un

fendant's automobile in trying to avoid collision with another, requires the instruction on contributory negligence to be hypothecated on the idea that plaintiff was crossing the street at an usually dangerous place, and was therefore bound to exercise care commensurate with the increased danger.-Carr v. Warford, Ky., 249 S. W. 1024.

6. -Parent Liable For Tort of Son as Agent.While a parent is not liable for the son's torts solely by reason of the relationship, where the parent owns the car for the convenience and pleasure of the family, the minor child, using it for his own purpose with the parent's consent or approval, represents the parent in such use as to negligent injury to a third person.-Robertson v. Aldridge, N. C., 116 S. E. 742.

7. Position of Passenger in Car.-A passenger in a motor truck, sitting on the floor in front of the seat with his feet on the running board, when he was thrown from the truck and injured because defendant's automobile collided therewith, was not guilty of contributory negligence as a matter of law. Rose v. Cartier, R. I., 120 Atl. 581.

.34

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8.

..24, 38, 39, 43, 54 .41 ......2, 20, 25, 35 ...7, 32

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Utah

1.

Arrest-Resisting an Officer.-Under Code Cr. Proc. 1911, art. 259, providing that a peace officer may arrest one committing a felony or offense in his presence, and Pen. Code 1911, art. 470, denouncing the use of vociferous language or swearing near a public place, and Pen. Code 1911, art. 472, defining "public place" as being any public road or place at which people are assembled, and Pen. Code 1911, art. 1020, denouncing as a misdemeanor cursing or abusive language, where plaintiff, in the presence of nine persons, swore at a peace officer who accompanied the sheriff, and told the sheriff that he could not arrest a person for whose arrest he had a warrant, and stepped in sheriff's way to prevent the arrest, the arrest of plaintiff without warrant was proper, on the ground that plaintiff was engaged in a breach of the peace and in resisting a peace officer.-Haverbekken v. Hollingsworth, Tex., 250 S. W. 261. 2.

the

Automobiles-Authority to Use Question For Jury. Where a general sales agent, to whom a car had been furnished, requested a truck driver, who had been directed to make repairs and to do anything that might be asked of him, to test the battery, and authorized him to take the car home with him to dinner to enable him to make a prompt return, and an accident occurred during the trip, held that it was a question for the jury whether the use was under authority of the master and in pursuance of his business.-Zondler v. Foster, Pa., 120 Atl. 705.

3. Child Using Parent's Automobile.-Where a parent purchases an automobile for the use of his family, a child using it for his own pleasure is a servant of his parent in doing so, and if, in the course of his travels, he negligently manipulates the machine, the act is within the scope of his employment.-Mooney v. Gilreath, S. C., 117 S. E. 186.

4. Defendant's Negligence Question For Jury. -Evidence that defendant's stage, traveling at a high rate of speed, crossed a bridge which was both wet and slippery, and on reaching the end of the bridge skidded violently, and struck plaintiff, who was about eight feet from the road, held to make defendant's negligence a question for the jury.-Bloom v. Allen, Calif., 214 Pac. 481. 5. Instructions Contributory Negligence Hypothecated.-Neither plaintiff's testimony that he was crossing a street not at an intersection, but where the traffic was light, nor defendant's evidence that there were many automobiles on the street, and that plaintiff jumped in front of de

on

Bankruptcy-Assets Inure to Grantee.Where one of the alleged bankrupts had conveyed certain land and personal property to his wife, the deed reciting the grantee's knowledge of pending proceedings by another to recover an interest in the land, a decree subsequently rendered in the proceedings referred to for the value of permanent improvements placed on that interest, as permitted by Civ. Code Ga. 1910, § 5587 et seq., inured to the benefit of the grantee, so that it could not be considered as an asset of the grantor in determining his solvency.-R. P. Brown & Co., v. Glover Grocery Co., U. S. C. C. A., 287 Fed. 709.

9.

-Assets Unaffected by Illegal Mortgage.A holding by a state court, which had appointed a receiver for a railroad corporation, all of whose stock was owned by bankrupt coal company, that the relations between the two companies was such that the bonds issued by the railroad company to the coal company were invalid as against the creditors of the railroad company, and that the mortgage securing the same was illegally executed, does not show that the claim of the receiver that the assets of the railroad company did not belong to the coal company was merely colorable.-Lynch v. Roberson, U. S. C. C. A., 287 Fed. 433.

