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(178 Wis. 64%, 190 N. W. 448.) field v. Peeden, 8 Kan. App. 671, 57 the spirit and purpose of the law. Pac. 131; West Salem v. Industrial The following casCommission, 162 Wis. 57, L.R.A.1918C, 1077, 155 N. W. 929; State v. Chicago

es seem to justify Workmen':

compensation

our conclusion that injury to one & N. W. R. Co. 128 Wis. 449, 108 N. W.

deceased

working out 594; Radtke Bros. & K. Co. v. Ratzin

was an highway tax. ski, 174 Wis. 212, 183 N. W. 168;

employee at the Brienen y. Wisconsin Pub. Serv. Co.

time of his injury: Elder v. Bemis, 166 Wis. 24, 163 N. W. 182.

2 Met. 599, 604, 605; Re Ashby, 60 Mr. John O'Meara for other re- Kan. 101, 55 Pac. 336, 338; Winspondent.

field v. Peeden, 8 Kan. App. 671, 57 Crownhart, J., delivered the opin

Pac. 131. ion of the court:

The judgment of the lower court This court has many times held

is affirmed. that the Compensation Act is to be Rosenberry, J., dissenting: liberally construed to carry out its The question is whether or not manifest purpose. That purpose is the deceased was in the service of to relieve workmen from the dis- the plaintiff town under a contract tress of work accidents, by placing of hire, express or implied, oral or a portion of the burden upon the written. Wis. Stat. § 2394–7. To employers, and through such em- my mind an analysis of the relationployers, in the cost of production, ship existing between the taxpayer upon the people as a whole. In and the town in this case does not passing this act the legislature disclose a single contractual elemade it elective as to private em- ment. It is true that there rests upployers, but, having in mind that on the taxpayer an obligation to the state and municipalities should discharge his liability to the town set a good example, made the law for the amount of tax assessed mandatory as to them.

against him, but this obligation In this case we have a workman arises out of the exercise of soverworking for the town on its high- eign power on behalf of the state, ways, to pay an obligation of his to and not out of any contract entered the town. He had his choice to into between the plaintiff town and pay this obligation in cash or in

the deceased. As was said in Peirce labor. Stat. 1917, § 1248. This

v. Boston, 3 Met. 520: Taxes are was the offer presented to him

not "contracts between party and by law, and his election to pay in party, either express or implied;

but they are the positive acts of the labor completed an implied con

government through its various tract of service. When he went to

agents, binding upon the inhabitwork, he was an employee of the ants, and to the making or enforctown, and the town was his em

ing of which their personal consent, ployer. His relation to the town individually, is not required.”. 26 R. was no different than that of an

C. L. p. 25, | 11, and cases cited. employee working beside him for

A liability imposed by statute, cash under the same direction and and not assumed by the voluntary supervision. Had the deceased agreement of the parties, is not a paid his obligation in cash, then the contract at modern law, even if it town would have taken the cash to is a liability upon which an action employ some other workman to do of debt could have been maintained the same work in the same way as at common law. 1 Page, Contr. 2d was done by the deceased. In that ed. § 66; 1 Cooley, Taxn. 3d ed. p. case the town would have had to 17; State v. Chicago & N. W. R. Co. compensate such workman in case 128 Wis. 449, 108 N. W. 594. A of injury. The distinction between statute liability wants all the elethe two kinds of workmen is too ments of a contract, consideration subtle and technical to be within and mutuality, as well as assent of the parties. McCoun v. New York by the state is further shown by C. & H. R. R. Co. 50 N. Y. 176.

the fact that the state may require It may be argued that the stat- the performance of labor, and in the utory provision, by virtue of which event of the failure of a taxpayer the deceased was permitted at his to discharge his obligation it may option to discharge his obligation be enforced by fine and imprisonby performing labor rather than ment. Sims v. Hutcheson, 72 Ga. paying money, amounts to an offer, 437, 37 Cyc. 334. and that his decision to discharge The mere fact that superficially his obligation by the performance the relation existing between the of labor is an acceptance of the of- deceased and the town resembled fer. Even if it should be so con- that of master and servant does not strued, it lacks all elements of mu- make the relationship one arising tuality; it being an obligation out of a contract of hire, express or imposed by the state upon the town implied. It must have been the inand the taxpayer without the con- tent of the legislature, in using the sent of either. It appears quite words, "arising out of contract, exclearly, however, that the right to press or implied," to indicate prework out a road tax is a valuable cisely what liabilities municipalities right, which may not be denied to were to assume. There being no the taxpayer, and that, in order to contractual element in the relationentitle the state to collect the tax in ship between the taxpayer dischargmoney, the provisions of the statute ing his liability by the performance must be complied with, and failure

of labor rather than the payment of to give the proper notice of the time

money, I am unable to agree with and place at which the work may be

the decision of the court in this performed under a statute requir

case. ing it is not mere irregularity. Biss v. New Haven, 42 Wis. 605; note in

I am authorized to state that Mr. 74 Am. St. Rep. 668.

Justice Eschweiler and Mr. Justice The nature of the power exerted Jones concur in this dissent.

ANNOTATION.

