« 이전계속 »
judgment against the partnership for
the amount paid by the mining company for which it recovered judgment against the partnership. -Harndon v, Southern Surety Co., Mo., 229 S. W. 291.
31.-Time Limit.--A condition in an insurance policy providing that no recovery shall be had thereon unless suit is brought within two years from the time within which proof of loss is required by the policy" is valid, and no recovery can be had on a policy containing such a condition when the action is not brought within the time specified in the policy, unless the provision is waived or there is valid excuse for delay.-Gallivitoch v. Provident Life & Accident Ins. Co., Ga., 106 S. E. 319.
32. Intoxicating Liquors--Insufficient Bill.Though Acts 1915, p. 31, defines prohibited liquors and beverages, a bill seeking condemnation of automobile alleged to have been used for transportation of prohibited liquors and beyerages is sufficient, and not too general, though not averring whether they were spirituous, malt, or vinous.-Black V. State, Ala., 87 So. 527.
33.-State Laws.-There is nothing in the Constitution of the state of Texas which denies to the Legislature the power to enact laws forbidding the manufacture or sale or intoxicating liquor, or even liquors with insufficient alcoholio content to produce intoxication.-Russell v. State, Tex., 228 S. W. 948.
34.--Unlawful Search. --Liquor found and seized by a prohibition agent through an unlawiul search of
a private garage cannot be used as evidence to convict the owner of the garage of an offense, or for the forfeiture 01 his property if petition for its return is presented to the court before trial, and the fact that city police officers aided in the search is immaterial.- United States v. Slusser, U. S. D. C., 270 Fed. 818.
35. Landlord and Tenant-Portion of Premises.--W here the lessor of a store building delivered to the tenant keys to the basement, and occupancy of the basement was essential to enjoyment of the store building, the tenant cannot be ousted from possession arter occupancy for Several years,
the theory that he Was a squatter with respect to the basement, but the basement will be deemed to have passed with the lease of the store.-Fiorgus Reaily Corporation v. Reynolds, N. Y., 187 N. Y. S. 188.
disengage the switch on the elevator when it stopped between the floors, an award under the Workmen's Compensation Act was justified on the theory that the accident occurred 'in the course of employment."— Twin Peaks Canning Co. v. Industrial Commission, Utah, 196 Pac. 853.
41. "Hazardous Occupation."-A schoolteacher, carrying on che nical experiments prescribed by the Education Law, is not engaged in "hazardous occupation," within the meaning of Workmen's Compensation Law, under Const. art. 1, $ 19.--Beeman 1. Board of Education of Penn Yan, N. Y., 187 N. Y. S. 213.
42.--Injury in Parade.- Where decedent was driving a team in a parade in honor of employees who had enlisted in the military seryice as his voluntary act and his individual contribution towards the parade, and it was not held during working hours and he was not under pay at the time, compensation for his death from falling under the wheels of his wagon was properly disallowed.-Hutno v. Lehigh Coal & Navigation Co., Pa., 113 Atl. 68.
43.-Interstate Commerce. An employe working in an ash pit in railroad yards, cleaning engines used in both interstate and intrastate business, who, on leaving his work, instead of taking a stairway to the street provided by the railroad company, for his own convenience walked across the yard and tracks, as other employees did, but following no defined way, and was struck and killed by a train on a main track, held to have ceased his employment in "interstate coinmerce' within the meaning of Employers' Liability Act, š 1 (Comp. St. $ 8657), when he left his work and deviated from the way provided for his departure.—Krysiak v. Pennsylvania R. ('o., C. S. C. C. A., 200 Fed. 758.
44. Partial Incapacity.-An injured employee was not entitled to recover under Workmen's Compensation Act for partial incapacity after the date on which he became able to earn in a suitable employment an amount equal to that earned before the injury, although his physicians advised him to do light work, for the reason that it would be beneficial and helpiul in restoring him to health. - Voight v. In dustrial Commission, 111., 130 N. E. 470.
