fire at one-half the amount thereof, and that the monthly payments on the second loss were limited to one-twelfth of that amount, not onetwelfth of the original insurance.-Van Nest v. Citizens' Ins. Co., Minn., 158 N. W. 725.

68. Intoxicating Liquors-Unlawful Transportation. The offense of unlawfully transporting prohibited liquors is comprehended within the statutory affidavit charging selling, keeping for sale, or otherwise disposing of liquor contrary to law, under Acts 1915, p. 30, § 292.Burt v. State, Ala., 72 So. 266.

69. Landlord and Tenant-Eviction.-Where defendant rented office space under a year's lease and installed its agent, and, on discharging him, he refused to vacate the office, it was not the landlord's duty to eject him, but defendant was liable for the rent for the term in the absence of eviction by the landlord.-Julian v. Kansas City Granite & Monument Co., Mo., 187 S. W. 584. 70. -Option.-A clause in a lease providing for surrender of possession by the tenant within 30 days, in case of a sale of the property, held to be merely an option in favor of the lessor which could be waived by him,-Christy Namur, Iowa. 158 N. W. 669.

v.

71. Public Policy.-If a landlord knowingly leases his property for purposes of prostitution, he cannot recover any rent; the contract being against public policy and void.-Mitchell Campbell, Miss., 72 So. 231.

72.

V.

A

Larceny Description of Property. conviction of larceny of a "heifer" worth $16 held a conviction of larceny of a "cow," within Act No. 64 of 1910, § 1, denouncing the theft of a cow as a felony.-State v. Papillon, La., 72 So. 249.

73. -Possession.-Where, in a prosecution for grand larceny, the alleged owner had never been in possession of the goods, an affirmative charge was required.-Wade v. State, Ala., 72 So. 269.

74. -Variance.-Where indictment charged taking of property of trust company, and proof established misappropriation after death of the owner, the trust company being executor, there was no variance.-People v. Smith, N. Y., 159 N. Y. Supp. 1073.

75. Libel and Slander-Libel per se.-Letter of lumber company to third party stating conditionally that plaintiff had misapplied money advanced to him to pay for hauling staves held not libelous per se as to plaintiff.-Lucas E. Moore Stave Co. v. Wells, Miss., 72 So. 228. 76. Slander. Spoken words, charging scientific man engaged in research work with bad manners and being a trouble maker in the laboratory in which he worked are not libelous per se.-Kober v. Lyle, N. Y., 160 N. Y. Supp. 99.

77. Literary Property-Royalties.-A contract to write a vaudeville sketch acknowledged payment of a sum to be deducted from royalties to be paid for 7 weeks, whereupon the sketch was to become the purchaser's sole property. Held not to require payment of the royalties unless the sketch was produced.-Kennedy Rolfe, N. Y., 16 N. Y. Supp. 93.

V.

the

80. Mortgages-Assumption of Debt.-A purchaser of mortgaged land, who assumes mortgage becomes the principal debtor, and the vendor a surety only, and the mortgagee must so treat them after notice of the arrangement.Hildrith v. Walker, Mo., 187 S. W. 608.

81. Master and Servant-Contributory Negligence. Where the master ordered the servant to drive from the top of a load of shingles, and the servant voluntarily stood on the load, when he was free to sit or stand, his injury, resulting from his standing position, is referable to his own act.-Gilbert v. Hilliard, Mo., 187 S. W. 594. 82. Course of Employment.-Accident held to arise out of plaintiff's employment as a bartender, where he was struck in the eye by a

drinking glass thrown by a drunken patron.— State v. District Court of Koochiching County, Minn., 158 N. W. 713.

83.- -Course of Employment.-Where an ailing employe of company, installing machinery for another company, was told by employe of the other company to take some salts, and was informed where some of these were stored in the factory, and, going to the place indicated, by mistake took some other chemical, causing his death, the accident did not "arise out of his employment," under Workmen's Compensation Act. O'Neil v. Carley Heater Co., N. Y., 113. N. E. 406, 218 N. Y. 414.

a

84. Employers' Liability Act. Where mechanic was called in to fix an automobile for a few hours, he did not become a servant, under Employers' Liability Act.-Flower v. Buck, N. Y.. 159 N. Y. Supp. 1042.

