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Central Law Journal

parture from its restriction to injuries

that are the product of accident or negliSt. Louis, May 20, 1923

gence. “The plaintiff, in intrusting his car to a youth under eighteen, did not

desire or intend that there should be any LIABILITY UNDER AUTOMOBILE

injury to travelers. The act of so intrustINSURANCE POLICY WHEN CAR

ing it was wilful, but not the ensuing conOPERATED UNLAWFULLY

duct of the custodian, through which in

jury resulted. Indeed, the violation of the Insurance, instead of prejudicing the

statute would have been the same, though victim of an accident, often supplies the

the driver's age had been unknown. What only fund from which the victim can be

was wilful was not actionable, except as paid. Those who have argued against the

it became so in the sequel, through what validity of insurance covering negligence

was unintended or fortuitous." and other unlawful acts, should use their

As has been declared, the law is not oratory in securing compulsory insurance

always logical, and everyone concerned of some kind-insurance policy or bond

with the administration of the law knows covering automobiles as their operation

this. If the law is not logical, public polmay affect third persons injuriously.

icy is even less logical, for, by common Public policy, it is held, does not forbid

consent, these third-party indemnity inthe enforcement of a policy covering lia

surances have been treated as valid and bility for injury caused by the use on the

effective." highway of an automobile by an infant

A policy insuring an owner against under the age permitted by statute (Mes

sums which he should become legally sersmith v. American Fidelity Co., 232

liable to pay other persons as compensaN. Y. 161, 133 N. E. 432, 19 A. L. R. 876.)

on for accidental personal injury susTouching on the question of public pol

tained through the driving of his automoicy in this respect, it was said in the case

bile was held to cover accidents due to just cited: “In too many ways to be mis

gross as well as ordinary negligence, and read the state, through its legislature, has

to include a case where two persons were manifested recognition and approval of

injured and another killed by reason of the business of insurance against the con

the insured's criminal negligence in drivsequences of negligence, whether personal

ing his automobile at an excessive speed. or vicarious. Even without the aid of

It was held that the policy so construed legislation, courts of high authority have

was not against public policy (Tinline v. reached a like conclusion. Courts are slow

White Cross Ins. Assn. (1921), 3 K. B. to substitute their own varying views of

327, 19 A. L. R. 879n.) In this case the policy for those which have found em

court said that, speaking generally it is bodiment in settled institutions, in every

true that it is against public policy to inday beliefs and practices, which have

demnify a man against the consequence of taken root and flourished.”

a crime which he knowingly commits, the The defendant in this case did not word “crime" in this connection includurgently dispute that there may be in- ing the breach of any statutory duty demnity against the consequences of neg- which renders a man liable to fine or imligence, but it argued that the plaintiff's | prisonment. And further: “In motor liability was the product, not of negli- accidents where the assured is the driver gence, but of wilfulness, in permitting the of the motor car, I suppose in the great infant to have sole charge of the machine. majority of cases the accident is due to The court held, however, that the exten- the breach by the driver of some enactsion of the policy to this case is no de- ment. Many of these accidents are due to driving at excessive speed. That was by his employees. Otherwise, bonds taken the case here. Driving at an excessive to insure against misappropriation or emspeed-exceeding the speed limit—is the bezzlement of funds by employees would breach of an enactment which subjects the be void (Taxicab Motor Co. v. Pacific person guilty of it to fine or imprison- Coast Cas. Co., 73 Wash. 631, 132 Pac. ment; and if the ordinary law were to be 393). applied to cases of this kind it would be

It seems to be equally well settled that a defense to say that the assured, although a policy covering the operation of an autohe did not intend to commit manslaughter, mobile by an infant under the age percommitted it by violating an enactment

mitted by statute, is valid (Messersmith v. namely, by driving in excess of the speed

American Fidelity Co., 187 App. Div. 35, limit, or by driving to the danger of the

