ercise of ordinary care could have seen, plaintiff in a position of peril and oblivious thereto, or if plaintiff, although knowing his peril, had not intentionally or wantonly put himself into it, and was unable to extricate himself. Schreiber V. Bahr, Mo., 244 S. W. 957.

50. Improvement Districts.-Where, in a local improvement district, each and every parcel of land enjoys a special benefit when shared by the general public, the courts will not inquire into the quantum of special benefit which will accrue to the property owners.-Federal Const. Co. v. Ensign, Calif., 210 Pac. 536.

51.- -Notice.-Where a pedestrian was electrocuted by touching a defective electric light post, notice to a city policeman and a city market master held not notice to the city of the defect; neither of such officers being shown to have been charged by law with the duty of correcting or reporting conditions observed by them to the officers whose duty it was to look after the sidewalks.-City of Paducah v. Ivey's Adm'r, Ky., 245 S. W. 4.

52. Ordinance.-An ordinance may provide a different punishment for its violation than is fixed by a statute forbidding the same act.-In Re Hurston, Kan., 210 Pac. 495.

53. Negligence-Duty of Proprietor.-It is the duty of a proprietor to warn an invitee of dangers of which the proprietor knows or should be informed, and of which the invitee is not aware.Montevallo Mining Co. v. Little, Ala., 93 So. 873.

54. Duty to Warn Driver.-Under the rule that a passenger in a vehicle upon noting danger and having an opportunity to avoid it is charged with the duty of warning the driver, it cannot be said that the negligence of the driver of a motorcycle would necessarily be imputed to a passenger in his side car, without any further showing.-Swanlund v. Rockford & I. Ry. Co., Ill., 137 N. E. 206. 55.-Employers Liability Act.-Evidence that plaintiff, a pedestrian, was injured by a portable scaffold, which a contractor erecting a building for defendant had left on a pile of rubbish, piled on a vacant lot, without screening the pile from the sidewalk so that a wind caused the pile to fall, held not to prove negligence charged in an action under the Employers' Liability Act, for personal injuries caused by negligent construction of a scaffold adjacent to the sidewalk.-Whitechurch v. Mutzig, Ore., 210 Pac. 623.

56.

Railroads Trains.-Where three cars standing on a side track were to be taken from the side track and incorporated in the train, although the haul was only a short distance, it did not make the engine and the three cars being thus switched "train" within federal Safety Appliance Act (Comp. St. § 8605), as amended in 1903 (section 8614), requiring trains in interstate commerce to be equipped with power brakes.-St. Louis Southwestern Ry. Co. v. Bounds, Tex., 244 S. W. 1099.

a

57. Unattached Engines.-In a suit for damages to plaintiff's automobile truck, struck by defendant's locomotive at a street crossing, where the petition charged negligence by defendant in exceeding the speed limits fixed by ordinance, it was proper to admit the ordinance in evidence, as against an objection that it did not apply to engines unattached and running alone.-Campbell . Chicago, B. & Q. R. Co., Mo., 245 S. W. 58. 58. Sales-Acceptance.-Under Personal Property Law, § 125, subd. 3, giving the buyer, when seller delivered goods of the kind he contracted to sell, mixed with goods of a different description not included in the contract, the right to accept the goods fulfilling the contract and reject the rest, where seller sold leather selected by buyer at a specified price per square foot, and the greater part of the leather delivered was found to be leather not selected by the buyer, buyer has a right to accept that part of the leather, which consisted of leather seletced by it, and reject the remainder.-Amalgamated L. Companies v. Dr. A. Posner, Shoes, N. Y., 196 N. Y. S., 848.

59. -Compensation.-Where defendant purchased two carloads of potatoes from plaintiffs, and accepted and took possession of one of the carloads, and his mistake in paying the draft for the price of the other carload was not attributable

to plaintiffs, plaintiffs could not be deprived of compensation for the potatoes received because of the mistake.-Rooney v. McLeod, Mass., 137 N. E. 266.

60. Delivery.-Evidence that seller understood buyer selected August 30th as delivery date merely to postpone delivery to latest date agreeable to seller, but that buyer wanted delivery then, because later shipment would defeat his best selling period, held to show time of delivery was of the essence.-Dayvault & Newsome v. Townsend, Tex., 244 S. W. 1108.

