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house for five years, the whole rent payable at the expiration of the lease, as to find a man loaning $20,000 for five years with interest payable only at the maturity of the note. There is therefore no presumption that the payment of interest in such a case is to be deferred. The presumption is rather the other way.

Our conclusion is, that the mortgage as it stands secures the payment of interest annually, and that too as against subsequent purchasers. That being so, the plaintiff is entitled to a decree without a reformation of the mortgage.

[Omitting another question.] Judgment for plaintiff.

PARENT AND CHILD-STATUTE AWARDING CUS-
TODY TO OVERSEERS OF POOR-CON-
STITUTIONALITY-RESTOR-

ING CUSTODY.

MASSACHUSETTS SUPREME JUDICIAL COURT. FEBRUARY 1886.

FARNHAM V. PIERCE.*

A statute authorizing courts and magistrates to award to the overseers of poor the custody of children found to be neglected by their parents, and growing up without education or salutary control, and in circumstances exposing them to lead idle or dissolute lives, is constitutional, but such adjudication is not conclusive, and on habeas corpus the custody may be restored on showing the removal of the cause and the parents' competency and fit

ness.

IE opinion states the case.

THE opi

G. E. Williams, for petitioner.

F. V. Fuller, for respondents.

W. ALLEN, J. The father of an infant four years of age, who has been committed to the custody of the overseers of the poor of the city of Taunton by the First District Court of Bristol on findings that she was, by the neglect of her parent, growing up without education or salutary control, and in circumstances exposing her to lead an idle and dissolute life, and that she had a settlement in Taunton, seeks her discharge from custody on a writ of habeas corpus, on the ground that the statute of 1882, ch. 181, §3, under which the court acted, is contrary to article 12 of the Declaration of Rights of this State.

The section of the statute is as follows: "Whenever it shall be made to appear to any court or magistrate that within his jurisdiction any child under fourteen years of age, by reason of orphanage, or of the neglect, crime, drunkenness, or other vice of his parents, is growing up without education or salutary control, and in circumstances exposing him to lead an idle and dissolute life, or is dependent upon public charity, such court or magistrate shall, after notice to the State board of health, lunacy and charity, commit such child, if he has no known settlement in this Commonwealth, to the custody of said board, and if he has a known settlement then to the overseers of the poor of the city or town in which he has such settlement, except in the city of Boston, and if he has a settlement in said city, then to the directors of public institutions of said city, until he arrives at the age of twenty-one years, or for any less time; and the said board, overseers and directors are authorized to make all needful arrangements for the care and maintenance of children so committed in some State, municipal or town

*141 Mass. 203.

nstitution, or in some respectable family, and to discharge such children from their custody whenever the object of their commitment has been accomplished." This is not a penal statute, and the commitment to the public officers is not in the nature of punishment. It is a provision by the Commonwealth, as parens patric, for the custody and care of neglected children, and is intended only to supply to them the parental custody which they have lost. In this respect the statute manifestly differs from the construction given to the statutes under which People v. Turner, 55 Ill. 280; S. C., 8 Am. Rep. 645; and State v. Ray (N. H., July, 1885), 32 Alb. L. J. 349, were decided, and resembles more the statutes considered in Milwaukee Industrial School v. Supervisors, 40 Wis. 328; S. C.. 22 Am. Rep. 702; Farrier's Petition, 103 Ill. 367; McLean Co. v. Humphreys, 104 id. 378; Prescott v. State, 19 Ohio St. 184; S. C., 2 Am. Rep. 388; House of Refuge v. Ryan, 37 Ohio St. 197; Ex parte Crouse, 4 Whart. 9; and Roth v. House of Refuge, 31 Md. 329.

It does not punish the infant by confinement nor deprive him of his liberty; it only recognizes and regulates, as in providing for guardianship and apprenticeship, the parental custody which is an incident of infancy.