175 N. Y. Supp. 169; Royal Indemnity Co. public. But it is notorious that that de

v. Schwartz, Tex. Civ. App., 172 S. W. fense is never raised. There can be no

581; Brock v. Travelers Ins. Co., 8 Conn. doubt that if none of the three persons 308, 91 Atl. 279; Morrison v. Royal Inwho were knocked down had been killed,

demnity Co., 180 App. Div. 709, 167 N. Y. but all have been injured, there would

Supp. 732). Nor is insurance invalidated have been no defense to this action. In

by the fact that the automobile was being my opinion, the fact that one of the per- operated in violation of a statute requirsons was killed makes no difference for

ing it to be registered (Messersmith v. this purpose. Precisely the same negli

American Fidelity Co., 187 App. Div. 35, gence which injured the two persons 175 N. Y. Supp. 169). killed the third, but to hold that there is any difference in the liability to indemnify would be to hold that the indemnity de

NOTES OF IMPORTANT DECISIONS pends upon the nature and result of the injury sustained by the person who is

RIGHT OF CLIENT TO RECOVER MONEY

PAID TO ATTORNEY FOR COMPOUNDING knocked down, or, to put it in another

A FELONY.—The general and well-known rule way, that it depends in some degree upon

is that the law will not aid either party to an the amount of the assured's negligence."

illegal agreement and will leave them where The kind of act that is not covered by

it finds them. This rule is subject to the ex

ception that when the parties are not equally a policy insuring against the consequences guilty, or not in pari delicto, and where pubof an accident is mentioned in the Tinline

lic policy will be advanced, the one more ex: case. It is an intentional act. If the in- cusable will be given relief against the transsured intentionally runs down and kills action (Duval v. Wellman, 124 N. Y. 156). a person with his machine, the result is

Thus, where the plaintiff has been induced to

enter into the illegal scheme or contract by not manslaughter, that is, is not an acci

reason of duress, imposition or hardship, whendent, but is murder. Murder does not re

ever the court deems it in the interest of pubsult from an accident; manslaughter does. lic policy it will give the plaintiff relief against

the transaction. It is well established that insurance is

In the case of Berman v. Coakley, 137 N. E. valid that covers loss and damage in

667, decided by the Supreme Judicial Court of flicted when the insured is violating speed

Massachusetts, it appeared that the defendant, laws, although the law is penal (Fire- an attorney, informed the plaintiff that a cer men's Fund Ins. Co. v. Haley, Miss., 92 So. tain complaint had been made against him to 635, 96 C. L. J. 30): And although one

the district attorney of the county in which he

resided. may not insure himself against damages

Plaintiff thereupon retained defend

ant to act as his attorney, and defendant inresulting to him because of his violation

formed plaintiff that the person who had made of a criminal statute, he may insure the complaint would withdraw it upon the against the consequences of criminal acts payment of a certain sum. The plaintiff paid

the sum of money asked, and later discovered that the representations which had been made by defendant as to à complaint having been made against him were fraudulent. He then brought an action to recover back the money he had paid to defendant for the purpose of stifling the prosecution. The court held, on the authority of the New York rule laid down in Ford v. Harrington, 16 N. Y. 285, that an attorney being one in whom confidence is reposed by reason of his relationship to his client, and, furthermore, he being an officer of the court, sworn to aid in the administration of justice, the parties were not in pari delicto, and the attorney would not be allowed to take any advantage of his client. The plaintiff, therefore, although he had paid over the money for the purpose of furthering an illegal scheme, was entitled to recover it back.

We quote a portion of the Court's opinion, written by Chief Justice Rugg, as follows:

ATTEMPT OF BYSTANDER TO STOP RUNAWAY AUTOMOBILE DOES NOT PREVENT RECOVERY FOR NEGLIGENT PARKING.—Where one negligently parked an automobile on a steep grade, as a result of which the car started down hill of its own accord, and struck plaintiff, it is held by the Supreme Court of Missouri, in Vaughn v. Meier, 246 S. W. 279, that recovery is not defeated by the intervening negligence of a third person who attempted to stop the car, but failed to do so, and who deflected its course so that it struck plaintiff. We quote from the Court's opinion as follows:

