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33. Insurance-Attachment of Risk.-After the application was accepted and the policy issued, but before it was delivered and before the first premium was paid, the insured became seriously ill. In ignorance of the fact, the policy was delivered and a check or the premium received. It is held, that the policy could not be avoided on the ground that the insured, or his representative, was bound to disclose the change in his physical condition and wrongfully failed to disclose it.-Ames v. New York Life Ins. Co., Minn., 191 N. W. 274.

34. -Capital Punishment.--That man on whose life insurance is carried is convicted and executed for the commission of a capital offense does not of itself operate as a matter of public policy to avoid the contract of insurance; the public policy being that principle of law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good-American Nat. Ins. Co. v. Coates. Tex.. 246 S. W. 356

35. -Conditions.-Where open insurance policy issued to automobile dealer under which insurance on particular cars was evidenced by certificates or entries in passbook provided that the property was insured while within the limits of the United States and Canada, including while in building, on road, on railroad car, or other conveyance, etc., and stated that the insured property was "usually" kept in a garage at a certain location, adding “see certificate," and the certificates covering the particular

specified different locations, and neither the policy nor the certificates contained a provision expressly limiting the insurance to the specified location, the statement of location held not a condition of liability or a continuing warranty.---Liverpool & London & Globe Ins. Co. V. Georgia Auto & S. Co., Ga., 115 S. E. 138.

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-Double Indemnity.--Where the insured was killed on June 27, 1919, while in the military service of the United States, and while he was being transported on a troop train from Ft. Oglethorpe, Ga., to San Francisco, Cal., to be embarked at the latter place for Honolulu, to join other military forces of the United States at that place, his death resulting from his being struck by the girder of an overhead bridge over which such troop train was passing, near Granger, Wyo., the death of the insured under these circumstances would not exempt the insurer from the payment of double indemnity. under the above provision of the policy under which his life was insured; especially where it was not shown by the insurer that the death of the insured was the result of his military seryice, or was caused by war, or an act incident thereto, and when it appears that his death was due to a fatality which befalls soldier and civilian alike.-Johnson v. Mutual Life Ins. Co., Ga., 115 S. E. 14.

vision in the policy exempting the insurer from liability under a clause in the policy providing, "If the insured engages in military or naval service, this policy is void and the liability of the association shall be limited to the amount paid by the insured hereon," and it is admitted by the defendant insurance company that the insured died, after having been inducted into the army, while stationed at Ft. Sam Houston, Tex., receiying military training, as result of the disease of broncho-pneumonia, which was contracted by reason of the insured having Spanish influenza, that the disease from which the insured died on the date of his death was prevalent throughout the world and was not contracted by the insured by reason of his engagement in military service, held, that the insurer was not exempted from liability. --Illinois Bankers' Life Ass'n of Monmouth, Ill., v. Jackson, Okla., 211 Pac. 508.

40. —Value of Policy.-Where, in an action on an automobile insurance policy against theft, the facts revealed that the insurer sought the insurance of the car and placed its own value upon it, after an inspection and when insured was not present, the insurer cannot be heard to complain concerning such value.-Corporation of Royal Exchange Assurance v. Puckett, Tex., 246 S. W. 705.

41.-Interpleader-Disputed Fund.- A bill of interpleader cannot be maintained when the demand of one complainant is against the other complainant personally, and not upon the fund in dispute.Stiness v. Henderson, R. I., 119 Atl. 319.

42. Licenses-Associations.-A trust estate, composed of a trustee, who sold shares and issued certificates delegating to trustee the power

to control the estate on behalf of the shareholders, held a common-law trust, and as such included within the term “corporation, person, co-partnership, company, or association," within the Blue Sky Law (Ky. St. $8 883e1 to 883e26), prohibiting the sale of securities of a domestic investment company unless approved by the bank commissioner, and defining a "domestic investment company" as "every person, corporation, co-partnership, company, or association (except those whose securities are exempt under the provisions of this act) organized or which shall hereafter be organized in this commonwealth, whether incorporated or unincorporated which shall either himself, themselves or itself, or by or through others, sell or negotiate for the sale of any contract, stock, bonds, or other securities issued by him, them, or it, within the commonwealth of Kentucky.”—King v. Commonwealth, Ky., 246 S. W. 162.

43. Master and Servant--Agency.-The fact that defendant was the owner of a motor truck, and that the chauffeur driving it at time of collision had been employed to drive it, if it stood as the sole evidence of agency, would have sufficed to justify an inference that such chauffeur was acting as defendant's agent at the time of the collision.-Crain v. Sumida, Calif., 211 Pac. 479.