It is argued that the right of the father to the society, education and earnings of his child is taken from him by a summary proceeding, without notice or trial. If the statute is to be construed as authorizing a final adjudication upon the rights of the father, taking from him the custody and care of his child, it would be a grave question whether it could be sustained. But we do not so construe the statute.

It provides custody for a child who is suffering for the need of it in consequence of the death or unfitness of its parent. The fact of the death or neglect or crime or vice of the parent shows the condition of the child-that he is in need of parental custody. The fact that he is suffering morally for want of parental restraint calls for immediate and appropriate relief as would the want of food or shelter. The inability or failure of the parent to furnish the relief is intended to show the need of the child, not to be the basis of a decree against the parent. Milwaukee Industrial School v. Supervisors, ubi supra.

It is argued that the statute authorizes the commitment of the child to custody until his majority, and only gives the board to which he is committed discretionary authority to discharge him, and that it thus wholly deprives the parent of the right to the custody. The answer is that the father is not bound by the adjudication, and his rights are not affected by it, except incidentally and to a limited extent, necessary for the

good of the child.

It would be an entirely natural and proper provision in a commitment intended to bind the child and strangers only, that it should be during minority, or for a shorter time, in the discretion of the committing magistrate; and it is not necessary to infer from such a provision an intention that the rights of the father should be adjudicated and determined which would not have been found without it. That that was not the intention of the Legislature appears from various considerations besides those already referred to. The proceeding is intended to be summary. Any magistrate is authorized to act when it shall be made to appear to him, etc. No complaint or written application to the magistrate is required, and no notice to any one except to the State board of health,lunacy and charity after it shall have been "made to appear." No trial is required, and it might be "made to appear" by inspection of the child and his surroundings without any other proceeding. The statute not only requires no notice to the parent, but does not make

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The finding of the District Court must be taken to
be that the child was in the condition which required
the custody of the overseers of the poor according to
the statute, and she was given into their custody for
that reason, and not because the father was adjudged
to have forfeited his right. The commitment is valid,
and the custody in which the child is held is lawful,
and subject to the rights of the father. The statute
does not provide any way in which the father can
maintain his rights. He can apply to overseers of the
poor to discharge the child, for the reason that the ob-
ject of the commitment has been accomplished, and
on showing his ability and fitness to take charge of
the child, she should be discharged to them. The
statute leaves that in their discretion, it is true, and
as to matters other than the right of the parent, their
discretion may be absolute; but the rights of the pa-
rent can be protected on habeas corpus by this court.
Milwaukee Industrial School v. Supervisors and House
of Refuge v. Ryan, ubi supra.

We think that the commitment is evidence of the
condition of the child, as in need of restraint on ac-
count of the neglect of the parent, at the time of the
commitment; but that it is not binding upon the
father as an adjudication upon his rights, and that he
has a right to show that the cause stated for the com-
mitment does not now exist, that he is competent and
fit to have the care of the child, and that the welfare
of the child will permit of her removal from her pres-
ent custody.
The case should be remitted for further hearing be-
fore a single judge.

Ordered accordingly.