61. Searches and Seizures-Evidence.-On the trial of a criminal case in the courts of this state (state courts), relevant incriminatory evidence, obtained by an unlawful search and seizure, is not inadmissible as contravening the Fourth and Fifth Amendments to the Constitution of the United States. Nor is the admission of such evidence violative of the due process clause of the Fourteenth Amendment to the Constitution of the United States. Nor does the admission of such evidence violate paragraph 16 of section 1 of article 1 or paragraph 6 of section 1 of article 1 of the Constitution of this state. Johnson v. State, 152 Ga. 271, 109 S. E. 662, 19 A. L. R. 641, and authorities cited. Under this ruling the admission of evidence as complained of in the instant case was not error.-Griggs v. State, Ga., 114 S. E. 582. 62. Taxation-Par Value.-Under Corporation Act, 105, requiring corporations to pay franchise tax of 5 cents on each $100 of the portion of its capital stock authorized by its charter represented by business and property in the state, did not apply so as to require a corporation taxable thereunder and which had increased its capital stock by additional issue of shares of no par value, to be fully paid up at $5 for each share, to pay 5 cents on each share of such stock of no par value; the provisions of sections 96, 101, 107, as to franchise taxes specifically providing that, if a corporation of the classes therein mentioned had capital stock of no par value, its shares, for purpose of fixing the fee, should be considered as of the par value of $100 each, must be deemed purposely omitted from section 105.-People v. Emmerson, Ill., 137 N. E. 202.

63. Trusts-Fraud. If a wife having made up her mind to abandon her husband, who had no knowledge thereof, or of her love affair with another, induced him to convey his property to her by an oral agreement, without intention to comply therewith, to hold the property in trust for him as his separate property, or in trust for the community. her fraud created a trust ex maleficio in husband's favor, enabling equity to award him a reconveyance.-Johnson v. Johnson, Wash., 210 Pac.

382.

64. Waters and Water Courses-Riparian Rights. -A small stream well sunk and permanent held a water course giving rise to riparian_rights, though it had at one time been ditched.-Pippen v. Carpenter, Ala., 93 So. 878.

65. WIIIS-Undue Influence.-Where one is instrumental in procuring a will to be made, a presumption of undue influence is created, which must be rebutted by proof that he did not abuse or destroy the confidence reposed in him, and that the execution of the will was the free and voluntary act of the testator.-Carroll v. Eckley, Ill., 137 N. E. 195.

66. Workmen's Compensation Act-Party Plaintiff. In an action under Workmen's Compensation Act, § 58, as amended by Laws 1920, c. 456, by the state for the use of the State Accident Fund against a wrongdoer, causing death of an employee, where the obligation of the employer under the act was fully discharged by the insurer, the employer was not a necessary party plaintiff.State v. New York, P. & N. R. R. Co., Md., 118 Atl., 795.

67. -Right of Commission.-Facts may be inferred from the surrounding circumstances, and the absence of direct testimony is not conclusive that an injury did not occur, but the Industrial Commission has the right to make such reasonable inferences from the facts proven as in its judgment may be consistent with the contention of either party-Cudahy Packing Co. v. Brown, Utah, 210 Pac. 608.

Central Law Journal

St. Louis, April 5, 1923

WHEN IS A TORT MARITIME?

Rules for determining whether or not a contract is maritime are different from the rules fixing a tort as maritime or otherwise. A contract relating to a ship or commerce on navigable waters is subject to maritime jurisdiction, whether the contract is to be performed on land or water. (Benedict's Admiralty, 4th ed., sec. 145; Atlantic Transporting Co. v. Imbrovek, 234 U. S. 52.) So, a contract of employment in loading and unloading a ship is one of stevedoring, and therefore maritime, although the service thereunder is performed entirely on a pier. (Keator v. Rock Plaster Co., 182 App. Div. 153, 224 N. Y. 540.) It is the subject matter which determines whether or not a contract is maritime. (N. Y. Law Jour., Nov. 15, '22.)

But whether a tort is maritime depends not on whether the party was working under a maritime contract, but solely on the locality of the person injured at the time. the wrong was committed, whether on land. or navigable waters. If the wrong takes place on land, it is non-maritime; if it takes place on navigable waters, it is maritime. Even though the party is working under a maritime contract and the injury takes place on a pier, the case is not one for admiralty jurisdiction, but for the determination of the state courts. (Hoof v. Pacific American Fisheries, 284 Fed. 174.)

