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skill equal to that ordinarily exercised during the progress of railroad construction. Colo. Midland Ry Co. v. O'Brien, 16 Colo. 219. The record shows very clearly that such care was not taken in the present instance, and that the accident resulted from its omission. The single spiking of three ties and entire failure to spike the fourth tie upon such a curve appears by the evidence to have been negligence which exposed appellee to an extraordinary and unusual hazard,-a hazard that was not contemplated in his employment. The testimony of appellant's own witnesses shows that this was the only curve of like magnitude during the building of the entire road where the rails were even temporarily left thus insecurely fastened. For months before and always afterwards the rails upon such curves were uniformly double spiked to the ties.

The second objection above stated, while perhaps a little more difficult to answer, is also in our judgment not well taken. It is urged that Nelson was the only man connected with the business who could be regarded as the vice-principal or general representative of the company; that Banker, so far as the company's liability is concerned, was merely a co-employee or fellow servant with appellee; and that since Nelson exercised due care, the accident resulting from the disobedience of his orders by Banker, no liability attached to the company. This argument is plausible, and is not entirely unsupported by judicial decisions.

The mere fact that the servant whose negligence produces the injury is superior in rank to the servant injured, does not alone fix the master's liability. The general powers vested in the superior servant and the character of the specific act in connection with which his negligence occurs are considerations rarely, if ever, omitted in pursuing the inquiry. The accepted general rule is that where the negligent agent or servant can fairly be said to take the place of the master and represent him so as to become in reality a viceprincipal, and the negligence occurs in the discharge of his representative duties, the master's liability may attach. But

the difficulty arises in determining what powers and duties constitute a vice-principal in each particular case. Here is where the divergence among the more modern and better considered cases begins. It is asserted that one is a viceprincipal "to whom the master deputes the power of appointment and dismissal." Shearman & Redfield on Neg. (3d ed.) 103. But while the power of appointment and dismissal is undoubtedly an attribute of the master, its possession alone is by other authorities declared not to be always decisive. No satisfactory definition of the phrase "common employment" or the phrase "fellow servant" used in this connection, can be laid down as an absolute guide in all cases. Beach on Contributory Neg., sec. 115.

It is, however, unnecessary now to further pursue this general discussion. For the question, in so far as it relates to the case at bar, is practically stare decisis in this state. No doubt exists but that Nelson, the superintendent of construction, was a vice-principal and general representative of the company. But it does not follow from this fact that Banker was not also a vice-principal within the meaning of the authorities.

Banker and appellee were in a certain sense acting under a common employment, and laboring in the same general department or branch of the enterprise. But Banker was a general agent (whether we use the term "boss" or "foreman is of no significance) in charge of the track laying, a distinct department of the railroad construction; he had under him five different gangs of men, each gang being employed to perform a certain portion of the work and being subject to the immediate control of its particular foreman who was always present watching the men and directing their labor; Banker had authority to hire and discharge both the men belonging to the gangs and the foremen respectively commanding the same; he controlled the trains, cars, tools, and other implements used in track laying; he was subject to the superintending direction of Nelson when present, but during Nelson's absence, he seems to have had supreme con

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trol so far as his department was concerned; his word was law, and the men in the different gangs as well as their foremen were bound to obey him. His negligence occurred in directing the foremen how certain work should be done. The particular act in connection with which the negligence occurred was of a general supervising nature. And Nelson being absent, Banker for the time being, at least, so far as the department of track laying was concerned, occupied his place.

To say that under these circumstances the company is absolved from liability for the negligence of Banker would be practically to ignore the recognized distinction between the negligence of a vice-principal and a fellow servant proper. It would also operate to overrule former decisions of this court; decisions where the circumstances presented were similar to those before us and which in effect recognize the law substantially as above stated. Colo. Midland Ry. Co. v. O'Brien, supra; D. S. P. & P. Ry. Co. v. Driscoll, 12 Colo. 520; Colo. Cent. R. R. Co. v. Ogden, 3 Colo. 503. The judgment of the court below is



1. CONTRACTS OF INFANTS-RATIFICATION.-The contracts of an infant when not intrinsically illegal, are voidable, not void; hence, such contracts are capable of ratification by him upon arriving at mą turity.

