with the city, and occupying its public places, it is not in a good position to urge in a court of equity that it cannot be required to perform its part of the agreement.

The defendant relies upon Embler v. Hartford Steam Boiler Insurance Co., 158 N. Y. 431, 53 N. E. Rep. 212, 44 L. R. A. 512, and the principles there discussed, claiming that the city owed no duty to its citizens to obtain cheap telephone rates for them; that the plaintiff is not a party to, or in privity with, the parties to the contract, and therefore cannot maintain this action. In that case the employer obtained the policy insuring against accidents; the defendant agreeing to pay for the loss of life or injury to the assured, or any person in his employ, not to exceed $5,000 for each person killed or injured, the payment to be for the benefit of such person or his representative. The representative of the deceased employee brought an action against the company, and settled for $1,500. The estate then assigned its interest in the policy to the plaintiff, who brought the action to recover the balance of the $5,000. Judge Gray, who wrote the opinion, held that a recovery could not be had because of want of privity, and that the employer was under no duty to insure the employee, and that for that reason the action could not be maintained; but the majority of the court concur in the result, putting their decision upon the ground that at the most the policy was one of indemnity only, and, the estate having settled for $1,500, there could be no further recovery on account of that death. It is but fair to infer from the mémorandum of the majority of court that if there had been no settlement plaintiff could recover. This case shows that the doctrine in the former cases is not at least to be extended any further, and emphasizes the suggestion that the right of a third person to recover upon a contract made by other parties for his benefit must rest upon the peculiar circumstances of each case, rather than upon the law of some other case. The public parks and public places of a city are for the pleasure and satisfaction of the citizens, and they have rights in those places; and when a city grants to a telephone company the right to erect its poles and string its wires in those places, interfering more or less with the use of the same by the citizens, it is not only its right but its duty to require that the citizens shall all be treated alike in the service to be rendered, and that they shall receive service at the same reasonable rates that is furnished in rival cities. In lieu of requiring a large compensation paid to itself for these rights, at the request of the company, it may require a nominal sum, and safeguard the rights of its citizens in such respects as it deems necessary and proper. But here the plaintiff's rights rest not only upon these considerations, but at the defendant's request he signed the petition to the common council, embodying the terms of service, and requesting that the contract be made and the franchise

granted, and upon that petition the so-called "franchise" was granted by the city, and the defendant in writing accepted and agreed to its terms. These four papers should be read together. Afterwards the plaintiff requested service, agreeing to pay the $2 per month. The defendant accepted his request, and furnished the service. This request for service and the furnishing of the service must refer back and relate to these public documents. The plaintiff, therefore, became a party to the contract and its consideration-connected it in the making of it-and upon his request, as well as that of the defendant, the contract was made. It was made for his benefit, as well as the benefit of the defendant and the municipality itself.

I therefore hold that the contract between the defendant and the city is valid, and that plaintiff may insist that the defendant comply with its terms and conditions so far as he is concerned. Most of the cases cited by the defendant where a third person has not been able to recover upon a contract made between others are actions of law, and are governed by the strict rules of law. In this action for an injunction a court of equity is not controlled by such rules, but is principally concerned in knowing whether the defendant owes a duty to the plaintiff, and is violating that duty, and, if so, it has the power to grant such relief as is proper. But the plaintiff is not necessarily proceeding for the enforcement of the contract. The defendant, by this so-called 'franchise, admitted in the most public manner that $2 per month was an ample compensation for office service, and that it was reasonable and proper that the party receiving the service should furnish his own telephone. It has been furnishing offices at $2 per month, and if that rate was reasonable when it was building up its business against a competitor, it is equally reasonable after it has crushed out the competitor, and compelled it to make terms with it. The $3.50 is alleged and admitted to be an excessive rate, and is more than the defendant has agreed to furnish similar service to the city for, and to all offices in the city, and it discriminates against the plaintiff in favor of offices in which other business is transacted, and where the service is the same or less than in plaintiff's office. A court of equity has power to compel a public service corporation to furnish all citizens alike with its service at a reasonable and just price and at uniform rates, and to prevent discrimination. The defendant has a certain right to carry on its business in its own way where it does not prejudice the rights of others, and if it is more desirable for it to use its own telephone in place of the telephone of a customer, it should have this right for its own accommodation, but should not charge the customer therefor. Therefore in this case the judgment should provide that if the defendant desires, it may use its own proper telephone, but shall not charge for the use thereof, and shall render the service at $2 per month."