There is a different rule applying to seamen than to others. A seaman, injured while employed as such must resort to admiralty for recovery, where he is limited to maintenance, wages and cure, except when his injury is due to unseaworthiness, under American Merchant Marine Act, sec. 33. Though admiralty has jurisdiction of a tort action for personal injuries to one employed on a vessel, the rule of

right applicable, unless he bears the relation of a seaman, as defined by U. S. Rev. St. sec. 4612, is the common law right of recovery. (Hoof v. Pacific American Fisheries, 284 Fed. 174, and cases cited in note on page 175.)

66

"Seaman" once meant a person "who can hand, reef, and steer"-a mariner in the full sense of the word. As conditions changed, and necessities of changes increased, seaman" received an enlarged meaning. The cook and surgeon, and employees other than able seamen, were included. (Bean v. Stupard, 1 Doug. 11; Allen v. Hallet, 1 Fed. Cas. 472, No. 223.) In the J. S. Warden (D. C.), 175 Fed. 314, a bartender was ranked as a seaman. In the Baron Napier, 249 Fed. 125, 161 C. C. A. 178, a muleteer, performing the services of a watchman, was given the status of a seaman. In the Buena Ventura (D. C.), 243 Fed. 797, a wireless operator, employed by another, but placed on the articles at the nominal sum of 25 cents a month, was classed a seaman. Section 4612, R. S., provides that:

In actions ex contractu the nature and subject matter of the contract form the test of determination, while in actions sounding in tort locality is the determining fac

Admiralty does not take cognizance of wrongs committeed on land. The question must be resolved according to the locality and character of the injured thing. So, where a vessel negligently collides with and damages a bridge which is maintained and used as an aid to commerce on land, the tort is not maritime. (Martin v. West, 222 U. S. 191, 32 Sup. Ct. 42, 56 L. Ed. 159.)

The locus of a tort is held to be determined by the place where the injury and damage arose, rather than where the negligent act which produced such injury was

committed. (Rundell v. La Campagnie Generale Transatlantique, 100 Fed. 655, 40 C. C. A. 625, 49 L. R. A. 94.) It is the It is the locality of the person or thing injured, not that of the offending person or thing, that determines the question of jurisdiction. (John Spry Lbr. Co. v. The C. H. Green, 76 Mich. 320, 43 N. W. 576.)

A shore dock, bridge, abutment, protection piling and pier, are structures connected with the shore and land commerce, and an injury to such structure caused by a vessel negligently adrift, is not a maritime tort. (Cleveland, etc., R. Co. v. Cleveland Steamship Co., 208 U. S. 316.)

The fact, however, that a vessel is sccurely moored to a wharf and has communication with the shore by a gang-plank, does not make her a part of the land so as to deprive admiralty of jurisdiction of a tort committed on board. (Leather v. Blessing, 105 U. S. 629.)

The Judiciary Act declares the jurisdiction of the Federal courts over causes of admiralty and maritime jurisdiction to be exclusive, yet saves to suitors in all cases "the right of a common-law remedy, where the common law is competent to give it." The common law always offers a remedy in personam, and of such suits the admiralty and common-law courts have concurrent jurisdiction. (1 R. C. L. 408409.)

THE DAY'S NEWS-AUTOMOBILE

TRAGEDIES-CRIME-
RADICALISM

In a recent issue of a St. Louis daily newspaper is published an account of a wealthy Philadelphia clubman, put under $35,000 bond after his limousine had run down a group of people alighting from a street car. He denied that he was in an accident. He was held on charges of homicide, driving when intoxicated, and leaving the scene of an accident. The police found him four blocks from the scene of the tragedy, standing beside his blood-bespattered car, on the fender of

which was found a neckpiece worn by one of the women killed. A young man, 29 years old, a young lady, 18, and the young man's mother, 65, were killed. Assuming that the accused will be properly punished, his punishment will not stop this sort of thing. Tragedies of this kind will continue as long as the state permits imbeciles and the criminally inclined to drive automobiles. Punishment of the criminal will not bring back the dead nor restore the maimed to their former condition.

From the same issue of the paper mentioned, the following was clipped:

CHICAGO, March 5.-By I. N. S.)Two unidentified persons, presumably man and wife, were killed early today by a taxicab following which a mob threatened to manhandle Nelson Cross, the chauffeur. The number of persons killed by automobiles in Chicago this year now stands at 100.

