the elevator went up from the floor above. | forming the duty of a workman, but by an

Graves denied that there was any such talk as that testified to by the plaintiff, and testified that when the plaintiff entered the pit the elevator was in the top floor instead of the middle floor, but said that he stood right by the elevator rod all the while, and kept his hand upon it until some one above sig naled that he wanted to use the elevator, when he permitted it to go, and that when he did this he told the plaintiff to step out of the pit, and that he did so, but stepped back too quick. These statements were evidence tending to show that the plaintiff was doing the work in reliance upon an undertaking of the superintendent to protect him in respect to the operation of the elevator; and a find ing of this fact, if unaffected by other considerations, would relieve the plaintiff's conduct of the effect it would otherwise have as an assumption of the risks attending the ordinary use of the elevator.

[3] The defendant contends that Graves had no authority to promise plaintiff that he would give him this protection. The defendant is a corporation, with its principal office and managing official located at Burlington. This official testified that he went to the factory as occasion required-it might be twice in one week and might be once in three months. It is apparent from all the evidence that Graves had the entire charge of the factory and help. As far as the conditions affecting the safety of the employés depended upon a master's oversight and direction, he stood in the place of the defendant. The assurance he gave the plaintiff was incident to the proper management of the business.

exercise of that control which was a prerogative of the superintendent. In carrying out the arrangement, as well as in making it, Graves must be considered the representative of the defendant.

[5] But the defendant claims that the act of Graves in permitting the elevator to be moved was not the proximate cause of the plaintiff's injury; that the proximate cause was the careless act of the fellow servant who sent the truck into the space left open by the moving of the elevator. We think the case is one of concurrent causes. The permission to move the elevator and the careless handling of the truck co-operated to produce the injury. The falling of the truck was the immediate cause of the injury; but it was not the sole proximate cause, for the failure of the defendant to guard the plaintiff against the happening of such an accident concurred in producing the injury. The falling of a truck through an uninclosed opening in a floor, occupied as this was, was something which might reasonably be expected to occur, and something which could not occur if the opening was kept closed.

The points thus far considered were made the grounds of a motion for the direction of a verdict; and the disposition made of them and the discussion connected therewith sufficiently dispose of the more general claims that there was no evidence of negligence on the part of the defendant, and none tending to show that the plaintiff was free from contributory negligence. It is claimed further that the undisputed evidence shows that the plaintiff knew, or ought to have known, of every negligence complained of in the declaration as amended. But the evidence tends to show that he did not know of the movement of the elevator from the floor above him, and tends to establish facts that were an ample excuse for his not knowing it. Other points made under this motion will be more conveniently considered after examining questions raised by the motion in arrest of judgment.

The defendant argued certain exceptions taken to the charge. It follows from the views already expressed that the court was right in assuming that Graves' action was within his authority, and in submitting the question whether the plaintiff relied upon the assurance given.

[4] It is said further that, if Graves had authority to make this arrangement, he was nevertheless a fellow servant of the plaintiff in attempting to carry it out, and that the defendant is not responsible for his failure therein. The defendant relies in support of this contention upon Brown v. People's Gaslight Co., 81 Vt. 477, 71 Atl. 204, 22 L. R. A. (N. S.) 738; but we think that case is not in point. This undertaking was a means adopted to make safe for the occupancy of the plaintiff a place that was otherwise unsafe; and neither the place nor the use to be made of it had any relation to the progress of a work of construction. The danger to be incurred if the plaintiff was left unprotected was not one in any way connected with his work, but one due to an existing condition for which the defendant was responsible. The protection promised was to take the place of the ordinary safeguard, the presence of which might have hindered the defendant's work, but the absence of which made the place unsafe; and the plaintiff was entitled to one thing or the other unless both were waived. The supervision was undertaken and exercised in circumstances which indicate that the plaintiff proceeded, and was understood to proceed, in reliance upon it. The protection was not to be secured by per- | mate cause was the moving of the truck by

[6] It is said that the court should have charged that the mover of the truck was a fellow servant of the plaintiff. The court plainly assumed this in its charge; and, if there is a chance that the jury failed to understand it, the defendant is not harmed by it, for under the holding of this court the defendant is chargeable even though the mover of the truck was a fellow servant.

[7] It is claimed that it was error to submit the question of proximate cause; that the court should have held that the proxithe fellow servant, "or something else." Up- | third count covers also the special undertak

ure to perform that duty, and the resulting argue, from the fact that this was said in

recognition of a remark of some one that slats ought to be put under the elevator to keep it from coming down, that the undertaking was limited to guarding against that danger. But the language of Graves as testified to by the plaintiff, and Graves' testimony that when he let the elevator move he told the plaintiff to step out of the pit, were to be considered in connection with the situ

ation as the plaintiff's evidence tended to establish it. It was for the jury to say what floor the elevator was in and moved from, and to apply the acknowledged act of the superintendent to the contested fact as thus determined. They were to find from all this evidence what the understanding was, and there was evidence from which they could find an understanding that the elevator should be kept in the first floor above. This would sustain the specific allegation of the videlicet. It was not necessary for the plaintiff to show an express undertaking corresponding substantially to the averment of the declaration, as the defendant argues.

[12] It follows from what has been said that the answers in the plaintiff's deposition, tending to show that Graves undertook to keep the elevator at the first floor above, were admissible.