10. Bona Fide Purchaser Secure After Conveyance by Preferred Creditor.-Bankruptcy Act, § 60, as amended in 1910 (Comp. St. § 9644), which, after declaring certain preferences to be voidable, authorizes the trustee to recover the property affected thereby or its value "from such person,' does not entitle the trustee to recover property which was the subject of an unlawful preference from a bona fide holder thereof for value, who received it from the preferred creditor, any more than a fraudulent conveyance can be recovered from a bona fide purchaser under section 70e of the act (Comp. St. § 9654).-Bennett v. Semmes, U. S. D. C., 287 Fed. 745.

11. -Compensation of Receiver.-Under Bankruptcy Act, § 48d (Comp. St. § 9632 [d]), as to compensation for receivers, where $30,303.48 passed through the hands of receiver for electrical supply company, he having continued the business for a time, in which proceedings reclamation proceedings were instituted, allowance of statutory commissions of $443.03 and an equal amount as additional compensation for continuing the business, held not excessive on the ground that certain of the reclamation proceedings were then pending. -In re Myley Electrical Supply Co., U. S. C. C. A., 287 Fed. 524.

12. Composition Rejected After Acceptance.Where a composition offer has been made, and money has been deposited in a designated depository for the purpose of a composition, "subject to the further order of the court," the Court, on application of the receiver, may order that the money be turned back to him; he representing that there is no possibility of the composition being consummated. In re Bryer, U. S. C. C. A., 287 Fed. 123. 13. Delay in Filing Claim Exempts Lien.-Lien for rent accruing prior to filing of involuntary peti

tion against lessee was lost, where claim therefor was not filed within two months of the time when the rent sought to be enforced became due, under Rem. Comp. Stat. § 1203-1, and hence claim for such rent did not constitute a preferred claim.In re McNeice, U. S. C. C. A., 287 Fed. 706.

14. Exemption Denied Partner.-Where a partnership and one partner were adjudged bankrupt, but two other partners were not, the bankrupt partner would not be allowed his exemptions under Const. N. C. art. 10, and statues, where the other partners objected.-In re Aurora Hardware Co., U. S. D. C., 287 Fed. 164.

15. -Grantee Must Make Accounting.-One to whom a bankrupt fraudulently conveyed property must account to the bankrupt's trustee for rentals collected by him.-In re Zerbersky, U. S. D. C., 287 Fed. 600.

16. Independent Department of Department Store Not Liable.-Claimants conducted the grocery department in bankrupt's department store, leasing the space used from bankrupt, buying their goods in their own name, and hiring and paying their own help, though their business with the public was conducted and advertised under the name of bankrupt. Held that their goods were not subject to the debts of bankrupt, none of which were contracted after they entered the business.Fink v. Sack, U. S. C. C. A., 287 Fed. 514.

17. Mortgage in Excess of Value Not Fraud.Mortgages executed by a merchant, who subsequently became bankrupt more than four months after executing them, which covered his entire stock in trade and fixtures, and which were intended to secure an indebtedness he owed to the mortgagee, his brother, for an amount largely in excess of the value of the property transferred, are not fraudulent conveyances, though thereafter the mortgagor purchased a large amount of goods on credit, and his creditors received nothing on their claims because of the mortgage of which they were charged with notice.-Levy v. Weidhorn, U. S. D. C., 287 Fed. 754.

18.- -Objections of Occupation Reviewable by Appeal. Although, on hearing of involuntary bankruptcy petition, the alleged bankrupt demanded and obtained a jury trial of the issues in the case, the adjudication of bankruptcy therein was not reviewable solely by writ or error, for the issue whether he was engaged chiefly in farming or in lumbering was not one of the issues regarding which he had a right, under Bankruptcy Act, § 19a (Comp. St. § 9603), to a trial by jury; hence the verdict upon that issue was merely advisory, and the adjudication necessarily involved. a finding and decree of the court below as a court of equity that he was not engaged chiefly in farming when he committed an act of bankruptcy, and such finding and decree was reviewable by appeal, and not by writ of error.-Moore v. Yampa Mercantile Co., U. S. C. C, A., 287 Fed. 629.

