Franklin Company v. Lewiston Institution for Savings.

may be had by the other contracting party to the extent of the benefit thus conferred, notwithstanding the contract was ultra vires. It is a sufficient answer to this argument to say that the case fails to show that the savings bank has been thus benefited. The $50,000 paid by the Franklin Company was paid directly to the Continental Mills. Not a cent of it ever came into the possession of the savings bank. The stock for which the $50,000 was paid was issued directly to the Franklin Company. The title never for a moment vested in the savings bank. Although, by the terms of the agreement, the Franklin Company was to hold the stock as collateral security merely, still, the agreement being ultra vires, cannot be enforced. Nothing possessing the slightest intrinsic value, not even a right of action, was ever secured to or vested in the savings bank. There is absolutely nothing on which quantum meruit or a quantum valebat claim can be sustained.

Decision of the commissioners affirmed. Claim of the Franklin Company disallowed.

APPLETON, C. J., BARROWS, VIRGIN, PETERS AND LIBBEY, JJ., concurred.

W. P. Frye, J. B. Cotter & W. H. White, with whom was N. Webb, for plaintiffs.

N. Morrill, for defendants.

NOTE BY THE REPORTER.-This decision harmonizes with the American doctrine in the authorities cited in Green's Brice's Ultra Vires, 95, note. Zabriskie v. C. C. & C. R. Co., 23 How. 381; Mutual Savings Bank v. Meriden Agency Co., 24 Conn. 159; Hodges v. Screw Co, 1 R. I. 322; White v. Syracuse and Utica R. R. Co, 14 Barb. 559; Berry v. Yates, 24 id. 199; Conn. Mutual Life Ins. Co. v. C. C. & C. R. R. Co., 41 id. 9; Talmage v. Pell, 7 N. Y. 348; New York Exchange Co. v. De Wolf, 5 Bosw. 593; Mayor v. Balt. & Ohio R. R. Co., 21 Md. 50; Central R. R. Co. v. Collins, 40 Ga. 582; Hazlehurst v. Savannah R. R. Co., 43 id. 13; Sumner v. Marcy, 3 Woodb. & Minot, 105.

Great Western Railway Co. v.

The leaning of the earlier decisions was the same way. Metropolitan Railway Co., 32 L. J. Ch. 382; 9 Jur. (N. S.) 562. The modern English doctrine is the contrary. Brice's statement (Green's Brice's Ultra Vires, 95) is: "A corporation may deal in the shares of other corporations, without express power to do so, provided the nature of its business be such as to render such transactions conducive to its prosperity." Re Barned's Bank, Ex parte the Contract Corporation, L. R., 3 Ch. 105; Re Asiatic Banking Corporation, Royal Bank of India's Case, L. R., 4 Ch. 252, 257.

Angell (Corp., § 158) lays down the rule as follows: "There are large classes of corporations which may and do rightfully invest their capital or funds in the stock of other corporations, for the purpose of secure and profitable investment; such, for instance, as religious and charitable corporations; and corporations for literary and scientific purposes. Insurance companies, unless expressly or impliedly restrained by their charters, or the general law, may rightfully invest their capital in the stock of other corporations, such as

Osborne v. Knox & Lincoln Railroad.

banks, railroads, and the like. Hodges v. N. E. Screw Co., 1 R. I. 347. The specification, in the charter, of certain modes of investing the corporate funds would preclude all other modes of investment. Scott v. DePeyster, 1 Ed. Ch. 513; Smith v. Alabama Ins. Co., Ala. 558. In what stocks it would be proper for them, in the absence of special restriction, to make such investments, must depend much upon the custom or usage of investment in the place and country. All corporations have power to take the stock of other corporations as incidental to the power of collecting a debt or making a sale. In such case, they would take it to sell or turn into money, and would not hold it as a permanent investment. Hodges v. N. E. Screw Co., supra; Sumner v. Marcy, 3 Woodb. & M. 112. The power to take and hold depends greatly in such cases upon the purpose, whether within or beyond the legitimate sphere of the corporate action. And where a corporation, created to carry on the business of vending lumber and manufactures from wood, issued promissory notes, for more than the amount of its authorized capital, in the purchase of the stock of a bank, for the avowed pupose of getting the virtual control of it, and of being better able to effect loans with it, this was held to be a clearly unauthorized transaction. Sumner v. Marcy supra."

