89. Mechanics' Liens "New Building."-House built partly of materials from old house held "new building" within mechanics' liens statute (Comp. Laws 1915, § 14798).--Washtenaw Lumber Co. v. Belding, Mich., 208 N. W. 152.

90. Municipal Corporations-Fire Protection.-At common law, city or other municipal corporation is not liable to owner of property, within its corporate limits, destroyed by fire, on account of negligence of municipality and its officers in failing to provide suitable fire apparatus or adequate supply of water to extinguish fire.-Lar'more v. Indianapolis Water Co., Ind., 151 N. E. 333.

91. Obstructing Street.-Minor riding bicycle on streets after dark without light required by ordinance, held not trespasser so as to preclude recovery for injuries received when colliding with rocks negligently left on street.-Church v. Kansas City, Mo., 280 S. W. 1053.

car

92. Open Manhole. Where city employe. guarding open manhole in center of street tracks. stepped off tracks to permit car to pass. and where car stopped and conductor went to its rear to adjust trolley, and fell into manhole, if by reason of the open manhole street was unsafe for travel, it was a transitory defect for which city was not responsible, under G. L. c. 84, 15.-Norris v. City of Newton, Mass., 151 N. E. 291.

93. -Tourist Camp not Public Park.-Tourist camp, maintained solely for accommodation of transients. who were charged for use thereof after three days, held not a "public park." maintained for municipal purposes within Const. art. 10, §§ 1. 3. 10 authorizing levy and expenditure of taxes for such purposes; public park being place open to every one.-Kennedy v. City of Nevada, Mo., 281 S. W. 56.

94. Physicians and Surgeons-Revocation of License.-Rev. St. Mo. 1919. § 7336, relating to grants and revocation of licenses to practice medicine by state board of health, but not authorizing board to issue subpoenas in revocation proceedings, does not, because of such fact, amount to a denial of

due process, in contravention of Const. U. S. Amend. 14; the taking of depositions being authorized and officers taking depositions being empowered to compel attendance of witnesses by Rev. St. Mo. 1919, § 5460.-State of Missouri v. North, U. S. S. C.. 46 S. Ct. 384.

95. Railroad-Crossing Signals.-Railroad, voluntarily installing and operating automatic crossing signals, is liable to one relying thereon for damages from careless operation.-Brindizi Lehigh Valley R. Co., N. Y., 214 N. Y. S. 589.

V.

of

96. Statutes-Admission to Bar. Wisdom policy of Laws 1925, c. 56. of requiring those who have practiced law in other states for considerable time to pass examination before being admitted to bar is not matter for court to decide, but is matter for Legislature. In re Miller, Ariz., 244 Pac. 376.

97. Street Railroads-Contributory Negligence.Whether child not 5 years was capable of negligence in sliding down school walk and across street car tracks held for jury.-Hasty v. Cumberland County Power & Light Co., Me., 132 Atl. 521.

98. Taxation-No Par Value Stock.-Corporation Act II. § 105, as amended by Laws 1923, p. 280. § 1. declaring that, for purpose of fixing license fee or franchise tax. no par value stock shall be considered as of par value of $100 per share, held not based on an unreasonable, arbitrary, or discriminatory classification, prohibited by Const. U. S. Amend. 14.-Roberts & Schaefer Co. v. Emmerson, U. S. S. C., 46 S. Ct. 375.

99. Time Fraction of Day.-The legal fiction that a day is an indivisible period of time has numerous exceptions; one being that courts will disregard it where necessary to protect a com

pleted act, or save a vested right, or to determine conflicting rights of rival claimants, when they depend on priority in fact.-In re Gubelman, U. S. C. C. A., 10 F. (2d) 926.

100. Wills-Deed Delivered.-A deed actually delivered, though on its face not to take effect until after grantor's death, will operate as a present grant of a future estate, and is not subject to objection that it is a testamentary disposition, without requisites of the statute wills.-Oard v. Dolan, Ill.. 151 N. E. 244.

on

101. Workmen's Compensation-Course of Employment. Where employe of coal company, on way to place of work, saw electric wire lying acros nearby path, he was in course of his employment in attempting to remove it, since it presented danger which loyal employe would be expected to remove. Harlan Gas Coal Co. v. Trail, Ky., 280 S. W. 954.