19. -Objections Sustained Prevent Discharge.If one of the objections raised in opposition to the discharge of a bankrupt is well pleaded, and is sustained by the evidence, discharge should be refused. Swift & Co. v. Fortune, U. S. C. C. A., 287 Fed. 491.

were

20. Banks and Banking-Acceptance Necessary by Creditor.-Plaintiff's debtor drew checks which taken by the debtor's agent to defendant drawee bank, which in lieu thereof delivered to debtor's agent cashier's checks payable to order of plaintiff and then charged debtor's account with amount of checks, and the agent without authority indorsed the checks in plaintiff's name and cashed them at his own bank, which in turn presented them to defendant bank, where they were paid. Held, that plaintiff could recover the amount of the checks from the bank, it being immaterial that plaintiff did not know of the issuance of and had not received either the original or cashier's checks, and that plaintiff did not agree to accept the checks in liquidation of the drawee's indebtedness.-Morris & Bailey Steel Co. v. Bank of Pittsburgh, Nat. Ass'n, Pa., 120 Atl. 698.

21. Acceptance by Drawee Discharges Indorser.-A bank has no authority to charge the ac

count of the depositor of a check which clearly shows upon its face that it had been accepted by drawee, which acceptance discharged depositor from his liability as indorser.-Bull v. Novice State Bank, Tex., 250 S. W. 232.

22. Acceptance by Telegraph.-Where a bank, receiving a telegram, "Will you pay" draft of $5,000 drawn by a named party, replied, draft "is good today," such reply was an acceptance based only on condition that the funds were on hand at the time the draft was presented; and, where the draft was thereafter promptly presented for payment when funds were on hand to pay it, the bank had no right to refuse payment and appropriate the drawee's funds in the bank to the bank's debt.-Conn. v. San Antonio Nat. Bank, Tex., 249 S. W. 1045.

23. Authority to Re-Charge an Account.-4 bank which, on deposit of check drawn on it by R: to P., credits the amount to P.'s account, and erroneously charges it to a special deposit account made to the credit of R. for the purpose of pay. ment of a check to S., there being no funds in R.'s general account, may without liability to P. recharge the amount to P.'s account, crediting it to the special deposit account.-First Nat. Bank of Ashland v. Prickett, Ala., 95 So., 920.

24. Bank as Agent Must Make Accounting.— Where, in consideration of a payment of money by plaintiff in New York, defendant promised to deliver rubles to plaintiff in Russia through defendant's Russian branch, and made such deliveries as long as performance was possible, but the Russian government confiscated defendant's Russian branch and made further performance impossible, held that defendant, in action in the nature of damages for failure to perform in Russia according to agreement, and not for rescission, wsa not required to return the balance of the deposit.Sokoloff v. National City Bank, N. Y., 199 N. Y. S., 355.

25.

as

-Commingling Assets Fiduciary.-The right given by section 11(k) of Act Cong. Dec. 23, 1913, as amended by Act Sept. 26, 1918, § 2 (U. S. Comp. St. Ann. Supp. 1919, § 9794), to national banks to occupy fiduciary positions is not affected by the fact that under the federal law they are permitted to commingle the assets held in fiduciary capacity with their other assets after they have set aside government bonds or other securities approved by the Federal Reserve Board, and that the federal law allows the state authorities to inspect books and records of only that part of their assets which are received in a fiduciary capacity, while the state acts allow supervision by the banking department of all assets and forbids substitution of securities.-In re Turner's Estate, Pa., 120 Atl. 701.

26.

Bills and Notes-Banks Right to Collect on Protested Check.-The fact that a clerk in a bank, through inadvertence, after protest of a check, had charged the amount to a partnership account in which the payee was one of the partners, where the check was not indorsed over to that account, and where the account was not in existence at the time the check had been paid, would not affect the right of the bank to collect the amount of the check as a bona fide holder for value.-Carhart v. Second Nat. Bank of Phillipsburg, N. J., 120 Atl. 636.