BRISCOE, J. This is an interpleader proFITZGERALD et al. v. RAWLINGS IMPLE- ceeding brought on the 18th day of March,

creditor of insured, and he assigned the policy to the creditor to more effectually carry out the intention of the parties. At the death of insured, he was indebted to the creditor in pursuance of a line of credit given as a part of the consideration for the assignment. All of the premi- 500, and, under one of the conditions of the ums on the policy were paid by the creditor pur- policy, the amount of the insurance was paysuant to the assignment. Held, that the policy able "unto such beneficiary or beneficiaries was enforceable by the creditor whether the pol- of the insured as may hereafter be desigicy be deemed as having been originally issued to him or subsequently assigned to him.

[Ed. Note. For other cases, see Insurance, company disclaims any interest in or claim Dec. Dig. § 212.*]

whereof is hereby acknowledged, I hereby sell, assign and transfer, absolutely, unto C. T. Marsden, Treas. Rawlings Implement Co. of Baltimore, Md., his administrators or assigns, all my right, title and interest in and to a certain policy issued by the Northwestern Mutual Life Insurance Company of MilLuther Eugene Mackall, for appellants. waukee, Wis., on the life of George B. FitzRichard M. Duvall, for appellees. gerald, number 762861, together with all benefits and advantages to be derived therefrom,, action. The case at bar is clearly distinincluding the right to receive and receipt for guishable from those cited in the brief of the the surrender value of said policy, and all dividends or surplus arising thereunder; and [1] The uncontradicted proof in the case I do hereby irrevocably constitute and ap- shows that the assignor and the assignees of point C. T. Marsden, Treas., my attorney, the policy were merchants; the former enwith full power of substitution and revo-gaged in the Agricultural Implement busi

appellants.

cation, in my name or otherwise, but at his ness, in Princess Anne, Md., and trading own proper cost, to take all proceedings under the name of the Princess Anne Farm which may be proper or necessary for the re- Implement Company, and the latter were encovery or collection of any sum which may gaged in the same line of business in the be or become due under the aforesaid policy, city of Baltimore, trading as the Rawlings and to discharge, receipt for, compound or Impleinent Company. At the date of the isrelease any claim under said policy, and to suing of the policy, and of its assignment, execute, acknowledge, and deliver any in- the assignor was indebted to the assignee in strument in furtherance thereof, and to en- the sum of $536.32, and at the death of Fitzdorse in my name any check, draft or other gerald there was an indebtedness of $1,029.paper given in payment for or in liquidation 53 existing between them, in pursuance of of said claim, and to perform every act, and "a line of credit" which had been given the thing in and about the premises, hereby rat- assignor, since the date of the assignment, ifying and confirming all that said attorney and which appears to have been a part of or his substitute may do; and also authorize the consideration for the assignment itself. the said life insurance company to pay the Besides this, the correspondence set out in sums due or to become due under said policy the record between the parties prior to, and to said assignee, his administrators or as- subsequent to, the issuing of the policy and signs, without the payment to me of any fur- of the assignment, clearly establishes the rether consideration. It is hereby expressly lations of the parties to the contract, and understood and agreed that this transfer is that the assignees had an insurable interest not made for the purpose of securing any in- in the life of the insured. All of the premidebtedness or as collateral security, but with ums upon the policy were paid by the appelthe intent and for the purpose of divesting lees, and this was one of the considerations the assignor of all title to interest in said set out in the assignment, to wit, the paypolicy or the proceeds thereof, and of vest- ment by the assignee of "the premiums then ing the absolute and unconditional title due and to become due and one dollar and thereto in said assignee. Witness my hand other valuable considerations." The proof, in and seal, at Princess Anne, in the state of this case, also clearly shows that the policy Maryland, on the 26th day of October, 1908. was issued for the benefit of the firm of the [Signed] George B. Fitzgerald. [L. S.] Sign- Rawlings Implement Company, the appellees, ed, sealed and delivered in the presence of and the assignment was made to more effec[Signed] Samuel H. Sudler, Notary Public." tually carry out the intention of the parties It is insisted, upon the part of the appel- to the contract. It matters but little under lants, that because this assignment was made the facts of this case, in so far as the appelwithin a few days after the policy was issu-lants are concerned, whether we treat the ed and in pursuance of an agreement to that policy as having been originally issued to

effect, made prior to its date, and because the assignment, in part, contains a stipulation "that the transfer is not made for the purpose of securing any indebtedness or as a collateral security, but with the intent and for the purpose of divesting the assignor of all title to interest in said policy or the proceeds thereof and of vesting the absolute and unconditional title thereto in the assignee," therefore the assignment was a mere device to cover a gaming contract and is void.

We cannot agree to this contention, either in the light of the relations existing between the parties at the date of the policy and of the assignment, or as a proper construction to be placed upon the assignment itself.

There is nothing in the proof to indicate a want of good faith between the parties or to show that the transaction was a mere speculation or a gaming contract. The answer filed by the appellees shows entire bona fides on their part and denies that the transfer of

the appellees or subsequently assigned to them, because the appellees had an insurable interest in the life of the insured, the policy was taken out and issued for their benefit, and the insured had no interest whatever in it.

In Rittler v. Smith, 70 Md. 261, 16 Atl. 890, 2 L. R. A. 844, this court said: "It is settled law in this state that a life insurance policy is but a chose in action for the payment of money and may be assigned as such." Insurance Co. v. Flack, 3 Md. 341, 56 Am. Dec. 742; Whitridge v. Berry, 42 Md. 150.

[2] In this case, it was said the assignee must of course keep the policy alive by the payment of premiums if he wishes to realize anything from it. Such an assignment is valid in this state, if it be a bona fide business transaction and not a mere device to cover a gaming contract. Such is also the English rule.

tion urged by the appellants, because the as-timore City, adjudging that the appellees in signment bears upon its face the statement this case are entitled to the proceeds of the