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made a condition precedent to recovery.-Kuck v. Citizens' Ins. Co. of Missouri, Wash., 155 Pac. 406.

71.—-Waiver.-A clause prohibiting waiver of any condition of the policy unless in writing, signed by an officer of the company, held not to refer to conduct of the company's general counsel, who by promise of settlement induced claimant o defer suit until expiration of the time limit prescribed by the policy.-Northwestern Nat. Life Ins. Co. v. Ward, Okla., 155 Pac. 524.

72. Joint Adventures - Fraud. Where one person represents to another with whom he is in a confidential relation that he has a contract entitling him to purchase land at certain price, and agrees that the other may have a half interest in the land by paying one-half of such price, his misstatement of the price constitutes fraud, entitling the other to rescind their agreement.-Garrison v. Bowman, Tex. Civ. App., 183 S. W. 70.

73. Landlord and Tenant-Lease.-The lessor of an apartment is not required to inspector repair a dumbwaiter, used exclusively by the tenant, without a provision in the lease for repairs.--Green v. Hammond, Mass., 111 N. E. 875.

74.-Ratification.- Where a landlord allowed his tenant to dispose of cotton raised on the demised premises on condition that his landlord's lien was discharged, the landlord did not ratify the purchaser's refusal to satisfy the lien by cashing a check for the rent only given the tenant by the purchaser.-Casewell v. Lensing & Bennet, Tex. Civ. App., 183 S. W. 75.

75.--Repairs.--Where a roof and drainpipe are in good repair when the building is leased, it is the duty of the landlord so to maintain them during the tenancy, for failure to perform which he is liable.-Hilden v. Naylor, Mass., 111 N. E. 848.

76. Libel and Slander - Unfair List. A charge that tobacco company was placed on unfair list and had advertising printed in scab shops. in connection with inducement and innuendo, held libelous.--Axton Fisher Tobacco Co. v. Evening Post Co., Ky., 183 S. W. 269.

77. Licenses—Special Business. While the right of a person to drive a team or vehicle on a traveled street or haul by ordinary means his own goods thereon is common to all citizens, when he engages in the transportation of passengers or freight for hire, he is pursuing a special business, and the municipality may require the payment of a license fee for such use. -Kurtz v. Southern Pac. Co., Ore., 155 Pac. 367.

78. Limitations of Actions-Counterclaim.Where interposition of a counterclaim by way of defense, arising out of transaction in suit, was allowed on appeal to the superior court, though not urged in justice court, question of limitations must be determined as of date of inception of action.-Norfolk & S. R. R. v. Dill, N. C., 88 S. E. 144.

79. Livery Stable and Garage Keepers-Lien. -Plaintiff was not entitled to possession of an automobile against defendant's claim of a lien for storage, without proof of prior payment or tender and refusal of the property charges, or such other conduct of defendant as estopped him to claim a lien, or that plaintiff had made not sufficient tender.--Doody v. Collins, Mass., 111 N. E. 897.

80. Malicious Prosecution-Advice of Counsel.-In post office foreman's action against the postmaster and an inspector for malicious prosecution, that defendants laid before the United States district attorney all the material facts in their possession, and that the prosecution was instituted upon the attorney's advice given in good faith, was a complete defense.Price v. Morris, Ark., 183 S. W. 180.

81. Mandamus-Judicial Discretion. The circuit court could not by mandamus arbitrarily compel the probate court to select a particular person for the office of curator of the estates of minors, when, under the statute authorizing appointment by the probate court, its judicial discretion was involved. --State ex rel. Young v. Cook, Mo. App., 183 S. W. 365.

82.-Res Judicata.—Where the defendant appealed from a judgment and levy upon his crops, a petition for a writ of mandamus brought to compel the constable making the levy to set off a homestead in the crops was denied, as mandamus will not lie where there is an appeal pending involving the same question.-White v. Barbery, S. C. 88 S. E. 132.