27. -Due Date Does Not Affect Negotiability. -A coupon bond secured by mortgage contained the following stipulation: "If any interest coupon or any part thereof is not paid when due or in case of failure to comply with any of the requirements of the mortgage given by the maker hereof to secure the payment of this bond the principal and accrued interest shall become due and payable at once at the option of the legal holder of this bond." Held that the language did not render the instrument non-negotiable within the meaning of the Negotiable Instruments Law.-Commerce Trust Co. v. Guarantee Title & Trust Co., Kan., 214 Pac. 610.

28. Marginal Notations.-Where a demand note secured by a mortgage bore a marginal notation, "Due 3/1/19," it became due on March 1,

1919, as a note must be construed with its marginal notation.-Whittier, Sheriff, V. First Nat. Bank of Sterling, Colo., 214 Pac. 536.

29. Carriers of Goods-Delay in Transportation and Delivery.-Showing of failure by carrier to transport and deliver goods within reasonable time constitutes prima facie case of conversion.-American Ry. Express Co. v. Santa Anna Gas Co., Tex., 250 S. W. 271.

30. Shipper Must Sue.-Where goods were shipped consigned to the shipper himself for delivery to buyers on payment of draft with bill of lading attached, an action against the carrier for damage to the goods during passage, should have been brought by the shipper, and not the buyers, since the subsequent delivery of the goods to the buyers on their payment of the draft did not operate as an assignment of the right to recover the damages.-Louisville & N. R. Co. v. Sarris & Collas, Ala., 95 So. 903.

31. Carriers of Passengers-Injury by Falling Coach Window. -Where passenger entered coach and took vacant seat by window that was then open, and placed her arm on the window sill, and after the train had gone about eight miles the window fell upon the arm and injured it, the rule of res ipsa loquitur did not apply, and the passenger should have been non-suited, though she testified she neither touched the window nor did anything else to cause it to fall.-Saunders v. Norfolk & W. Ry. Co., N. C., 117 S. E. 4.

32. Chattel Mortgages-Priorities.-A lien on an automobile for repairs was subordinate to a prior recorded chattel mortgage, where the mortgagor operated a garage and automobile service station equipped to make ordinary repairs, and the mortgage secured a demand note, under Gen. Laws 1909, c. 257, § 24, and chaper 253, §§ 6, 7.-Providence Buick Co. v. Pitts, R. I., 120 Atl. 583.

33. Commerce Power of Congress to Aid and Encourage.-The power of Congress to regulate interstate and foreign commerce includes the power to adopt measures to aid and encourage such commerce, and in promoting these objects the power of taxation may properly be exercised.Dayton-Goose Creek Ry. Co. v. United States, U. S. D. C., 287 Fed. 728.

34. Constitutional Law-Conveyance of Property. -Whether R. I. § 2160, permitting the husband to convey part of the community property without his wife's consent, is wise is for the Legislature, not the courts.-Nixon v. Brown, Nev., 214 Pac. 524.

cor

35. Corporations-Attack Upon De Facto Corporation.-Exceptions to the granting of a porate charter filed by individuals on the ground that the place where the business of the corporation was to be transacted was not explicitly stated, as required by statute, cannot be considered on appeal from the dismissal of the exceptions and the granting of the charter, since the company was at least a de facto corporation, and the validity of its formation could be attacked only by quo warranto through suggestion by the Attorney General. -In re Mt. Sharon Cemetery, Pa., 120 Atl. 700.

36. Lease Anti-Dating Authority.-A lease executed by the officers of a corporation, which bore date two days before the date of the resolution of the directors authorizing its execution, but under which the corporation had gone into possession, and retained possession for 21⁄2 years, until its insolvency, was valid, in the absence of any claim of fraud or mistake in its execution.-Bradford v. Graham, U. S. C. C. A., 287 Fed. 686.

37. Status of Bookkeeper.-The bookkeeper of a corporation is a mere clerical employee, and, unless given general authority by the corporation or special authority with reference to the particular transaction, he cannot bind the corporation by his agreement made for it.-Main St. Tobacco Warehouse Co. v. Bain Moore Tobacco Co., Ky., 250 S. W. 98.

38.- -Subscription Unpaid No Stock Issued.While a subscriber to stock in a corporation, who has neither paid the subscription nor received his certificate, may not be a stockholder of record, he is entitled to all the privileges of a stockholder

until his rights are forfeited, under Stock Corporation Law, § 54.-In re Automotive Manufacturers' Ass'n, N. Y., 199 N. Y. S. 313.