Such service as public servants are bound to furnish under the common law courts will compel it by mandamus. State v. Webster & Nebraska Telephone Co., 17 Neb. 136, 52 Am. Rep. 404; State v. Republican Valley R. Co., 17 Neb. 656, 52 Am. Rep. 424; State v. Joplin Water Works, 52 Mo. App. 312; Chesapeake & P. Telephone Co. v. Baltimore & O. Telegraph Co.. 66 Md. 400, 59 Am. Rep. 167; Central Union Telephone Co. v. State, 118 Ind. 194; C. & N. W. Ry. Co. v. People, 56 Ill. 367, S Am. Rep. 90; State Postal Telegraph Cable Co. v. Del. & A. Co. Telegraph & Telephone Co., 47 Fed. Rep. 633; Augusta So. R. Co. v. Wrightsville & T. R. Co., 74 Fed. Rep. 527; People v. C. & A. R. Co., 130 Ill. 181; Wheeler v. N. Col. Irg. Co., 10 Colo. 532; Hangen v. Albma Light & Water Co., 21 Oreg. 423, 14 L. R. A. 424. See a full discussion of this subject Vol. 45 CENTRAL LAW JOURNAL, 278. It would seem that a proceeding in equity, such as that of the principal case, should be more efficient than a proceeding in mandamus in many cases.

EQUITY EFFECT OF A FAILURE TO OBJECT TO A TRIAL BY JURY IN A SUIT IN EQUITY. -In the case of McClelland v. Bullis, decided by the Supreme Court of Colorado recently, and reported in 81 Pac. Rep. 771, an interesting question is discussed and properly decided.

It would be interesting, however, if the facts were brought to light, to see how many equity cases were tried in code states and settled as common law cases, without the slightest knowledge on the part of either of the parties or the court, that the case was one in equity.

The statement of the facts, in this case, would take up so much space that we can only show the principles involved in the question under consideration. The plaintiff in error, among others, relied for reversal upon the following propositions: First, the court erred in disregarding the verdict of the jury, and in making findings and entering a decree contrary thereto; second, the court erred in immediately making findings upon all the issues in the case directly contrary to the verdict of the jury and in entering a decree thereon, without granting the plaintiffs in error a further opportunity to be heard as on a trial by the court. The court took the propositions together, as to whether or not the court erred in disregarding the verdict and entering a decree contrary thereto, without granting the plaintiffs an opportunity to be heard as on a trial by the court. This action was entirely equitable in its nature. It has none of the elements of an action at law. In such cases the verdict of the jury is merely advisory. The court held that it was proper to disregard such a verdict and decide the issues for itself on the evidence produced, citing Porter v. Grady, 21 Colo. 74, 39 Pac. Rep. 1091; Peck v. Farnham, 24 Colo. 141, 49 Pac. Rep. 364; Wilson v. Ward, 26 Colo.

and several other Colorado opinions. Much of the argument of the plaintiffs in error was devoted to the proposition that defendant in error (plaintiff below), having elected to treat the action as one at law, instead of one at equity, cannot now be heard to assert that it was equitable, instead of legal, and that he is absolutely bound by the verdict of the jury. There is nothing in the record from which it appears that defendant in error at any time treated the action as one at law, except the fact that a jury was called to try the issues without objection on his part, and the fact that the jury was sworn generally to try the issues and render a general verdict. An objection to the calling of the jury might not have been availing, because it is within the power of the court to call a jury to try any issue of fact, either legal or equitable, and to submit to such jury all questions of fact arising from the case. The facts stated in the petition and the relief asked constitute a case in equity, and it is well settled that in such cases the verdict is merely advisory, and may be disregarded by the court. Coglan v. Beard, 67 Cal. 303, 7 Pac. Rep. 738; Wallace v. Maples, 79 Cal. 433, 21 Pac. Rep. 860; Adickes v. Lowry, 12 S. Car. 97.