The rule is well expressed by CHURCH, J., in Bridgeport v. Railroad Co., 15 Conn. 475: "In this country, all corporations, whether public or private, derive their powers from the legislative grant, and can do no act for which authority is not expressly given or may not be reasonably inferred. But if we were to say that they can do nothing for which a warrant could not be found in the language of their charters, we should deny them in some cases the power of self-preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And therefore it has long been an established principle in the law of corporations, that they may exercise all the powers within the fair intent and purpose of their creation, which are reasonable and proper to give effect to the powers expressly granted. In doing this, they must have a choice of means adapted to ends, and are not confined to any one mode of operation."

In Mutual Savings Bank v. Meriden Agency Co., 24 Conn. 159, the court said: "But where the directors of the company subscribed for stock in a building association, whatever may have been their motive, whether to obtain a loan of money, or for purposes of speculation, they transcended the powers conferred upon them, and departed from the legitimate business of the company, as much so as if they had subscribed for stock in a manufacturing or steamboat company." Followed in Berry v Yates, 24 Barb. 210.

OSBORNE V. KNOX & LINCOLN RAILROAD.

(68 Me. 49.)

Master's liability to servant for injury by fellow-servant.

A person, who voluntarily assists the servant of another in a particular emergency, cannot recover from the master for an injury caused by the negligence or misconduct of such servant; he can impose no greater duty on the master than a hired servant.

A servant cannot recover for an injury incurred in assisting a fellow-servant, either voluntarily, or on the request of such servant.

ASE for negligence.

CASE

Stephen Osborne, the plaintiff's intestate, the servant of the railroad corporation, and master of its ferryboat, whose duty it was to transport the cars of the defendant company across the Kennebec river, between Bath and Woolwich, left

Osborne v. Knox & Lincoln Railroad.

the boat, which was lying at the wharf in readiness to transport the loaded freight cars from Woolwich to Bath, and at the request of the conductor, unshackled the loaded cars by pulling the bolt which connected them with the others, and in doing so was caught between the bunters and crushed, and died from the effects thereof, some fourteen hours after. The allegation was, that the injury was occasioned through the negligence of the company in not providing suitable couplings for the cars, that they were not the safest then known and in general use; and that the cars were not provided with a sufficient number of brakemen, and that the engines and shifting cars were negligently moved against the loaded freight cars without warning to the intestate, and without any brakemen to apply the brakes, and were forced with violence against his body.

The plea was general issue.

F. Adams, for plaintiff.

H. Tallman & C. W. Larrabee, for the defendants.

APPLETON, C. J. This is an action of the case against the defendants to recover damages for their negligence by which the plaintiff's intestate was so seriously injured in attempting to remove a bolt for the purpose of uncoupling certain loaded freight cars, that he died in a short time afterward.

The plaintiff's intestate was an employee of the defendant corporation, and the injury occurred while in their service.

If the injury was the result of accident solely, the defendants being without fault, the action is not maintainable.

If the injury was caused by the negligence or misconduct of fellow-servants, the law is well settled that a servant thus injured cannot maintain an action against his master for such injury. Lawler v. Androscoggin Railroad, 62 Me. 463; s. c., 16 Am. Rep. 492; Hodgkins v. Eastern Railroad, 119 Mass. 419; Sammon v. N. Y. & H. Railroad, 62 N. Y. 251.