85. False Imprisonment.-In false imprisonment action against railroad and employe, a count, alleging that "defendant's" servant, acting within his authority, wrongfully arrested and imprisoned plaintiff, is insufficient. Central of Georgia Ry. Co. v. Carlock, Ala., 72 So. 261.

86.- -Hazardous Employment. A traveling salesman, riding in a public bus while engaged in his regular occupation, was not engaged in hazardous employment, and cannot recover under the Workmen's Compensation Law, although his employer's business was hazardous under section 2, group 32, of the act.-Mandle v. A. Steinhardt & Bro., N. Y., 16 N. Y. Supp. 2. 87. Medical Attention.-Where the employer collected fees for medical attention for the employes and families and turned them over, without profit, to a competent physician, who attended an employe's child once and failed to call again, of which no complaint was made to the employer, the negligence was his, and the employer was not liable.-Eastman, Gardiner & Co. v. Permenter, Miss., 72 So. 234.

88.- -Relief Department.-Under section 5 of the federal Employers' Liability Act, regulation of relief department of railroad that, if employe brings suit for injuries, benefits accruing under membership in relief department shall be forfeited is invalid.-Wise v. Chicago, B. & Q. R. Co. Relief Department, Minn., 158 N. W. 711. 89. Respondeat Superior.-Voluntary slander, uttered by employe, which had nothing to do with his employment, in which he was not engaged when he spoke, did not subject the employer to liability.-Lucas E. Moore Stave Co. v. Wells, Miss., 72 So. 228.

90.-Safe Place.-Where the foreman placed two gangs at work spiking rails 32 feet apart, but the rear gang worked up to the other, and one member was struck by a sledge, the employer was not chargeable with having placed the men in a dangerous place, in the absence of orders to work together or knowledge that the two gangs had worked together.-New York, C. & St. L. R. Co. v. Allen, Ind., 113 N. E. 315. 91.-Totally Disabled.-Evidence held to sustain finding that claimant who lost sight of one eye and 95 per cent of vision in other eye was permanently totally disabled.-State v. District Court, Blue Earth County, Minn., 158 N. W. 700.

92. -Workmen's Compensation Act.-Under Workmen's Compensation Law, § 3, subd. 3, defining "employer" as including the state, and subd. 5, defining "employment" as meaning employment in a business carried on for pecuniary gain, the state of New York, not being engaged in business for gain, is not liable to an injured state highway employe.-Allen v. State, N. Y., 160 N. Y. Supp. 85.

93.- -Workmen's Compensation Act.-Under Workmen's Compensation Act, § 3, and section 2, group 30, providing for injuries in packing houses and abbatoirs the deceased, while on his way on foot to deliver meat from market, was not engaged in any act incidental to cutting and preparation of meat.-Newman v. Newman, N. Y., 113 N. E. 332, 218 N. Y. 325.

94. Workmen's Compensation Act.-General workman, a plumber's assistant, injured while driving his employer's horse and wagon from a job to the shop, was injured "in the course of his employment." within Workmen's Compensation Act (St. 1911, c. 751, pt. 2, § 1), as amended by St. 1912, C. 571.-In re Sanderson's Case, Mass., 113 N. E. 355.

95. Workmen's Compensation Act.-Under Workmen's Compensation Act, § 3, subd. 4, and section 2, group 41, where the deceased, although his principal duties were driving of a meat delivery wagon, was injured while on his way on foot to deliver meat, he was not entitled to compensation as being at the time engaged in the operation of a wagon propelled by a horse.Newman v. Newman, N. Y., 113 N. E. 332, 218 N. Y. 325.

96. Workmen's Compensation Act.-Injuries to express company's employe by being struck by automobile, while crossing street on his way from the express truck he drove to deliver package, arose out of his employment within the Workmen's Compensation Law.-Miller v. Taylor, N. Y., 159 N. Y. Supp. 999.

97. Wrongful Discharge.-A contract of indefinite hiring may be shown by plaintiff's evidence in an action for wrongful discharge to have been for a definite term.-Reiss v. Usona Shirt Co., N. Y., 159 N. Y. Supp. 1031.