The court said: "While we have examined the authorities presented by plaintiffs in error, we shall not attempt to review all of them, because it is well settled in this state that the verdicts of juries in such cases are purely advisory. Suffice it to say that practically all of the cases cited by plaintiffs in error recognize the right of the court to set aside the verdict. For instance, Ross v. New England Ins. Co., 120 Mass. 117, recognizes the right of the court to set aside the verdict. So in Franklin v. Greene, 2 Allen, 519. In Ex parte Morgan, 2 Ch. D. 72, it is said by James, L. J.: 'I take the rule in chancery and bankruptcy, with respect to verdicts of juries, to have been substantially the same as in the common-law courts, namely, that the finding must be considered as res judicata-conclusive between the parties-unless and until it is set aside. But in chancery and in bankruptcy the court has also substantially the same powers as the courts of common law had to pronounce a judgment non obstante veredicto. If, assuming the finding of the jury to be correct, that the fact or facts is or are as found by them, there are other facts or other considerations which enable the court to pass over that finding, and to pronounce a decree or make an order adverse to the party who has obtained the verdict, the court is entitled to pronounce such decree or make such order.' In Setzer v. Beale, 19 W. Va. 274, it is said: 'After a verdict is rendered by a jury on an issue out of chancery, if, upon the proofs as they stood at the hearing, an issue ought not to have been ordered, it is the duty of the chancellor, notwithstanding the verdict, to set aside the order directing the issue, and enter a decree on the merits as disclosed by the proofs on the hearing when the issue was ordered.' In Ivy v. Clawson, 14 S. Car.

272, the first exception of appellant was 'that the verdict of the jury should have been regarded as conclusive of the issue referred.' The appellate court said: "The judge, sitting as chancellor, is not required to regard the finding of the jury as conclusive of the fact submitted, any more than he would the report of a referee, but, on the contrary, is bound to consider all the evidence in the whole case, including the finding and the evidence to support it, and pronounce his judgment accordingly.' In the states where equity and common law cases are tried separately, cases are referred to a master in chancery to take the evidence and report the findings to the court, yet at the same time the court may allow the parties a jury to try the facts, but neither in the case of the findings by the master, nor those of a jury is the chancellor bound. He may make his own findings notwithstanding the master or jury and enter a decree directly contrary to the conclusions of either."

THE DOCTRINES OF ASSUMED RISK AND CONTRIBUTORY NEGLIGENCE AS DEFENSES TO ACTIONS FOR DAMAGE RESULTING FROM A FAILURE TO COMPLY WITH EXPRESS STATUTORY PROVISIONS.

In a number of states statutes have been enacted, commonly known as "Factory Acts." These statutes are more or less alike, and were adopted by the several legislatures largely for the purpose of providing means for protecting the liberty, safety and health of laborers employed in factories whose duties are to work with and around the machinery or instrumentalities referred to in the act. The usual provisions are as follows: "Every person owning or operating any manufacturing eatablishment in which machinery is used shall furnish and supply for use therein belt-shifters or other safe mechanical devices for the purpose of throwing on or off belts, and wherever it is practicable machinery shall be operated with loose pulleys. All vats, pans, saws, planers, cog-geering, belting, shafting, set-screws, and machinery of every description used in a manufacturing establishment, shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment, and it is hereby made the duty of all persons owning or operating manufacturing establishments to pro

vide and keep the same furnished with safeguards, as herein specified." In some states it is further provided that a failure to comply with these provisions on the part of the owner or operator of a factory shall constitute a public offense, and specific penalties are prescribed, and in a number of them it is specially declared that a continuance in the service on the part of employees, after knowledge of a non-compliance with the law on the part of the master, shall not be deemed to be an assumption of risk of danger therefrom.