83. Master and Servant-Assumption of Risk. -That a switchman suing under federal Employers' Liability Act rode with his feet in the stirrup of a flat car bending over and holding to a cleat on the floor does not show assumption of risk of defective appliances, but raises a question of contributory negligence.-Bolch V. Chicago, M. & St. P. Ry. Co., Wash,, 155 Pac. 422.

84. -Contract of Employment.--An agreement to pay plaintiff a fair share of the employer's profits if he would continue at work until the 1st of January, is so vague as to furnish no basis for an action for damages where the employer breached his agreement by discharging plaintiff before that time.--Varney V. Ditmars, N. Y., 111 N. E. 822, 217 N. Y. 223. 85.-Contributory Negligence.-An employe

a train who failed to perform his duty of placing signals upon the track when his train stopped, and was killed by a rear-end collision, was guilty of contributory negligence.-Hadley v. Union Pac. R. Co., Neb., 156 N. W. 765.

86.-_Fellow Servant.-Where plaintiff's fellow servant, who rang the bell to notify the engineer that they desired the elevator to descend, failed to give the proper signal for a loaded cage, and plaintiff was injured by the falling of the cage, there can be no recovery, the negligence being that of a fellow servant.

-Wing v. L. A. Bradstreet & Son Co., Me., 96 Atl. 782.

87.-Minor.-That deceased employe only 15 years and 7 months old is not ground for recovery for causing his death in a mine accident.--Virginia Iron, Coal Coke Co. Hughes' Adm'r, Va., 88 S. E. 88.

88.-Remedial Legislation.—The federal Employers' Liability Act, which its history shows was remedial, should be liberally construed to give effect to its purpose, though in derogation of the common law.-Bolch v. Chicago, M. & St. P. Ry. Co., Wash., 155 Pac. 422.

89. Mortgages-Foreclosure. — A mortgagee, whose mortgage gave him power to sell upon nonpayment of taxes, could foreclose when there were past-due taxes unpaid, on which interest was accumulating, while the rents received by him were less than the taxes.- Taylor v. Weingartner, Mass., 111 N. E. 909.

90. Municipal Corporations—City Blocks. Where two adjoining city blocks were separately numbered and platted separate blocks, the city, in determining the territory assessable to pay the cost of a street improvement, could not consider them as one block, though they were not separated by a street. Flanagan v. City of Tulsa, Okla., 155 Pac. 542.

91. -Governmental Work.-A city was liable for death of the motorman of street car which, on account of the negligence of the driver of a wagon used in street grading work, collided with the wagon, the city work not being governmental.-Jones' Adm'r V. City of Richmond, Va., 88 S. E. 82.

92.- -Municipal Warrants.-Municipal warrants possess none of the qualities of commercial paper except capacity of being transferred by delivery or assignment.--Logan County Bank v. Farmers' Nat. Bank of Oklahoma City, Okla., 155 Pac. 661.

93.-_-Negligence.-Where defendant's motor truck was stopped in front of plaintiff's premises, and the driver, while his helper was making a delivery, went to the rear of the car, defendant was not liable for injuries caused by the starting of the truck by the willful wrong of boys.-Frashella v. Taylor, N. Y. Sup. Ct., 157 N. Y. S. 881.

94. Navigable Waters-Erosions and Accretions.-Where plaintiff's land was not entirely eroded by shift of a stream bed, although the major portion was thereby shifted to another state, he owned his original land and all ac


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cretions thereto when a later shift restored the 108.---Warranty.-A statement of the seller eroded land and added to it.-Maw v. Bruneau, that the automobile could be driven over the S. D., 156 N. W. 792.

roads in a certain vicinity satisfactorily held 95. Negligence-Invitee.—The duty of one

a warranty, and not the expression of a mere

opinion, where the buyer knew nothing of the who invites another to come on his premises

capacity of the automobile and the seller was to use ordinary care to make the premises rea

an expert in handling automobiles.--Internasonably safe includes the duty to have the

tional Harvester Co. v. Lawyer, Okla., 155 Pac. railing of a balcony in a reasonably safe con

617. dition.-Sefler v. Vanderbeck & Sons, N. J., 96 Atl. 1009.