“But it is said that Karf might have steered the car, had he not abandoned it, across the street, and it would have stopped at the curb before reaching the plaintiff, or, if he had not interfered at all, the car would not have veered out from the curb into the street, but would have gone along down the curb and lodged against the other cars parked there, and not have injured the plaintiff; that his jumping off and letting the car go down the hill unchecked was the sole proximate cause of the accident. We must rule this point against defendant. If defendant was negligent in leaving his car insecurely parked, which caused it to start down the hill, the fact that its course may have been changed by the negligence of Kart in attempting to stop it, whereby it struck plaintiff when it otherwise woud not have done so, does not prevent defendant's negligence in parking his car from being a proximate cause of the accident, nor relieve defendant from his negligence in parking his

There may be more than one proximate

of an accident, several concurring proximate causes, in which event both parties guilty of negligence would be liable to the injured party. If Karf

negligent, which we do not decide, his negligence was but a concurring proximate cause, and not the sole proximate cause, of plaintiff's injury."

car.

“An attorney at law has been said to be a public officer. He is an officer of the court, sworn to aid in the administration of justice and to act with all good fidelity both to his clients and to the court. The public have a deep and vital interest in his integrity

... It is a matter of profound importance from every point of view that members of the bar be men of probity and rectitude, jealous to maintain relations of utmost honesty with their clients and solici. tous to protect them against legal wrong. Unflinching fidelity to their genuine interests is the duty of every attorney to his clients. Public policy hardly can touch matters of more general concern than the maintenance of an untarnished standard of conduct by the attorney at law toward his client. The attorney and client do not deal with each other at arm's length. The client often is in many respects powerless to resist the influence of his attorney. If that influence be vicious, untoward, criminal, the relation of trust is abused and becomes the source of wrong. It requires no discussion to demonstrate that upon the allegations of the present bill the defendant failed to conform to the obligation resting upon him as attorney for the plaintiff. These allegations, taken at their face value, as is necessary on demurrer, show that the conduct of the defend. ant was far more reprehensible than that of the plaintiff. The plaintiff and the defendant were not in pari delicto. Whatever may be justly said in condemnation of the acts of the plaintiff is less than is necessary touching the acts of the defendant."

cause

was

A countryman went to London to visit some relatives and to see the sights. He remained until patience upon the part of his hosts, a married couple, had ceased to be a virtue.

"Don't you think, my dear fellow,” remarked the husband one day, “that your wife and children must miss you?".

"No doubt. Thanks for the suggestion; I'll send for them."-London Answers

CORPORATIONS AS PLAINTIFFS IN

property is injured by slander it has no ACTIONS FOR DEFAMATION

means of redress except by action. By Charles J. Dolan

Therefore, it appears to me clear that a

corporation at common law may mainPrior to the decision in the case of City tain an action for a libel by which its of Chicago, a municipal corporation, v. property is injured.” The Chicago Tribune Company, a corpora- The American cases are to the same tion, which was handed down by the Su- effect. Thus, in the case of St. James Milipreme Court of Illinois sitting en banc on tary Academy v. Gaiser, 125 Mo., 517, it April 18, 1923, there had been no adjudi- was held that a corporation operating a cation of the question whether a municipal dancing school was entitled to bring suit on corporation can maintain an action for account of the publication of a charge of defamation. The nearest approach to an immorality in the conduct of the school, expression of judicial opinion on this sub- and in another Missouri case, that of Peoject was the obiter dictum of a judge of ples United States Bank v. Goodwin, 148 the Court of Queen's Bench, in the case of Mo. App. 364, it was held that a corporathe City of Manchester v. Williams, de- tion may maintain an action for damages cided in the year 1891 and reported in 1 caused by a libel affecting its pecuniary Queen's Bench at page 94. In that case interests by reflecting on its solvency, the the plaintiff was non-suited, for the reason honesty of its management, or the quality that the libel complained of attributed cor- of its products. The law on this subject is ruption to the officials of Manchester, but stated as follows by the Supreme Court of did not directly relate to the city's prop- Ohio in the case of Brayton v. Cleveland erty or credit. The opinion, however, Special Police (52 L. R. A. 525): states the general rule to be, that a city "An action of libel may be maintained can maintain a suit for defamatory state

by a corporation where the character or ments, injurious to its property and credit. condition of its marketable products is As far as private corporations are con

misrepresented, or where the libel relates cerned, there has never been any doubt

to its business so as to affect the confiabout the rule of law. In the leading case

