Exceptions from Superior Court, Cheshire | cross. The deceased nearly ran upon him as County. Actions by Gardner T. Howe and by F. Maurice Wheeler against George B. Leighton. Order of nonsuit in each case, and plaintiff in each excepts. Exceptions overruled. The plaintiffs were injured on the same day by collision with the defendant's automobile while it was being driven by his chauffeur. At the time of both accidents the chauffeur was not using the automobile upon his master's business, but was riding for pleasure, without the knowledge or consent of the defendant. Joseph Madden, for plaintiffs. Cain & Benton, for defendant. 1. RAILROADS (§ 348*) -COLLISIONS cross. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] 2. RAILROADS (§ 330*)-COLLISIONS AT CROSSINGS CONTRIBUTORY NEGLIGENCE. Where a traveler at a crossing knew that a train was coming, but his view of it was obstructed, and the position of the flagman indicated that the train was not dangerously near, he might reasonably rely on the conduct of the flagman and attempt to pass over the crossing. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1071-1074; Dec. Dig. § 330.*] Action by Edward F. Wiggin, administrator of Carrie E. Wiggin, against the Boston & Maine Railroad for the death of decedent caused by a collision with a train at a crossing. There was a verdict for plaintiff, and the cause was transferred on defendant's exceptions to a denial of the motion for a nonsuit and to other rulings made during the trial. Overruled. But he stood on the crossing; and from this it is If it is conceded that she heard the ap- The other exceptions have not been argued and are apparently abandoned. Exceptions overruled. All concurred. (75 N. H. 405) GIBSON et al. v. BOSTON et al. (Supreme Court of New Hampshire. Carroll. Jan. 4, 1910.) 1. EVIDENCE (§ 222*)-WILLS-DECLARATIONS OF EXECUTOR. In a will contest, it was error to admit evidence of declarations of the executor named in the will as to the mental capacity of the testator, though the court told the jury that it was admitted simply as bearing upon the interest of executor had not testified, the jury must have the executor in sustaining the will, since, as the understood that the admissions were affirmative proof of the facts recited therein. Cent. Dig. §8 768-808; Dec. Dig. § 222;* Wills, [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 135.] 2. TRIAL (8 54*) - MENTAL CAPACITY - EV IDENCE-ADMISSIBILITY. Nor can it be claimed that they were admissible to contradict the testimony of the extestator's mental capacity, since they were not ecutor who subsequently testified regarding the admitted for this purpose. Martin & Howe (Mr. Howe, orally), for! plaintiff. Mitchell, Foster & Lake and Ste-Dig. § 128; Dec. Dig, § 54.*] phen S. Jewett (Mr. Mitchell, orally), for deferdant. [Ed. Note.-For other cases, see Trial, Cent. PEASLEE, J. The question between the parties to this litigation is merely of the extent to which the evidence went in showing what the decedent thought and did. She was killed in a collision with a train at a level crossing. There was a flagman, but his position was such as to be an invitation to 3. APPEAL AND ERROR (§ 1051*)-HARMLESS ERROR-ADMISSION OF EVIDENCE. In a will contest, the erroneous admission of testimony as to declarations of the executor named in the will, as bearing on the mental capacity of the testator, was not rendered harmless by his testimony, given on the trial, where the inferences which might be drawn from the declarations and his testimony are entirely dif ferent. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4161-4170; Dec. Dig. 1051.*] For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 4. APPEAL AND ERROR (§ 1050*) ERROR-ADMISSION OF EVIDENCE. To establish that evidence erroneously admitted was harmless, it must be shown that in all probability it could not work a harmful result, and it is not sufficient to show that it may not have done so. HARMLESS | know exactly. If I leave it right there, will my property go to my other relatives?" When advised that it would not, he said: "Well, 1 do not know what to say." Upon Gibson's advising him to think it over, he asked for advice as to what he should do. Gibson declined to give the advice, and the interview closed. The second interview was practically a repetition of the first, except that Gibson advised Randall to get one Wilder to write his will. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. § 1050.*] 5. EVIDENCE (§ 222*)-ESTABLISHING WILLDECLARATIONS OF LEGATEE. In a will contest, testimony as to declarations of a legatee in the will was not admissible merely on the ground that he was a legatee. [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 768-808; Dec. Dig. § 222.*] 6. EVIDENCE (§ ̧ 222*) — ADMISSIONS - ESTABLISHING WILL UNDUE INFLUENCE-DECLARATIONS OF LEGATEE. In a will contest, where it is sought to set the will aside because of fraud and undue influence, testimony as to declarations of a legatee under the will, in so far as it tended to prove fraud or undue influence, was not objectionable as hearsay, where it constituted a part of the conduct of the person charged with misconduct. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 768-808; Dec. Dig. § 222;* Wills, Cent. Dig. 410.] (2) Subject. to exception, the defendants were permitted to show what one Carleton, a legatee and one of the persons charged with unduly influencing Randall, said to one of the defendants after the will was written, but before it was executed. (3) There was evidence tending to prove that Randall's family suffered from a mental disability similar to his. The plaintiffs having introduced evidence tending to prove that the symptoms ascribed to Randall had no relation to heredity, the defendants were permitted, subject to exception, to ask a witness, who said he had heard the family his Transferred from Superior Court, Carroll tory, whether that history contradicted or County; Chamberlin, Judge. Application by James L. Gibson and another, executors, for the probate of the will of William H. Randall. From a decree admitting the will to probate, contestants, Elizabeth Boston and another appeal to the superior court, where certain issues were submitted to a jury. Verdict set aside. (1) Subject to exception, the defendants were permitted to ask two of the attesting witnesses what they had heard Gibson say in respect to writing a will for Randall. The first witness testified that Gibson said "he would start in to draw the will, and had to give it up several times." The second witness testified that Gibson said "he had tried several times to make Mr. Randall's will. Mr. Randall would call on him, he would want his will made, and he had tried several times, but he never was successful." He did not write it "because he didn't like to didn't like to take the responsibility unless Mr. Randall told him just how, and Mr. Randall didn't do it. Mr. Gibson didn't want the responsibility of doing the dictating. He wanted Mr. Randall's voice." Again, the witness testified that Gibson said Randall came "to him several times requesting him to draw up his will, and that he would get ready and commence, and then [Randall] would give out and couldn't dictate-couldn't tell him." Subsequently Gibson was called and testified in respect to the same matter. He said Randall spoke to him two or three times about writing a will, and afterward, at Randall's request, he went to his house twice to write it. The first time Randall said he wanted to give each of the defendants $1. When asked what next, he said: "I don't confirmed his theory of Randall's capacity. John B. Nash and Niles & Upton, for plaintiffs. Leslie P. Snow and John C. L. Wood, for defendants. PEASLEE, J. 1. The evidence excepted to appears to have been ruled in upon the the ory that it was the admission of a party in interest, and so competent proof of the issues on trial. When it was first offered and objected to, counsel urged that "what he said, if it was against his interest in sustaining this will, would be admissible." The ruling of the court was: "You may put it in on that theory." When it was offered through the second witness, the court said that the statements were those of "Gibson, who was executor of the will and appears here as executor; and they are admitted, gentlemen, simply as bearing upon the interest of Mr. Gibson in sustaining the will." It is not entirely clear what was meant by the last remark to the jury. Under some circumstances, it might be intended to convey the thought that the evidence was admitted to contradict Gibson. It could not have had that meaning here, for Gibson had not testified, and the evidence was not offered for that purpose. From all that occurred the jury must have understood that they were to use the so-called admissions as affirmative proof of the facts recited therein. The admission of the evidence for such a purpose was error. "Generally the admissions of a guardian, or of an executor or administrator, made before he was clothed with that trust, or of a prochein ami, made before the commencement of the suit, cannot be received either against the ward or infant in the one case, or against himself, as the representa- | ground is untenable. Carpenter v. Hatch, 64 tive of heirs, devisees, and creditors, in the N. H. 573, 15 Atl. 219. So far as the recital other, though it may bind the person him- tended to prove fraud or undue influence, it self, when he is afterwards a party suo jure was admissible. It was a part of the conduct in another action." Moore v. Butler, 48 N. H. of the person charged with misconduct, and 161, 170. as to that issue it was not hearsay. 