109. Specific Performance-Impossibility of 96.-Negligence per se. The facts which

Performance.--Specific performance cannot be

adjudged where defendant had conveyed the will excuse the technical violation of a statute or ordinance which would otherwise consti

property to one who is free from equities.

Beatty v. Wintrode Land Co., Okla., 155 Pac. tute negligence per se must result from causes

574. or things beyond the control of the violator.

110. Conder v. Griffith, Ind. App., 111 N. E. 816.

Street Railroads—Burden of Proof.-In 97. Newspapers

a suit to enjoin a street railway company from Libel and Slander.-The

constructing a power transmission line along general manager of an unincorporated news

an alley in front of plaintiff's property, the association held not the principal in the busi

burden was on defendant to show, not only ness, and not liable for libelous articles pub

an ordinance, authorizing it to construct such lished and communicated by a reporter employ

line, but authority from the

commonwealth, ed by the association.-Waldheimer v. Harden

designated in its charter or in extensions to its bergh, N. Y., 111 N. E. 826, 217 N. Y. 264.

charter route.-Curry v. Pittsburgh, H. B. & N. 98. Nuisance-Injunction. — That plaintiff's C. Ry. Co., Pa., 96 Atl. 821. apartment house and dwelling were in a dis

111. Subrogation - Privity of Contract. trict devoted commercial enterprises, in

Where there is no privity of contract between which the use of spur switches was essential

the parties, but the demand is based on the parto successful operation, does not affect his right to enjoin the nuisance of constructing

ticipation of defendant in a breach of trust railway tracks in the street in front of his

by a fiduciary, equity will take jurisdiction at

the suit of a beneficiary or cestui que trust, or property.-Kurtz v. Southern Pac. Co., Ore., 155

at suit of a surety of such fiduciary, and by subPac. 367.

stitution will grant relief against an inter99. — Vibration from Noise. Residence meddler with the trust funds.-United States owner affected by noise and vibration of mod- Fidelity & Guaranty Co. v. Home Bank for Savern factory is not entitled to injunction or ings, W. Va., 88 S. E. 109. damages where house is unsubstantially con

112.- -Redemption. One advancing money structed, and noise is not injurious to normal

to a wife to redeem a homestead from mortgage person.-Cremidas v. Fenton, Mass., 111 N. E. 855.

foreclosure under circumstances entitling her

to subrogation to the rights of the holder 100. Partnership—Test of.-Merely to share of the mortgage succeeds to her rights to the profits and bear losses does not always deter- extent of the sum advanced.-Hunt v. Davis, mine the question of partnership.--Morgan v. Vt., 96 Atl. 814. Child, Cole & Co., Utah, 155 Pac. 451.

113. Trusts—Parties to Action.--In proceed101. Party Walls-Easement.-A use for ings affecting a trust estate the trustee and more than 21 years of a party wall located cestui que trust are so far independent that on the land of an adjoining owner held pre- the latter must be made a party for the desumably a license which ripened into an ease- cree to be binding on him; this being particular. ment restricted to the buildings existing when ly true where the trustee is merely a naked the easement was created. --Brown & Hamilton trustee.--Primitive Methodist Church of Rhode Co. v. Johnson, Pa., 96 Atl. 823.

Island v. Homer, R. I., 96 Atl. 818. 102. Principal and Agent-False Represen

114. Waters and Water Courses--Repair of tations.-An administrator selling his deced

Pipe Line.- Where water was furnished under ent's goods through an agent was liable for a contract through a private pipe line, there the acts of the agent done within the scope of

being nothing in the contract to the contrary, his authority, including false representations

the duty of keeping the pipeline in repair made to the buyers as to the condition and was upon the owner and not the water company. kind of the goods.—Harlow v. Perry, Me., 96

-Josey v. Beaumont Waterworks Co., Tex. Civ. Atl. 775.

