ceive no defect of power to carry such agreement into execution, and it ought not in our judgment to be denied upon any mere tech

and used for municipal purposes, it has a right to allow it to be used incidentally for other purposes, either gratuitously, or for a compensation," the court, in the Louisiana | nical ground, or any refinement of reasoning, Case above, adds: "We find no reason to dissent from the views thus expressed, and have little doubt they were appropriate to the case decided. We do not wish to be understood as going to the extreme of holding that the city authorities may not make such casual and incidental use of the building in question, not inconsistent with, or prejudicial to, the main purpose of its erection, as they may deem advisable, nor as holding that changed conditions in the future may not justify them in devoting it to some other purpose."

It having been shown that in making the lease now under consideration the city acted as a mere property holder, and entered into the contract with reference to the demised property as any private proprietor might do, it follows that the doctrine of ultra vires cannot be invoked, unless it has in some way been imported into the case by the subsequent concurrent action of the mayor and city council and the field officers, in permitting the use of the armory for such engagements as have been already described, for the joint financial benefit of the city and the field officers, one-third to the city and the residue to the field officers.

however skillful. This is not like the case of the Veterans' Seventh Regiment v. Field Officers' Seventh Regiment, 60 Hun, 578, 14 N. Y. Supp. 811, cited by the appellants where the veterans sought to quiet their title to a part of the armory let to them by the field officers by debarring the latter from repudiating their lease and reasserting their former title. It is certainly immaterial to these plaintiffs if the lease to the field officers was a valid lease, whether the powers thereby granted are, or are not, extended by a subsequent valid agreement.

But the appellants still further contend that the hiring out of the public property for such entertainments as the record shows is an unconstitutional invasion of the rights of citizens engaging their property in that business, in that it is a deprivation of liberty and property without due process of law, and they have specially requested us to express an opinion upon this branch of the argument. This is not the case of a municipal corporation perverting the functions of government by deliberately and indefinitely engaging in business for profit, and entering into competition with its taxpayers, from whom it exacts a license which it does not itself pay. It is but the temporary, casual, and incidental use of unused public property, done in the practice of a public economy to avoid loss of revenue upon such unused public property, and to lighten thereby the general burden of taxation. Such being in our view the case before us, we cannot sustain the constitutional objections of the appellants. Decree affirmed, with costs to the appellees above and below.

et al.

(109 Md. 513).

(Court of Appeals of Maryland. Jan. 13, 1909.) 1. ELECTRICITY_(§ 14*)-TRANSMISSION ALONG HIGHWAYS-DUTY.

We have read and considered with care the elaborate argument of the appellant, covering 26 pages of their brief, relating to the organization of the militia of the state and the powers and rights of the field officers in this case, and it is doubtless true, as contended, that they are mere governmental agencies, without corporate organization or powers; but we cannot perceive that this is at all material to be considered. Indeed it would seem to follow from that fact that all power over that property, not capable of exercise by the field officers, remains unimpaired in the city. The armory has not ceased to be the unused property of the city because WALTER v. BALTIMORE ELECTRIC CO. the state has appropriated money to fit it up and maintain it as an armory during its occupancy as such under the lease. It may be, though it is not necessary so to decide, that the field officers alone, under the lease, could not, against the will, or without the consent, of the city, authorize its use in the manner now under consideration. But they certainly control its use as an armory, and the city as certainly owns the reversion in the property, together with all control over its use which has not by that lease been vested in the field officers; and, when the city and the field officers, together representing the absolute ownership and unqualified control of the property, consent and agree, as the record shows they have done, to this extended use of the property for a further valuable consideration, equitably apportioned between them by their own agreement, we can per

maintaining electric wires along highways must
Aside from any contractual relation, those
use a high degree of care commensurate with
the danger to protect persons lawfully using the
highways.

Cent. Dig. § 7; Dec. Dig. § 14.*]
[Ed. Note. For other cases, see Electricity,

2. ELECTRICITY (§ 19*)-LIGHT WIRES-STREETS
-INJURY TO PEDESTRIAN PRIMA FACIE
NEGLIGENCE.

That a wire of an electric lighting company strung over a street fell upon and injured a pedestrian prima facie shows negligence of the company, placing the burden on it to show that it was not negligent.

[Ed. Note.-For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]

Appeal from Superior Court of Baltimore City; Henry D. Harlan, Judge.

Action by Harry B. Walter, infant, by next | deadly power. W. U. Tel. Co. v. State, Use friend, against the Baltimore Electric Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded for new trial.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, WORTHINGTON, and HENRY, JJ. Charles F. Stern and Thomas G. Hayes, for appellant. Vernon Cook, for appellees.