102.--Death by Lightning.-Lightning causing death of employe held "act of God." within Workmen's Compensation Act. pt. 4, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-82).-United States Fidelity & Guaranty Co. v. Rochester, Tex., 281 S. W. 306.

103.- -"Farm Laborer."-Teamster working in barn in country where he had been sent by defendant engaged in trucking business to take care of its horses temporarily there, defendant not being engaged in farming nor owning or operating farm upon which its barn stood held not a "farm laborer" within Comp. Laws 1915. § 5424, and as such not entitled to benefits of Workmen's Compensation Act.-Carroll v. General Necessities Corporation, Mich., 207 N. W. 831.

104. Loss of Eye.-Loss of eye itself, which had theretofore contained considerable faculty of vision and was capable of considerable practical use industrially, although defective from former injury, might be found to be loss of eye within Workmen's Compensation Act.-Hayes v Motor Wheel Corporation, Mich., 208 N. W. 44.

105. Compensable Injury.-Injury to employe's knee, resulting from kneeling and putting more weight on injured knee than on the other, caused by position assumed in process of finishing cement work for employer, held compensable, in view of Workmen's Compensation, Insurance and Safety Act (St. 1917, p. 833. § 3. subd. 4, as amended by St. 1919, p. 911, § 1).-Combs v. Industrial Accident Commission, Cal., 245 Pac. 445.

106. -Engaged in Employer's Business.-Where person. employed to drive truck, deliver gasoline and oil, get new customers, and collect bills, went to neighboring village to secure new customer, and then to home of friend to collect a bill, staying with friend for a few hours, injury sustained on return trip by collision with train held compensable under Workmen's Compensation LawMeyer v. Royalton Oil Co., Minn., 208 N. W. 645.

107.--Hazard of Business.-Injury to clerical employe in grocery store who was tripped by arm of scale while descending steps from platform where her duties were performed held compensable as proximately caused by hazard of her employer's business of conducting grocery store within Code Supp. 1913, § 2477m16, as distinguished from hazard incident merely to her clerical employment.-Kent v. Kent, Iowa, 208 N. W. 709.

108.- -Telephone Call.--That clerical employe in grocery store. when injured while subjecting herself to hazards of employer's business in descending necessary steps from her place of work in the store. was proceeding to answer a telephone call, not shown to have been in employer's busness held not to deprive her of compensation under Code Supp. 1913, § 2477m16.-Kent v. Kent, Iowa, 208 N. W. 709.

Central Law Journal

St. Louis, July 5, 1926

VALIDITY OF STATUTE PROHIBITING DISCHARGE OF EMPLOYE

FOR MEMBERSHIP IN

TRADE UNION

connection between interstate commerce and membership in a labor organization as to authorize Congress to enact such a statute.

Referring to the provisions of the Fifth Amendment, declaring that no person shall be deprived of liberty or property without due process of law, the Court in the last mentioned case said:

"Such liberty and right embraced the

"What one has an absolute right to do, he may do without liability of any character, even though he exercises this right with the malicious intent of inflicting injury on another * hence every free man, whether skilled laborer, mechanic, farmer or domestic may work or not work, work or refuse to work with any company or individual at his own option, except so far as he is bound by contract, and whatever may be his motive, or whatever may be the resulting injury arising from it, the law can afford no redress. The right is one of which a person cannot be deprived even by the legislature itself. It is clear, then, that one in the employ of another under contract terminable at will has an absolute right to quit or threaten to quit his employment, and his motives for so doing are beyond inquiry."

A statute of the United States (Act of June 1, 1898, 30 St. at L. 424, Ch. 370, U. S. Comp. St. 1901, page 3205) making it a criminal offense against the United States for an agent or officer of an interstate carrier, having full authority in the premises from his principal, to discharge an employe from service to such carrier, because of his membership in a labor organization, was held to invade personal liberty and the right of property without due process of law, in violation of the United States Constitution, Fifth Amendment, so held by the United States Suone in the employ of another under a con208 U. S. 161, 28 S. Ct. 277. The Court in this case further held that there is no such

of the labor of others and equally the right to make contracts for the sale of one's own labor; each right, however, being subject to the fundamental condition that no contract, whatever its subject matter, can be sustained which the law, upon reasonable grounds, forbids as inconsistent with the public interests, or as hurtful to the public order, or as detrimental to the common good.