App., 183 S. W. 26. 103. — Implied Power.-An agent sent to in- | chresis of

115. Wills-Antichresis.-Where

antitroduce an unproved automobile in a commun

plantation, carrying with it obligaity has implied power

tions on the creditor to cultivate, repair, and to warrant that it is suitable for the purpose intended.-Interna

pay taxes and charges, was bequeathed to imtional Harvester Co. v. Lawyer, Okla., 155 Pac.

pecunious minors, held, that the antichresis 617.

was properly ordered canceled by judgment

rendered on the recommendation of a family 104. Release-Public Policy.-A release by meeting.--In re Bennett, La., 70 So. 1011. the injured employe from all liability arising

116. -Construction.- Where a will gave a from the accident is not a contract, regulation, "life interest in" a farm "to use and occupy or device, the purpose and intent of which is to and control,” the latter clause refers to the farm enable the carrier to exempt itself from the and defines the life interest.–Lingo v. Smith, liability created by the federal Employers' Lia- i Iowa, 156 N. W. 402. bility Act, so that it is valid if fair and not 117. -Construction.—Where a testator beagainst public policy.--Anderson V. Oregon queathed to old employes 50 per cent of the Short Line R. Co., Utah, 155 Pac. 446.

net profit of a business in which profits under 105. Robbery-Trespasser. The mere fact

their contracts they were entitled to share, that the person robbed was trespasser on

held, that they could not take the 50 per cent defendant's private premises would not justify

and also the percentage due them under their defendant in robbing him.-Hardeman v. State,

contract.-Starke v. Berry's Ex'rs, Va., 88 S. Ala. App., 70 So. 979.

E. 68. 106. Sales Damages.

118. -Construction - In a will providing that antion







Central Law Journal.

ST. LOUIS, MO., JUNE 2, 1916.



In Texas & Pacific Ry. Co. v. Rigsby, 36 Sup. Ct. 482, our Federal Supreme Court holds that an employe of an interstate railway company may recover for injury occasioned by an insecure appliance under federal law, whether such employe be engaged in interstate commerce or not.

Justice Pitney says the scope of federal legislation "is broad enough to include all employes thus injured, irrespective of the character of the commerce in which they are engaged.” While the terms of the legislation

may be thus broad, it would seem to remain to consider what its purpose is and general terms be limited thereby. This is a fair rule of construction.

The Justice goes on to say that: “A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law, expressed in 1 Comyn's Dig., title action upon statute," etc.

Let us concede this to be true as to a lawmaking body, which legislates for the benefit of a class, and the question comes up, whether it applies to legislation by the Federal Congress, which may not be able to legislate except in creating penalties against an instrumentality of commerce. Rights of action for the recovery of penalties, it must be conceded, generally may be thought to depend very strictly on compliance with the terms of statutes granting them. We

to regulation by Congress, whether the particular service being performed at the time of the injury was in interstate or intrastate commerce." Illinois C. R. Co. v. Behrens, 233 U. S. 473, Ann. Cas. 1914C. 163. Then he says: “The doing of plaintiff's work, and his security while doing it, cannot be said to be wholly unrelated to the safety of the main track as a highway of interstate commerce.

Perhaps upon the mere ground of the relation of his work to the immediate safety of the main track, plaintiff's right of action might be sustained.”

This seems a reversion to the penalty idea, and while the supposition for maintenance of the action seems feeble, it appears to us better than the other, where the recovery of a penalty created by a merely regulating legislature is held to be in favor of one of a class.

The Justice, seemingly not fully satisfied, further says: "In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper, for the protection of employes and travelers, to require certain safety appliances to be installed


railroad cars and upon a highway of interstate commerce, irrespective of the use made of any particular car at any particular time.”

