NOTES OF IMPORTANT DECISIONS.

STRIKING EMBANKMENT HELD "COLLISION" WITHIN AUTOMOBILE POLICY.Where an automobile was accidentally driven into an embankment, the accident with resulting damages were held, in Interstate Casualty Co. v. Stewart, 94 So. 345, by the Supreme Court of Alabama, to be covered by a policy insuring against damages by reason of collision with other vehicles or stationary objects. We quote at length from the opinion of the Court:

"When an automobile, covered by a policy of insurance indemnifying against damage caused solely by being in 'collision with any other automobile, vehicle or other object, either moving or stationary,' is running at an ordinary or necessary rate of speed, and for any cause leaves the road, striking an embankment of earth outside of the roadway with such force as to drive the wheels against the same, crushing one of the front wheels and causing the automobile to turn over with resulting damage, it is within the instant contract terms of indemnity. Harris V. Amer. Cas. Co., 83 N. J. Law, 641, 85 Atl. 194, 44 L. R. A. (N. S.) 70, Ann. Cas. 1914B, 846; Universal Service Co. v. Amer. Ins. Co., 213 Mich. 523, 181 N. W. 1007, 14 A. L. R. 183, 187, note.

"We have examined the authorities cited, and it will not be necessary to discuss each in detail to ascertain the meaning of the terms of indemnity under the contract involved. In Bell v. Amer. Ins. Co., 173 Wis. 533, 181 N. W. 733, 14 A. L. R. 179, at the time of the accident the plaintiff was driving his automobile along a city street, turned into an avenue with the intention of backing to turn his car around, and in so doing crossed the sidewalk, practically stopped the machine preparatory to backing out, when one side gradually settled into the earth and the car turned over. Held, that this was not a collision within the terms of the policy. In Moblad v. Western Indemnity Co.(Cal. App.) 200 Pac. 750, the automobile of assured was being driven along the road, and, in order to avoid striking another vehicle, the driver swerved to the outer edge of the thoroughfare which gave way, causing the automobile to run down an embankment and turn over. Held, that the consequent damage was but the operation of physical laws set in motion when the car turned over on the edge of the roadway and was not a collision such as was covered by the policy of assured. In Stuht v. U. S. Fid. & Guar. Co., 89 Wash.

93, 154 Pac. 137, the automobile of the assured was upset at the edge of a bank, when the driver was attempting to make a short or quick turn. Held, that the upsetting of the car was not the direct result of a collision within the terms of the policy of insurance; that there was nothing in the roadway, movable or stationary, that the automobile did collide with, and that the evidence showed a case where the car upset 'before it struck anything outside of the road.' In O'Leary v. St. Paul F. & M. Ins. Co. (Tex. Civ. App.), 196 S. W. 575, the car of insured was stored in a garage, and was damaged by the second floor of the building falling upon it. The foregoing authorities are not apt in the instant case.

"In Harris v. Amer. Cas. Co., supra, the contention of appellee is strongly supported. The damage to the car of the insured was caused by a machine being driven off the side of a bridge and falling into the stream below; and recovery was allowed under a policy indemnifying against injury solely the result of collision with a moving or stationary object. The Justice illustrates his position by saying:

'Suppose a person driving an automobile along a road comes to a place where a highway bridge over a chasm had fallen away, and the machine be precipitated to the ground below, can it be said that there could be no recovery under such a policy as is here sued on, because the damage to the machine was caused by collision with the flat earth, instead of some upright or perpendicular object on the earth? We think not. To hold that there could be no recovery under such circumstances would be to misconstrue terms of a contract concerning which there is no room for construction, because the meaning is perfectly plain.' 83 N. J. Law 645, 85 Atl. 196, 44 L. R. A. (N. S.) 76, Ann. Cas. 1914B, 846.