Again, from the same paper, same issue, an account of events taking place in St. Louis, as given by the St. Louis Star:

Five men were arrested in automobile accidents in which seven persons were injured and three machines wrecked within the last twenty-four hours.

A taxicab driven by Earl Montford, 3439 Lucas avenue, was wrecked at Jefferson and Clark avenues at 1:30 a. m. today, when it collided with the automobile of Joseph J. Streib, 4016 California avenue. Frederick F. Zolper, 2003 Madison street, and Joseph M. Blong, 2854 St. Vincent avenue, were injured. William Ryan, 3216 St. Vincent avenue, who was being taken home ill from the Union Station, escaped injury. Streib was arrested.

Dorothy Victor, 7 years old, 3705 Garfield avenue, hit by the car of Tony Spicuzza, 2516 Arlington avenue, in front of 1904 North Grand boulevard, when she broke away from her sister and ran in front of the machine at 2 p. m. yesterday, suffered hemorrhage of the brain and severe lacerations. Spicuzza was arrested. G. C. Hampton, 4453 Wallace street, was arrested charged with carelessness after

his machine struck the automobile of William A. Federer, 3892 Connecticut street, at Grand boulevard and Connecticut street. Louis Rottermund, 3929 South Compton avenue, riding with Hampton, was badly cut.

A. J. Dulle, 3440 De Kalb street, avoided a collision at Fifteenth and O'Fallon streets, but wrecked his machine and was arrested when he crashed into the side wall of a store. He was cut and bruised.

James Smith, a negro, 2707 Lucas avenue, was arrested following a head-on collision between his automobile and a street car at Thirteenth and Carr streets. Smith was bruised and cut. The automobile was completely wrecked.

These are not unusual, but daily occur

rences.

Has it come home to you?

Then we turn the page and find where warrants were issued against three men, charging them with second degree burglary. They were arrested in an automobile. They carried weapons, and had a set of burglar's tools. Merely another sample of the same day's news.

It is a frequent occurrence to find editorials in our newspapers bewailing the failure of our government to take advantage of an excellent opportunity to become embroiled in the European mess. Better be thankful that we discovered Europe in time. And this has nothing to do with politics.

The next page of our paper contains much that is interesting. A minister of the gospel says that no legislative body has a right to legislate on matters religious. Probably no one with any understanding of our principles of government will dispute that statement. The reason we mention it is that some impious person has just suggested that the churches conform their rules to our laws.

Mention is also made of two sermons, preached on the same day, suggesting that religion should be be taught in "our schools." Whose schools? Whose re

ligion?

With the passing of time, we love more and more the pure religious teachings of the Master. His was the simplicity of greatness, the greatness of simplicity.

And so goes the daily news-automobile and other tragedies-crime-radicalism.

NOTES OF IMPORTANT DECISIONS

LARCENY POLICY INSURING "PERSONAL EFFECTS," ETC., AS COVERING FALSE TEETH.-A Larceny policy insuring against loss of "personal effects," including toilet articles, scientific apparatus and jewelry. is held in Rubin v. Globe & Rutgers Fire Ins. Co.. 196 N. Y. Supp. 657, not to cover a set of false teeth. Relative to this highly important question, the Court said:

"But the respondent and the trial justice construe the policy as including the said false teeth under the enumerated articles, either as a 'toilet article,' or 'scientific apparatus,' or as coming within the term 'jewelry.' I am of the opinion, however, that construing the words in their ordinary and accepted meaning, as must be done in the absence of anything to show that they were used in a different sense, the words 'toilet articles' cannot be construed to include false teeth, any more than a false ear could be deemed a toilet article.

"So, too, the words 'scientific apparatus,' in the ordinary meaning of these words, cannot be deemed to include false teeth, even though they might be deemed a product of scientific apparatus. Furthermore, the word 'jewelry' indicates gems or ornaments used for personal adornment, and, in the ordinary and usual meaning, the word cannot be construed as including false teeth, any more than false hair or a false eye could be deemed to be jewelry, even though they might improve the appearance of the person.

"Moreover, when a policy of insurance specifically enumerates the articles covered by the terms of the policy, the pleader cannot by mere conclusion extend the liability to the insurance company, and a demurrer or a motion in the nature of a demurrer, under well-settled rules of pleading, does not admit mere conclusions or unfounded inferences drawn from the specific facts and terms concededly contained in the policy."