Let us attempt to recast this sentence so as to more fittingly, in our opinion, represent congressional power. "In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper" for keeping in perfect order its instrumentalities “to require,” etc. If this is not a more consistent statement so far as regulatory legislation is concerned, we fail to grasp the significance of the words “plenary power to regulate commerce.”

It may be true that such plenary nowe

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these as
reasons for the exercise of a

for, indeed, were there a stipulation for such, plenary power are of little import in its it would be deemed “insurance against the actual exercise. We are wholly unable to

commission of crime and void against sound

principles of public policy.” There are a numappreciate how a power to regulate instru

ber of cases cited to this proposition, as to mentalities in commerce, has, either directly which the cases are also cited in 80 Cent. L. J., or by implication, any police feature in its

supra. exercise. And we do not see that there is In respect to the inclusion of the incontestany power in Congress to drag in the pro- able clause, supra, it is said: “The incontesttection of a citizen or a class of citizens as

able clause in this policy does not prevent the

defendant from setting up the defense interthe sole reason for mere regulatory legisla

posed in this action. By the use of the term tion.

'incontestable,' the parties must necessarily A traveler or an employe in other mean that the provisions of the policy will not

be contested, and not that the insurance combusiness may, it is conceivable, be given the

pany agrees to waive the right to defend itself right to recover a penalty from the owners

against a risk which it never contracted to of an instrumentality in interstate com

assume.” merce, but in theory of law and the power This reasoning follows necessarily from what to legislate, by way of regulation, this is said by the court in regard to policy speshould be deemed wholly fortuitous. It is

cifically stipulating to be bound in the event of

a death so occurring. It is to be noted, also, not to be regarded as the causa causans the

that the court distinguishes this holding from regulatory legislation. This sort of legisla

that in the Owens case, 100 N. C. 240, 6 S. E. tion may create a juggernaut for a travel

794, which referred to constitutional provisions er or an employe falling under its wheels, against corruption of blood and forfeiture of but this may be no reason for arresting

estates. Those cases are based on statutes of

descents, dower and the like and therefore may their progress. And vice versa, it may de

have little of principle involved in their deterclare a penalty where either is crushed, if

mination. this bears some fair relation to regulation.


EVIDENCE-JUDICIAL COGNIZANCE OF UNIFORMS OF EMPLOYES AND OF ENVELOPES OF PUBLIC UTILITY.-In Phillips v. Western Union Tel. Co., 184 S. W. 958, decided by St. Louis Court of Appeals, the principle of judicial cognizance is extended quite greatly.

INSURANCE — INCONTESTABLE CLAUSE IN POLICY NOT COVERING EXECUTION OF ASSURED FOR CRIME.-In 80 Cent. L. J. 363, there was treated the question of "Murderer Taking Under Will or by Inheritance," and now we find considered by Supreme Court of North Carolina the question whether an incontestable clause in a policy covers death of insured by execution of law. Scarborough v. American Nat. Ins. Co., 88 S. É. 482.

The clause referred to provided that, “This policy shall be incontestable two years from its date of issue for the amount due, provided premiums have been duly paid, except for fraud.” Of course, the fraud referred to was in the procurement of the insurance.

The facts in this case show that one apparently a messenger boy of defendant ran into plaintiff while on the street with an envelope in his hands. As to a motion to instruct for defendant, the court said: "The Western Union Telegraph Company, a public utility, is so much in the use and eye and knowledge of all our people, that we may assume that the jury will apply their knowledge of the usual course of business of this great instrumentality of public service when considering facts connected with that service. We all know that the Western Union Telegraph Company uses mes. sengers for the delivery and taking up of messages, dispatches, telegrams. The jury, as men of ordinary intelligence, had a right to infer that Kenzell was a messenger boy in the employ of the Western Union, clothed in its usual uniform, going along the street in the direction of one of its branch offices, carrying in his hand

The court first declares that, though an ordi. nary policy is silent as to death by act of law administered as a punishment for the commission of a capital felony, yet parties are not,

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individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates."

an envelope recognized as the envelope ordinarily used by the Western Union in the transaction of its business, that he was at the time in the discharge of the duties of his employ. ment.”