39. Covenants Taking Boarders Personally Known or Recommended.-Where covenants in a partition deed provided that only first-class private dwellings should be erected on the premises, and enumerated a list of prohibited, uses, held, as boarding houses were not expressly prohibited, the principle of "expressio unius est exclusio alterius" applied, and taking in boarders personally known or recommended, and not taken indiscriminately from the public, did not violate the covenant, especially as there was no claim that this constituted a nuisance, and the covenant not provided for a private dwelling for one family only.-Smith v. Scoville, N. Y., 199 N. Y. S. 320.

40. Fraud-Right to Recover Attorney's Fee.In an action for expenses incurred in an effort to recover possession of land of which plaintiff was deprived by defendant's fraud, attorney's fees in proceedings by plaintiff to remove defendant as administrator of her husband's estate, and in ejectment proceedings by her against the purchaser at a partition sale, were properly allowed.Boyles v. Burnett, Mo., 249 S. W. 719.

41. Health Police Power.-The designation of the diseases named in class "B" of regulation Number 2, and regulations Number 18, Number 23, and Number 24, of the Ohio Sanitary Code, in relation thereto, adopted by the public health council of the state department of health, effective July 1, 1920, are a lawful exercise of the police power of the state. Ex Parte Company, Ohio, 139 N. E. 204. 42. Insurance Against Public Policy to Pay.In view of Const. art 1, § 12, prohibiting corruption of blood or forfeiture of estate and deodands, which establishes the public policy of the state as opposed to forfeitures for conviction for crimes, it is not contrary to public policy for a life insurance company to pay to the beneficiary the amount of the policy upon the life of one who had been executed by the state for murder.-Fields v. Metropolitan Life Ins. Co., Tenn., 249 S. W. 798.

43. Deductions For Unpaid Premiums.-Where a carrier obtained a general floating policy of marine insurance covering goods to be shipped by it for "account of whom it may concern," containing an express provision that losses should be payable only after first deducting all indebtedness for premiums, held on the receivership of the carrier, that shippers who paid the premium on their shipment as part of the freight, which premium was paid to the insurer, could recover the amount of their loss directly from the insurer, without deductions for any premiums on other shipments of other shippers, which the carrier had not paid to the insurer.-Young v. St. Paul Fire & Marine Ins. Co., N. Y., 199 N. Y. S. 46.

44 -Insurer Not Liable When Insured Settles Claim.-Under automobile accident indemnity policy, conditioned that insured should not settle any claim, except at his own cost without the insurer's written consent, and that owner should be liable only for expense actually sustained and paid by insurer after actual trial of the issue, where judgment for plaintiff in action for death caused by the automobile while driven by insured's daughter was, on appeal, affirmed as to the daughter, and reversed as to the insured, and thereafter insured, without the insurer's consent settled the judgment against his daughter and took an assignment thereof, held that insurer was not liable for the amount paid for such settlement; no action having been brought and no judgment having been recovered against insured by his daughter, and he in any event being under no liability to indemnify her. Thacher v. Aetna Accident & Liability Co., U. S. C. C. A., 28 Fed. 484.

45. Lumber in Dry Kiln.-Under lumber insurance policy providing for 200-foot clear space, but allowing “loading or unloading within or transportation of lumber across such clear space," staves in a drying kiln between which and the mill and engine room there was not a 200-foot clear space, could not be considered covered as being in process of "transportation," or being "loaded

47. Vacant Property.-Clause avoiding policy, "if the dwelling is not now personally and continuously occupied by assured, or becomes vacant by his removal and so remains vacant for more than 10 days without" a permit, was not a warranty that insured himself would occupy, but merely required occupancy by insured or some other person.-Barnes v. Dirigo Mut. Fire Ins. Co., Me., 120 Atl. 675.

48. Landlord and Tenant-Right to Remove Manure. In the absence of an express contract providing for such right, a tenant has no right to remove from the premises manure produced in the usual course of husbandry upon the farm during his tenancy, as such manure becomes appurtenant to and is treated as a part of the realty.-Hammond v. Driver, Ga., 117 S. E. 264.