Workmen's compensation act: one working out road tax as within act.

An extended search has disclosed no well as by considerations, drawn from case other than the reported case cases not involving the act, respecting (GERMANTOWN y. INDUSTRIAL COMMIS- the technical legal relationship beSION, ante, 1284, on the question tween the claimant and the person whether one working out a road tax propounded as his employer. is within the workmen's compensation Even upon the narrower ground, act. The terms of the statute involved

however, the conclusion of the main that case obviated the question that

jority receives some support from the arises under some of the acts, as to

cases cited in the opinion.

In Re whether a town or other governmental

Ashby (1898) 60 Kan. 101, 55 Pac. 336, body may be an employer within the

a man working on the streets of a city purview of the act. The conclusion

under an ordinance requiring the peras to whether any particular claimant whose status or relationship does not

formance of two days' labor in lieu of clearly exclude him from the category

the payment of a poll tax was held to of the employees may be regarded as

be a laborer for the city within the within that category is likely to be

meaning of a statute known as the influenced by the court's view of the

"Eight-hour Law," limiting the hours spirit and purpose of the act, and the of labor of all "laborers, workmen, disposition to construe it broadly and mechanics or other persons liberally, or narrowly and strictly, as employed by or on behalf of the state i.. county, city, township or other lieu of his poll tax, was that of emmunicipality." The court said. "It is ployer and employee, the action being impossible to draw a distinction be- for an injury sustained by such person tween the case of one man who works as the result of negligence of the city out his own poll tax, and of another in respect of a gravel bank, and the employed by the city to work two days failure to warn him of the danger in for $3 collected from a third, who connection therewith. chose to pay in money rather than to In Elder v. Bemis (1841) 2 Met. work out his tax. That the latter (Mass.) 599, also cited in support of laborer would fall strictly within the the conclusion of the majority in the provisions of the law is clear. He reported case, it was held that one would be a laborer employed on the employed in working out another's public streets, and paid directly by highway tax under the superintendthe city."

ence of the surveyor of highways was Upon the authority of the Ashby the servant of the surveyor, rather Case it was held in Winfield v. Peeden than of the person whose tax he was (1899) 8 Kan. App. 671, 57 Pac. 131, working out, the action being by the that th, relation between a city and latter for trespass based on the servone performing labor for the city in ant's act.

J. T. W.

H. R. JACOBS, Piff. in Err.,

V. H. M. WALKER, Surviving Partner of the Partnership of Walker

Brothers.

Oklahoma Supreme Court - July 3, 1923.

(90 Okla. 209, 216 Pac. 935.) Replevin - redelivery bond - loss of animal — liability.

Where, in an action of replevin, the defendant executed a redelivery bond for a horse taken by the sheriff under an order of replevin, and the horse died during the pendency of the action, in which it was decided that the plaintiff was the owner and entitled to the possession of the horse, the defendant and his sureties are liable to the plaintiff on such bond for the value of the horse.

[See note on this question beginning on page 1290.] Headnote by KENNAMER, J.

ERROR to the District Court for McClain County (Coffman, J.) to review a judgment in favor of plaintiff in an action brought to hold defendant liable on a redelivery bond. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Glasco & Glasco for plain- The measure of recovery by the suctiff in error.

cessful party is not affected by the Mr. W. L. Eagleton, for defendant death or destruction of the property in in error:

suit, in the hands of the other party, A surety on a redelivery bond is whether by accident or through the bound by the judgment in the replevin fault of the latter. action,

Jones v. Funstrobe, 25 Ga. App. 92, Boyd v. Moore, 34 Kan. 119, 8 Pac. 102 S. E. 541; 34 Cyc. 1550-1552. 255.

Kennamer, J., delivered the opin- This paragraph of the answer adion of the court:

mitted the execution of the redelivThe plaintiff, H. M. Walker, as ery bond, which was attached to the the surviving partner of C. C. Walk- amended petition of the plaintiff, er, instituted this action in the dis- but alleged that during the pendentrict court of Garvin county against cy of the replevin action and prior the defendant, H. R. Jacobs, to re- to judgment therein, the horse, cover $500, with interest from the which was the subject of the action, 9th day of October, 1913, upon a re- died from natural causes, and that delivery bond in replevin.

the death of the horse was by or On the 21st day of September, through no fault of the defendant, 1922, the cause was heard by the Hinton, in said replevin action; that court and judgment rendered in by reason of the death of the horse favor of the plaintiff, on his motion it was impossible for a redelivery of filed for judgment on the pleadings. the horse to be made to the plainThe defendant, Jacobs, prosecutes tiffs in the replevin action, and that this appeal to reverse the judgment. the death of the horse amounted to

The material facts are briefly an act of Providence, which should stated as follows: C. C. Walker excuse the defendant for the nonand H. M. Walker, on the 9th day performance of the conditions of of October, 1913, instituted a re- the redelivery bond sued upon. plevin action in the district court After a careful examination of of Garvin county against W. L. Hin- the authorities, we have no diffiton, to recover possession of a stable culty in reaching the conclusion horse alleged to be of the value of that the judgment of the trial court $500. The plaintiffs obtained an in favor of the plaintiff should be order in replevin, which was exe- affirmed. The weight of authority cuted by the sheriff of Garvin coun- supports the rule that, where a dety by taking possession of the horse. fendant in a replevin action obThe defendant in the action, Hin- tained possession of a subject-matton, executed a redelivery bond ter in litigation by signed by H. R. Jacobs as surety for executing a redelivhim, and the horse was returned to ery bond, the sub- loss of animal

liability. the possession of Hinton after the sequent destruction approval of said bond.