Servants must be supposed to have the risk of the service in their contemplation when they voluntarily undertake it and agree to accept the stipulated remuneration. Plant v. Grand Trunk Ry. Co., 27 Up. Canada Q. B. 78; Searle v. Lindsay, 11 C. B. (N. S.) 429; Gibson v. Erie Railway, 63 N. Y. 449; s. c., 20 Am. Rep. 552. It makes no difference in regard to the liability of the defendVOL. XXVIII - 3

Osborne v. Knox & Lincoln Railroad.

ants that the plaintiff's intestate came into the service voluntarily, and to assist the defendants' servants in a particular emergency, and was killed by their negligence, for by volunteering his services he could not have greater rights nor could he impose any greater duty on the defendants than would have existed had he been a hired servant. Degg v. Midland Railway, 1 Hurlst. & Norm. 773. The same rule of law is applicable if a servant, of his own motion, at the request of a fellow-servant, should undertake temporarily to perform the duties of a fellow-servant.

If the plaintiff's intestate, through his own want of care, contributed to the injury which resulted in his death, this action must fail. Complaint is made that the cars were so constructed as to be dangerous in coupling and in uncoupling. But the plaintiff's evidence shows that they were such cars as had always been in use by the defendant corporation and by other railroad corporations in this State. What they were was well known to the servants of the defendant.

It was held in Indianapolis B. & W. Railway v. Flanigan, 77 Ill. 365, that a railroad company was not liable for an injury received by an employee, while coupling cars having double buffers, simply because a higher degree of care is required in using them than in those differently constructed. So, in Fort Wayne, etc., Railroad v. Gildersleeve, 33 Mich. 133, it was decided that a railroad company which used in its trains an old mail car, which was lower than others, was not liable to its servant, who knowingly incurred the risk, for an injury resulting from the coupling of such old car with another, though the danger was greater than with cars of equal height.

The plaintiff's evidence shows that one should not go inside the bunters to lift the pin when unshackling cars. "We stand against them and reach over them. We stand on the outside of the bunters, reach over and pull the pin out. I can do it easily. I guess any one can. I judge that the customary way of unshackling. If the cars were standing apart, so that there was room to pass in I should not intend to pass in between the bunters." Such is the testimony of one of the plaintiff's witnesses. Another says: "In a moving train it is difficult to lift a bolt without coming in contact with the dead wood. Situated as this train was, I think it was dangerous. There was no trouble in waiting till the train was still." There can be no doubt that the injury sustained arose from

Fogg v. Lawry.

a neglect of the obvious precautions which the business engaged in 80 imperatively required.

The evidence fails to show an insufficient number of servants, and as already stated, so far as the injury arose from the negligence of fellow-servants, it was at the risk of the servant injured. Plaintiff nonsuit. Walton, Dickerson, Barrows, DANFORTH and PETERS, JJ., concurred.

FOGG V. LAWBY.

(68 Me. 78.)

Partnership — attachment of partner's interest.

▲ creditor of one of the partners of a firm may attach such partner's interest in a specific portion of a stock of goods belonging to the firm, and is not required, in order to render the attachment regular, to take the partner's interest in the entire stock of goods.

CASE

ASE, under R. S., ch. 113, § 51, to recover damages for the fraudulent conveyance to the defendant of one W. P. Farnsworth's interest in a stock of goods which Farnsworth and the defendant owned as copartners. Immediately before the alleged fraudulent conveyance, the plaintiff placed a writ in an officer's hands for the purpose of attaching that interest, a fact known to Farnsworth and the defendant. The testimony was conflicting as to whether the plaintiff instructed the officer to make an attachment of sufficient amount of the partnership property to secure his debt, as the defendant claimed, or to make an attachment of Farnsworth's interest in a part of the stock, as the plaintiff claimed.

The presiding justice instructed the jury that a separate creditor might, on a writ against one member of a firm, attach his interest in all the copartnership property, but had no right to attach his interest in a part of the goods. The verdict was for the defendant; and the plaintiff alleged exceptions to the foregoing ruling and to another alluded to in the opinion.

S. S. Brown, for plaintiff, contended that it was error to instruct the jury that a regard for the rights of partnership creditors forbade the attachment of defendant's interest in a part of the