36.-—-Summary Proceeding.- Where, in summary proceedings, the landlord incurred expenses in removing the tenant's property from the premises, by paying men hired by the marshal to put him in possession, and sought to recover such expenses, such facts held not to make the landlord responsible for the acts or the marshal or those employed by him in damaging property; the writ under which the marshal acted being valid.--Ide 1. Finn., N. Y., 187 V. Y. S. 202.
37. Master and Servant-Bonus.-Bonus of year's wages to servant of decedent should be computed on wage scale at time of death.-Gray V. Richards, Me., 113 Atl. 9.
38.--Amount of Compensation.--The fact that an injured employee received more wages since the injury than he was earning at the time of the injury does not preclude compensation if he has been unable, by reason of the injury, to follow the particular employment he was engaged in when injured.--Woodcock v. Dodge Bros., Mich., 181 N. W. 976.
39.- Contributory Negligence.-An elevator operator, who left his elevator at the street floor of a building and, upon his return, after another operator had moved the elevator, ran to the shaft, pushed open the door, and stepped in, held as matter of law guilty of contributory negligence proximately causing his death.-Page v. New York Realty Co., Mont., 196 Pac. 871.
40.- Course of Employment.-Where 15-year old boy entering a freight elevator to return to his work from a floor visited during an interval of leisure was killed by the movement of the elevator when he turned on the power, previously shut off by himself as a joke on companion who was coming up and failed to
15.-Right to Choose Physician.--An injured servant has the right to choose his own physician under the Workmen's Compensation Act.-Snyder v. Industrial Commission, nl., 130 N. E. 517.
16.--Student of Telegraphy.- When the operator and agent in charge of a railroad station requests the superintendent to employ a helper, and is refused, but is subsequently given permission to take a young man into the office to learn telegraphy and to assist in the performance of the duties in and about the office, who does in fact so assist under the orders and direction of such agent, the relation of master and servant is thereby created and the doctrine of respondeat superior applies.--Schnable V. Cleveland, C., C. & St. L. Ry. Co., O., 130 N. E. 510.
47.---Tort of Servant.--"Every person shall be liable for torts committed by his * * * Servant, by his command or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary." Civil Code 1910, $ 4413. Where a servant departs from the prosecution of his business and commits a tort while acting without the scope of his authority, the person employing him may still be liable if he failed to exercise due care in the selection of his servant.--Renfroe 1. Fouche, Ga., 106 S. E. 303.
48. Monopolies--Conditional Sale.--The provision of Clayton Act, § 3, making it unlawful to lease or make a sale, or contract for sale, of goods on condition that the lessee or purchaser shall not deal in the goods of a com: petitor of the lessor or seller, is limited to contracts of lease or sale by the clear meaning of its terms, and especially in view of its purpose to make invalid certain contracts of lease or sale of patented articles which the Supreme Court had shortly before held to be valid.-Curtis Pub, ('0. v. Federal Trade Commission, U. S. ( C. A., 270 Fed. 881.
49. Municipal Corporations--Abolishing Corporate Existence.--If the provision of Vernon's Sayles' Ann. Civ. St. 1914, art. 1079, that, at an election as to abolishing the corporate existence of a municipality, all legally qualified voters, who are resident taxpayers, “as shown by the last assessment roll," shall be entitled to vote, is invalid, its invalidity does not destroy the entire statute.-Bonham V. Fuchs, Tex., 228 S. W 1112.
50.--Violation of Gas Contract.-An inhabitant of a city, who suffers damages because of gas company's violation of contract with city specifying the quantity and pressure of gas to be furnished to the inhabitants of the city, may sue the company in his own name; the contract having been made for the use and benefit of the inhabitants of the city as well as for the city itself.-Humphreys v. Central Kentucky Natural Gas Co., Ky., 229 S. W. 117.