Nelson, 82 Md. 293, 33 Atl. 763, 31 L R. A. 572, 51 Am. St. Rep. 464; Brown v. Edison Electric Co., 90 Md. 400, 45 Atl. 182, 46 L R. A. 745, 78 Am. St. Rep. 442; Newark Elec. Light & P. Co. v. Ruddy, 62 N. J. Law, 505, 41 Atl. 712, 57 L. R. A. 624; Sub. Elec. Ry. Co. v. Nugent, 58 N. J. Law, 658, 34 Atl. 1069, 32 L. R. A. 700; Postal Tel. Co. v. Jones, 133 Ala. 217, 32 South. 500; Mangan's Adm'r v. Louisville Elec, L. Co., 122 Ky. 476, 91 S. W. 703, 6 L. R. A. (N. S.) 459; Wittleder v. Cit. Elec. & S. Co., 50 App. Div. 478, 64 N. Y. Supp. 114. It has been held in different cases that electric companies are not insurers of the public using the streets over which their wires are strung on poles, and are therefore not liable for all injuries resulting from contact with their wires, irrespective of the circumstances under which they occur. What they are liable for is the exercise of that degree of care which the law imposes upon them in view of the dangerous character of their wires and the rights of the public in the highways over which they are suspended. In Nelson's Case, supra, we said, in defining

SCHMUCKER, J. The question presented by this appeal is a narrow one. It is whether the fact that a wire of an electric lighting company strung over the public street of a city, fell upon and injured a person passing along the street of itself affords sufficient prima facie proof of negligence on the part of the company to cast upon it the burden of overcoming that presumption. There is evidence in the record which, for the purpose of this inquiry, must be taken to be true that, as the equitable plaintiff, a boy eight years old, was passing along Harford avenue, a public street of Baltimore city, he swung himself around a pole standing in the pavement, when he came in contact with a hanging the measure of responsibility of the defend. wire charged with electricity, and badly burned his head and his hand. The evidence does not show the existence of any sudden or unforeseen cause for the falling of the wire, nor show with certainty whether it fell before or at the time of its coming in contact with the boy. He brought this suit for damages for his injury against the appellee and two other companies, all of whom were declared against as owners of the wire, but the appellee admitted at the trial below that it was the owner of and controlled the wire, and the case was not pushed against the other defendants. At the trial in the court below the case was taken from the jury at the close of the plaintiff's evidence, by the granting of the defendant's prayer, for want of legally sufficient evidence to warrant a recovery. From the judgment for the defendant resulting from that ruling, the plaintiff appealed.

ant companies to the plaintiff in the use by
him of a highway over which their wires
were strung: "The privileges so granted [to
the defendant companies] thus to encumber
the public highway with appliances so likely
to become dangerous to the public safety un-
less properly employed and controlled im-
posed upon them, and each of them, the duty
of so managing their affairs as not to injure
persons lawfully on the streets. They owed
it to Nelson that his lawful use of the street
should be substantially as safe as it was be-
fore the telegraph and railway plants had so
occupied it. It was their plain duty, not only
to properly erect their plants, but to maintain
them in such condition as not to endanger
the public. It follows from this that if the
property of the defendants was not in prop-
er condition, and by reason thereof Nelson
was injured, these facts alone, in the absence
of other evidence to show that the defect
originated without the fault of the companies,
afford a prima facie presumption of negli
gence. In such cases the doctrine of res ipsa
loquitur (‘a simple question of common sense'
[Whittaker's Smith on Neg. 423]) fairly ap
plies."

The recent wide-spread adoption of overhead wires upon public streets for the transmission of high tension electric currents for supplying light and power has been followed by numerous injuries to persons who have come in contact with broken and fallen wires. The series of damage suits flowing from It is true that in Nelson's Case the wire these accidents have called for frequent con- which did the harm had been hanging down sideration by the courts of the reciprocal for about two weeks, during at least a porrights and duties of the public and the owners tion of which time it had been charged with of those dangerous instrumentalities. The a current of electricity, but in many adjudicourts agree that outside of any contractual cated cases and text-books it has been held relation the very nature of the business of that the mere fact that a live electric wire transmitting such currents along highways falls down upon a public street over which it imposes upon those engaged in it the legal has been suspended, and injures a person duty to exercise, for the protection of all lawfully there, is prima facie evidence of negpersons lawfully using the highways, the ligence on the part of the owner of the wire. high degree of care commensurate with the Newark E. L. & P. Co. v. Ruddy, supra; Hedanger incident to the proximity thereto of bert v. Lake Chas. I. L. & W. Co., 111 La.

were made and submitted to a jury five months | visions of the alleged will, a share of Mrs. thereafter, and objected for the first time after McKenney's property was given to her only

verdict in the law court was rendered and re

newed his objections in the orphans' court, but his petition therein, filed in April, 1908, did not state that he only recently learned of his dismissal, or that it was obtained by fraud, he cannot object to the proceedings after his dismissal even if they were irregular; a mere general allegation that the proceedings were collusive being insufficient.