him a party, and gives him no right to be heard, even CHITTY, J. This is an application to strike out the
if present; and it does not prescribe a fact as constitu- registration of a trade-mark which was obtained by
ting the unfitness of the parent-as support as a pau- the respondents on the 8th of April, 1885. The regis-
per or sentence to the State prison for instance-buttered trade-mark consists of these words, "Hand
leaves the question of unfitness, in the respects speci- Grenade Fire Extinguisher." Under the Patents,
fied, to the summary determination of any magistrate Designs and Trade-marks Act, 1882, § 64, there may
without revision or appeal. As a proceeding to ascer- be registered as a trade-mark "a faucy word or words
tain whether a child, who is growing up without salu- not in common use." Every one of these four words
tary control, and exposed to vicious habits, is in that are words in common use- -"hand," "grenade,"
condition, in spite of proper parental control, or for "fire," "extinguisher"-and they are all ordinary
want of it, with a view of supplying the control, if words to be found in any dictionary, and well under-
needed, the meaning of the statute is plain, and in the stood by any person moderately acquainted with the
line of legislative precedent; as a proceeding to deter- English language. Mr. Aston says that the term,
mine the fact of the father's unfitness and consequent taken as a whole, is a fancy term; and he has endeav-
forfeiture of his parental rights, and to adjudicate ored, by an ingenious argument, to support that prop-
upon his right to the custody of the child, it lacks es- osition. In order to draw forth the strength or weak-
sential features which we are accustomed to find in ness of his argument, I asked him what term he him-
all legislation affecting rights of property or persons; self, after having carefully considered the matter,
and we do not think that the necessity of construc- would be able to propose to the court as a term which
tion requires us to give that meaning to the language of would better denote the article in question than the
the statute.
term that I have just read. His answer I will men-
tion in a moment. The instrument or implement, or
whatever I ought to call it, consists of a bottle which
contains a liquid. The bottle is thrown, and the bottle
being thrown, breaks, the liquid escapes, and the ef-
fect produced, or alleged to be produced-for I am not
concerned with whether it is successful or not-is that
it extinguishes fire. The four words appear to me to
indicate with very considerable precision, and with
much greater precision than I am accustomed to find
in matters of this kind, the nature of the article itself;
and I should hold, as a mere general proposition, with-
out regard to the evidence, which I shall discuss in a
moment, that these words, which the respondents call
fancy words, are merely descriptive of the article
-" hand," "grenade," "fir9," "extinguisher." The
bottle is something like the pomegranate from which
the military instrument or weapon called a grenade is
taken; and everybody who understands the English
language knows than a grenade is a thing intended
to be thrown, and it is known that it contains some-
thing inside it, and that when thrown, there being a
fuse, the fuse will ignite and the thing will explode.
Breaking is part of the notion therefore to be found
in the use of the term "grenade," and the bottle, of
which there are several specimens here in court, is not
unlike a grenade with a fuse in it. "Hand"-this
grenade is to be used by throwing it by the hand; it is
not shot from a gun, or any thing of that kind, and it
does serve to extinguish the fire by breaking the glass
bottle and allowing the contents to escape.

14

These are questions of trade terms, and it is a great mistake to suppose that in trade terms are found great accuracy. On the contrary, there is a very considerable looseness allowed. This is not a question-and I say this emphatically-for a grammarian or philologist. It is a question of the ordinary fair meaning of the terms to any ordinary Englishman; and there are

GUISHER."

TRADE-MARK-"HAND GRENADE FIRE EXTIN- many illustrations I could give-some of which I gave

in the course of the argument-where words have got
into the language, and pass current, and are very good
words, which do not please the philologist, who never
would be satisfied. Of course after a time the learned

RE HARDEN STAR HAND GRENADE FIRE EXTIN- philologist accepts them, and takes them as part of
our ordinary stock of the English language. Professor
GUISHER CO., LIMITED.*
Henry Morley, of whom I desire to speak with the

The words "Hand Grenade Fire Extinguisher" are merely greatest respeet, has stated in substance in his affida-
descriptive, and not a valid trade-mark.
vit that he considers this a fancy term, and that the
term-as a whole, he must mean-is not in common
Romer, Q. C., and Roger Wallace, in support of the use. There is another learned professor who takes a
motion.
view which is wholly opposed to this. He considers
the term not fanciful, and considers the words in com-
mon use; and they certainly were in use about two
years before he made his affidavit. It is the first time
I remember any affidavits being filed to explain the

CHANCERY DIVISION, APRIL 15, 1886.

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Aston, Q. C., and R. Vaughan Williams, for respondent company.

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54 L. T. Rep. (N. S.) 834.

English language, but I accept them, and I have no doubt both these gentlemen do state their own view with perfect accuracy.