2. REQUIREMENTS OF A LEGAL RATIFICATION.-A marked distinction exists between the ratification of executed and executory contracts. When the contract remains in part unexecuted, a mere acknowledgment of the debt or payment of interest on part of the principal by the infant after becoming of age, is not a binding legal affirmance. No new consideration is required, but where language is relied on to show ratification, while it may be either oral or written, and while it need follow no particular form, it must be voluntarily and understandingly used, and must indicate an intention to pay the debt.

3. CONDITIONAL PROMISE-BURDEN OF PROOF.-A conditional promise by the infant, after reaching maturity, to pay the debt when able is not binding upon him unless the proof thereof be supplemented by proof of his ability to pay. The burden of showing such ability, by some evidence relating to his property or income, devolves upon plaintiff.

Appeal from District Court of Arapahoe County.

Mr. M. B. CARPENTER, for appellants.

Messrs. SAMPSON & MILLET, for appellees.

MR. JUSTICE HELM delivered the opinion of the court.

In 1882 appellant was engaged in mercantile business with his brother under the partnership name of C. A. Kendrick & Co. The firm having purchased of appellees upon a credit certain goods, on March 1st of the year mentioned appellant executed to appellees in the firm name a promissory note for the sum of $266.89. The note remaining unpaid for several years after maturity, the present action was finally instituted thereon.

Neither the execution nor the non-payment of the note was denied. No answer was filed by appellant's brother, and the only defense by appellant was that of infancy. To his plea of infancy appellees replied, averring a ratification by appellant after becoming of age. Upon trial in the court below a verdict and judgment were rendered sustaining the plea of ratification.

The principal question in the case is that of ratification thus presented by the pleadings and proofs. The note was given by appellant for goods used in the partnership business, not for necessaries.

The strong preponderance of authority now sustains the proposition that with very few, if any, exceptions, the contracts of an infant when not intrinsically illegal are voidable, not void; and hence are capable of ratification by him upon arriving at maturity. A marked distinction exists between

the affirmance of executed and executory contracts made during infancy. But as the contract under consideration is at least in part executory, we are now only concerned with the affirmance of unexecuted contracts, and to these alone will our remarks apply.

Payment of interest or payment of part of the principal after reaching maturity does not constitute a legal affirmance. Discord exists among the cases as to whether acts alone or acts coupled with an acknowledgment of the debt are sufficient. But the authorities harmonize upon the proposition that when language is relied on to show ratification, while it may be either oral or written and while it need follow no particular form, it must be voluntarily and understandingly used and must indicate an intention to pay the debt; a mere acknowledgment thereof by the infant after becoming of age will not bind him. No new consideration is required, but the declaration or admission should amount in legal effect to a new promise. And its sufficiency frequently depends upon the character of the original transaction as well as upon the particular words employed. Whitney v. Dutch, 14 Mass. 457; Hastings v. Dollarhide, 24 Cal. 195; Fetrow v. Wiseman, 40 Ind. 148; Catlin v. Haddox, 49 Conn. 492; Thompson v. Lay, 4 Pick. 47; Tyler on Infancy & Coverture, sec. 40; Bishop on Contracts, sec. 943.

Touching the question of ratification in the case at bar, we have the testimony of two witnesses, viz., appellant and Benjamin F. Neisz, one of appellees. Neisz testifies substantially as follows: That before the commencement of the action he had two conversations with appellant, in one of which appellant after admitting the debt and expressing the pleasure it would give him to pay, said that he would do so just as soon as he could. In the other conversation Neisz states that appellant said that he could not pay the note just then, but that he would try to pay it, or at least a part of it, by the following January. Appellant flatly contradicts Neisz and denies making these or any other similar statements or admissions.

The foregoing testimony, together with all the other evi

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