"The policy involved in Hardenburgh v. Employers' Liab. Assur. Corp., 78 Misc. Rep. 105, 138 N. Y. Supp. 662, indemnified 'the assured against loss or damage to' his automobile if caused solely by collision, etc. The plaintiff's automobile, upon meeting a wagon on the highway, was steered into the grass at a point where the grass was level with the roadbed, and then down an incline below that level. While endeavoring to return to the roadbed, in a position at right angles thereto, and attempting to proceed 'up the shoulder of the road, one of the wheels collapsed and the machine was overturned.' Held, there was sufficient collision between the shoulder of the roadbed and the wheel, within the

meaning and intent of the policy, to justify a verdict for plaintiff in case the automobile did not strike the roadbed. This case was reversed on appeal, in 80 Misc. Rep. 522, 141 N. Y. Supp. 502, on the ground that the burden rested on the plaintiff to prove that the damage sustained was the result of a collision with some 'object, either moving or stationary,' and that no evidence was given of the existence of any object with which the automobile did or could have come into collision. The last holding, however, was not to the effect that a collision might not have been predicated of contact between the wheel of the automobile and the shoulder of the roadbed, if it had been shown that the collapse of the wheel had been due to such contact. Wetherill v. Williamsburgh City Fire Ins. Co., 60 Pa. Super. Ct. 37."

RECOVERY FOR BREACH OF CONTRACT FOR CHASSIS WHEN PURCHASER HAS BODY BUILT FOR SAME.-In the case of Southern Border Motor Co. v. Fasken, 286 Fed. 24, it is held by the Circuit Court of Appeals, Fifth Circuit, that where, because of the fact that the chassis for a motor truck, purchased by plaintiff from defendant, did not conform to the contract, the completed truck, including the body and seats, which under the contract were procured by plaintiff, was rendered useless, the measure of damages for breach of the contract includes the cost to plaintiff of the body and seats.

In this respect the Court in fact said:

"It is further insisted that the Court erred in its charge to the jury that, if they found for the plaintiff as to the truck, and if they found that by reason of the truck being worthless, the body and seats were of no value to the plaintiff, defendant would be liable for their value. The only ground of error assigned is that the body and seats had not been furnished by the defendant, and that it was not liable for their value, if lost by reason of the truck being worthless.

"It was stated in the contract of sale by the defendant motor company that plaintiff was to procure the body and seats for the truck and that defendant was to prepare all data and specifications for said body. The defendant negotiated for plaintiff with a body maker to furnish such body for $800. The truck was known to the motor company to be useless for the purpose for which plaintiff was purchasing it without a body and seats. The body and seats were built for and were placed on said truck. No question was made as to the reasonableness of the

sums expended therefor, or as to their being properly constructed.

"If the defendant breached its contract and furnished a worthless truck which plaintiff tendered back to it, it would see that it is liable to make good to him his entire outlay, both that paid to defendant and that paid to others with his express knowledge and assent. The persons furnishing the body and seats have complied with their contracts, and they are not liable to have their goods returned, or for damages, occasioned by reason of the breach of the contract as to the truck. The truck as a whole, including the body and seats as parts thereof, has become worthless by reason of defendant's breach of its duty to plaintiff."

ADMISSIBILITY OF TESTIMONY THAT AUTOMOBILE DRIVER SAID HE WAS INSURED.-Where the plaintiff was injured while riding in defendant's automobile, testimony that, when plaintiff remonstrated with defendant and admonished him to be more careful, the latter answered, "Don't worry, I carry insurance for that," was held by the Supreme Court of New Hampshire, in Herschensohn v. Weisman, 119 Atl. 705, to be competent on the issue of negligence, having a tendency to prove that fact. A part of the Court's opinion follows:

"The Court in the charge instructed the jury in substance that the conversation between the plaintiff and defendant was admitted as acknowledging liability, and for no other purpose, and that the fact that the defendant carried liability insurance had nothing to do with the case and that they were not to consider it. The defendant excepted to that part of the charge relating to liability insurance.

"Neither of the exceptions of the defendant can be sustained, because the statement of the defendant to the plaintiff ('Don't worry, I carry insurance for that') was com petent evidence. If it be assumed that gen erally the plaintiff in an action for negligence may not show the defendant carried liability insurance, a point not now necessary to determine in this case, the words of the defendant relating thereto, given their usual meaning demonstrate their competency as evidence. The question under consideration was the negligence of the defendant in operating his automobile. When the plaintiff remonstrated with him and admonished him to be more careful, his reply indicated that he was not concerned about his recklessness because he was protected by liability insur

ance. His attitude as disclosed by his words imply that he would be likely to exercise a less degree of care in operating his automobile for the reason that an insurance company would be called upon to pay for any damages occasioned to others by his reckless and negligent conduct. Consequently, the fact that the defendant carried liability insurance was competent and important evidence bearing directly upon his negligence."

