Judicial and Statutory Definitions of Words and Phrases

the latter to things from which we often or inevitably suffer." Webster. Therefore the provision of the general drain law that an application for the establishment of a drain shall be signed by not less than ten freeholders, five or more of whom shall be owners of land "liable" to assessment for benefits in the construction of such drain, means that at least five of the signers must be persons who may properly be assessed for benefits, and, as so construed, is not subject to the objection of being impossible of enforcement. Albert v. Gibson, 105 N. W. 19, 21, 141 Mich. 698 (citing 5 Words and Phrases, p. 4110).

"A party liable' is one who may be held responsible either directly or conditionally. Liability is predicable of a contingent obligation as well as one matured and fixed." Code Civ. Proc. § 1627, subd. 1, providing that any person who is liable to the plaintiff for the payment of a debt secured by a mort gage may be made a defendant in the fore closure suit, applies to an assignor of a bond and mortgage who has guaranteed the collection thereof. Robert v. Kidansky, 97 N. Y. Supp. 913, 916, 111 App. Div. 475.

The qualifying phrase "and against the property liable for assessment for such improvement at the time of the making thereof," in section 129, c. 122, p. 207, Laws 1903, means the property which would have been liable for the special assessment had no infirmity existed therein or in the steps leading thereto, which infirmity this section was enacted to cure by the terms thereof. To construe the word "liable" to mean legally liable would take away the entire force of the curative act. Shepherd v. Kansas City, 105 Pac. 531, 533, 81 Kan. 369.

The word "liable," in an instruction, in an action for personal injuries, that if the jury find for plaintiff they can take into consideration as elements of damages plaintiff's physical and mental pain and suffering, and that which he is "liable" to endure in the future by reason of his injury signifies something that may happen without importing reasonable certainty that it will happen, and the charge indicates that the jury may enter into full conjecture as to the possible future suffering and injury, and the charge should be that the verdict may include not future damages which plaintiff is liable to suffer (that is, may suffer), but such damages as it is reasonably certain will of necessity result from the injury. Green v. Catawba Power Co., 55 S. E. 125, 126, 75 S. C. 102 (citing Ayers v. Delaware, L. & W. R. Co., 53 N. E. 22, 158 N. Y. 254; Stutz v. Chicago & N. W. Ry. Co., 40 N. W. 653, 73 Wis. 147, 9 Am. St. Rep. 769; Louisville S. R. Co. v. Minogue, 14 S. W. 357, 90 Ky. 369, 29 Am. St. Rep. 378, and note; Ford v. City of Des Moines, 75 N. W. 630, 106 Iowa, 94; McBride v. St. Paul 3 WDS.& P.2D SER.-7

City Ry. Co., 75 N. W. 231, 72 Minn. 291; 13 Cyc. p. 138).

The word "liable," in an instruction, in an action for injuries to a pedestrian tripping over a brick thrown on the sidewalk from a pile of brick between the curb and the sidewalk, that the municipality was responsible if the brick was placed on the sidewalk so that it was "liable" to fall upon or be thrown thereupon, has the effect of imposing on the municipality the highest degree of possible care, and makes that which was possible negligence on the part of the municipality and is erroneous. Sutter v. Kansas City, 119 S. W. 1084, 1086, 138 Mo. App. 105.

As used, an instruction that it was the duty of a railroad company to exercise ordinary care to keep its right of way free from dry and combustible matter which would be "liable" to take fire and communicate it to a trestle, etc., had a meaning sufficiently wide to admit of a gloss rendering its meaning "within the range of possibility," which made the instruction erroneous as imposing too high a degree of care. Root v. Kansas City Southern R. Co., 92 S. W. 621, 631, 195 Mo. 348, 6 L. R. A. (N. S.) 212.

The expression "liable to catch and hold vehicles" is indeterminate and of a wide meaning, and the fact that a street railway switch was so constructed that it was liable to "catch and hold vehicles" does not of itself show that the switch was such a structure as to render the railroad liable for injuries to a traveler in a buggy, the wheels of which were caught by the switch, and who was thereby thrown to the ground and injured. Morie v. St. Louis Transit Co., 91 S. W. 962, 967, 116 Mo. App. 12.

LIABLE AS CARRIER

in Rev. St. § 4281, providing that if any ship. The phrase "liable as carrier," as used per of certain designated merchandise shall lade it as freight or baggage on any vessel without then giving to its master or agent a

written notice of the true character and val

ue thereof, having the same entered on the bill of lading therefor, the master and owner shall not be "liable as carriers" thereof in any form or manner, means only the liability attached by law to the carrier's public employment, and does not attach to its liability as bailee. La Bourgogne, 144 Fed. 781, 786, 75 C. C. A. 647.