It

was the legal right of the defendant, Adair however unwise such a course might have been to discharge Coppage because of his being a member of a labor organization, as it was the legal right of Coppage, if he saw fit to do so-however unwise such a course on his part might have been to quit the service in which he was engaged, because the defendant employed some persons who were not members of a labor organization. In all such particulars the employer and the employe have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract which no government can legally justify in a free land.... The latter was at liberty to quit the service without assigning any reason for his leaving, and the defendant was at liberty, in his discretion, to discharge Coppage from service without giving any reason for so doing."

A Kansas statute (Laws of Kansas 1903, Chapter 222) under which, as construed and applied by the highest state court, an employer or his agent may be criminally punished for having prescribed as a condition upon which one may secure

employment under, or remain in the service of, such employer (the employment being terminable at will) that the employe shall enter into an agreement not to become or remain a member of any labor organization while so employed, was held in Coppage v. Kansas, 236 U. S. 1, 35 S. Ct. 240, to infringe upon the rights of personal liberty and property without due process of law, contrary to the Fourteenth Amendment of the United States Constitution. Referring to the Adair case, mentioned above, the court in the Coppage case said:

"Unless it is to be overruled, this decision is controlling upon the present controversy; if even Congress is prevented from arbitrary interference with the liberty of contract because of the due process provision of the Fifth Amendment, it is too clear for argument that the states are prevented from the like interference by virtue of the corresponding clause of the Fourteenth Amendment; and hence, if it be unconstitutional for Congress to deprive an employer of liberty or property for threatening an employee with the loss of employment, or discriminating against him because of his membership in a labor organization, it is unconstitutional for a state to similarly punish an employer for requiring his employee, as a condition of securing or retaining employment to agree not to become or remain a member of such an organization while so employed."

Incidentally, attention may be called to the fact that the Kansas statute providing a system of compulsory arbitration of industrial disputes in certain businesses declared to be affected with a public interest, has been held in Dorchy v. Kansas, 264 U. S. 286, 44 S. Ct. 323, to be unconstitutional as applied to coal mines. The same statute was declared unconstitutional in so far as it relates to packing plants, in the case of Wolff Packing Company v. Court of Industrial Relations, 262 I. S. 522, 43 S. Ct. 630.

NOTES OF IMPORTANT DECISIONS

NEGLIGENCE OF BOTTLING COMPANY IN PERMITTING CONTAMINATION OF BEVERAGE.-In the case of Rudolph v. Coca Cola Bottling Company, 132 Atl. 508, decided by the Supreme Court of New Jersey, it is held that evidence that the plaintiff, after drinking some of the contents of a bottle of Coca Cola, discovered a piece of suspender strap therein, which caused her to become sick, constituted a prima facie case as to the negligence of the defendant, Coca Cola Bottling Company, which was for the jury. It is further held that evidence that the bottle was sealed at the time the plaintiff purchased it, and the storekeeper opened it; that plaintiff used a straw in drinking, and that the strap and the beverage were of similar color, was per se suffiicient to justify a finding that plaintiff was not guilty of contributory negligence, and created a jury question. It was further held that a showing that the storekeeper purchased the bottled Coca Cola, marked with the company's name, from a branch of the Coca Cola Company, which was delivered by their driver, was sufficient to show liability on the part of defendant and to justify a refusal of non-suit on the ground that defendant company was not shown to have furnished the particular bottle of beverage.

LIABILITY OF SELLER OF MANUFACTURED ARTICLE TO THIRD PERSON. The case of Pate Auto Co. v. Westbrook Elevator Co., 107 So. 552, decided by the Supreme Court of Mississippi, holds that any liability of seller of manufactured article for damage from defect therein to a third person with whom he has no contractual relations, is dependent on some fraud, deceit, or concealment, or on some neg. ligence, or omission of duty, such as reasonable inspection to discover defects in material or workmanship, so that no cause of action is stated by mere general charge that elevator, sold by defendant to plaintiff's lessor, was of defective and inferior material and workmanship, and by reason thereof it fell.