44.— Independent Contractor.-One employed to open and operate a coal mine, under an arrangement by which he was to be assisted with his pay roll and supplied with timbers a car for the coal mined and sold by him, held an independent contractor for whose negligence his employer exercising no control over the work was not responsible to the men employed.-United States Cast Iron Pipe & Foundry Co. v. Caldwell, Ala., 94 So. 540.

45. —Independent Acts.- Where chauffeur, after driving defendant and his family and delivering them to their hotel, was told that his duties for the day were over, and received instructions to return the car to the garage, but instead of doIng so drove the car to his own home for his dinner, stopping on the way for a member of his family, and while so doing collided with plaintiff, the chauffeur's acts were such deviation from the scope of his employment as to bar a recovery against defendant.-Salmon v. Neipp, Mo., 246 S. W. 636.

46. Within Scope of Employment.-Where an employee of a lumber company is injured while riding his velocipede homeward on the employer's

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37. -Insurable Interest.-Where father conveyed land to minor son to defeat a possible judgment against him, and the son, on reaching his majority, conveyed the land to the mother, but the father, after conveyance to son, continued to use and to claim the land as his own, and to improve it with his own means, and neither the son nor the mother paid anything for the land or asserted any claim thereto, the husband did not have an insurable interest on the theory that he was the equitable owner.-Raney v. Home Ins. Co., Mo., 246 S. W. 57.

38.- -Insurer Liable.--Where accident insurance policy provided for indemnity for injury while engaged in farming by actual contact with and while operating a threshing machine and did not say in express terms that for insured to recover injury must occur while the machine was actually threshing grain, recovery could be had where insured, while engaged in threshing grain with a threshing machine, closed it down for repairs to the engine furnishing the power to be made on the premises pending resumption of threshing, and while making such repairs was injured.-Souders v. Commonwealth Casualty Co., Mo., 246 S. W. 613.

39. Insurer Liable.-Where the insured "engaged in military service," and there is a pro

same

tramroad, which he regularly used as a means of ingress and egress to the mill, it is immaterial on the question of whether the injury occurred during the course of employment or not, whether the company had obligated itself to furnish the road for his use, or whether he was a mere licensee under a revocable license, since in any event the right or privilege was derived solely from and was an incident to his employment, and the injury occurred in either event while deceased was engaged in the furtherance of his employer's business.-Kirby Lumber Co. v. Scurlock, Tex., 246 S. W. 76.

47. Municipal Corporations-Illegal Parking of Truck.-The illegal parking of defendants' truck on the left-hand side of the street was not the proximate cause of a collision between

a child who came out from behind the truck and collided with another automobile, where the undisputed. evidence showed that the stationary truck would have been as great an obstacle to the vision of the child and of the other driver if it had been headed in the other direction, so that its parking was lawful.-Powers v. Standard Oil Co., N. J., 119 Atl. 273.

48. -Liability for Sidewalks.-A city is not liable for a slippery condition of its sidewalks produced by natural causes such as combined rain and freezing, and general in its extent.-Wolf v. Kansas City, Mo., 246 S. W. 236.

49. -Proof of Negligence.-Where the evidence and inferences warranted findings that truck was left on a descending grade without being properly secured, there was ample proof of negligence, and the doctrine of res ipsa loquitur had no application.-Dorne v. Adams, Mass., 137 N. E. 650.

50. Railroads-Defense.--In an action for the negligent killing of a dog by a train, it is no defense that at the time of the accident the plaintiff was using the dog in hunting without a license, in violation of law, the fact having no causal connection with the injury.--Alabama Great Southern R. Co. v. Wedgworth, Ala., 94 So. 549.

51. — Independent Acts.-A railroad fireman, employed to coal the engine and do such other incidental work in and about the engine and tender as was necessary to operate the engine, had no authority, and was acting beyond the scope of his employment, in leaving the engine and going back over the train to eject a trespasser, and, if he did so and assaulted the trespasser, the employer was not liable.-Illinois Cent. R, Co. v. Green, Miss., 94 So. 793.

52. Sales-Warranty.--In action for breach of warranty that automobile truck was in first-class condition, the buyer could recover as special damages the cost of body placed on truck, the freight charges paid thereon, and the cost of installation under allegations and proof that he truck without such body was worthless; such damages being the direct consequence of seller's breach of warranty.Butte Floral Co. v. Reed, Mont., 211 Pac, 325. 53.

