime, when the same offense, if committed by him when not intoxicated, would have been murder. In this State the cases of The People v. Hammell and The People v. Robinson (2 Park. Cr. 223, 235), show the consistency with which the doctrine enunciated has been adhered to in our criminal courts and in the Supreme Court.

Judge Dehio, in his opinion in the Case of Rodgers (supra), justly observes that “ when a principle of law is found to be well established by a series of authentic precedents, and especially when, as in this case, there is no conflict of authority, it is unnecessary for the judges to vindicate its wisdom or policy. It will, moreover, occur to every mind that such a principle is absolutely essential to the protection of fife and property. In the forum of conscience, there is, no doubt, considerable difference between a murder deliberately planned and executed, by a person of unclouded intellect, and the reckless taking of life by one infuriated by intoxication; but human laws are based upon considerations of policy, and look rather to the maintenance of personal security and social order, than to an accurate discrimination as to the moral qualities of' individual conduct. But there is in truth no injustice in holding a person responsible for his acts committed in a state of voluntary intoxication. It is a duty which every one owes to his fellow men, and to society, to say nothing of more solemn obligations, to preserve, so far as it lies in his power, the inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought on by his own vices, the law holds him not accountable; but if by a voluntary act he temporarily casts off the restraints of reason and conscience, no mercy is due him, if he is considered answerable for any injury which in that state he may do to others or to society.” The same doctrine was long since enunciated by that eminent judge, Lord Mansfield, who said, in the celebrated case of The Chamberlain of London v. Swans, in the House of Lords, Feb. 4, 1767, that “a man shall not be allowed to plead that he was drunk in bar of criminal prosecution, though, perhaps, he was at the time as incapable of the exercise of reason as if he had been insane; because his drunkenness was itself a crime, he shall not be allowed to excuse one crime by another.” It is a settled maxim of the law “ that a man shall not disable himself.” These views appear to my mind to be eminently sound and wise, and receive my entire concurrence. They are decisive of the present case, and the judgment must be affirmed. The day fixed by the judgment for the execution of the sentence having passed, the proceedings must be remitted to the Supreme Court, with directions to that court to transmit the same to the Kings county Oyer and Terminer, with directions to that court to pronounce sentence anew against the prisoner.

All the judges concurring,

Judgment affirmed.


author: Davies, J.

text:
    William G. Sands, Receiver, &c., Respondent, v. Morris N. Campbell, et al., Appellants.
    A note made and delivered to persons organizing a mutual insurance company, for the purpose of being presented to the commissioners appointed by the comptroller to examine the capital and securities of such company, is a premium note.
    An injunction restraining the receiver of said company from collecting and receiving any moneys on the premium notes of said company, included such note.
    And, therefore, the time during which such injunction was operative, must be deducted, when the statute of limitations is interposed as a defense to a smt upon such note.
    The facts sufficiently appear in the opinion of Davies, J.

      Deniel P. Pratt, for the appellant.

      Henry R. Mygatt, for the respondent.
   Davies, J.

The referee who tried this action found as matter of fact that the -¿Etna Insurance Company of TJtica was a corporation duly organized, as stated in the complaint, on the 28th of March, 1851; that the plaintiff was duly appointed and is now the receiver of said company; that Archibald Campbell made the note in this action; that said Campbell has since died, and that the defendants are his administrators; that said note was made by said Campbell prior to March 28th, 1851; that the same was made by him and delivered to the persons organizing said company for the purpose of being presented to the commissioners appointed by the comptroller to examine the capital and securities of said company, and that the same was before said commissioners and passed upon by them and formed a part of the original formation or organization notes -of said company; that on the 15th of May, 1855, Hubbard and Terry commenced an action in the Supreme Court against the then receiver of said company, on behalf of themselves and all such other persons whose premium notes were held by said receiver, and praying an injunction restraining the receiver and the said company from receiving and cohecting any moneys upon said premium notes, or any notes of said company, or commencing any suits thereon, upon which an injunction order was issued and served on the 15th day of May, restraining the said receiver and said company from collecting any of the premium notes of said company, or bringing any actions thereon; which injunction continued in force until the 16th day of June, 1860, when the same was vacated as far as the same prevented the receiver from making any assessment or the coUection of the notes of said company; that this action was commenced by service of a summons and complaint on the 3d day of June, 1861. The referee found as conclusions of. law that the note in suit was one of the original formation or organization notes of said company; that the statute of Emitations was not a bar to this action by reason of the injunction aforesaid; that the plaintiff was entitled to judgment for the amount of said note and the interest thereon from June 3d, 1861, for which judgment was entered on said report, and the same was affirmed at General Term.

The note in suit was in these words: $120. Tor value received in poEcyUo. 116, dated March 28, 185 (1851 meaning), issued by the .¿Etna Insurance Company of Utica, I promise to pay the said company or their treasurer, for the time being, the sum of one hundred and twenty dollars, in such portions and at such time or times as the directors of said company may, agreeably to their charier and by-laws, require.”