98. Payment-Burden of Proof.-A pro forma judgment for plaintiff is not overcome by a finding that defendant gave notes for the debt sued upon, where there is sufficient evidence to rebut the presumption of payment thereby created; for the burden of proving payment remained with_defendant throughout the case.-Rutland Ry., Light & Power Co. v. Williams, Vt., 98 Atl. 85.

99. Principal and Agent-Notice to Agent.Where a lessor's general agent for leasing properties knew of the illegal purpose for which a house was to be used, and aided in such purpose, such knowledge is binding upon the landlord.-Mitchell v. Campbell, Miss., 72 So. 231.

100. Principal and Surety-Release of Surety. The surety on a builder's bond held not released because payments were made by the owner without the architect's certificate in violation of the contract, where only one payment was so made and that it was made on an itemized statement approved in writing by the architect.Trustees of First Presbyterian Church of Duluth v. United States Fidelity & Guaranty Co., Minn., 158 N. W. 709.

101. Railroads Humanitarian Doctrine. Where deceased passed the caboose of defendant's train and went upon the trestle before the train backed up and no trainman was then at the rear end of the train to look for clear track or to avoid danger, deceased being "seeable" by the trainmen while in peril and in time to have averted his injury, the humanitarian doctrine applied.-Starks v. Lusk, Mo., 187 S. W. 586.

102. Police Power.-Where alteration of grade crossing is reasonable exaction with reference to object to be obtained, expense is no reason against its legality, when order is based on police power.-Erie R. Co. v. Board of Public Utility Com'rs, N. J., 98 Atl. 13.

103. Trespasser.-A pedestrian using a railroad bridge which was not the direct or most convenient way was negligent as matter of law barring recovery for death caused by passing train. Darrington v. Chicago & N. W. Ry. Co., Minn., 158 N. W. 727.

104, Receiving Stolen Goods-Instructions.Where, in a prosecution for receiving or concealing stolen goods, the alleged owner had never been in possession of the property, an affirmative charge was required.-Wade v. State, Ala., 72 So. 269.

105. Release made by claim agent of street railway to an injured passenger, that his physician had told the agent that he would be out and at work within two weeks, constituted fraud invalidating a release thereby procured.-Smith v. Rhode Island Co., R. I. 98 Atl. 1.

Fraud. Misrepresentation

106. Sales-Estoppel.-A purchaser of a silo, agreeing by contract of sale, upon receipt, at once to give seller notice and reasonable time to replace missing parts, who received the silo, kept it three months, meanwhile paying a note for the price, and then, attempting to set it up, found parts missing, which the seller did not replace, was not estopped by delay to rescind.-Lake v. Western Silo Co., Ia., 158 N. W.

673.

107. Express Warranty.-In an action for breach of warranty in the sale of logs, where an express warranty of the quality of the logs was established, an implied warranty could not be invoked.-Holt Lumber Co. v. Givens, Ala., 72 So. 257.

108. Waiver.-Where plaintiff did not prove a delivery at the locality alleged, he cannot assert that plaintiff waived the place of delivery by absolutely refusing the goods, when such waiver has not been pleaded.-Roaring Fork Potato Growers v. C. C. Clemons Produce Co., Mo., 187 S. W. 617.

109. Seduction-Corroboration. - Letters alleged to have been written by defendant, identified only by the prosecutrix, being admissible only as part of her evidence and depending on her own testimony, cannot be regarded as corroborating the witness.-Lewis v. State, Miss., 72 So. 241.

110. States-Private Capacity. - -The state, though not a corporation in the strict and subordinate sense of that term, may and does act as a corporate entity in a broad sense, when it engages in the construction of public works and binds itself generally by contract, in which case its acts are subject to the same principles as are acts of an individual.-City of Indianapolis v. Indianapolis Water Co., Ind., 113 N. E. 369.

viola

111. Street Railroads-Action.-The tion by motorman of a railway company's rule to run slowly at a certain point does not of itself give an injured person a right of action.— Southern Traction Co. v. Wilson, Tex., 187 S. W. 536.

112. Taxation-Assessment. The term "assessment" includes both preparation of list comprising description of persons or property liable and an estimate of value of the property.Town of Albertville v. Hooper, Ala., 72 So. 258.