From an examination of the decisions on this subject of the law it will appear that there is an utter lack of uniformity of conclusion amongst the courts which have construed these statutes with respect to what defenses are available in actions for damages resulting from a failure to comply with these statutory requirements, and this confusion or discord is not due so much to a difference in the language or wording of the statutes as to an actual disagreement amongst the several courts of the effect and meaning of them, and although the doctrine of assumed risk is by no means new, it is nevertheless a fact that nothing is more unsettled by judicial authority than the question of the right to set up the doctrine of assumed risk as a defense to actions for damages resulting from a failure to comply with these laws. There are decisions to the effect that even if a statutory requirement has been expressly ignored by an employer, a servant injured by reason thereof cannot recover against the master because he is held to have assumed the risk under the maxim of "volenti non fit injuria.” Other courts have denied this but hold that although the servant cannot be said to have assumed the risk he still cannot recover against the master because of his own contributory negligence; that though he did not assume the risk he is still guilty of contributory negligence, because he undertook to do a piece of work fraught with danger. Still other courts have gone so far as to shut out both doctrines of assumed risk and contributory negligence as defenses to actions for injuries occasioned by a non-observance of these laws and, finally, there are decisions which, I think, correctly hold that the so-called doctrine of assumed risk cannot be urged as a defense in actions for injuries resulting to employees by reason of a disregard by the master of statu

tory obligations, but that contributory negligence may be urged as a defense, providing it actually exists. Of course under statutes which expressly provide that continued service on the part of the employee, after knowledge of the non-compliance with the law, shall not constitute an assumption of risk, all the courts agree that the defense cannot be urged, but here is where the evil of failing to make the proper distinction between assumption of risk and contributory negligence becomes the most potent, but of this later.

As

In my opinion there ought not to be any distinction between the statutes which provide for a penalty for a non-compliance with them, or which expressly negative the right to set up the defense of assumed risk in actions for their breach, and those containing no such provisions, with respect to the rights of the parties in civil damage suits, and in this article I will discuss the subject as though neither provision existed anywhere. sumption of risk is a term of the contract. It exists either expressly or by implication, and the one is no more effective or binding than the other. The very name of the term indicates that it is contractual in its nature. There can be no such a thing as assumption of risk or assumption of anything else except in connection with a contract. When a servant is employed to perform certain work, providing the work to be performed be lawful, whether anything is said on the subject or not, the law reads into the contract, by implication, that he (the servant) shall assume all the ordinary risks incident to the service, and also all the extraordinary risks which are known to him, and from this of course flows the well known rule, that in case an injury occurs to the servant from one of these incidental dangers assumed by him in his contract he cannot recover from the master therefor, and these conditions and relations are in no manner modified or changed by the statutes under consideration. But the same rule of law by which the servant is held to have assumed all the ordinary risks which are incident to the employment, and those extraordinary risks which are known to him, by implication, because of his contract with the master, absolves the servant from assuming dangers which in which in contemplation of law have no existence, namely, dangers existing because of the master's

failure to carry out a positive mandate of the law, which in his contract with the servant he impliedly agreed to do. In contemplation of law the parties could not, at the time of the making of the contract,-when the servant must have done his assuming, if at all,-have taken into consideration dangers from a non-observance of the statute, and therefore the servant cannot be said to have assumed them as an incident to the service. This would not be binding if actually made by special agreement. How can it then be supposed that such an agreement could exist by implication of law? It would be paradoxical for the law to imply an agreement or to impose a duty which has no existence except that the law be broken. The logic of this is that it is lawful to break the law. What then is unlawful? It is said, however, in some of the cases to which I shall refer, that this argument could be made with equal cogency to a non-compliance on the part of the master of his common law duty, to furnish a reasonably safe place to work to the servant, and it is said that it is everywhere conceded that the servant assumes the risk of the master's dereliction in this respect; and that a breach of a common law duty is just as wrong as a violation of a statute, whose object is to mould a common law duty into concrete form. There is some force in this line of reasoning, but I think that a great many courts have gone entirely too far on the question of assumed risk. Be this however as it may, there is a vast difference between the general undefined common law duty to furnish a reasonably safe place or instrumentalities to the servants, and a positive statute, declaring what shall be safe and demanding what shall be done. As is said by the Supreme Court of Indiana in the case of Monteith v. Enameling Co.1 "And here a distinction is to be noted between statutes such as the employer's liability acts, which provide in general terms that the employer shall be liable for injuries to an employee where the injury is occasioned by reason of defects in the condition of ways, works, plant, tools, machinery, etc., and statutes which require of the employer the performance of a specific duty, such as to guard or fence dangerous machinery. Statutes of the former class do little more than declare the rule of the common law. Stat1 58 L. R. A. 944.