of the property (or death, in case of On the 12th day of April, 1920, live stock), though without any the replevin action was tried and fault or neglect on the part of such judgment rendered in favor of the defendant, does not relieve him Walkers for the possession of the from liability. 34 Cyc. p. 1567; horse, or, in the event the redelivery Wells, Replevin, $$ 600, 601; Hinkof the horse could not be made, for son v. Morrison, 47 Iowa, 167; De the value of the horse, which was Thomas v. Witherby, 61 Cal. 92, 44 fixed at $500, with interest. This Am. Rep. 542; McPherson v. Acme judgment, having never been super- Lumber Co. 70 Miss. 649, 12 So. seded, is in full force and effect, and 857; George v. Hewlett, 70 Miss. 1, no delivery of the horse having been 35 Am. St. Rep. 626, 12 So. 855; made to the plaintiffs in the replev- Suydam v. Jenkins, 3 Sandf. 614. in action, hence this action upon the While there are a few cases supredelivery bond.

porting the rule that where the It is clear from the record that property is destroyed without fault when the instant case came on for of the party cast, the value thereof trial counsel agreed in open court cannot be recovered, yet the cases that the only question for the trial are very few and against the weight court to determine was whether or of authority. not the second paragraph of the de- The case of Carpenter v. Stefendant's answer stated a defense vens, 12 Wend. 589, decided by the to the plaintiff's cause of action. supreme court of New York in Oc

Replevin-redelivery bond

(90 Okla. 209, 216 Pac. 935.) tober, 1834, held that where an ani- called upon to surrender it to the mal taken in replevin had died with rightful owner or pay the value, out the default of the plaintiff in cannot defend himself from judgsuch suit constituted a good plea in ment by showing his inability to debar to an action on a replevin bond. liver it through death or otherwise." The conclusion was reached on the It is quite obvious that there is a theory that the case was within the manifest distinction between acprinciple “that where the condition tions upon forthcoming or redelivof a bond of recognizance, etc., is ery bonds as to the obligations and possible at the time of the making liabilities of the parties, where by of it, and before the same can be reason of the execution of such performed, it becomes impossible, bonds the principal therein is perby the act of God, or of the law, or mitted to retain property that is of the obligee, there the obligation finally adjudicated to be wrongfully is saved,-as, if a man be bound by de

detained from the rightful owner, recognizance or bond, with condi- and the ordinary recognizance or tion that he shall appear at the next reappearance bond of the principal term in such a court, and before the obligating such principal to be presday he dieth, the recognizance or ent in court to answer such charges obligation is saved."

as may be presented against him. In the case of Suydam v. Jenkins, In the former class of cases the parsupra, the superior court of New ty adjudicated to have wrongfully York considered the case of Carpen- detained the property wronged the ter v. Stevens and disapproved the real owner by unlawfully taking rule therein announced.

possession of the property, and by The supreme court of California, the execution of the bond deprived in the case of De Thomas v. Wither- the real owner of the possession of by, 61 Cal. 92, 44 Am. Rep. 542, in the means and right of disposing of a well-reasoned opinion, considered the property pending the litigation, the case and disapproved the rule and probably at the end of protracttherein announced. The following ed litigation, when it is determined pertinent language is herein quoted: that such defendant had no right to “The case of Carpenter v. Stevens the possession of the property, a is referred to with disapprobation judgment is rendered against him by Wells in his recent work on Re- for the return of the same or its plevin. He says:

He says: 'Questions fre- value, he cannot, on principle of quently arise as to the effect the right and justice, be excused from death or destruction of the property satisfying such judgment under a pending the suit will have on the plea that the property has been lost rights of the parties. Upon this in his hands through no fault of his. question the authorities, with few It appearing that the defendant, exceptions, can be easily harmo- Jacobs, executed a supersedeas bond nized. It was said in a New York in this cause with John H. Wells case that when the property sued and John H. Perry as sureties, the for is a living animal, and it dies, it plaintiff is entitled to judgment is a good plea to say that it is dead. against said sureties on said bond, This ruling was based upon the idea

and it is therefore ordered and adthat the return had become impos- judged that the plaintiff recover sible by act of God; but the ruling from the sureties, John H. Wells has been questioned more than once.

and John H. Perry, the sum of To permit a defendant, who wrong

$795.75 with interest at the rate of fully takes possession, to claim that 6 per cent per annum from the 17th he holds it at the risk of the real day of January, 1921, until paid. owner, and not at his own, and

Judgment of the trial court is afclaim immunity for accident, would firmed. be unjust in the extreme. The Johnson, Ch. J., and Branson, wrongful taker of property, when Harrison, and Mason, JJ., concur.

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