Searches and Seizures-Evidence.--Const. U. S. Amend. 4, relative to searches and seizures, is applicable. as respects the admissibility of evidence, only to such questions in the federal courts, and not in the state courts.-State v. Creel, La., 94 So. 433.

54.- -Return of Property—The court need not grant an application of one accused of a crime for a return of property taken by an illegal search without warrant and held by the officers for use as evidence inst accused.-State v. Tonn, Iowa, 191 N. W, 530.

55. Street Railroads--Negligence-Where automobile driver, when 10 feet from north street car track, looked and saw car on the south track 250 feet away, and when within a foot or so of the south track looked again and saw the car three car lengths away, he was not negligent as a matter of law.-Mason v. United Rys. Co. of St. Louis, Mo., 246 S. W. 318.

56. Taxation-Terms.-The federal government permits state taxation only on terms of substantial equality in law and in fact, in entire fairness and friendliness, and the tax on national bank shares must not discriminate in favor of moneyed

capital entering into competition with national banks.--People v. Goldfogle, N. Y., 137 N. E. 611.

57. — Value of Corporation Stock-In view of St. 1921, § 1753, prohibiting the issuance of cor. porate stock except for money, labor or property, estimated at its true money value, equal to the par value thereof, a stock dividend is subject to an income tax on its par value when greater than the market value, since neither the corporation nor the stockholders may be heard to say that it was not worth par.-State v. Cary, Wisc, 191 X. W. 546.

58. Telegraphs and Telephones-Right of WayWhere a telegraph company has elected to terminate its contract for the maintenance of lines along a railroad company's right of way, and has initiated fruitless proceedings for condemnation under Code 1907, § 3867, that it might serve the public commercially at certain points, it cannot by statute or order of the state public service commission, or by judgment of the Supreme Court be compelled to remain on the railroad right of way as a trespasser thereon, its visible properties thereon having been disposed of pursuant to law.-State v. Western Union Telegraph Co., Ala, 94 So. 466.

59. Theaters and Shows–Negligence.-In action against moving picture theater proprietor for injuries to patron who fell in stepping from platform. on which chairs had been placed, from four to eight inches above level of aisle, in which it was claimed that the proprietor was negligent in placing chairs on platform without warning patron and without furnishing sufficient light to enable patron to notice that chairs were not on a level with the aisle, and that the patron had no knowledge that the chairs were on a platform above level of aisle. the patron, though she had been in the theater a number of times before without being seated in chairs on such platform, and though she had been led to the chairs in the first instance from the

direction in which she stepped when injured while leaving theater, was not contributorily negligent as a matter of law.-Bennetts v. Silver Bow Amusement Co., Mont., 211 Pac. 336.

Vendor and Purchaser-Record of Title.--An entry by the probate judge on the margin of the record of title certifying that an original deed. which was lost, had been brought to his office on the date of such entry, and that the recorder had omitted the

of two witnesses appearing thereon, could not operate as a correction of the record nor render it self-proving, so as to make the title good and merchantable; such entry being unauthorized by law, and hence but a hearsay statement.-Messer-Johnson Realty Co. v. Security Savings & Loan Co, Ala., 94 So. 734.

61. Waters and Water Courses-AbandonmentFailure to mention in deeds and leases of land certain water rights claimed for defendant is insufficient to establish abandonment thereof. particularly when those in possession were using such waters.-Pays v. Roseburg, Wash., 211 Pac. 750.

62. Workmen's Compensation Act-Acts of Industrial Commission. Under section 9, c. 14, Sess, Laws, 1919, providing for compensation for loss of hearing in an amount to be determined by the Industrial Commission, but not in excess of $3.000. and where the Commission found as a fact that the claimant as a result of an accident suffered the loss of the hearing in his left ear, such finding entitled the claimant to the compensation provided for in the act, and the action of the Commission in awarding the claimant compensation in the

sum of $1.500 is affirmed.- Associated Employers' R. & M. V. B. Co. v. State I. Com'n, Okla., 211 Pac. 491.

63.—- Incapacity.-Where an only one

eye sustained an injury causing total blindness and total incapacity to work he was en: titled to compensation as for the "loss of an eye under Workmen's Compensation Act, $ 306, par. (c), being Pa. St. 1920, $ 21995, providing that for "ali disability resulting from permanent injuries" the compensation shall be "exclusively" as therein provided, and not under paragraph (a), being seco tion 21993, as for "total disability on the theory that incapacity and not injury was contro'ling. Lente v. Lucci, Pa., 119 Atl. 132.