utes of the latter class impose specific obligations. A failure to comply with the requirements of the first may or may not be negligence. A violation of the second is an unlawful act or omission, a plain breach of a particular duty owing to the servant, and generally is negligence per se."2

As said before, when the master and the servant make an agreement by which the one agrees to employ and the other agrees to serve, the law reads into their contract lawful reciprocal duties and obligations. It says for the servant: I will assume all the ordinary risks which are incident to my service, and also all the extraordinary risks which may become known to me during the continuance of my employment. It says on behalf of the master: I will equip my plant in which you are to work, and the machinery and instrumentalities contained therein, in the exact manner as is prescribed by law, and I will keep the same in that condition not only while your service lasts, and for the purpose of protecting you, but for all time, and for the purpose of protecting all people who may come in contact with them, and while my plant is not now equipped in statutory shape, you need not take that into consideration in entering into your contract with me, because I must and will make the necessary alterations and repairs, and until I make these alterations and repairs I will be responsible to you in damages if any injury results to you because of my failure to comply with the law. These, by law, implied mutual duties and obligations, exist as well where the parties stipulate otherwise, as where nothing is said on the subject. The law will not sanction an agreement which has for its object a breach of its commands, as is well said by Judge Baker, of the Supreme Court of Indiana, in the case of Davis Coal Co. v. Polland. 3

"Freedom of contract should not be lightly interfered with. As a general rule, the right of contracting, as one sees fit, stands untrammeled. But the state has power to restrict this right in the interest of public health, morals and the like. When, in the present case, it is pointed out that the legislature has failed in terms to deny the employee's right to assume the risk from his employer's disre

2 See cases cited in opinion.

3 158 Ind. 616.

gard of the statute, the question is not ended. If the legislature has clearly expressed the public policy of the state on a matter within its right to speak upon authoritatively, and if that public policy would be subverted by allowing the employee to waive, in advance, his statutory protection, the contract is void as unmistakably as if the statute, in direct terms, forbade the making of it."

Under these statutes, therefore, the rights of the parties, with respect to the doctrine of assumed risk, are the same as where no such statute exists and where the servant, before receiving his injury, complains to the master that the machine or appliance with which he is working is defective and out of repair, and which the master agrees to remedy. The statute operates as a continuing complaint of defects, and it also operates as a continuing promise to make repairs, and it is universally conceded by all the courts that where there is complaint of defects by the servant, and a promise to repair them by the master. that under such circumstances the master assumes the risk pending the making of repairs.

From the notice to the master of the defect, and the promise by the master to repair them, is properly implied, the agreement of the master that he will assume the risk of injury pending the making of repair.

The very decisions which hold that continued service by a servant with knowledge that the master has failed and intends to fail to comply with the law, amounts to an assumption of the danger, superinduced by such failure, on the part of the servant, all make the qualification, that where there is complaint by the servant, and a promise to remedy by the master, that then the master and not the servant assumes the risk pending the making of repairs. Now why this general qualification, unless it be a recognition of the doctrine that under certain circumstances the law will cast the burden of the risk from a defect, upon the master, by implication, and that this takes place by reason of and because of the notice and promise above referred to? If this be so, and it cannot be otherwise, then the rest is easy, because no lawyer will claim that a simple promise to a complaining servant to make repairs is any more binding upon the master, or any

4 Gardner v. Mich. Cen. Ry. Co., 150 U. S. 349. St. Louis Cordage Co. v. Miller, 126 Fed. Rep. 495.