But it is really a question, as I have said, which does not depend on expert evidence. I remember no case in which, in order to explain the English language, expert evidence has been allowed to be adduced. Of course there are many cases in which experts in the market are allowed to come forward and explain the market terms or the like, such as the terms of a charter-party or any other mercantile document. But however this may be, without pressing this too far, it is for the court to decide; and I do consider these words to be merely descriptive. I hold that as a general proposition. But before I will go to another point I will mention Mr. Aston's answer to me when he was endeavoring with all his skill, all his knowledge of the English language, all his ability, and all his versatility in questions of this kind, to give me a better description of the article, and I got from him as the result, first, "a bottle extinguisher." Mr. Aston, no doubt, meant to have inserted another word, as he said he did. Then he inserted the word "fire." Thus I got With the assistance of "bottle fire extinguisher." some gentleman who was in the court, learned in the law and also in the language, he afterward suggested "bottled fire." That of course is equally absurd. Then I got from him "bottled fire annihilator," and then as the last, "decanter fire annihilator." If I may say so, I think that that reduces the question to an absurdity. The decanter of course is quite wrong, because the decanter is that out of which you pour a thing. The action of decanting is to empty one and Decanter" would have been a pour it into another. miserable term to apply. It is hardly worth while pursuing this part of the case with seriousness. The result of Mr. Aston's labors in the matter would not have conveyed the notion of this instrument or implement so well to the ordinary mind as the terms which are here used.

66

applicant's grenade, as a "Hand Grenade Fire Extin-
guisher." Then I have a provisional specification,
filed in November, 1884, for "Improvement in hand
grenades or chemical fire extinguishing devices," with
a description. I have another one on the 7th of Octo-
ber in the same year for Improvements in hand
grenades for fire extinguishing purposes," and another
one in February, 1885, "Improvements relating to
hand grenades for extinguishing fire." But really t
is not necessary to go further through the evidence.
There is a considerable body of evidence beyond what
I have mentioned. I am satisfied that in this country
the term was well known and in common use at the
time the respondents on this motion applied for this
registration. What has been done really is with a
view to prevent the rival licensee-that is, Hayward or
those claiming under him-from selling his hand gren-
ades made after the same pattern in this country; and
that is plain from a letter that was written by Mr.
Royce, the manager or secretary of the respondent
company, who in terms shows that his object was to
obtain a monopoly for the sale under their license of
the same patent; because both the respondents and
Mr. Sinclair have claimed under the same American
patent, and their title is apparently, as far as the ar-
That letter
ticle goes, derived from the same source.
contains a passage which I read for the purpose of
showing with what intention this registration took
place, premising that no notice was given to the ap-
plicant or to any agent of Hayward in this country of
the intention to register, and that the registration was
either kept secret or at least remained unknown for a
very considerable time afterward. What Mr. Royce
says in his letter of the 13th of March, 1885, material to
this point, is this: "I also note your efforts in keep-
ing the agents in good trim, and glad to see you are
confident of so doing. I expect Mr. Hayward will
have a hard time in getting his grenades into this mar-
ket."

Now I will go to the evidence, which I will deal with very shortly. In America the name was used and well known. I have the description in the Scientific American of the Harden Hand Grenade Fire Extinguisher and the article is published in a magazine that came out on the 12th of July, 1884, and was in this country by the end of the month, and this article speaks of these things in general terms. I will explain what I mean a little more fully. It is headed "Harden Hand Grenade Fire Extinguisher," which for argument sake, I will allow for the moment might be taken to be the description only of the Harden implement. But the article goes on to speak of these as distinguished from others. In small type it says: "These little hand grenades extinguish fire on the same principle." What an admirable commentary that passage I have just read is on the question of whether these "These little hand words are descriptive or not. grenades extinguish fire." It is almost as short and Then as neat as the term which he has registered. there is a license which was granted to Mr. Hayward in 1884, in which I have the term used as an ordinary term. It was a license to sell "fire extinguishers and hand grenade fire extinguishers." In the patent of 1883 which came over to this country, the heading is "Hand Grenade for Fire Extinguishers." That is not quite so neat as the term that has been registered. "Hand Grenade for Fire Extinguishers seems to me to be not so terse nor so well formed a phrase as the phrase which has been submitted for registration. Then I have in this country, besides what the respondents themselves did before registration, Harper's Magazine, which came into this country in December, 1884, describing Hayward's, that is in substance, the

.