REVISION OF THE CONSTITUTION AND JUDICIAL REVIEW OF LEGISLATIVE ACTS

By Gordon W. Chambers

Among the attorneys who are constantly advocating a change of policy, a new and more simple progressiveness, is one whose suggestion is a redraft of the Constitution of the United States.

They are pointing out that there has been only one convention to frame the fundamental laws of the country. It was held at the beginning of the government. Representative Fitzgerald of Ohio insists that the Constitution of the United States is archaic. He declares that it should be brought up to date. The instrument as we now have it is a patchwork. The Constitution that was framed century before last started the nation on the road to greatness but, as Mr. Fitzgerald sees it, there should be another convention now that would modernize the Constitution, iron out its hodge-podge characteristics, make its various provisions harmonious and symmetrical and add new provisions that would reflect the genius of the American people in the twentieth century.

Many States have outgrown their original charters and have held conventions to bring their Constitutions up to date. Georgia has had several, the last one in 1877, and some of the knowing ones say the time has come to hold another one. Ohio had a constitutional convention several years ago. Few of the older States are operating under their original Constitutions.

Some people see in the movement a chance to modify the prohibition amendment, of course. At the same time this Ohio Congressman and lawyer insists that he can see no harm from such a constitutional convention. He believes that "the American people are sufficiently sound to be trusted with their own affairs." He predicts great good growing from a modernized up-to-date 'Constitution.

For one thing, the Ohio Representative would abolish the system of two Legislative bodies and would merge the Senate and the House into one based, as the House now is, on popular representation by districts. Such scheme would mean government by the people of the densely populated districts. However, he believes the Senate of today performs no useful function, but rather is a hindrance and an impediment to the transaction of public business. It is plain that Mr. Fitzgerald has little regard for the representation of the less populated States. The Senate is where the States get their equal representation and I am sure the Southern and Western States will not agree with the Ohio Congressman that the abolishment of the Senate will do no harm.

It is also generally known that it is proposed by constitutional amendment to take from the Supreme Court the power of judicial review of legislative enactment. We have the LaFollette amendment which he is urging:

1. That no judge of an inferior Federal court shall set aside a law of Congress on the ground that it is unconstitutional and 2, if the Supreme Court of the United States shall assume to declare any law of Congress unconstitutional, or by judicial interpretation shall assert a public policy at variance with the statutory declaration of Congress, which alone under our system of government is empowered to determine public policies, the Congress may by repassing the law nullify the action of the court.

The LaFollette amendment is generally regarded as being more radical than that of Senator Owen. As the case now is, the only checks upon the power of Congress are the presidential veto and what amounts to a veto by the courts. A veto by the President may be over-ridden by a two-thirds vote of Congress, but when the Supreme Court has said that a law is unconstitutional, Congress can do nothing except undertake to bring about an amendment to the constitution that will conform to the judicial decision.

Senator LaFollette would make it possible to over-ride a decision of the Supreme Court by a mere majority votenot even as much of a vote as is now required to pass a bill over the President's veto.

This proposed amendment means that if the court in review holds the law to be good then it is law; if the court holds that the law is bad because it violates the Constitution, then Congress can make it law by simply re-enacting. If Congress passes a good law once, it is to remain, but in order to make a bad or unconstitutional law constitutional it will be required to do the bad thing twice, and by this repetition bad law becomes as good as good law.

If Congress strikes the Constitution only one blow with one fist, it will be called a draw; but if Congress comes back and hits the Constitution another blow with the other fist, Congress wins.

Such an amendment would mean, of course, the destruction of the form of government under which we live. Yet it is said that in Congress there are fifty members committed to it, and that various persons in official life, and at least two national conventions called to form new political parties, advocate the destruction of the court by abolishing the power of judicial review; also, more than five years ago a joint resolution was introduced into the Senate forbidding Federal judges to declare any act of Congress unconsti

tutional; which meant a denial of appeal in any case in which the constitutionality of any act of Congress was challenged, and further declaring that any offending judge will thereby forfeit his office.