3. If the error in the question propounded to the physician was a substantial one, it can readily be obviated at another trial by á properly framed hypothetical interrogatory. Verdict set aside. All concurred. VERNON (111 Md. 561) The defendants concede that such a ruling could not be sustained, and they seek to avoid its effect. Their first position is that Gibson subsequently testified to the same facts, and therefore the error was harmless. The record does not sustain this claim. The fair import of his testimony is that Randall knew what he wished to do with his property, while Gibson lacked the legal knowledge MT. WOODBERRY COTTON necessary to enable Randall to carry out his DUCK CO. v. FRANKFORT MARINE ACpurpose. On the other hand, it could well be CIDENT & PLATE GLASS INS. CO. found from the admissions that Gibson fail- (Court of Appeals of Maryland. Dec. 1, 1909.) ed to draft the will because Randall was in- 1. STATUTES (§ 114*)-SUBJECTS AND TITLES capable of telling what was to be done with OF ACTS-CHILD LABOR-REGULATION. his property. If other inferences less un-employment of children generally, the employUnder an act entitled an act to regulate the favorable to the will might equally well be ment of children under a specified age may be drawn from the admissions, it cannot avail prohibited. the defendants on the ground now under consideration. The evidence was incompetent. They seek to show that it was harmless. To do this, they must demonstrate that in all probability it could not work a harmful result. It is not sufficient that it may not have done so. If "it is probable justice may not have been done" (Hanson v. Railway, 73 N. H. 395, 399, 62 Atl. 595, 597), the error is one of substance. It is also urged that the evidence was admissible as tending to contradict Gibson. This is true; and, if it had been admitted for this purpose, the somewhat novel procedure of contradicting a witness before he testified might not be cause for disturbing the verdict. The difficulty with the defendants' case is that this was not the purpose for which the evidence was admitted. Cases holding that it is not error to admit evidence if it is com petent for any purpose or upon any issue are not in point here. No case has been cited to support the proposition that, because evidence is competent for one purpose, it is not error to instruct the jury to use it for a purpose for which it is not competent. The cases relied upon are those where evidence was admitted generally, and the excepting parties failed because they did not secure a ruling defining the purposes for which the evidence might be used. Here the use was limited and limited wrongly. It cannot avail the defendants that it might have been limited correctly. Because the jury were permitted to use Gibson's admissions as affirmative evidence of Randall's testamentary capacity, the verdict must be set aside. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 145-149; Dec. Dig. § 114.*] 2. STATUTES (§ 114*)-TITLE-REGULATIONPROHIBITION. Acts 1902, c. 566, entitled "An act to repeal and re-enact section 4 of article 100 of the Code of Public General Laws, as it is enacted by chapter 317, Acts of 1894, title Work, Hours of, in Factories,' regulating the employment of children," was not invalid, in that, while the title only speaks of regulation, it prohibits the employment in any mill or factory, other than goods, of any child under 14 years of age, exestablishments for the manufacture of canned cept, etc. [Ed. Note. For other cases, see Statutes, Dec. Dig. § 109.*] 4. STATUTES (§ 114*)-APPLICATION-TITLE. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 145-149; Dec. Dig. § 114.*] 5. CONSTITUTIONAL LAW (§ 238*)-INEQUAL ITY. Acts 1902, c. 566, regulating the employment of children in the exercise of the state's police power, and prohibiting the employment of children under 14 years of age in the mills and factories of the state other than canning factories, was not unconstitutional for inequality of the state were expressly withdrawn from the because persons owning mills in certain sections statute's application. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 688-699; Dec. Dig. § 238.*1 6. CONSTITUTIONAL LAW (§ 238*)—INEQUALITY-CLASSIFICATION. 2. The testimony as to what Carleton said appears to have been admitted on the grounds that he was a legatee, and that it was a part of his conduct in carrying out a scheme to The withdrawal of canning factories from surreptitiously procure the execution of a the application of Acts 1902, c. 566, prohibiting will by a person of feeble mind. The first the employment of children under 14 years of For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1937 to date, & Reporter Indexes age in factories in the state except in certain | fered by said John H. Ball, the judgment districts, did not render the act unconstitu- of the court shall be for the plaintiff for an tional on the theory that such classification was arbitrary and unreasonable. amount equal to the amount paid in satisfaction of the judgments aforesaid, to wit, [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. 88 688-699; Dec. Dig. the sum of $3,150, with interest thereon from 238.