Here is the agent or secretary or officer of the re-
spondent company using this term "grenades" about
which alone there could have been, to my mind, the
slightest contest as to whether the word was fanciful
or not, in the ordinary sense of a word well known:
"In getting his grenades into this market," that is,
"I have just applied for a trade-mark
into Eugland.
in the word 'grenade,' as applied to hand fire extin-
guishers, and shall probably get it, as it was discussed
quite extensively before we filed our claim. I have
also taken out the words 'The Harden' as a trade-
mark, which will bar Mr. Harden," that is another
claimant, "and his lovely grenade;" and then he says:
"I have also taken out a design upon the Hayward
bottle. It is really our property, as he stole it from
us." Upon that part of the case I make no observa-
tions beyond this: The motion did refer to the
registration of the design. But Mr. Aston submitted
upon that, and he tells me, though he has not given
any evidence to justify the statement, that Mr. Hay-
ward stole the design of the bottle from them; he has
not gone into evidence upon the point, because he has
substantially submitted to the demand.

There is evidence on the other side to the effect that most unscrupulously the design of the Hayward bottle was taken by the Harden company and registered; but I pronounce no opinion upon that. I consider it quite unnecessary for the purpose of my judgment on the other part of the case, and moreover this part of the case has been withdrawn; but the letter itself speaks volumes, and it shows that that is being done which I have known attempted to be done on other occasions by registering a name, namely, attempting to get a monopoly really of the article, and to prevent others selling the same article in the market.

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Action to recover the value of plaintiff's baggage, lost from a sleeping car forming part of the defendant's train, in which plaintiff was a passenger at the time. Verdict and judgment for plaintiff, and appeal therefrom by defendant.

Estes & Ellett, for plaintiff.

L. & E. Lehman, for defendant.

FREEMAN, J. Katzenberger, the plaintiff below, purchased a ticket at Cincinnati, Ohio, and got on the cars at Louisville Junction, in Kentucky,on the defendant company's road, for the city of Memphis. He also purchased a ticket entitling to a berth from the conductor in charge of the Pullman sleeper attached to the train on which he was to travel. He gave his satchel or valise to the porter of the sleeper on entering the car; had his berth made down. On retiring he gave his sleeping car ticket to the porter, it being about 1 o'clock at night. At this time the porter informed him the valise was too large to go under the seat, and he left it where he had seen it placed by the porter of the train on entering, to-wit, on a seat near the middle of the car, the conductor sitting beside it. When the car reached Guthrie, on or near the line between Tennessee and Kentucky, the valise was missed, and could not be found. The valise contained various articles of wearing apparel, and the jury have found a verdict for plaintiff below for $100.

It is proper to state that the ticket given for the berth by the conductor of the Pullmun car had in print on the face of it, the following: "Wearing apparel or baggage placed in the car will be entirely at the risk of the owners." This ticket however as shown, only being the ticket of the Pullman Car Company, and the railroad company not being a party to it, or so shown, further than the fact that the sleeper was part of its traiu, can have no bearing on the present case, where the suit is against the railroad company alone. What effect it might have on a suit against the Pullman Car Company we need not discuss or determine, at least for the present.

The suit being against the railroad company as a carrier of passengers, the question is as to the measure of liability incurred by such company, where its passenger exercises its option to ride on a sleeper of the Pullman Company, whose car, by contract with the railroad company, makes part of its train, and is thus contracted for, in view of the convenience of its passengers, as well as the increased profit to the company by reason of being able to furnish such a comfort and convenience, thereby increasing at competing points at least its patronage over any road that should fail to *1 S. W. Rep'r, 44.