dence of the public and drive away its of Metropolitan Saloon Omnibus Co. v. customers, or where the libel affects its Hawkins, 4 Hurlst. & N. 87, 28 L. J. Exch. credit in the community and weakens the N. S. 201, 5 Jur. N. S. 226, Pollock, C. B.,

public confidence so that it is more diffisaid:

cult to obtain credit or borrow money. “That a corporation at common law

It seems that in none of these cases is it can sue in respect of a libel there is no necessary to allege special damage where doubt. It would be monstrous if a cor

the obvious effect of the libel would be to poration could maintain no action for ruin the business. If the publication of slander of title through which they lost the libel would not naturally tend to a great deal of money. It could not sue

affect the marketable value of the corin respect of an imputation of murder, poration goods, or its financial standing, or incest, or adultery, because it could or its relations with its customers, or its not commit those crimes. Nor could it obtaining business, special damages sue in respect of a charge of corruption,

should be alleged and proved." for a corporation cannot be guilty of The same reasons that sustain the right corruption, although the individuals of a private corporation to maintain an composing it may. But it would be very action for defamation seem applicable in odd if a corporation had no means of pro- the case of quasi-public corporations opetecting itself against wrong, and if its rating large public utilities, such as those that furnish light, water and transporta alleged, the city holding that these statetion facilities to municipalities. It seems ments were libelous per se. but a step from the case of a quasi-public To this declaration, the defendant filed corporation to that of a municipality that a demurrer, based on two propositions, the itself operates its public utilities. Since a first being, that to permit a recovery in municipal corporation is empowered to such case would be to violate the constitusue and to be sued, the conclusion seems to tional guarantee of freedom of speech and follow that it can maintain an action for of the press, and the second, that the statedefamation, unless there is some special ments complained of were not libelous. objection applicable to its case which is not

The Supreme Court of Illinois affirmed applicable to the case of a private corpora

the decision of the Court, nisi, in sustaintion.

ing defendant's demurrer. An analysis of The theory on which the City of Chicago its decision shows that it is based on two proceeded in its suit against the Tribune fundamental principles. The first is, that Company was that a modern municipality a municipality, when it enters a suit of has a twofold aspect. On the one hand, it this kind, does not divest itself of its govis an arm of the state, charged with the ernmental character so as to proceed under performance of governmental functions. its purely proprietary aspect. The other On the other hand, it may be to a greater

is that there is no essential difference beor less extent engaged in manifold enter

tween a civil suit and a criminal suit, so prises of a quasi-public and non-govern

far as a proceding on behalf of a municimental character; and, to the extent to pality, suiting ex delicto, is concerned. which it is engaged in business, it is a In laying down the first principle above property owner vested with the rights and referred to, the Court said: subject to the liabilities of other owners of

“While for certain limited purposes it property. While admitting that neither is often said that a municipality owns the state itself nor any of its subdivisions and operates its public utilities in its could maintain an action for defamation, capacity as a private corporation and the city contended that, in its proprietary not in the exercise of its powers of local capacity, it should have the same right of sovereignity, yet because of its proprieredress as a private corporation or a citi- tary rights it does not lose its governzen, in the event that its credit had been mental character. Its property is not injured by the publication of defamatory subject to execution (City of Chicago v. statements.

Hasley, 25 Ill. 485), nor to federal taxa

tion (Pollock v. Farmers' Loan and The suit for civil libel was brought by

Trust Co., 157 N. S. 429, 584), nor is the city on September 17, 1920. It was

the city subject to garnishment (Merwin based on articles appearing at that time in

v. City of Chicago, 45 Ill. 133), and its the Chicago Tribune, in which it was saiu

so-called private property may, with exthat the city was “broke''; that "bank

ceptions, be taken from it by the state ruptcy is just around the corner from the

(Ward v. Field Museum, 241 Ill. 496), City of Chicago''; that its credit is shot

it is manifest that the more so-called prito pieces”; that the city administration

vate property the people permit their having busted the city, and having re

governments to own and operate. the duced it to such insolvency that it is is- more important is the right to freely suing Villa script to pay its bills, is reaching criticize the administration of the gov-. out for the state''; that the city “is bank- ernment. As the amount of property rupt, and the banks of the city have re- owned by the city and the amount of fused it credit." No special damages were public business to be transacted by the

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