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employee having

Central Law Journal

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not have it, and this decision does not give

it to us. The Maximum Hours of Labor St. Louis, May 5, 1923

laws, equally with this piece of attempted

legislation, deny complete liberty of conTHE MINIMUM WAGE DECISION

tract. The New York Rent law, upheld by the Supreme Court, the law forbidding the

payment of sailors in advance of a voyage, Of peculiar interest at this time is the decision of the United States Supreme

are other examples of such laws. There Court in Adkins v. Lyons, holding uncon

are many other such laws which have been

held constitutional. stitutional the Minimum Wage Law in the District of Columbia. The Court bases its

It has been held that Congress may endecision on the ground that the law vio- act laws relating to interstate commerce lates the Fifth Amendment of the Federal which have the effect of rendering void Constitution, providing that no person

contracts long theretofore entered into shall be deprived of life, liberty or prop

(Louisville & N. R. Co. v. Mottley, 219 U. S. erty without due process of law. There is 467, invalidating an agreement for free no constitutional inhibition upon

the transportation given in consideration of a power of Congress to impair the obligation

release from claim for damages due to of contracts.

personal injuries; Evans-Snider-Buel Co. But this “due process of law” thing has v. McFadden, 105 Fed. 293, divesting or got two sides to it. Had the law been de

Had the law been de- | impairing an attachment lien acquired clared valid, there would not have been

under a federal statute). any depriving of property without due In the Mottley case the Court said: process, because the law itself would have “We forbear any further citation of supplied due process. The question in- authorities. They are numerous and are volved, however, is whether the law was a all one way. They support the view that, proper exercise of the police power of Con- as the contract in question would have gress in the particular circumstances or been illegal if made after the passage of the conditions existing in the District of commerce act, it cannot now be enforced Columbia at the time in question. A police against the railroad company, even though regulation may be valid at one time and valid when made. If that principle be not invalid if enacted at another, depending sound, the result would be that individuals upon conditions. The conditions may be and corporations could, by contracts beconsidered by the Court in arriving at its tween themselves, in anticipation of legisconclusion regarding the validity of the lation, render of no avail the exercise by law. If a law is essential to the preserva- Congress, to the full extent authorized by tion of public health, morals, or safety, the Constitution, of its power to regulate there is no constitutional provision stand- commerce. No power of Congress can be ing in its way; provided it relates to a thus restricted. The mischiefs that would matter over which Congress has legislative result from a different interpretation of jurisdiction.

the Constitution will be readily perThe majority of the Court (it was a 5-3 ceived." Here we have the impairment of decision, and had Mr. Justice Brandeis contracts, the taking away of vested inparticipated, it would undoubtedly have terests, and the denial of the “liberty of been a 5-4 decision) argues that there must contract” by laws upheld as constitutional. be complete "liberty of contract." But Mr. Justice Holmes filed a dissenting it was never intended that there should be opinion which will probably long outlive complete liberty of contract, and we do

the opinion of the majority. It is pro

foundly able and scholarly, and we can do no better than to quote the greater part of it. He said :

If the law encountered no other objection than that the means bore no relation to the end, or that they cost too much, I do not suppose that anyone would venture to say that it was bad. I agree, of course, that a law answering the foregoing requirements might be invalidated by specific provisions of the constitution. For instance, it might take private property without just compensa

But in the present instance the only objection that can be urged is found within the vague contours of the Fifth Amendment, prohibiting the depriving of any person of liberty or property without due process of law. To that I turn.

“The earlier decisions upon the same words in the Fourteenth Amendment began within our memory and went no further than an unpretentious assertion of the liberty to follow the ordinary callings. Later that innocuous generality was expanded into the dogma, Liberty of Contract. Contract is not specially mentioned in the text that we have to construe. It is merely an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts. Without enumerating all the restrictive laws that have been upheld, I will mention a few that seem to me to have interferred with liberty of contract quite as seriously and directly as the one before us.

“Usury laws prohibit contracts by which a man receives more than so much interest for the money that he lends. Statutes of frauds restrict many contracts to certain forms. Some Sunday laws prohibit practically all contracts during one-seventh of our whole life.