113. Tenancy in Common Conversion.Where defendant before and at time of attachment sale was in possession of the property as tenant in common, the fact that after sale on his writ of attachment he claimed to be the absolute owner did not constitute conversion.Goodrich v. Chappell, Vt., 98 Atl. 46.

114. Trusts Joinder of Parties.-Where title to shares in trust funds has been adjudicated, one to whom for convenience the fund has been intrusted cannot complain that, in suit to have certain shares of the fund transferred to guardian for certain cestuis, another cestui is not joined. Austin v. Ennis, Mo., 187 S. W. 599.

115.

Vendor and Purchaser-Equitable Interest. Where a party contracted to buy premises, paying in installments, assuming a mortgage and taxes, and thereafter made payments, his equitable interest was not lost ipso facto, by his mere breach of agreement, without affirmative action by the seller.-W. F. Miller Co. v. Grussi, Conn., 98 Atl. 90.

116. Vesting of Title.-Where shipment of hides was accompanied by draft for delivery on payment, and consignee borrowed money to pay the draft, giving trust receipt before title passed, the receipt was inoperative to vest title in the lender until title vested in the consignee, and thereafter could not deprive it of the vested title.-People's Nat. Bank of Boston v. Mulholland, Mass., 113 N. E. 365.

117. Waters and Water Courses-Surface Water. Where no way of escape of surface water was shown to have existed since construction of railroad grade in 1871, the inference that it had been held back by the grade for the prescriptive length of time is not necessarily conclusive.-Hume v. Grand Trunk Western Ry. Co., Mich., 158 N. W. 840.

118. Wills-Agreement to Make.-An agreement based on valuable consideration to make a will in favor of another is valid, and damages are recoverable on its breach.-Ball v. James, Ia., 158 N. W. 684.

119.- -Election.-To constitute election on part of widow whether she will take under her husband's will or claim a distributive share of the estate, she must be aware of the extent of the estate, and that she is choosing between two inconsistent rights.-Schubert v. Barnholt, la.. 158 N. W. 662.

Central Law Journal.

ST. LOUIS, MO., OCTOBER 6, 1916.

IS LIMITING RECOVERY FROM RAILWAY RELIEF FUND FORBIDDEN BY FEDERAL EMPLOYERS' LIABILITY ACT?

In Rodell v. Relief Department of C., B. & Q. R. Co., 118 Minn. 449, 137 N. W. 174,,| it was held that a provision in an insurance contract issued by the railway relief department of a railroad, that no money thereunder should become due till all claims against the railroad arising out of insured's death should be released, was opposed to express provision in the federal Employer's Liability Act and therefore

void.

In Wilson v. Grand Trunk Ry. Ins. & Provident Soc., 98 Atl. 478, decided by New Hampshire Supreme Court, a provision in a similar contract by a railroad's relief department that only one-half of the sum of the policy should be payable where injury or death was suffered by an employe, unless and until an action therefor shall have been formally withdrawn or dismissed, was ruled not to be affected by such provision of the federal Employers' Liability Act.

Both of the above courts concede that the question is one of federal law, the former contending that it has been settled by Mondou v. N. Y., N. H. & H. R. Co., 223 U. S. 1, and the latter that it has not been passed upon by U. S. Supreme Court.

The provision in the federal Employers' Liability Act is that: "Any contract, rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall be to that extent void."

The Mondou case did not have before it any question of insurance in the relief department of a carrier, but it appears conceded in both of the State cases referred to, that the liability of such a department was the liability of the railroad itself and the

fact that it provides, one for absolute exemption thereunder, and the other for partial exemption, of the railroad, does seem designed to enable the railroad to exempt itself from liability created by the Employers' Liability Act, by means of a contract merely collateral to such service.

The Mondou case said: "Next in order is the objection that the provision (in the federal Employers' Liability Act) declaring void any contract, rule, regulation or device, etc., is repugnant to the Fifth Amendment to the Constitution as an unwarranted interference with the liberty of contract. But of this it suffices to say, that, if Congress possesses the power to impose that liability, which we here hold that it does, it also possesses the power to insure its efficacy by prohibiting any contract, rule, regulation or device in evasion of it." This does not get us far. We are still left to say to what the provision, considering that it is constitutional, applies.