LIABLE TO FORFEITURE

Webster defines "liable" thus, "Obliged in law or equity, subject," and says it “denotes something external which may befall us." Rev. St. § 4189, declaring that for the commission of a certain act a vessel "shall be liable to forfeiture," does not effect a present absolute forfeiture, but only gives a right to have the vessel forfeited upon due process of law, and the property in the same

remains in the owner until seizure and condemnation, which relates back to the time of seizure and invalidates intermediate sales. The Kate Heron, 14 Fed. Cas. 139, 141, 6 Sawy. 106.

Where a certificate of a mutual benefit society provided that all the benefits accruing should be "liable to forfeiture" if the member did not comply with the association's constitution and by-laws one of which declared that, in case of omission to pay

dues and assessments on the first of each month, the member should stand suspended, the phrase "liable to forfeiture," when construed in connection with the by-laws, part of the contract making the default itself operate as a forfeiture did not require affirmative action on the part of the association before a member's rights could be barred. Brown v. Knights of the Protected Ark, 96 Pac. 450, 453, 43 Colo. 289.

LIABILITY

See Contingent Liability; Contract Lia-
bility; Existing Liability; Fixed Lia-
bility: Original Liability; Prima Fa-
cie Liability; Statutory Liability.
Any and all liability, see Any.
Any other liability, see Any Other.
Other liabilities, see Other.

"Liability" in its broadest and most comprehensive use includes any obligation one is bound in law or justice to perform, and is synonymous with "responsibility"; in a more restricted and perhaps in its popular sense, it means that which one is under obligation to pay to another. State ex rel. City of Milwaukee v. Milwaukee Electric Ry. & Light Co., 129 N. W. 623, 630, 144 Wis. 386, 140 Am. St. Rep. 1025.

mined as of the date of taxation on a basis adopted by the insurance commissioner. Held, that an amount apportioned to deferred dividend policies as required by Laws 1907, p. 132, is not properly deducted from an assessment as constituting a "liability"; such amount being a "liability on the policies" comprehended in valuing the policies. City of Newark v. State Board of Equalization of Taxes, 79 Atl. 343, 345, 81 N. J. Law, 416; Same v. Board of Equalization of Tax

es of New Jersey, 77 Atl. 795, 80 N. J. Law, 258.

The term "liability" is commonly used to denote the indebtedness or claim of a mutual insurance order against its members for dues or assessments, though it may not be a technical "liability" for the reason that the whole matter is optional with the member. The term is not used in the sense that an absolute personal obligation to pay exists, but rather in the sense that, if he would continue the liability of the insurer, the member himself is obligated to pay. The use of the term is not fatal to a pleading. Logsdon v. Supreme Lodge of Fraternal Union of America, 76 Pac. 292, 294, 34 Wash.

666.

The charter of a corporation, which declares that it shall have a first lien on all stock registered in the names of each member for his liabilities to the corporation, and that the lien shall extend to all dividends, embraces a demand for damages for breach of contract by a stockholder receiving the stock in consideration that the corporation may purchase at a fixed low price machines to be made by the stockholder; the word "liability" meaning responsibility, or the state of one who is bound in law and justice to do something which may be enforced by action. United Cigarette Mach. Co. v. Winston Cigarette Mach. Co., 194 Fed. 947, 960, 114 C. C. A. 583; United States v. General Inspection & Loading Co., 192 Fed. 223 (quoting 5 Words and Phrases, pp. 4111, 4114,

The words "debt" and "liability," as used in Const. art. 8, § 1, forbidding the Legislature to create any debt or liability, singly or in the aggregate, exceeding 12 per cent. of the assessed value of taxable property in the state, are not employed in a technical | 4115). sense, but have special reference to the basic legislative authority on which a state contract must rest, and in which alone a state debt must find its sanction. Lewis v. Brady, 104 Pac. 900, 901, 17 Idaho, 251, 28 L. R. A. (N. S.) 149.