Insurance rates may be regulated (German Aliance Ins. Co. v. Kansas, 233 V. S. 389). (I concurred in that decision without regard to the public interest with which insurance was said to be clothed. It seemed to me that the principle was general.) Contracts may be forced upon the companies (Nat. Union Fire Ins. Co. v. Wandberg, November 13, 1922). Employers of miners may be required to pay for coal by weight before screening (McLean v. Arkansas, 211 '. S. 539). Employers generally may be required to redeem in cash store orders accepted by their employees in payment (Knoxville Iron Co. v. Harrison, 183 U. S. 13). Payment of sailors in advance may be forbidden (Patterson v. Bark Eudora, 190 U. S. 169). The size of a loaf of bread may be established (Schmidinger v. Chicago, 236 U. S. 578).

“The responsibility of employers to their employees may be profoundly modified (N. Y. Central R. R. v. White, 243 U. S. 188; Arizona Employers' Liability Cases, 250 U. S. 400). Finally, women's hours of labor may be fixed (Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671, 679; Hawley v. Walker, 232 U. S. 718; Miller v. Wilson, 236 U. S. 373; Bosley v. McLaughlin, 236 U. S. 385) and the prin. ciple was extended to men with the allowance of a limited overtime to be paid for 'at the rate of time and one-half of the regular wage' in Bunting v. Oregon (243 U. S. 426).

"I confess that I do not understand the principle on which the power to fix a minimum for the wage of women can be denied by those who admit the power to fix a maximum for their hours of work. I fully assent to the proposition that here as elsewhere the distinctions of the law are distinctions of degree, but I perceive no difference in the kind or degree of interference with liberty, the only matter with which we have any

concern, between the one case and the other. The bargain is equally affected whichever half you regulate. Muller v. Oregon, I take it, is as good law today as it was in 1908.

It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women or that legislation cannot take those differences into account. I should not hesitate to take them into account if I thought it necessary to sustain this act (Quong Wing v. Kirkendall, 223 U. S. 59, 63). But after Bunting v. Oregon (243 U. S. 426) I had supposed that it was not necessary and that Lochner v. New York (198 U. S. 45) would be allowed a deserved repose.

“This statute does not compel any. body to pay anything. It simply forbids employment at rates below those fixed as the minimum requirement of health and right living. It is safe to assume that women will not be employed at even the lowest wages allowed unless they can earn them, or unless the employer's business can sustain the burden. In short the law in its character and operation is like hundreds of so-called police laws that have been upheld. I see no greater objection to using a board to apply the standard fixed by the act than there is to the requirement of a license in other cases. The fact that the statute warrants classification, which, like all classifications, may bear hard upon some individuals, or in exceptional cases, notwithstanding the power given to the board to issue a special license, is no greater infirmity than is incident to all law. But the ground on which the law is held to fail is fundamental and therefore it is unnecessary to consider matters of detail.

"The criterion of constitutionality is not whether we believe the law to be for the public good. We certainly cannot be prepared to deny that a reasonable man reasonably might have that belief in view of the legislation of Great Britain, Vic

toria and a number of the states of this Union. The belief is fortified by a very remarkable collection of documents submitted on behalf of the appellants, material here, I conceive, only showing that a belief reasonably may be held. In Australia the power to fix a minimum for wages in the case of industrial disputes extending beyond the limits of any one state was given to a court, and its president wrote a most interesting account of its operation (29 Harv. Law Rev., 13). If a Legislature should adopt what he thinks the doctrine of modern economists of all schools, that 'freedom of contract is a misnomer as applied to a contract between an employer and an ordinary individual employee' (ibid., 25). I could not pronounce an opinion with which I agree impossible to be entertained by reasonable men. If the same Legislature should accept his further opinion that industrial peace was best attained by the device of a court having the above powers, I should not feel myself able to contradict it, or to deny that the end justified restrictive legislation quite as adequately as beliefs concerning Sunday'or exploded theories about usury. I should have my doubts, as I have them about this statute, but they would be whether the bill that has to be paid for every gain, although hidden as interstitial detriment, was not greater than the gain was worth, a matter that it is not for me to decide.

“I am of the opinion that the statute is valid and that the decree should be reversed.”

“My good woman," said the learned judge, "you must give an answer in the fewest possible words of which you are capable, to the plain and simple question whether, when you were crossing the street with the baby on your arm and the truck was coming down on the right side and the taxicab on the left, and the carriage was trying to pass the truck, you saw the plaintiff between the carriage and the taxicab and whether and when you saw him at all, and whether or not the carriage, taxicab or truck, or either or any two, and which of them, respectively, or how it was?”—Punch Bowl.

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