The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1899-04-18
THE COURTS.



The following rescripts have been
handed down from the law court;
Cumberland, -
Rumford Falls Paper Co pany ". The
Fidelity and Casually Company.
Rescript by whitehouse, i'll. BY the
terms of this policy Of insurance against
the assured TO render all reasonable
aid" in .'effecting settlements. Be.
lieving that an acceptance OF the o1er OF
settlement for $1,000 would be to the adj
vantage of 10th the insurer ana the In
sured, ths plaintiff was justified in en-
ploying all legitimate means not pro-
hibited by It's policy, to convince the de-
PENDANT OF the wisdom and expsdiency of
the proposed adjustment; aud IL Is the
opinion OF the court that the evidence
falls to establish the charge of collusion
between Sawyer and the plaintiff or to
prove any omission on the part of the
latter to perform the obligations imposed
upon 1t by the stipulations in the policy.
,. This policy of insurance is contract
OF Indemnity In which the parties have a
legal right to insert any stipulations and
conditions which they deem reasonable
and necessary, provided no principle OF
public policy is thereby contiavened. The
function of the court Is to interpret 1t,
not to make 1t.
The first article in the policy measures
the amount Of the insurance and limits
the liability OF the company TO hfteen
HUNDRED dollars In case OF accident and
injury to oIe person. 1t was not the IN
tention Of the parties that the assured
should be relieved from all liability for
damages; but the policy was obviously
devised with view to an superintendent
of the responsibility between the insurer
and the insured. 1t requires the company
to defend ANY legal proceedings ut Its
own COST in the event that IL elects not
10 pay the $500, nor accept any ouer OF
settlement. But what 1t will cost to de-
fend the suit Is one thing; what 1t will
cost to settle the Judgment that may be
recovered 10 another ana diHerent
thing. The company nowhere agrees to
pay the Judgment, or to indemnify the
assured against any Judgment that may
BIZ recovered against IL beyond the limit
of $500 and the So OF defending the
suit This Is clearly the contract which
the parties made and the one which they
are entitled to have enforced according to
its terms,
The plaintiff is therefore entitled TO re-
cover the sum of fifteen hundred dollars
with interest thereon from February 2lst,
1896. the time when the verdict was
rendered In the action Sawyer VS.. Rum
ford Falls Paper company, and the costs
recovered in that action taxed at sixty :
two and 72-1OO dollars with interest there
on from July 14th 1897, the time when
the execution for the damages and costs
in that action was paid by the plaintiff
company.
Defendant defaulted for (Si5o0) fifteen
hundred dollars with interest from Feb
ruary 2lst. 1896. and in addition thereto,
defendant defaulted for ($62, ~ sixty two
dollars and seventy.two cents with In
terest from July l4th, 1897.
kennebec IS.
Harry A. Jones, admi pistrator, VS..
Manufacturing and Investment Company.
Rescript by Emery il. An employe
of age. and not shown to. be below the
average mental capacity and intelligence,
is presumed to observe and appreciate the
daI- gers obviously incident TO the opera.
tion OF exposed, unguarded machinery.
.. The liability of round sticks Of wood
four feet long to split and fail from the
hooks of an upright. exposed endless
chain upon which they are held by force
of gravity only.while being carried up u
distance of over thirty feet is danger
obviously incident to the operation of
such machine.
g. If such an employe. having some
weeks acquaintance with such machine
and consequent knowledge OF its dangers,
makes no request for further safeguards
but with such knowledge proceeds to
work about the machine, he assumes the
duty of using a degree of care sufficient
to avoid the evident danger; or in other
words he takes upon himself the risk OF
injury from such danger.
g. Ii such an eInploye voluntarily, even
in the time OF his employment, exposes
himself to the danger of the sticks of
upon him from the hooks OF the chains
while being carried up. he assumes the
risk of injury therefrom and cannot
throw the risk upon his employer
Motion sustained. Verdict set aside.
fenobscot, SIS.
William Ii. Powell VS.. Fred Nj. Haines,
hescript by Savage J.-Action by in
dorsee of note given 80 Charles H. Childs
81 Co. Childs 81 Co., manufactured one
hundred ana twenty-five horse hoes for
the defendant in 1896, at an agreed price
of 80. 90 apiece. The hoes were imperfect.
The parties settled in February. 1896.
The defendant gave Childs & Co. the
nots in suit. in payment for the hoes,
and for certain castings aud extras. AS a
part of the same transaction. Childs d
Co. gave the defendant an agreement
that the hoes should answer tho purposes
for which they were intended; and that II
the hoes were lacking in parts or impsr-
feet in manufacture, they would make
them good and capable of good work as
horse hoes The defendant claims that
Childs & Co. have not kept this agree.
ment, and the damages occasioned by the
breach Of this agreement. he seeks to re-
coup in this action.
This he is entitled to do. and no more.
Practically, he is entitled to recoup as
much as it would take to put the hoes in
the condition which Childs 81 Co. agreed
to put them In. a. The note was for 1900.
The verdict was for S270 So. Assuming
that the castings and extras for which In
part the note was given became of no
value by reason of Childs & Co.'s failure
to perform their agreement the damages
allowed to the defendant amounted to
about 81, for each horse hoe which cost
80 50 to manufacture.
Without analysing the testimony here,
it is sufficient to say that upon a careful
of the whole case, We are
that the jury erred in making 30
large an allowance for damages, and that
the verdict is manifestly too small. Even
to say nothing about the horse hoes I'M
sold, the case shows that the defendant
has already received for those sold and
for which no claim for damages has been
made upon him, more than the amount
of the verdict.
These were sold, of course. st profit,
but even making due allowance for that
1t still remains true that the jury allowed
hap lutpfiff IN, rrneh spnallar than IA