NEWS AGENT 'ON TRAIN IS A PASSENGER.-A news agent riding on a train under contract between the railroad and his

employer which entitled the agent to ride on the train without payment of fare, is held in Nevill v. Gulf, C. & S. F. R. Co., Tex., 244 S. W. 980, to be a passenger, within the rule making void contracts attempting to exempt carriers from liability to passengers for injuries resulting in negligence. In part the Court said:

"Our Supreme Court has held that the relation of carrier and passenger exists in this state in every case in which the carrier receives and agrees to transport another not in its employ, whether by contract between them or between the carrier and some other person by whom the person to be transported is employed, and that it is immaterial how or by whom the carrier is compensated therefor, or whether compensated at all, and that contracts attempting to exempt such carrier from liability to such passenger for injuries resulting from its negligence or the negli gence of its agents or employees are void. G. C. & S. F. Ry. Co. v. Wilson, 79 Tex. 371, 375, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345; G., C. & S. F. Ry. Co. v. McGown, 65 Tex. 640; Missouri Pacific Ry. Co. v. Ivy, 71 Tex. 409, 411-416, 9 S. W. 346, 1 A. L. R. 500, 10 Am. St. Rep. 758; M., K. & T. Ry. Co. of Texas v. Blalack, 105 Tex. 296, 147 S. W. 559.

"The holding of our Supreme Court set out above was followed and applied by the Court of Civil Appeals at Fort Worth in sustaining a judgment in favor of a newsboy in an action for damages for injuries received by him as a result of the negligence of the railway in the case of Texas & Pacific Ry. Co. v. Fenwick, 34 Tex. Civ. App. 222, 78 S. W. 548, in which case a writ of error was refused. It follows that the Court of Civil Appeals erred in affirming the judgment of the trial court on the ground stated in the opinion of that court."

"COLLISION" IN AUTOMOBILE POLICY HELD ΤΟ COVER UNUSUAL CONTACT WITH ROADWAY.-In the case of Young v. New Jersey Ins. Co., 284 Fed. 492, there was an agreed statement of facts, as follows:

"It is hereby agreed by and between the parties to the above-entitled action that the accident occurred in the following manner, to-wit: That while plaintiff was driving the said automobile upon the public highway at the rate of approximately 30 miles per hour, and was crossing a coulee, the front axle of the car broke, and thereupon the broken axle and frame of the car was let down to the earth, and plowed into the earth with great force and violence; that the force and re

sistance with which the automobile thus met was sufficient to cause the same to pivot and overturn, and that the damage resulted therefrom; that the said damage was caused by the resistance and impact with which the end of the broken axle and the front end of the car met when it thus came in contact with the earth after the breaking of the axle, and that it would not have thus come in contact with the earth if the axle had not broken. It is further agreed between the parties that immediately and for some time preceding the breaking of the axle the same was defective, and was cracked so as to substantially weaken the same; that this defect was unknown to the plaintiff and could not be detected by ordinary, careful observation. It is further agreed that, if the damage caused as specified above is within the risks covered by the policy, the plaintiff shall have and recover the sum of $3,900, with interest thereon from the 19th day of March, 1922, at the rate of 8 per cent per annum. All other defenses on the part of the defendant are abandoned."

Holding that the damage was covered by the policy, the Court said:

"From the agreed statement' it appears that, the auto moving rapidly over the road, the front axle broke, it and the frame dropped to the road, and the energy of forward motion, resisted, caused the axle and frame to penetrate the road surface, and the auto to pivot and overturn, coming into violent contact with the earth, resulting in damage to the auto as aforesaid. The only issue is whether this occurrence was a 'collision,' within the meaning of the 'collision clause.'

"When this policy issued, the definition of 'colision,' in auto insurance, was in process of development and extension beyond that popular or ordinary, and to include some, if not any, unusual contact between auto and road or earth. There was some conflict in court decisions, but in the courts of defendant's domicile in some others the law was fairly settled that an occurrence like or analogous to this at bar was a 'collision,' within the meaning of the word in auto insurance. See Harris v. American Casualty Co., 83 N. J. Law, 641, 85 Atl. 194, 44 L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846; Universal Service Co. v. American Ins. Co., 213 Mich. 523, 181 N. W. 1007, 14 A. L. R. 183. All decisions relating to the subject, extant when this policy issued, are reported or referred to in Bell v. American Ins Co, 173 Wis. 533, 181 N. W. 733, 14 A. L. R. 179; Universal