[Ed. Note. For other cases, see Wills, Dec. Dig. § 336.*]

7. Appeal and ERROR (§ 799*)-DISMISSAL DELAY IN TRANSMITTING RECORD-AFFIDAVIT.

A motion to dismiss an appeal because of delay in transmitting the record will not be considered, where it does not appear from the affidavits filed whether the delay was caused by the register or by appellant.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 799.*]

Appeal from Orphans' Court of Baltimore City; Myer J. Block and Harry C. Gaither, Judges.

Petition by Richard H. Pleasants against William O. McKenney and others, praying that the orphans' court refrain from receiving or acting upon findings on issues submitted to a jury in a will contest. From an order dismissing the petition, and refusing probate, pursuant to the findings, petitioner

appealed. Affirmed.

Argued before BOYD, C. J., and BRISCOE,

PEARCE, SCHMUCKER, BURKE, WORTH-
INGTON, and HENRY, JJ.

Richard H. Pleasants and John E. Semmes, for appellant. J. Cookman Boyd, for appellees.

daughter, Mrs. Emma Hedian, a legacy of $100 to a Mrs. Mary L. Foley, and of the residue one half was given to her son William O. McKenney, above named, absolutely, and the other half to Edward I. Hedian, in trust for the benefit of her son George J. McKenney for life, and after his death to be divided amongst his children. On April 10, 1907, the appellant, Richard H. Pleasants, as attorney for the executor, filed his answer to the caveat, denying that Ellen McKenney died intestate, but averring that she duly and properly executed the paper writing purporting to be her will, dated June 25, 1897, when of sound and vigorous mind and body and fully capable of executing a valid deed or contract. On May 18, 1907, the attorneys for the caveators filed the following order: "Mr. Register: Enter the petition and caveat of William O. McKenney and George J. MeKenney, as against Richard H. Pleasants, dismissed." On May 27, 1907, the joint and several answer of Emma Hedian, Mary L. Foley, and Edward I. Hedian, trustee, was filed, neither admitting nor denying the alle gations of the caveat, but submitting their rights to the protection of the court, and con

senting to the passage of such order in the 15, 1907, issues were framed in the orphans' premises as should be proper. On October court of Baltimore city, and sent to the superior court of that city for trial before a jury. By order of the orphans' court, William O. McKenney and George J. McKenney were made plaintiffs at the trial of the issues, and Emma Hedian, Mary L. Foley, and Edward I. Hedian, trustee, defendants at such trial. The issues were six in number, and of the following purport:

(3) Was the execution thereof procured by fraud?

WORTHINGTON, J. Mrs. Ellen McKenney, of Baltimore city, died on March 9, 1907, leaving a paper writing, dated June 25, 1897, purporting to be her last will and testament, (1) Was the paper writing dated the 5th in which paper writing Richard H. Pleasants, day of June, 1897, purporting to be the last the appellant, was named as executor. On will and testament of Ellen McKenney, signMarch 15, 1907, Mr. Pleasants exhibited and ed by her, or some other person in her presfiled this alleged will in the orphans' court of ence, and by her expressed direction, and atBaltimore city for the purpose of probate. tested and subscribed in the presence of two Three days later-that is, on March 18, 1907, or more creditable witnesses? -before the alleged will had been admitted (2) Was the same read to her or by her, or to probate, a formal caveat was entered there-known to her at or before the time of the to by Mrs. McKenney's two sons, William O. alleged execution thereof? McKenney and George J. McKenney. The caveat alleged, among other things, that the paper writing dated June 5, 1897, purporting to be the last will and testament of Ellen McKenney, was not the last will and testament of Ellen McKenney, but that said Ellen McKenney died intestate. There were also allegations of fraud, undue influence, want of mental capacity, and want of proper execution of the alleged will. The appellant and Mrs. Emma Hedian, the only surviving daughter of Mrs. Ellen McKenney, were made caveatees, and by citation from the court required to answer the premises. It may be well here to state that, by the pro

(4) Was the execution thereof procured by undue influence?

(5) Was she then of sound and disposing mind?

(6) Was said paper writing, dated June 5, 1897, and purporting to be the last will and testament of Ellen McKenney, revoked by her subsequent to the execution thereof?