The Minnesota court says: "The act of Congress is not aimed at relief departments. It merely eliminates from the membership certificates or contracts such provisions as the one which the defendant herein insists shall be complied with. The remainder of the certificate stands as a valid substituting contract. With the void provision out of the contract, its terms are clear that plaintiff is entitled to the sum sued for."

The New Hampshire court, discussing the federal act, says: "The provision that the agreement for exemption from the liability imposed by the act 'shall to that extent be void,' indicates an intention to carefully limit its application to the relation between the employer and employe as such. If the intent had been otherwise, it is probable the declaration would have been that such provision should be wholly void. It is not unlikely that the statute was so drawn, because of the question which might otherwise arise of the power of Congress to regulate contracts between insurer and insured."

We are unable to follow this reasoning. It is not to be disputed that a carrier may enter into any contract of insurance with

its employe, that they may choose to make. If, however, the carrier attempts by way of device in and through such a contract to exempt itself from any liability it is under by reason of the federal act, is not the effect the same as were it dealing with the employe as such? The employe is permitted insurance, partly paid for by the employer. It therefore deals with him as an employe. While the contract is in some way collateral, yet there is an interdependence between it and the contract of employment. Even if this were not so, would it not still be a direct attempt to reduce or extinguish employer liability?

The New Hampshire court further says: "The circumstances under which this (federal) statute was enacted strongly tend to show that Congress was using every precaution to so frame the act that it would not be adjudged to be invalid, because it undertook to regulate matters beyond Congressional control." But this merely declares that Congress was proceeding in fear and trembling, but the Mondou case says this fear was unnecessary.

The New Hampshire court again says: "If the incorporation of the society is to be treated as merely a device of the railway, so that the two corporations are to be treated as one, the plaintiff is no better off. The contract is then no more than an agreement by the railway to pay the beneficiary $500 as a return for the premiums paid by the employe, and also to pay from its own funds an additional $500 if the employe and his representatives refrain from bringing suit. The right to sue is left intact, and Congress has not attempted to deal with agreements which stop at that point. To extend this provision of the statute so as to include the transaction here in question would be an attempt to regulate persons because they engage in interstate commerce,' rather than to regulate such commerce."

It seems to us that it is an attempt to cut out one, who has acquired a claim of right under interstate com

device,

merce, of that right by a which, whether so intended or not, has such a direct relation to that end, that it should be deemed opposed to the provision considered by the two State courts in their opinions. The railroad treats the employe as being in interstate commerce. and by a contract or device attempts not to cut down his recovery for injury therein directly, but to make him sacrifice some right he acquires not in a wholy collateral contract. It gives the employe what will become a vested interest when the insurance matures and then attempts to defeat it or split it in half, if he does not release a claim under the federal act. May it hold out a threat of this kind?

NOTES OF IMPORTANT DECISIONS.

COMITY-STATUTORY ASSIGNEE PROTECTED BY FAITH AND CREDIT CLAUSE. -In Van Tuyl v. Carpenter, 188 S. W. 234, decided by Supreme Court of Tennessee, the court goes into much disquisition and then, as we understand the case of Converse v. Hamilton, 224 U. S. 243, misinterprets a decision, which to our mind makes all of its other discussion merely academic.

The question involved was the right of a New York official to sue stockholders of an insolvent trust company upon their double liability. The question, then, was whether the New York statute vested in the officer the right of action anywhere-in New York or elsewhere. If it did, there was an end of the question, and so also, if it did not. The statutory officer having power to sue, as "a quasi-assignee and representative of the creditors, was invested with their rights of action against the stockholders and was charged with the enforcement of those rights in the courts of that State and elsewhere," as Hamilton v. Converse said. It had been ruled by Wisconsin Supreme Court, that such an officer was like a receiver in chancery and public policy as or not discouraging the extending of comity could be invoked against him, and this ruling was in Hamilton v. Converse reversed.

The Tennessee court in the following language in support of which it cites, among others, the above case, says: "However, if we were at liberty to disregard the reasons already stated, there is another ground conclusive

against the complainants. The right of action, if any, is not in the bank, but in the superintendent of banks. His right is rooted in the statute, but that statute gives him no right to sue in a foreign State. Such vestiture has been held by the highest authority, an essential prerequisite." But the vestiture does not have to be expressly stated. It arises out of the protection the statute enjoys under the faith and credit clause, and for solution of the question involved the only necessary thing to do is to inquire what the statute means and if its meaning shows the exercise of constitutional power by the New York Legislature. All other discussion was vox et preterea nihil.