As used in a policy of indemnity insurance providing that the policy should only cover losses sustained by, and liability for, any claims against the assured as a result of the risk specified in the attached contract or contracts, the word "liability" referred to A "liability" on an insurance policy as a liability other than one strictly in the naaffecting deductions in assessing insurer's ture of indemnity, and included liability inproperty for taxation is an obligation by in-curred in calling a physician in case of an surer to pay the moneys which the policy emergency. Kelly v. Maryland Casualty Co., calls for, on compliance by insured with 94 N. W. 889, 890, 89 Minn. 337. binding conditions, regardless of whether the Decedent executed a demand note to desum to be paid under the contract is a fixed fendant, agreeing that the proceeds of ceramount or a stated sum plus profits. Supple-tain policies of life insurance, which he had ment to the general tax act, approved May 11, 1906 (P. L. p. 418), provides for taxation of certain property of life insurance companies after deducting "liabilities," and requires "liabilities on policies" to be deter

deposited with defendant as collateral to secure the note, should be applied to the payment thereof, and that, if he should come under any other liability or enter into any other agreement with defendant while it was

Contract responsibility

As used in the statute of limitations which provides that an action on a contract or "liability," express or implied, which is not in writing and does not arise out of any instrument, etc., the term "liability" was evidently intended to refer to a contractual liability. Suter v. Wenatchee Water Power Co., 76 Pac. 298, 299, 35 Wash. 1, 102 Am. St. Rep. 881.

the holder of such obligation, then any excess | 121; Smith v. Chicago & N. W. R. Co., 18
of collaterals should be applied to such other Wis. 21; Thompson v. Taylor, 30 Wis. 73;
note or claim, and, in case of any exchange Locke v. Homer, 131 Mass. 93, 41 Am. Rep.
of the collaterals, the provisons of the note 199; Trinity Church v. Higgins, 48 N. Y.
should extend to the new collaterals. Dece 532).
dent thereafter executed a new note to de-
fendant's cashier for a debt owing to de-
fendant, which note was, in fact, for defend-
ant's benefit. When decedent died, he was
also a member of a firm which was indebted
to defendant for insurance premiums collect-
ed and unpaid. At this time all but $181.50
of the original debt had been paid, for which
amount a renewal note had been given
which was due and unpaid. Held, that the
words "liability," "agreement" and "claim,"
used in the collateral agreement, were suffi-
cient to cover every conceivable obligation,
and that the surplus due on the policies was
therefore liable, not only for the balance of
the original debt, but also for the note made
payable to defendant's cashier, and for the
firm's liability for the unpaid premiums.
Norfleet v. Pamlico Ins. & Banking Co., 75 S.
E. 937, 939, 160 N. C. 327.

Bond

A bond is not a "liability" but is only the evidence or representation of an indebtedness. City of Los Angeles v. Teed, 44 Pac. 580, 582, 112 Cal. 319.

Contingent future liability

When we speak of "liabilities," we mean those obligations which are contingent, as well as those which are absolute. Fidelity & Deposit Co. of Maryland v. Commonwealth Trust Co., 119 N. Y. Supp. 598, 599, 65 Misc. Rep. 88.

"There is a distinction made by the authorities between a contract of indemnity against liability for damages' and a simple contract of 'indemnity against damages.' In the former case it has very generally been

held that an action may be brought and a

recovery had as soon as the liability is legally imposed, while in the latter there is no cause of action until there is actual damage." Agreements, in an employer's liability policy, that if suit is brought against the assured he shall immediately forward the process to the insurer, which will defend or settle the claim, do not, when considered with a provision of the policy declaring its purpose to be indemnity to the assured "against loss from liability for damages," and another agreement that no action shall lie against the insurer in reference to any loss under the policy unless brought by the insured himself to reimburse him for payment by him in satisfaction of a judgment, render the policy one of "indemnity against liability," but it is a policy against loss or damage by reason of liability. Finley v. United States Casualty Co., 83 S. W. 2, 3, 113 Tenn. 592, 3 Ann. Cas. 962 (quoting Fenton v. Fidelity & Casualty Co., 56 Pac. 1096, 36 Or. 283, 48 L. R. A. 770, and citing Jones v. Childs, 8 Nev.

The word "liability," as used in Ballinger's Ann. Codes & St. Wash. § 4800, subd. 3, providing a limitation for an "action upon a contract or liability,' expressed or implied, which is not in writing and does not arise out of any written instrument," is applicable only to contracts. The personal "liability” of shareholders in a national bank, under Rev. St. U. S. § 5151, for the contracts, debts, and engagements of the bank, cannot be regarded as a contract "liability," for the purpose of making applicable the limitation prescribed by Ballinger's Ann. Codes & St. Wash. § 4800, subd. 3, for an "action upon a contract or 'liability,' expressed or implied, which is not in writing, and does not arise out of any written instrument." McClaine v. Rankin, 25 Sup. Ct. 410, 411, 197 U. S. 154, 49 L. Ed. 702, 3 Ann. Cas. 500.