51. Negligence-Invitee.-Damages may be recovered by a person who is injured while seeking employment in a manufacturing establishment, if he goes to the superintendent of the establishment to procure employment and is directed by him to see the foreman and is told where to go, and, while attempting to find the foreman at the place indicated, is injured through negligence for which the establishment is responsible.-Zeigler v. Oil Country Specialties Mfg. Co., Kan., 196 Pac. 603.
52. Partnership -- Division of Profits. ---Contractors, one of whom agreed to bid on a contract and procure the contract, furnish bond and the necessary capital, and the other of whom was to do the work and employ all the men, the profits to be divided, held partners.Minter V. Gidinsky, Mo., 228 S. W. 1075.
53. Physicians and Surgeons-Honest Mistake.--Where a surgeon possesses the requisite qualification and applies his skill and judgment with ordinary care and diligence to the diagnosis and treatment of the patient, he is not liable for an honest mistake or for an error of judgment in making a diagnosis or in prescribing a mode of treatment, where there is ground for reasonable doubt as to the practice to be pursued.-Kelly V. Hollingsworth, S. 1., 181 N. W. 959. 54.
Principal and Agent-Authority of Agent. A traveling salesman or drummer ordinarily has no ostensible or implied authority to make a binding contract without the approval of his principal; the extent of his authority being merely to solicit orders and transmit the same to his princpal for acceptance.-Bagot v. InterMountain Milling Co., Ore., 196 Pac. 824.
55. Railroads-Lookout.-It is the duty of those in charge of a train backing on an interchange track in railroad yards to keep a lookout for laborers required to be on the track, Alabama, T. & N. R. Co. v. Huggins, Ala., 87 So. 547.
56. Sales-Countermand of Order.-An order for the purchase of goods, containing the words, "not subject to countermand," may nevertheless be countermanded at any time before acceptance, for, until accepted by the salesman's principal, it is simply an offer to purchase, and in no way creates a binding agreement.--Night Commander Lighting Co. v. Brown, Mich., 191 N. W. 979. 57.
Subsequent Agreement.--In an action for the balance of sale price of books where the original contract provided that upon payment of a specific amount the books could be turned, and after offer to return after payment of such amount, another agreement was made whereby the purchaser made further payment of installments, held that the further agreement was made in view of preserving all rights under the former contract, including that of election to return the books, and that the purchaser made timely offer thereof.--Edward Thompson Co. v. Dillon, Wash., 196 Pac.
58.— Severable Contracts. Defendants agreed to sell five cars of potatoes and two cars of onions, different prices being specified. It was arranged that plaintiff should have on deposit sufficient money to pay for the shipments on presentation to bank of bill of lading. Held,
that the sale of the potatoes and of the onions was severable, and,' though at the time the potatoes were loaded plaintiff did not have on deposit sufficient funds to pay therefor on presentation of bill of lading, yet, as sufficient funds were deposited on the following day, defendants, who had loaded no onions, were not justified in treating the contract as broken and refusing to deliver onions.-Weatherred v. Hirai, Wash., 196 Pac. 572.
59. Searches and Seizures--Waiver of Objection to Search.—Consent of the owner that a person announcing himself a prohibition agent showing a badge and demanding the right might search premises held not a waiver of constitutional right to protection against unreasonable search.-United States v. Slusser, U. S. D. C., 270 Fed. 818.
60. Telegraphs and Telephones -- Interstate Message.-A telegraph message between two points in the state, unnecessarily transmitted through another state, is an interstate message, and not subject to state law permitting damages for delay of death message, preventing receiver from attending relative's funeral.- Son
Western Union Telegraph Co., S. C., 106 S. E. 507.
61. -Recovery of Property.-Where a telephone company without authority ran its line over plaintiff's property, plaintiff may maintain an action to recover his property and compel the removal of the line, notwithstanding the government for temporary war purposes had taken control of telegraphs and telephones, for the possession of the government did not afford any reason why the landowner should not have his rights adjudicated, particularly as he could not interfere with the government's possession, and at the time of trial the government had returned the property to private ownership. McPhillips v. New York Telephone Co., N. Y.. 187 N. Y, S., 183.