On this important question the Court said: "There is a conflict in the authorities upon the question of whether or not a contractor, manufacturer, or vendor of an article is liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture, or sale of such articles.

The

line of cases which hold that one who manufac tures an article or machine, which is rendered imminently dangerous by reason of negligent construction, is liable to third parties for in

juries or damage resulting from such negligence, is illustrated by the cases of MacPherson v. Buick Motor Co., 111 N. E. 1050, 217 N. Y. 382, L. R. A. 1916F, 696, Ann. Cas. 1916C, 440, and Johnson v. Cadillac Motor Co. (C. C. A.) 261 F. 878, 8 A. L. R. 1023, and authorities therein cited.

"The opposite view is held by the United States Circuit Court of Appeals in the Eighth Circuit in the case of Huset v. J. I. Case Threshing Machine Co., 120 F. 865, 57 C. C. A. 237, 61 L. R. A. 303, in an opinion by Judge Sanborn, which reviews all the leading English and American decisions on the subject up to that date, and announces the general rule to be that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles. To this general rule the opinion in the Huset Case, supra, announces that there are three well defined and settled exceptions-the first being that an act of negligence of a manufacturer or vendor, which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, such as drugs or food, is actionable by third parties who suffer from the negligence; the second exception recognized is that 'an owner's act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner's premises may form the basis of an action against the owner'; while the third is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another, without notice of its qualities, is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not.'

"Upon the averments of the bill of complaint in the case at bar, however, we do not deem it necessary to decide what are the limits of the liability of manufacturers and vendors for negligence in the manufacture and sale of an ar ticle. An examination of the various cases which have held that the manufacturer or vendor of an article is liable to third parties with whom he has no contractual relations shows that liabil ity is made to depend upon some fraud, deceit, or concealment, or upon some negligence, or omission of duty, such as reasonable inspection to discover defects in material or workmanship, while in the bill of complaint in the present case there is no averment of fraud or concealment, or that the defendant was negligent in any respect in the manufacture or construction of the elevator, or that the defendant knew

of any defect in workmanship or material, or could have discovered the same by reasonable inspection. The only charge in the bill of complaint is the general one that the elevator was made of defective and inferior material and workmanship, and that by reason of said defects it was caused to fall. There is no averment of facts from which the inference of negligence necessarily arises, and we think the demurrer to the bill of complaint was properly sustained.”

SUICIDE WHILE SANE PRECLUDES RECOVERY ON ACCIDENT POLICY.-The case of Von Crome v. 'Travelers' Ins. Co. (C. C. A.), 11 F. (2d) 350, holds that where suicide while sane of one insured against death by accident was established, Rev. St. Mo. 1919, § 6150, declaring suicide not a defense unless contemplated when policy was taken out, did not entitle beneficiary to recover, death not being accidental, nor had insured, whose policy was contract from year to year, renewable by payment of premiums, by reason of judicial construction prevailing when policy was taken out, anything in the nature of a vested right to commit suicide, which could not be abrogated by change in judicial construction, and which would support recovery where, after such change, he renewed contract four times.

After discussing the case at considerable length, the Court said:

"It follows, that there is nothing in the Missouri ruled cases to militate against the defense of suicide here, or which holds that section 6150, supra, applies to suicide by a sane person when insured against death by accident, and when a suit is brought upon such a policy. It is true that much sweeping language is to be found in the Logan Case, but, as said already, when the facts up for judgment in that case are examined, it will be seen that the fact there conceded, namely, that death, though caused by self-destruction, was accidental, clearly distinguishes it from the Brunswick Case. But plaintiff erroneously contends contra, and further contends that the case of Whitfield v. Etna Life Ins. Co., 27 S. Ct. 578, 205 U. S. 489, 51 L. Ed. 895, decided in 1907, sustains her position and had the effect to give insured, who took out his policy in 1913, a sort of vested contractual right to commit suicide, which the ruling in the Brunswick Case in 1919 was impotent to affect in any wise. Query may well be made here whether this contention will apply when some four annual renewals of the original contract were made after the Brunswick Case was decided and before the death of the insured. Eicks v. Casualty Co. 253 S. W. 1029, 300 Mo. 279; North