The liability of a corporation for rent accruing from August 1, 1902, to June 11th following, under a lease executed in 1899, and

fixing a monthly rental, is a liability within Membership Corporation Law, Laws 1895, p. 335, c. 559, § 11, making the directors of a membership corporation liable for any debt of the corporation contracted while they are directors and payable within one year or less

from the date when contracted. Thistle v. Jones, 107 N. Y. Supp. 840, 841, 123 App. Div.

40.

Costs

As between the parties to a pending proceeding to establish a public drain, unadjudged costs do not constitute a liability within Burns' Ann. St. 1908, § 248, providing that repeal of a statute shall not extinguish any liability incurred under it; so that as between such parties repeal of the statute for the proceeding by Act March 6, 1905 (Acts 1905, p. 456, c. 157), and its consequent dismissal, did not affect any vested or contractual right. Kunkalman v. Gibson, 84 N. E. 985, 86 N. E. 850, 851, 171 Ind. 503.

Covenant

A covenant of warranty in a deed creates a liability as of the date of the deed and not as of the date of an eviction thereunder, and hence persons who have assumed the liabilities of a national bank on its voluntary liq

6954

uidation cannot escape liability for breach of the bank's warranty in a deed because the warranty was not broken when the liabilities were assumed. McLean v. Moore (Tex.) 145 S. W. 1074, 1075 (citing 5 Words and Phrases, p. 4112).

Debt

The word "liability" is much more comprehensive than the term "debt"; "liability" meaning the state or condition of one who is under obligation to do at once or at some future time something which may be enforced by action. Hyatt v. Anderson's Trustee (Ky.) 74 S. W. 1094, 1096 (citing White v. Green, 74 N. W. 929, 105 Iowa, 181).

The provisions of Pub. St. N. H. c. 140, relative to the execution and record of chattel mortgages, must be fully complied with to render them valid against any one except the parties thereto. Under section 6 requiring the parties to swear that the mortgage is made for the purpose of securing the debt specified in the condition and for no other purpose, and section 9 providing that if the mortgage is executed to secure the mortgagee for a liability other than a debt due from the mortgagor, the form of the oath shall be so varied as truly to describe the "liability"; if the mortgage is given to secure a debt, the condition and oath must describe it as a debt; if to secure a liability, it must be described as such, and a liability is not covered by the term "debt." Sherman v. Estey Organ Co., 38 Atl. 70, 71, 69 Vt. 355.

Franchise

The relation between a city and the owner of an existing telephone franchise being quasi contractual for the performance of a service, an ordinance modifying the terms of the franchise for the purpose of securing more effective service in competition with the owner of another franchise is not invalid as releasing an "indebtedness" or "liability" to the municipality in violation of Const. § 52. Louisville Home Tel. Co. v. City of Louisville, 113 S. W. 855, 856, 860, 130 Ky. 611.

Judgment

The term "liability" generally includes every kind of legal obligation and is used in Bankr. Act July 1, 1898, c. 541, § 17, 30 Stat. 550, as amended in 1903 (Act Feb. 5, 1903, c. 487, 32 Stat. 798), providing that a discharge in bankruptcy releases a bankrupt from his debts, except such as are liabilities for obtaining property by false pretenses or representations as including every obligation to pay money whether evidenced by judgment or not, and every unsatisfied judgment is a liability. Woehrle v. Canclini, 109 Pac. 888, 889, 158 Cal. 107; In re United Button Co., 140 Fed. 495, 505.

Under Bankr. Act July 1, 1898, c. 541, 30 Stat. 544, as amended by Act Feb. 5, 1903, c. 487, § 17, 32 Stat. 800, excepting certain "liabilities" from those released by a discharge

in bankruptcy, an excepted liability need not be reduced to judgment. Bever v. Swecker, 116 N. W. 704, 706, 138 Iowa, 721.

The character of the "liability," as that word is used in Bankr. Act (Act July 1, 1898, c. 541, 30 Stat. 550) § 17, subd. 2, as amended by Act Feb. 5, 1903, c. 487, § 5, 32 Stat. 798, specifying certain debts of a bankrupt not affected by a discharge, is not changed by the fact that the liability has been reduced to judgment. Peters v. United States, 177 Fed. 885, 887, 101 C. C. A. 99.