62. Vendor and Purchaser-Innocent Purchaser.-If one purchased land for a valuable consideration without knowledge that fraud had been practiced by his vendor upon the parties from whom the land was secured and without knowledge of facts and circumstances sufficient to put an ordinarily prudent man upon inquiry as to the manner in which vendor procured the land, such purchaser must prevail over vendor's predecessors in title.-Whitford v. Dodson, S. D., 181 N. W. 962.
63.- Laches.--Vendor's lien does not become stale until 20 years after due.--Salvo V. Coursey, Ala., 87 So. 519.
.64. Wills-Restraint on Marriage.-A husband may rightfully provide for forfeiture of a devise on subsequent marriage of his wife, notwithstanding the general rule that a tes tator may not impose a total restraint on marriage as a condition of a devise.-Glass v. Johnson, Ill., 130 N. E. 473.
65.- -"Surviving 'Children."--Under a will, "I give to my beloved wife all my real estate and personal property of whatsoever nature, kind or effect, *** and after her death all my real estate and personal property shall be equally divided between my surviving children, each to share and share alike," held, that the words “surviving children" included grandchildren and heirs at law of deceased children, and meant those surviving the testator's death, and not that the funds should be distributed to sons and daughters of testator, who survived death of the widow.-In re Morris' Estate, Pa., 113 Atl. 61.
66.------Testamentary Capacity:- Where testator directed his trustees to pay annually to his nephew and his sister $500 if they should be incapacitated, etc., declaring that the trustees may act on their own judgment, but that a certificate of the attending physician should be accepted as proof of the incapacity, the certificate of the attending physician is conclusive; for the word "proof" should be given its technical significance-that is, a deduction from evidence that produces a conviction-and should not be construed as meaning "evidence," which is merely a medium of proof.—Dupont v. Pelletier, Me., 113 Atl. 11.
Central Law Journal.
St. Louis, Mo., July 15, 1921.
THE AMERICAN BAR LOSES BOTH ITS
The American bar has two titular leaders, the Chief Justice of the Supreme Court and the President of the American Bar Association. Both of these leaders passed away this year in less than one month of each other.
Hon. Edward Douglass White, Chief Justice of the Supreme Court, died at Washington, May 19, 1921, at the age of 76 years. Hon. William A. Blount, of Pensacola, Fla., President of the American Bar Association, died at Johns Hopkins Hospital, Baltimore, Md., June 15, 1921, at the age of 70 years.
Both of these men were strong and accurate types of the American jurist and lawyer. They both had humble beginnings, both hewed their own ways to the places in the profession for which they were best fitted and both have served their profession with distinction to themselves and honor to the country which they loved so well. Both of these
were from the South, whence so many of the leaders of the bar in this country have come. But there was no narrow, sectional spirit in either of these great lawyers and the Bar of all sections of the country have been quick to appreciate the loss which the profession sustains in their death and with one voice have declared them worthy of a high place on the honor roll of the American Bar. The closing words of Associate Justice McKenna's tribute to the Chief Justice, delivered from the bench, May 31, 1921, are appropriately repeated in this connection. The learned Justice said:
“This is of the past in barest outlinewhat of the future? Anticipating it I see no shadow on his fame, no lessening of his example nor of the impression his life and
services have made upon the country,
I venture comparisons. I make full concession of the recognized and illustrious merit of those who have preceded him. I make full admission, in assured prophecy, of the abilities of those who will succeed him, yet, considering his qualities and their exercises, I dare to say that, as he has attained he will forever keep a distinct eminence among the Chief Justices of these United States."
Edward Douglass White was born in Lafourche Parish, La., Nov. 3, 1845. His ancestors came from Tennessee, but he was in sentiment and practice, as well as by the accident of birth, a son of Louisiana. He was educated at Georgetown University, Washington, D. C. At sixteen years of age he entered the Confederate army and served until July 6, 1863, when he was captured by Union troops at Port Hud
In 1868, he entered the law office of Chief Justice Bermudez at New Orleans, and during the same year was admitted to the bar.