ACCIDENT INSURANCE SUNSTROKE ARISING FROM EXPOSURE TO HEAT IN COURSE OF DUTY.-An insured carried an accident policy which provided against "sunstroke, freezing or hydrophobia, due in either case to external, violent and accidental means, independent of all other causes."

The Supreme Court of Georgia held that where a railroad fireman, occupying a position on the sunny side of his cab, was on a hot day also exposed to the heat of the engine, which he was continuously firing, became overheated, was taken with a high fever and suffered a sunstroke, his death did not come within the terms of the insurance. Continental Casualty Co. v. Pittman, 89 S. E. 716.

It was said "there is nothing in the evidence to show that the sunstroke was due to 'external, violent and accidental means' within the meaning of those terms as employed in the policy sued upon. Bryant v. Continental Casualty Co. (Tex. Civ. App.), 145 S. W. 636, and cases there cited."

This case finds support in Elsey v. Fidelity & Casualty Co. (Ind. App.) 109 N. E. 413; Lickliten v. Traveling Men's Assn. (Iowa), 151 N. W. 479; Md. Casualty Co. v. Morrow, 213 Fed. 599, 130 C. C. A. 179, 52 L. R. A. (N. S.) 1213; Semaucik v. Cas. Co., 56 Pa. Super. Ct. 392.

Thus,

But the word accident is given a meaning more extended than these cases give it. where one shoots an officer and is killed by him when he flees, recovery may be had. Ry. Mail Assn. v. Mosely, 211 Fed. 1. And where one is murdered without his fault. Protective Assn. v. Fawcett (Ind. App.), 104 N. E. 991.

And it seems to us that making the work in which insured exposed himself to the consequence of sunstroke, a contributing cause thereof is not a fair construction of the policy in the Georgia case. If one freezes while working, that his work necessitated exposure ought not to relieve insurer. If he works so hard his

vitality is lessened, this is what causes him to freeze. If he becomes overheated, should not the same rule apply? How could a purely accidental sunstroke occur? The Elzey case said if insured was walking to his work in his customary way, sunstroke overtaking him would not be accidental. What has his customary way got to do with such a case? May a man getting his foot hung in a trap in the sun recover and one walking to work not? Does not the policy take into consideration the work in which an insured is engaged? If so, in what. way? The Indiana case would allow beneficiary to recover for death of a tardy employe hurrying to his work, but not if he were prompt and proceeding there in his customary way.

COMMERCE-STATE LAW REQUIRING LABELING OF EGGS AS "IMPORTED."-It is somewhat difficult to say whether a California statute requiring each egg shipped in to a merchant from the outside to be stamped or printed on the end with the word "Imported," was by the Supreme Court of California declared to be not within State police power, because of its onerousness on dealers, or because it in no way tended to the protection of public health. Ex parte Foley, 158 Pac. 1034.

The court says: "This statute is very burdensome. It requires the importer of eggs to open the original packages and to bear the expense of handling and marking each egg and by this costly process the purchaser is not assured that the unmarked domestic egg is younger or sounder than the one so carefully labeled. *** This statute, if enforced, would invoke against eggs shipped from all other countries the prejudice against those brought here from China or Japan involving of necessity long sea voyages. Proper statutes could doubtless be framed, based upon the age, manner of packing and method of shipment of eggs brought into this State from afar, and the public might be protected from the danger of purchasing as fresh eggs those imported under adverse conditions. But this is not such a statute. Its sole criterion of alien origin is no proper finding of inferior quality and therefore its burdensome exactions amount to an unjust attempt to exercise the police power."

We greatly sympathize with the court in its reasoning to get rid of a statute which easily could have reached the end sought in a less tedious and costly method. It would have been entirely sufficient to require packages of eggs to be marked or stamped as directed to be done for single eggs. The thing aimed at was to apprise customers dealing with a retailer. If a customer wished to buy one egg he could see the package that contained it. In addition, a