The change made in Bankr. Act July 1, 1898, c. 541, § 17a (2), 30 Stat. 550, which as originally enacted provided that a discharge should release a bankrupt from all of his provable debts except such as “are judgments in actions * * * for willful and malicious injuries to the person or property of another," and which was amended Feb. 5, 1903, c. 487, § 5, 32 Stat. 798, by substituting for the words "judgments in actions" the word "liabilities," did not have the effect of removing judgments for such causes from the excepted class, but of including such liability, whether judgment has been rendered upon it or not. Thompson v. Judy, 169 Fed. 553, 554, 95 C. C. A. 51.

As obligation

See Obligation. As all obligations

An order of the federal court directing its receiver of a railroad to restore to the railroad its property in his hands on the agreement of the railroad to assume "all lawful liabilities and obligations of" the receiver existing on a designated date and save the receiver harmless against the payment of liabilities incurred by him, imposes on the railroad the payment of liabilities incidental to the receiver's operation of the road, including that for injuries to a passenger through the negligence of the receiver's servants; the word "obligations" meaning duties arising out of a contract or from an actionable tort, and the word "liabilities" including any form of legal obligation measured by money valuation, whether arising from contract, express or implied, from duty imposed by law or judgment of court, or in consequence of a tort. Vandalia Ry. Co. v. Keys, 91 N. E. 173, 175, 46 Ind. App. 353 (quoting 6 Words and Phrases, p. 4878).

Ordinance

"Liability," within Milwaukee Charter, c. 4, §§ 2, 4, requiring the vote on ordinances creating "liability" against the city or any fund thereof to be taken by ayes and noes, means more than a naked undertaking involving no expense, covering a claim or obligation presented to the council for audit and allowance against some fund, and hence the section does not apply to an ordinance requiring street railway companies to sprinkle the part of streets occupied by their

The word "liability," in the absence of anything limiting its scope, includes obligations arising out of torts as well as out of contracts. Thus where, on the dissolution of a firm engaged in the insurance and brokerage business, the continuing partner gave a bond to the outgoing partner, conditioned to pay all "liabilities" of the firm, it embraced a claim against the firm for damnages caused by false representations made in a sale by the firm of certain securities. Price v. Parker, 83 N. E. 323, 197 Mass. 1, 125 Am. St. Rep. 326.

The limitation of a shipowner's liability for maritime torts not the result of his own fault, provided by Rev. St. §§ 4283-4285, was extended to nonmaritime torts by Act June 26, 1884, 23 Stat. 57, c. 121, § 18, limiting the individual liability of a shipowner for "any or all debts and liabilities" except wages and liabilities incurred prior to such Fenactment, to his share in the vessel, and the aggregate liabilities of all the owner of a vessel on account of the same to the value of the vessel and freight pending. Richardson v. Harmon, 32 Sup. Ct. 27, 29, 222 U. S.

96, 56 L. Ed. 110.

The exemption of lands, acquired under the homestead laws, from "liability" for any debt contracted by the parties does not exempt them from liabilities for torts. Brun v. Mann, 151 Fed. 145, 155, 80 C. C. A. 513, 12 L. R. A. (N. S.) 154.

Const. art. 12, § 7, declares that "no corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use, or enjoyment of such franchise or any of its privileges." Held, that a corporation exercising the right to occupy and use the streets and public places for the operation of an electric light and power plant, and a street railway, under a franchise granted by the city, cannot convey such franchise so as to relieve the property used in the exercise thereof from liability for a judgment obtai ned for personal injuries to an employé in the operation of such property. Cooper v. Utah Light & R. Co., 102 Pac. 202, 206, 35 Utah, 570, 136 Am. St. Rep. 1075.

Temporarily unenforceable obligation "Liability,' in a legal sense, is the state or condition of one who is under obligation to do at once, or at some future time, something which may be enforced by action. It may exist without the right of immediate enforcement." Hyatt v. Anderson's Trustee (Ky.) 74 S. W. 1094, 1096 (quoting and adopting definition in White v. Green, 74 N. W, 929, 105 Iowa, 181, and citing Fisse v. Einstein, 5 Mo. App. 78; Home Ins. Co. of New York v. Peoria & P. U. Ry. Co., 52 N. E. 862, 178 Ill. 64; Pittsburgh & C. R. Co. v. Clarke, 29 Pa. 146; Cochran v. United States, 15 Sup. Ct. 628, 157 U. S. 296, 39 L. Ed. 704). LIABILITY CREATED BY LAW

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