furnish such advantage, At one time it was held that the proprietors of public conveyances which carried passengers were not responsible as common carriers for the baggage or luggage of passengers, unless a distinct price was paid for its carriage. It is said in Hutch. Carr. however, section 678: "But now it is too well established to be controverted, that in the carriage of the passenger's baggage, the carrier incurs the full responsibility of the common carrier of goods, and becomes an insurer of its safety against every accident which is not the act of God, or the public enemy, or the fault of the owner or passenger himself." For this are cited numerous cases. Macrow v. Ry. Co., L. R., 6 Q. B. 612; Great Western Ry. Co. v. Goodman, 12 C. B. 313; Marshall v. Ry. Co., 11 id. 655; Butcher v. Ry. Co., 16 id. 13; Story Bailm., § 499. This doctrine, we

take it, is not controverted by the learned counsel as the settled law of this country as well as of England.

"The general adoption of the rule," says Mr. Hutchinson in a note to page 535 of his work on Carriers, "is no doubt attributable to evident necessity which those who travel are under to carry baggage, and to the fact that the contract to carry the passenger at all advantageous. Nor can there be any hardship or injustice in such a rule, as it is in the power of the carrier to charge such rate for passage as will compensate him for the responsibility he assumes of the passenger's baggage." We add, a very small charge would prove, in the long run, profitable to the railroad, losses from this source not being great, and the articles embraced in the term "luggage" not generally of great value.

It is also well settled, and that in accord with the nature of the contract, that all reasonable liberality is allowed to the passenger in control of his luggage, for the purpose of its use upon the journey, without releasing the carrier from his obligation to see to its safety. Especially would this be true as to the charac

ter of luggage involved in this case-a valise containing clothing for use on the journey. Hutch. Carr., § 694, et seq.

There appears no special custody of the baggage in this case more than the fact of taking it into the Pullman car, and delivering it to the porter, who placed it on a seat opposite the owner.

But the main argument of the learned counsel in this case is based on the contract with the Pullman Car Company exempting it from liability for baggage, and also that the conductor and porter were prohibited by a regulation of the sleeping car company from taking charge of, or assuming responsibility for, such luggage. As we have said, we do not see that this contract can have any proper bearing on the liability of the railroad company, the general carrier, who had engaged to transport plaintiff and his baggage from the Junction to Memphis, using as part of the means to do so the sleeper of the Pullman Company provided for its own advantage by special contract with that company; and by the contract of carriage by settled law, incurring all the responsibilities of a common carrier of passengers.

The question pressed on us, that the sleeping car in question was owned by the Pullman Company, provided at its own expense, with a conductor and porter, to whom was committed the immediate control of its interior arrangements and management, was thoroughly considered by the Supreme Court of the United States in its application to the responsibility of the railroad company in the case of Pennsylvania Co. v. Roy, 102 U. S. 452, et seq.

This case, it is true, was an action for injuries sustained to the person, but sustained by reason of the supposed or assumed defective construction of the sleeper in which the passenger was riding at the time. In fact he was riding at the time in a different sleeper

from the one in which he had his berth, with a friend, and therefore a stronger case than the present. The defendant railroad company earnestly pressed the argument that the railroad company was not responsible because of the contract of the railroad with the Pullman Company, similar to the one in this case, and that company was alone liable, having independent control, to a great extent at least, of its sleepers. The Circuit Court of the Northern District of Illinois, before which the case was tried, charged the jury that "the defendant has offered to prove that the car in which the plaintiff was injured was not the actual property of the defendant, but was the property of another corporation; but I instruct you, as part of the law of this case, that if the car composed part of the train in which the plaintiff and other passengers were to be transported upon their journey, and the plaintiff while in that, without any fault of his own, and by reason either of the defective construction of the car, or by some negligence on the part of those having charge of the car, was injured, then the defendant is liable."

The Supreme Court, Harlan, J., delivering the opinion, held this charge correct, saying: "The court only applied to a new state of facts principles very generally recognized as fundamental in the law of passenger carriers. Those thus engaged are under an obligation arising out of the nature of their employment, and on grounds of public policy rigorously enforced, to provide for the safety of passengers, when they have assumed for him to carry from one place to another."