It is then observed that the defendant had it in its power to rebut the inference that might be drawn and a presumption against it arose on its failure so to do.

Judicial cognizance is quite latitudinous, but when it takes in the uniforms of employes of, and envelopes used by, a "great instrumentality of the public service," it may be said its horizon is as difficult to define as is the reach of a state's police power. The comfort the defendant may derive from this ruling is to quote the court's language in its advertising matter. There are really many messenger boys, pages, chauffeurs, policemen and mail carriers, wearing the livery of business and snobbery, that it ought to be a little hard to tell whose uniformed servant runs into one on the street, when he is in a state of unpreparedness.

From this the Chief Justice deduces the conclusion that the same power granted to regard a partnership estate like any other estate, exists to regard the estate of an individual partner as of one not a partner, and, therefore, the claims against an individual partner have priority over partnership debts. This is said to mean distribution "so as to prevent preferences and secure the equitable distribution of the property of the several estates."

The opinion we have been considering shows a very important departure from prior bankruptcy statutes and appears little to regard the principle of joint and several liability being the same under ordinary contracts. Indeed, it shows that the rule in bankruptcy distribution may be very different from contractual liability at law.


ACTION--POSTHUMOUS CHILD AS PLAINTIFF.-By Nebraska statute, it is provided that a liquor dealer shall pay all damages that individuals may sustain justly attributable to his traffic in intoxicating drinks. In Phair V. Dumond, 156 N. W. 637, decided by Nebraska Supreme Court, the facts show that in May, 1909, defendant sold liquor to one who became the father of plaintiff, born in October, 1910. The mother of plaintiff was grossly abused by the father in May, 1909, and the injuries she received from him caused her to die in May, 1911. The court held that under such a statute a posthumous child had the right to recover.

BANKRUPTCY-INDIVIDUAL PROPERTY WHERE PARTNERSHIP IS WITHOUT ASSETS.-A question certified to Supreme Court by Third Circuit Court of Appeals and answered affirmatively, was: "When a partnership as such is insolvent and when each individual member is also insolvent, and when the only fund for distribution is produced by the individual estate of one member, are the individual creditors of such member entitled to priority in the distribution of the fund?” Farmers' & M. Nat. Bank v. Ridge Ave. Bank, 36 Sup. Ct. 461.

The Chief Justice shows that there is in the bankruptcy act of 1898, as in prior bankruptcy statutes, an unambiguous rule for distribution where there are both partnership and individual assets. He concedes, also, that in a case such as the question certified refers to, there was considered to exist an exception having the effect to make the fund of a partner distributable among partnership and individual creditors without priority in favor of either.

The Chief Justice says, however, that: “The Act of 1898 in the opening subsections of § 5 confers the power on courts of bankruptcy to adjudge a partnership a bankrupt and to administer the partnership estate so far as possible as any other estate—"an authority not conferred by the previous bankruptcy acts," and this is followed by a subsection, which provides that: “The court may permit proof of the claim of the partnership estate against the individual estates and vice versa, and may marshal the assets of the partnership estate and

Did this in principle cover a case of this kind? At the time of the injury this child had neither any being or potential being. It, therefore, is not a case of pre-natal injury to an unborn being, unless the consequences remaining-continued suffering—is a renewal of the primal offense. We have, however, never understood that suffering in the future did any more than enhance damages.

This action, however, is statutory for loss of support and suffering of the parent is not to be considered at all. Is not this right of support only in favor of those in existence or potential existence at the time injury causing damages happens or is caused? The principle of recovery by a posthumous child having right of recovery seems not broad enough to cover the facts in this case. It means, or should mean, a posthumous child en ventre sa mere at the time of the injury causing damages.

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