The present renewal of attacks on the judicial arm of our government—for like attacks have been made in the past-are being attributed to the radicalism that has grown out of the destruction of $300,000,000,000 of property and 30,000,000 in lives.

The leading statesmen of the day are confident that the movement will not grow in greater strength that it has secured at this time, but they assert that these assaults upon our government can only be stopped by a statement of its fundamental objects and a repeated and reiterated. defense of form, by an explanation of its machinery.

Congressman Harry B. Hawes, of Missouri, declaring that propaganda must be met by discussion and answer, points out the possibilities which would result if the movements was successful:

"To destroy, by constitutional amendment, one of the three co-ordinate and foundation branches of our government means the destruction of the present form of American government and the setting up of an entirely new and different system. It would remove the balance of power between the executive and the legislative. It would destroy the judicial check upon both. It would either increase the power of the execu tive and lead the way to monarchy or increase the power of the legislative and destroy the force of the executive. It would take from the American plan of government its marked difference from that of any other nation which preceded its formation. It would destroy all those interpretations of our laws which have developed with our progress and civilization and become in effect new laws. It would involve the rewriting of thousands of laws by both

State and National Governments. It would destroy the arbiter that decides disputes between citizens of States and States. It would leave our Bill of Rights, so essential to personal liberty, without special official defender. It would destroy the heart of the Constitution, because it would kill the defender of the Constitution and leave 110,000,000 people subject to the intemperate, hasty, or arbitrary act of the two remaining branches of the Government. It would remove all protection from the right of the minority. It would place unlicensed and unlimited power in the hands of a majority. It would destroy the written defense of individual liberty, because there would be no power to defend our written guaranties. It would take away the balance wheel that causes the affairs of Government to run smoothly and methodically. It would destroy our dual form of sovereignty. It would be a crowning victory for the advocates of government by mobs. It would take from the Government its fine conscience to judicially determine right from wrong by a solemn tribunal, which unswayed by partisan heat or temporary excitement, punishes or rewards without impulse created by passion or prejudice. It would destroy our sane plan of checks and balances. It would disturb, unsettle and make uncertain all the relations between men as individuals; it would make uncertain the relations between States; it would endanger the sanctity of contract; it would create for a period distrust and disputes which would destroy our national equilibrium and cause agricultural, labor, commercial and industrial chaos."

And beside these possibilities, there are certain individual rights the Constitution demands that Congress must not destroy, yet if court review is abolished, Congress will then be empowered in any one session to take away these rights:

Religious liberty; freedom of speech; freedom of the press; the right of peaceful assembly; the right of petition for the redress of grievances; the right of State militia to bear arms; no soldier shall be quartered in time of peace in a house without the consent of the owner. Unreasonable search and seizure. No arrest except upon probable cause, supported by oath or affirmation, describing the place, and the persons or things to be seized. Capital offenses must be found by a grand jury indictment. No person for the same offense shall be twice put in jeopardy, or compelled to testify against himself, nor be deprived of life, liberty or property without due process of law; no private property taken for public use without just compensation. just compensation. In criminal prosecution the accused shall enjoy a speedy and public trial by an impartial jury in the district wherein the crime is committed; to be informed of the nature of the accusation; to be confronted by witnesses; to have compulsory service for obtaining witnesses and the assistance of counsel for his defense; the right of trial by jury when the sum exceeds twenty dollars. Excessive bail shall not be required nor excessive fines be imposed nor cruel and unusual punishment inflicted.

These rights are now all guarded by the Supreme Court, and its decrees have so far been enforced by mere announcement and notice given by its marshal. But back of its decree and marshal is the respect of the Nation, which means the whole power of the Army and Navy should necessity require.

The average man and woman finds in these provisions their greatest protection against abuse and tyranny; they are now written so that all may understand and are not subject to change by the whim or caprice of a passing Congress.

Certainly in their sober thought, the American people are not to make possible the surrender of these privileges. "If Congress alone is to interpret the Constitution for itself," as Senator