The issues were submitted to the jury in the superior court on March 20, 1908, and a verdict rendered in favor of the mental capacity of Mrs. McKenney and of the due execution of the paper writing of June 5, 1897,

also finding no fraud, or undue influence or all sworn to, but, so far as the record diswant of mental capacity, but that said paper closes, no testimony in support of the alwriting purporting to be the last will and tes- legations of either the petition or of the antament of Ellen McKenney had been revoked swers thereto was adduced. Subsequently by her subsequent to the execution thereof. on June 29, 1908, all the parties to the caveat The appellant, as will be seen, was not a par- proceedings, to wit, Emma Hedian, Mary L. ty to these proceedings, but on March 23, 1907, Foley, Edward I. Hedian, trustee, George J. three days after the rendition of the verdict, McKenney, and William McKenney, moved he filed a motion in the superior court re- to dismiss the appellant's petition (1) because questing it "not to certify the findings of the petitioner had no interest in the controthe jury to the orphans' court." Notwith-versy; (2) because no letters testamentary had standing these objections, the findings of the been granted to the said Richard H. Pleasjury were finally transmitted to the orphans' court on April 4, 1908. On the same daythat is, on April 4, 1908-the appellant filed a petition in the orphans' court praying that court "not to receive or act upon the findings of the jury," for the following reasons, in brief:

(1) Because the findings were had in reference to a paper writing dated June 5, 1897, while the paper filed purporting to be the last will and testament of Ellen McKenney was dated June 25, 1897.

(2) Because the issues sent to the superior court were not raised by the pleadings.

ants. On the 31st day of July, 1908, the orphans' court passed an order dismissing the appellant's petition, and, acting on the findings of the jury to the effect that the paper writing propounded as and for the last will and testament of Ellen McKenney had been revoked by her subsequently to its date, refused probate thereof. From this action of the orphans' court, the petitioner, Richard H. Pleasants, brings this appeal.

It should be here stated that pending the caveat proceedings the appellant was appointed administrator pendente lite of the estate of Ellen McKenney, deceased, though (3) Because the omission of the name of no claim of right to participate in the caveat Richard H. Pleasants, executor, as a party | proceedings seems to have been made on that to the proceedings, at the trial of the issues in the superior court, was a fatal omission. (4) Because there was no real contest in the superior court as the answer of the defendants as caveatees, neither admitting nor denying the allegations of the caveat, raised no issues whatever.

(5) Because the appellant had been eliminated by a dismissal of the caveat as to himself, and all the proceedings thereafter were had without notice to him, and that the entire proceedings were the result of collusion.

ground.

While the briefs of the counsel for the respective parties present several questions for our consideration which were elaborately discussed at bar, we think we need only consider one of these questions, and that is whether or not the appellant either in his individual capacity or as administrator pendente lite was a necessary party to the proceedings connected with the caveat of the alleged will. In this connection it should be remembered that a contest in the orphans' court, involving the validity of a paper writOn April 20, 1908, the caveators filed their ing purporting to be a will, is a proceeding in answer, denying the right of the appellant rem in which all persons interested may apto be considered a party in the cause, or as pear and be heard upon the question, and being entitled to object to any proceedings that the order of the orphans' court is the had or to be had therein, alleging that the judgment of a court of competent jurisdiction error in the date of the paper passed upon directly upon the subject-matter in controverby the jury was merely a clerical error, and, sy. Worthington v. Gittings, 56 Md. 542. as the paper of date June 25th was offered When a decision is made between opposing in evidence, the findings of the jury were up- parties in such a contest, it is a judgment in on that prayer, that the issues were proper- rem conclusively establishing either the valy framed upon the pleadings in the orphans' lidity or invalidity of the alleged will. Emcourt, and that the parties to the caveat were mert v. Stouffer, 64 Md. 543, 3 Atl. 293, 6 the proper parties, and denying that there Atl. 177. The purpose of sending issues to was no real contest. On April 23, 1908, a court of law for trial under Code Pub. Emma Hedian, Mary L. Foley, and Edward Gen. Laws 1904, section 254 of article 93, I. Hedian, trustee, filed their answer to the is to enable the orphans' court to advise petition of the appellant, denying that he itself of the real facts of the case. These had any standing whatever to be heard in the when found by the jury are conclusive, orphans' court in the premises, averring that and the orphans' court has no discretion, all the necessary and proper parties were par- but must enter the judgment in conformity ties to the proceedings in the superior court, with the finding of the jury. Sumwalt v. admitting that they had been advised that Sumwalt, 52 Md. 338. The proceedings are, upon the undisputable facts of the case however, all the while within the probate the paper writing of date June 25, 1897, powers of the orphans' court. Warford v. had been revoked, and denying all and sin- Calvin, 14 Md. 532. Though the jury may gular the other allegations of the appellant's find affirmatively or negatively on the ques