American Oil Co. v. Globe Pipe Line Co. (C. C. A.) 6 F. (2d) 564; Donnelly v. Insurance Co., 192 N. W. 585, 222 Mich. 214; Steele v. Indemnity Co., 197 N. W. 101, 158 Minn. 160; Hoyt v. Insurance Co., 113 A. 219, 80 N. H. 27; Richmond v. Insurance Co., 130 S. W. 790, 123 Tenn. 307, 30 L. R. A. (N. S.) 954; Pac. Mutual Ins. Co. v. Vogel (C. C. A.) 232 F. 340; Brawner v. Indemnity Co., 246 F. 637, 158 C. C. A. 593.

"But, passing that suggestion for the present, it must be conceded that the broad language of the Supreme Court of the United States in the Whitfield Case seemingly construes section 6150, supra, as applying to a Missouri policy covering death by accident, when such death shall occur by suicide, whether the insured shall be sane or insane. In so doing, it followed what it conceived to be the construction put upon the statute by the Supreme Court of Missouri in the Logan Case; although, as the Brunswick Case labored to show, the Logan Case laid down no such all-embracing rule, so far as concerned the facts up for judgment in that case.

"That this holding by the Supreme Court of the United States in the Whitfield Case was in deference to its view of the Logan Case is conclusively demonstrated, when it is considered that that court, 21 years before had held, in the case of Travelers' Ins. Co. v. McConkey, 8 S. Ct. 1360, 127 U. S. 661, 32 L. Ed. 308, that in an action on a policy of insurance insuring against death by accident, the burden was on plaintiff therein to show death by accident and that death by suicide was not an accident, which is about all that was held by the Missouri court upon this same point in the Brunswick Case. This clearly indicated as forecast, that in ruling in a thorough-going way in favor of the application of section 6150, supra, to all policies insuring against death by accident, as it seemingly did in the Whitfield Case, the Supreme

Court of the United States was misled by the broad language of the Logan Case, and so felt constrained to follow what it believed to be the ruling of the Supreme Court of Missouri in the matter of the construction of a local statute.''

Those who associate daily with the great are not impressed, perhaps, as others.

A young man with a message for a magnate was compelled to wait 20 minutes in the outer office. The magnate wasn't doing anything and the messenger knew it. Finally he was admitted and welcomed with a frown.

"Well, sir, what is it? Time is money, time is money."

"I have a card here from my boss, Mr. Gottalot. He wants you to squander about $3,000 worth on the golf links this afternoon. ''-Pittsburg Chronicle Telegraph.

USE OF STATE AGENCIES IN AID OF DISCHARGE OF FEDERAL FUNCTIONS

By Executive Order No. 4439, dated May 8th, 1926, published May 21st, the President amended an Executive Order of January 17th, 1873, by adding a paragraph so as to permit state officers to be commissioned as Federal agents, at a nominal salary, to co-operate for the better enforcement of the National Prohibition Act. The order expressly provided that no such commission should be given any state officer where the exercise of dual authority was prohibited by state law. The legality of the order has been questioned. The order is as follows:

"In order that they may more efficiently function in the enforcement of the National Prohibition Act, any state, county or municipal officer may be appointed at a nominal rate of compensation as prohibition officer of the Treasury Department to enforce the provisions of the National Prohibition Act, and acts supplemental thereto, in States and Territories except in those States having constitutional or statutory provisions against State officers holding office under the Federal Government."

In order to determine the legality of the order it is first necessary to analyze its provisions to ascertain its scope. The following will be noted with reference to it:

First. It did not make any attempt to change the law. It simply announced an alteration in administrative policy. President Grant had by Executive Order, issued in 1873, declared that no person holding a Federal position should hold office under any state or local government, but to this order President Grant made certain exceptions as follows:

"(a) Justices of the peace, notaries public, commissioners to take acknowledgment of deed, of bail, or to administer oaths.