Like most lawyers of the South in reconstruction days, Mr. White was, most of the time, to use a common phrase, "up to his ears" in politics. He was elected to. , the State Senate in 1872.
He was ap pointed an Associate Justice of the Supreme Court of Louisiana in 1876, which position he relinquished in 1879 to resume the practice of law. He managed the successful campaign of Gov. Nicholls, and that achievement easily made him one of the recognized leaders of the Democratic party in Louisiana. In 1888, he was elected to the United States Senate.
When Mr. White became a United States Senator, he became a national figure and was almost instantly recognized as President Cleveland and the friendship that one of the leaders of his party in the Senate. He was
an ardent supporter of sprang up between them, as well as the President's recognition of his legal ability, accounted for his appointment to the Supreme Bench Feb. 19, 1894, after the Senate had rejected two successive nominations of New York lawyers.
Justice White's career on the bench is ensic ability, united with keen busines well known to practicing lawyers today. judgment. He has been a determining factor in many But it takes more than legal ability and epochal decisions and has written more im- keen business judgment to make a success portant opinions than any other member of ful lawyer, in the best sense of that word the Court except Marshall. His great abil- He should enjoy a wide acquaintance with ity as a judge was recognized by President polite literature; must have and maintain Taft, who, disregarding party advantage, the highest ideals in his personal and proelevated Justice White to the position of fessional life, and should possess a personal Chief Justice, December 12, 1910. It is
It is ity that attracts his brethren at the bar, as said that the solemm and dignified Justice well as wins verdicts in the courts. Mr. could not restrain his tears as he contem- Blount had all these attributes of character plated such unprecedented recognition of and of mind and they drew to him the his accomplishments as a judge by one who, affections of all lawyers who knew him by experience and position, was so well (and they numbered thousands in all parts competent to pass judgment on his ability of the country), especially those who have
Next in importance to the formative been in the habit of attending the meetings period of American constitutional law, of the American Bar Association. which Chief Justice Marshall guided with The writer had begun to enjoy a more a master hand, was the period of our emer- intimate acquaintance with Mr. Blount as a gence to a more commanding position in
member of the Conference of Commissionworld affairs, which began at the close of
ers on Uniform State Laws, in behalf of the Spanish-American war.
Great econ- which movement Mr. Blount labored so aromic forces were unloosed by that conflict, duously and so successfully. Mr. Blount had just as others have been unloosed by the re- been the President of the Conference and cent world war. Strange ideas were ad
had contributed generously from his time vanced and weird ideals held up which were
and energy to bring about the chief puraltogether foreign to any previous American
poses of the Conference, to which he was conceptions of right and justice. In addi
most devoted, namely, the Codification of tion, there were many necessary changes in American Commercial Law. He wished to governmental machinery to be made, in
see the law applicable to business relations cluding the commission control of rail
stated in clear language, in comprehensive roads, and the whole range of administra- statutes and adopted uniformly by all me tive law which has been rapidly developing.
states, so that lawyers and business men In the long series of decisions dealing having to do with the commercial interwith these question in the last twenty ests of the country might not labor under years, Chief Justice White has had a lead
any uncertainty as to their rights and obing part, and amply justified Justice McKen
ligations. na's tribute heretofore quoted.
Mr. Blount had other ideals common to Of Mr. Blount, what can we say except the great majority of lawyers, of which a that he was a lawyer of extraordinary abil- passion for our Constitution and the instiity? What more can be said of any prac- tutions of our country stood forth most titioner? Although located in a compara- prominently. Although democratic and libtively small city, he displayed his ability eral in his attitude toward needed changes as a lawyer so effectively that the profes- in the law to meet new conditions, he stood sion everywhere came to recognize in him like a stone wall against the destructive those characteristics and attributes which
onslaughts of blind and ignorant deniaeverywhere combine to make the successful
goguery. In this respect he is a worthy practitioner, namely, a great legal and for
example to be held up to future genera
tions of lawyers constraining them to stand | NOTES OF IMPORTANT DECISIONS as the lawyers of all generations have
FEDERAL ESTATE TAX TAKES PRECEstood for the fundamental rights and liber
LENCE OVER STATE INHERITANCE TAX. ties of the people.