*] Appeal from Superior Court of Baltimore City; Thos. Ireland Elliott, Judge. Action by the Mt. Vernon Woodberry Cotton Duck Company against the Frankfort Marine Accident & Plate Glass Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ. Edward Duffy, for appellant. George Dobbin Penniman, for appellee. March 1, 1908, plus the amount of $313.67 paid as aforesaid by the plaintiff for costs, and the amount of $150 paid as aforesaid by the plaintiff for counsel fees, either or both, provided the court shall be of opinion that under the terms of said policy the plaintiff is entitled to be reimbursed for either or both of said amounts, with interest on the amount so allowed on account of fees and costs from March 1, 1909. It is further agreed that either party shall have the right to appeal from the judgment rendered." By section 11 of the policy it was agreed: "That this policy shall not apply to or cover any injury suffered by a child employed by the THOMAS, J. This is an action brought assured contrary to law, nor to any child unby the Mt. Vernon Woodberry Cotton Duck der ten years of age where no statute reCompany against the Frankfort Marine AC-stricts the age of employment, nor to any cident & Plate Glass Insurance Company, to recover on a policy of indemnity issued by the defendant to the plaintiff, whereby the defendant, in consideration of the warranties therein contained and of the sum of $1,650, agreed to indemnify the plaintiff "for the term of twelve months, beginning on the 20th day of March, 1906, at noon, and ending on the 20th day of March, 1907, at noon, * • against loss arising from legal liabilities for damages on account of bodily injury or death suffered by any employé or employés of the assured resulting injury suffered by others caused by or resulting from such employment." facts that the plaintiff, who was carrying on It further appears from the statement of in Baltimore City the business of manufacturing cotton duck, on the 26th of June, 1906, employed one John H. Ball to work in its mill in said city, known as the "Meadow Mill." At the time of such employment, John H. Ball was between 11 and 12 years of age (of which fact the plaintiff had rived at the age of 11 years on the 20th of knowledge before the accident), having arMarch, 1906, and resided in Baltimore with his father, John T. Ball. He was not de from any and every accident of whatsoever nature or cause happening in, upon or about the premises and in the business of the assured as described on the back" of the pol-pendent upon such employment for self-supicy. Issues were joined on the pleas of port, and just prior thereto had been attend"never promised as alleged" and "never in- ing a public day school, which had closed debted as alleged," and by agreement of for the summer vacation, and it was at the counsel defendant's third plea was with- request of his father, who was not an indrawn, "all errors in pleading" were waiv- valid and was in the employ of the plaintiff, ed, and the case was submitted to the court that he was employed to work in the mill on an agreed statement of facts by the fol- during said vacation. While so employed, lowing agreement: "Eighth. It is further and while working for the plaintiff on the agreed that article 100 of the Code of Pub- premises mentioned in the policy, the said lic General Laws shall be considered in evi- John H. Ball, on the 29th of June, 1906, had dence, and that the Acts of 1894, chapter his right hand cut off by coming in contact 317, and 1902, chapter 566, shall be consid- with a revolving fan in said mill, and subered in evidence, and they may be read in sequently brought suit against the plaintiff the lower court and in the Court of Appeals, to recover for such injury. His father, either from the printed volumes or from John T. Ball, also brought suit against the certified copies thereof or of parts thereof; | plaintiff to recover the loss he sustained by and it is further agreed that this case shall reason of said accident. The defendant was be tried before the court, and that it is sub- given due notice of the accident and of the mitted to the court for its opinion on the suits, as required by the policy, but refused law, and the court is requested to render a to defend the suits on the ground that John judgment in accordance with its said opin- H. Ball had been employed by the plaintiff ion, and if the said opinion of the court on contrary to law. These suits were defended the facts hereinbefore stated and agreed to by the plaintiff, but resulted in a judgment is that, notwithstanding the terms of para- in favor of John H. Ball, for $2,500 and graph 11 of the aforesaid policy, the said $281.92 costs, and judgment in favor of John policy applies to and covers the injury suf- T. Ball for $800 and $31.75 costs. The judg ment in favor of John H. Ball was entered | der 12 years of age, to prohibit the employsatisfied upon payment by the plaintiff of ment of children under that age, and, for $2,350 and costs, and the judgment in favor of John T. Ball was paid in full by the plaintiff, and it was for the recovery of these amounts so paid by the plaintiff, and the sum of $150 paid by plaintiff to counsel for defending such suits, that this action was brought. The appeal is from a judgment of the court below in favor of the defendant, and it is conceded by counsel for the appellant that if Acts 1902, c. 566, is a valid enactment, there was no error in that judgment. The contention of the appellant is: (1) That Acts 1894, c. 317, is unconstitutional because its title is defective, and that Acts 1902, c. 566, is based on the act of 1894, and is therefore also unconstitutional; and (2) that the acts of 1894 and 1902 are in conflict with the fourteenth amendment to the Constitution of the United States. 