49. Libel and Slander-The Word Crook Imputes Dishonesty.-The word "crook," when spoken of a merchant in respect to his mercantile transactions, is capable, taken by itself, of imputing dishonesty, but the context cannot be ignored, and, in the absence of any innuendo attributing a different meaning to them, the words immediately following must be taken as amplifying and explaining the epithet.-Herman v. Post, Conn., 120 Atl. 606.

or

50. Licenses-Nickel-in-the-Slot Machines.-A coin lock placed on doors of toilets by a hotel, which could be opened by a key in the hands of employees, brass checks furnished guests, nickels by other persons, are not nickel-in-the-slot machines, within the meaning of Revenue Act 1919, schedule 73, requiring the payment of a license; such locks being fixtures and a part of the realty. -State v. New Florence Operating Co., Ala., 95 So. 913.

51. Municipal Corporations-Automobile Passing Street Car.-The failure of the driver of an automobile, who was passing a street car which he knew was stopping to receive psssengers, to look at the side of the street along which he was traveling for persons leaving the center parkway to board the street car, is not excused by the fact that he was looking in the other direction to see if any vehicles or pedestrians were there.-Moss v. Koetter, Tex., 249 S. W. 259.

52. Defective Teeter-Totter.-If plaintiff's injuries were caused by the negligence of the city in permitting a teeter-totter in its park to remain in defective condition, coupled with plaintiff's dizziness while on the teeter-totter, the city is liable, since the device was calculated to make one dizzy, and therefore the need for keeping it in condition was the greater.-Muser v. Kansas City, Mo., 249 S. W. 681.

53. Turning Automobile So As to Proceed In Opposite Direction.-Automobile driver who collided with motorcycle which had been following his automobile, in attempting, while in a public street, to turn the automobile around so as to proceed in the opposite direction, without compliance with Motor Vehicle Act, § 20, subd. "q," making it unlawful to turn an automobile around so as to proceed in the opposite direction in a business district, except at an intersection on the public highway, and subdivision "h," providing that, before turning, stopping or changing the course of an automobile, the driver shall ascertain if there is sufficient space for such movement to be made in safety and shall give a signal of his intention to turn, held negligent.-Fate v. Gross, Calif., 214 Pac. 465.

54. Negligence-Duty of Driver to Invitee.--An automobile driver owes an invited guest the duty of exercising reasonable care.-Bolton v. Madsen, N. Y., 199 N. Y. S. 353.

55. -Liability of Driver to Invitee.-One riding by invitation in another's automobile cannot recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence.-Harris v. Reid, Ga., 117 S. E. 256.

56. Principal and Agent.-Heat, Light and Power Necessary For Office Building.-Where defendant company moved its general offices from Springfield to St. Louis, and left the office at Springfield in charge of an agent of limited powers to look after the unfinished business of the company, including the management of the building in which defendant had offices, such agent had authority to make a contract with plaintiff for supplying the building with heat, light and power, where the building could not be operated without such services, even though the original powers granted to the agent did not authorize him to make such a contract.— Springfield Gas & Electric Co. v. Southern Surety Co., Mo., 250 S. W. 78.

57.

Sales-Right to Recover Against Manufacturer of Machine Causing Damage.-A master, paying damages to injured employee under a common-law liability, would have a right of action over against a manufacturer, who installed the machine causing the injury according to plans and specifications prepared by itself, with knowledge on its part of the conditions under which the machine would be operated, and that it would be dangerous to employees if not properly constructed, and with knowledge that the master relied on it to manufacture a machine which would not be dangerous, but which machine, in violation of a warranty, was inadequate and thus dangerous, the result being an explosion and injury.-Dayton Power & Light Co. v. Westinghouse E. & Mig. Co., U. S. C. C. A., 287 Fed. 439.

58.

Street Railroads-Driver of Automobile Stopping in Front of Street Car.-The driver of an automobile or other vehicle, stopped for any temporary cause in front of an approaching street car, cannot be held guilty of negligence as a matter of law if he does not desert his vehicle, at least until it is reasonably certain that an impact is unavoidable, as he has a right to assume that those in charge of the approaching street car, seeing his predicament, will not recklessly run him down, and a right to make reasonable effort to start his vehicle, and so save it from a collision, and whether his acts constitute negligence is a question for the jury, in view of the circumstances. -Unger v. San Francisco-Oakland Terminal Rys., Calif., 214 Pac. 510.