--The controversy of the federal treasury de
partment and New York officials in respect to We could not more appropriately close the enforcement of the federal estate tax has this eulogy of the two great leaders of the been settled in favor of the federal act, in the
recent case of New York Trust Co. v. Eisner, bar, who have just passed from our midst,
41 Sup. Ct. 506, wherein the Supreme Court than to quote from one of the most recent
holds that since the federal estate tax impublic addresses of the late Chief Justice at
posed by Act Sept. 8, 1916, c. 463, tit. 2, $ 201, the annual dinner of the American Bar As attaches to the estate before distribution, and sociation, Sept. 5, 1919, when he appealed to is a tax on the right to transmit, or on the
transmission at its beginning, it attaches to the lawyers who were coming into the ranks
the whole estate, except so far as the statute to keep high the banner of professional pub
sets a limit, and taxes imposed by the states lic service given into their hands by those
on the right of individual beneficiaries canwho have kept it victorious and unsullied not be deducted as charges against the estate in the past. The closing words of this allowed by the laws of the jurisdiction, the
deduction of which is authorized by section great address were chaste in thought and
203. diction and may well be cherished as a memorial of our beloved Chief Justice. He The plaintiffs in this case also raised the
constitutional objection that the estate tax said:
was a direct tax, and therefore beyond the
power of the federal government to levy. The “I must confess that sometimes, as my
Court dismisses this objection by reference to thoughts turn to the future and the vast
the case of Knowlton v. Moore, 178 U. S. 41. probable increase in our population, to the
Plaintiff's attorney, however, contended that infinite opportunity which liberty affords to
the cases were not parallel, since, in the those who misguidedly or with intentional
Knowlton case, the tax considered was levied wrong preach the destruction of our insti
on the right to take a legacy, while the tutions under the guise of preserving free
estate tax is levied directly upon the corpus dom, a great dread comes to me that pos
of the estate. To this contention the Court sibly some day in the future the forces of
replied: evil, of anarchy and of wrong may gather such momentum as to enable them to over "It is argued that when the tax is on the throw directly or indirectly the constitu privilege of receiving the tax is indirect betional institutions which the Fathers gave
cause it may be avoided, whereas here the tax
is inevitable and therefore direct. But that matus and thus deprive us of those blessings
ter also is disposed of by Knowlton v. Moore, which have come from their possession.
not by an attempt to make some scientific But this pessimism is also only momentary distinction, which would be at least difficult, for, lo! as I strain my vision to the dawn of but on an interpretion of language by its trathe generations which are to come my heart
ditional use-on the practical and historical
ground that this kind of tax always has been rises with exaltation and gratitude because
regarded as the antithesis of a direct tax; it is given to me to see an advancing force 'has ever been treated as a duty or excise, be. full of love for individual liberty and free cause of the particular occasion which gives government and fixed in the purpose to
rise to its levy. Upon this point a page of perpetuate-them. Ah! as I look at its noble
history is worth a volume of logic.” array, confidence in the future becomes as Whether the federal estate tax should be sured and I cannot but exclaim: ‘All hail, computed on the net value of the estate after the American lawyer of the generations the state inheritance tax has been deducted which are to follow! Come! Come in or before, has been a question upon which your allotted time so that individual liberty various state courts have differed. New may endure, representative government be York has insisted that the state taxes must perpetuated and the only safe and peaceful be paid first. In re Gihon, 169 N. Y. 443; In highway for the advance of democracy in | re Sherman, 222 N. Y. 540. See also in re its true sense be made certain !'”
Week's Estate (Wis.), 172 N. W. 732; Gleason