As between the parties now before the court, the court say the agents of the Pullman Company were, in law, the servants of the railroad company for the purpose of this contract of transportation. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping-car company, whose cars are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agreed to convey. Page 457, citing Whart. Neg. and other authorities. We think these principles sound, and meet the demands of a proper public policy in such cases.

The carriage of the baggage being but an incident to the contract of carriage to the passenger, and part of that contract (Hutch. Carr., § 678), the same principle there applied is applicable to the incident as to the principal contract. The defendant company cannot escape the liability incurred by its contract by any devices or arrangement with the Pullman Company by which its cars are contracted for, in and of the business of the railroad company. The latter must respond to its obligations as a carrier of passengers, whether it carry on the sleeper of the Pullman Company, or in its own coaches provided by itself.

We do not feel called upon to review the various cases cited by defendant's counsel on the liabilities of sleeping-car companies under their peculiar contract to furnish a sleeping apartment with certain conveniences. Such cases are of interest, but do not solve the present case, where the carrier of passengers is sued for a breach of his undertaking.

We think we have correctly measured his responsibility as given in this opinion. The court below charged in general accord with this theory, and the referees report in favor of an affirmance.

We affirm the judgment, and approve the conclusions of the report.

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KALIS V. SHATTUCK.*

A landlord is not liable for an injury caused to a by-stander by the fall of an awning belonging to his building, which is in the possession of tenants, if the fall of the awning was attributable to an improper and negligent use of the awning by the tenant in permitting crowds of people to go upon it, when the only purpose of the awning was as a pro tection from sun and rain, and when, but for such crowd upon it, it would not have fallen.

IN Alameda.

N bank. Appeal from Superior Court, county of

J. C. Martin, A. A. Moore and Sydney V. Smith and son, for appellant.

J. B. Lamar, for respondent.

MCKEE, J.

Pauline Kalis, the wife of her co-plaintiff, while passing along the sidewalk in front of a building on the west side of Broadway, in the city of Oakland, received personal injuries from the fall of a wooden awning, which extended, with a slanting direction, from the second story of the building for about twenty feet over the sidewalk; and to recover damages for the injuries sustained, she brought the action in hand against "F. K. Shattuck, Maria Hillegas, administratrix of the estate of William Hillegas, deceased," and seven other defendants," for knowingly, negligently, and carelessly suffering the awning to remain rotten and insufficiently supported, in consequence of which, and of the "negligence and carelessness of the defendants in maintaining and using it in that defective condition," it fell upon the plaintiff while lawfully passing on the sidewalk, and inflicted upon her painful and permanent injuries. On the trial of the case nonsuits were granted in favor of all the defendants except Shattuck and Maria Hillegas. Against them a verdict and judgment for $3,000 were rendered, and from the judgment and an order denying their motion for a new trial they have appealed.

The statement of the casc upon which the motion was heard and decided shows that the awning was constructed "about twelve years ago," by F. K. Shat. tuck and William Hillegas, who were owners of the building. Hillegas, being a tenant in common of the building, died in 1876. As constructed, the awning consisted of a piece of two by twelve inch timber, bolted to the brick wall of the building with bolts which were bedded in the wall. From this, timberrafters, two inches by twelve inches, extended every twelve feet from the wall over the sidewalk, and were supported by turned posts, in front of which, and to receive the ends of the rafters, a piece of timber, three inches by twelve inches, was halved on the upper part of the posts, and spiked to them and to the rafters, Between the rafters there was laid a two by six inch cross-rafter, which supported the awning covering, made from oue by six inch tongued and grooved boards. The awning had a pitch of twelve inches. There was no railing in connection with it; no doors or steps leading to it. The sole purpose of its construction was as a cover for the sidewalk from sunshine and rain.

The awning fell and injured the plaintiff on the 9th of September, 1880. As to the condition of the posts that supported it on that day there was a conflict in the evidence; but the evidence given on the part of both plaintiffs and defendants tended to show that the

*11 Pac. Rep. 346.

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