The defense of the statute of limitations was interposed, and if the injunction order granted in the suit of Hubbard and Terry against Karnes, receiver, did not embrace and cover the note, then it is conceded such defense is available, and the plaintiff must fail. In the case of Howland, Receiver, v. Edmonds (24 N. Y., 307), this court decided that a similar note given to make up the capital stock of a mutual insurance company was a note payable on demand, and that the statute of limitations began to run against such a note at the time it was given, and was .a good defense at the expiration of six years from that time. This note was given on the 28th of March, 1851, and this suit was not commenced until the 3d day of June, 1861. It is claimed on the part of the plaintiff that the injunction order in the suit of Hubbard and Terry restrained the prosecution of any suit on said note from the 15th of May, 1855, until the 16th of June, 1860, when the same was vacated, and that, deducting the six years and one month of the continuance or duration of said injunction, more than six years had not elapsed from the date of said note March 28, 1851, to the date of the commencement of this suit June 3d, 1861. This is clearly so, and if the injunction restrained the collection of this note during that period, then the defense of the statute of limitations is unavailing. The 105th section of the Code declares that when the commencement of an action shall be stayed by injunction or- statutory prohibition, the time of the continuance of the injunction or prohibition shall not be part of the time limited for the commencement of the action.

The referee has found, as matter of fact, that the injunction restrained the collection of any of the premium notes of the company or bringing .any action thereon from the 15th of May, 1855, to the 16th of June, 1860.

The question then is, was the note in suit a premium note belonging to the company ? A reference to the provisions of the act which authorized the company to receive it, will show that but little doubt can be entertained on this question. By section 5 of the act to provide for the incorporation of insurance companies, passed April 10, 1849 (Laws of 1849, ch. 308), it is declared that “ no mutual insurance company shall commence business in the city of Hew York, or in the county of Kings, until agreements have been entered into for insurance with at least one hundred applicants, the jpremiums on which shall amount to two hundred thousand dollars, and notes have been received in advance for the premiums on such risks, which notes shall be considered a part of the capital stock, and may be negotiated and collected for the purpose of paying any losses which may accrue, or otherwise; nor shall any mutual insurance company in any other county in the State commence business until agreements have been entered into for insurance, the premiums on which shall amount to one hundred thousand dollars, and the notes received therefor payable as aforesaid, and which notes shall he liable and used as aforesaid.” The note in this- action was given, therefore, upon an agreement of the maker for an insurance in said company. This is expressed on the face of the note; and the consideration stated in the note, taken in connection with the provisions of the statute, undeniably establish that it was' given .for the premium on the policy therein referred to. In the language of the statute, it was a note given for a premium on an agreement to insure, and in this case to secure a premium on a policy actually issued. It was, therefore, beyond all question, a premium note, and certainly none the less so from the circumstance that it was given in advance, to enable the company to organize, and it formed a part of the amount which the company was required to possess before it could organize. The statute, clearly and explicitly, in specifying notes given for premiums, designates them as premium notes; and it was no misnomer, therefore, • in the injunction order, to speak of the premium notes of the company. Such general classification would as well, include those notes given for premiums, on agreements made for insurance, in anticipation of the organization of the company, as those given on agreements made after it's organization. They are all equally premium notes. It is apparent that such was the understanding of Hubbard and Terry, when they applied for the injunction, from the language used in their complaint. They allege that at the time the company commenced business in the spring of 1851, it had and owned premium notes to the amount of one hundred thousand dollars and upwards, and that it continued to make insurance on the plan of mutual insurance, issue policies and receive premium notes therefor, until about the time of the appointment of the receiver in January, 1854. Ho distinction is made in said complaint, in referring to said premium notes, between those received prior to the organization of the company, or those taken subsequently. And the prayer for the injunction was equally broad. It prayed that said .receiver might he restrained from receiving or collecting any moneys upon said premium notes, or said assessments made thereon, or either of them, and from bringing or prosecuting any snit to enforce payment of said assessments, or either of them, or said notes, or any part thereof. The injunction, referring to the complaint, enjoins the receiver from receiving or collecting any moneys upon the premium notes of the said company. This must be understood to mean the premium notes of the company mentioned and referred to in the complaint; and we have seen that it specifically refers to the premium notes had and owned by the company at the time it commenced business in March, 1851. It would have therefore -been a clear breach of the injunction order, if the receiver or the company had commenced an action upon this note now in controversy. It was distinctly pointed at in the complaint and by the injunction. That it was so regarded by the parties to that action, and by the court, is apparent from the order made, on the 16th of June, 1860, whereby it was ordered that the injunction order be vacated and set aside so far as the same in any manner interfered with or prevented said receiver from collecting any of the original notes of said company, or making any assessment on, or the collection of the notes of said company.

It seems to me very clear, therefore, that the receiver properly refrained from commencing any suit upon this note from May, 1855, till after June 16, 1860, and that the time he was thus restrained is to be deducted from the six years of limitation, and that that statute therefore interposes no barrier to the plaintiff’s right of recovery.- Mo other question was suggested, of sufficient moment to deserve any particular attention.

The judgment should, therefore, be affirmed.

All the judges concurring,

Judgment affirmed*