59. Right of Way.-Motor Vehicles Act 1920. § 1 (Ky. St. § 2739g1), defining "vehicle," as used in the act, as all vehicles passing over the highways, except road rollers and those which travel exclusively by rail, prevents that act from applying to determine the right of way between an automobile and a street car approaching on intersecting streets, and the right of way in such circumstances is therefore governed by an applicable city ordinance, so that it was error to instruct the jury under the state law that the street car had the right of way, when the automobile had the right of way under the city ordinance.-Louisville Ry. Co. v. Everett, Ky., 250 S. W. 103.

60. Taxation-Charges For Use of Highway.Charges made by the Legislature for the use of highways are not taxes, and are not subject to the constitutional limitations upon the taxing power. In re Opinions of the Justices, N. H., 120 Atl. 629.

61. Workmen's Compensation Act-Preventing Cart Backing Down Incline.-A strong able-bodied workman wheeling a cart weighing 1,200 pounds up an incline who suffered a mitral heart lesion during his endeavor to prevent the cart from backing down when it slipped, held injured by accident "arising out of or in the course of his employment," " within the Industrial Act, so as to entitle him to compensation.-Cherdron Const. Co. v. Simpkins, Utah, 214 Pac. 593.

Central Law Journal

St. Louis, September 20, 1923

EFFECT OF PROVISION IN AUTOMOBILE INSURANCE POLICY FOR APPRAISAL OF DAMAGES

In the case of Williams v. Hamilton Fire Ins. Co. (118 Misc. 799, 194 N. Y. Supp. 798), the plaintiff secured judgment upon a policy insuring her automobile against damages from collision. Upon the trial defendant conceded its liability, contested only the amount of the damages, claiming that the plaintiff's damages could be only the sums fixed by the appraisers. There had been two collisions, and hence two awards. The trial court held against the defendant's contention, and the plaintiff recovered a much larger sum than the amounts fixed by the appraisals.

The policy provided that before any recovery could be had thereunder, any disagreement as to the amount of loss or damage must be determined by competent and disinterested appraisers, and also that an appraisal should be had only when required. The complaint did not allege any appraisal, but the answer pleaded that there had been appraisals and the damages fixed at a sum stated. At the trial the defendant proved that the parties had entered into an agreement by which an appraiser chosen by each of them and an umpire were appointed under the policy, and that two of them had signed the awards. It was held that the judgment must be reduced to the amount of the awards. It was also held that under the provisions of the policy an appraisal was not a condition precedent to the plaintiff's right of recovery.

The state code governing submissions to arbitrators was not applicable in this case as the provision in the policy was not one. calling for arbitration, since it did not authorize the passing upon the question of

liability. Hence, the award was not invalid because the appraisers were not sworn nor the proceedings conducted in arcordance with the code provisions.

It has been frequently decided that an agreement to submit to the decision of others a question involving only calculation or appraisement or the fixing of values, and the like, or something ministerial in character, does not constitute an arbitration under the strict rules of the common law. The distinction between the submission of such a question and one involving judicial functions is of vital importance, because the latter may be revoked at common law, while the former cannot be (Toledo S. S. Co. v. Zenith Transp. Co., 184 Fed. 391).

When the question of the liability of the company under the policy, and every other question is reserved, and the only submission provided for is an appraisal of the property at and after the time of loss or damage to determine the single question of the amount of the loss, it would seem that the agreement is for an appraisement and not an arbitration (Insurance Co. v. Ries, 80 Ohio St. 272).

This question is very well settled in New York, where it is held that a stipulation. submitting the question of the amount of damage, but not the question of liability, to appraisers, is not for an arbitration, and the appraisers are not required to take an oath (Turner v. New York Central & H. R. R. Co., 74 Misc. 524). "The appraisement and estimate under the New York standard policy of fire insurance is not the same proceeding as an arbitration and award at common law or under the Code." (Strome v. London Assurance Corp., 20 App. Div. 571.)

The distinction in question is stated in a general rule in 5 C. J. 17, as follows:

"Technically, to constitute a valid common law award, it is necessary that there should be a submission, by the parties, of an existing matter of difference,