1. Acts 1894, c. 317, is as follows: "An act to amend article one hundred of the Code of Public Local Laws of Maryland, title 'Work, Hours of, in Factories,' by adding thereto a section, to be known as section 4, regulating the employment of children under twelve years of age, in mills and factories in this state. "Section 1. Be it enacted by the General Assembly of Maryland, that article one hundred of the Code of Public General Laws of Maryland, be amended by adding thereto the following section, to come in immediately after section three of said article, and to be known as section four." "Sec. 4. No proprietor or owner of any mill or factory in this state, other than the establishments for manufacturing canned goods, or manager, agent, foreman or other person in charge thereof, shall, after the first day of October in the year eighteen hundred and ninety-four, employ or retain in employment in any such mill or factory, any person or persons under twelve years of age; and if any such proprietor or owners of any such mill or factory, or manager, agent, foreman or other person in charge thereof, shall willfully violate the provisions of this section, he shall be fined not less than one hundred dollars for each and every offence so committed, and pay the costs of prosecution, one half of the fine to go to the inform that reason, is in violation of section 29 of article 3 of the Maryland Constitution, which requires the subject of an act to be described in its title. Assuming this contention to be sound, the act of 1894 was repealed and re-enacted by Acts 1902, c. 566, the title of which is "An act to repeal and re-enact section 4 of article 100 of the Code of Public General Laws, as enacted by chapter 317, Acts of 1894, title 'Work, Hours of, in Factories,' regulating the employment of children," and which prohibits the employment in any mill or factory, other than establishments for the manufacturing of canned goods, of any person under 14 years of age, "unless such child is the only support of a widowed mother or invalid father, or is solely dependent upon such employment for self-support." It cannot be said, nor do we understand counsel for the appellant as seriously contending, that under an act entitled an act to regulate the employment of children generally the employment of children under a certain age may not be prohibited, as a part of the regulation. In the case of Osborn v. Charlevoix, 114 Mich. 655, 72 N. W. 982, the court was considering an act entitled "An act to regulate the catching of fish in the waters of this state, by the use of pound or trap nets, gill nets, seines, and unconstitutionality of Act No. 151 is ascribother apparatus," and said: "The alleged ed to a defective title, in that it prohibits, during a portion of the year, while it professes to regulate, the taking of fish. It is in the title, and, again, that prescribing cersaid that this prohibition is not mentioned tain methods and apparatus is a regulation, which is the only object stated in the title. of this, like other fish laws, is to preserve We may reasonably conclude that the object the industry of fishing, and a valuable food product, by protecting fish during certain seasons, and preventing the taking of young fish that have not reached a proper size. Any provision that tends to these ends, which recognizes a reasonable exercise of the right to take fish, and prescribes rules under which it may or may not be done, is within the term 'regulation.'" That case fully accords with the views expressed by this court in Whitman v. State, supra, where it is said that: "Any provision which was necessary or appropriate to carry into effective operation a scheme embodied in an act whose title declared that it was an act er and the other half to the school fund of the county or city in which the offence shall have been committed; provided, that nothing in this act shall apply to Frederick, Washington, Queen Anne's, Carroll, Wicomico, Caroline, Kent, Somerset, Cecil, Calvert, St. Mary's, Prince George's, Howard, Baltimore, Worcester and Harford counties." liquor traffic is in no sense a regulation of it." The act of 1902 does not prohibit the to regulate liquor traffic in that town could have been constitutionally included under that title. But the total abolition of the It is claimed, upon the authority of Whit-employment of children, but regulates the man v. State, 80 Md. 410, 31 Atl. 325, that it employment of children by prohibiting the is an attempt, under an act entitled an act employment of children under a certain age, to regulate the employment of children un-except under certain circumstances. |