facturer is under no obligation to test articles packed or manufactured by others for the purpose of discovering latent dangers or defects.-Craig v. Baker & Holmes Co., Fla., 96 So., 93.

33.-Degree of Care by Manufacturer.manufacturer is held to a higher degree of care than a dealer in putting dangerous compounds unon the market. A manufacturer knows the iningredients of his compound, but a dealer, who occupies the same position practically as a retailer, is not presumed to know the formula by which the article is made, or whether it is inherently dangerous.-Craig v. Baker & Holmes Co., Fla., 96 So., 93.

34.

-Duty of Manufacturer to Operate Plant With Great Care.-That high explosives have become a commercial necessity, and their manufacture a legitimate business, does not relieve a manufacturer of the duty to exercise proper care, commensurate with the dangerous character of the business, in the operation of its plant, and does not absolve it from liability for failure to do so, nor from application of the doctrine of res insa loquitur. where it would otherwise be applicable.-Atlas Powder Co. v. Benson, U. S. C. C. A., 287 Fed., 797.

35. False Imprisonment-Action Against Corporation. In an action against a corporation for false imprisonment, plaintiff need not prove that defendant or its officers ordered his arrest, but need only show that they instigated it.-Wright v. Automobile Gasoline Co., Mo., 250 S. W., 368.

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36. Insurance-Bold-Face Type.-The policy provided that there should be a reduced indemnity if the insured was injured while doing an not pertaining to the occupation stated in the policy but to one classified by the company as more hazardous. This provision was not printed in bold-face type and with greater prominence than other portions of the policy, as required by §3523, Gen. St. 1913, and hence no effect can be given to it. The policy must be read as though it did not contain the provision at all.-Thorne V. Aetna Life Ins. Co. Minn., 193 N. W., 463. 37.- -Certificate Guaranteeing Title.-A certificate by a and title insurance trust company, stating that after examination of the records in relation to the title to certain real property the company "hereby guarantees" that the title to such property as it appeared from the records was vested in a certain party, held to constitute a contract upon which liability would accrue on discovery of loss incurred if the title was not as represented in view of Code Civ. Proc. § 339, as amended by St. 1917, p. 299, declaring that the cause of action upon a contract, obligation, liability evidenced by a certificate, or abstract, or guaranty title of real property, does not accrue until discovery of the loss or damage.-Title Ins. & Trust Co. v. City of Los Angeles, Calif., 214 Pac., 667.

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38. Forcible Entry.-Where a burglary policy insuring generally against abstraction from safes provided that, in the event the safes were not locked by time lock, the insurer should not be liable for loss of money and securities feloniously abstracted therefrom, unless forcible entry was made therein by the use of tools or explosives directly applied thereon, and only for loss by damage to office furniture and fixtures caused by persons while making or attempting to make such entry into said premises, no recovery for damage to office furniture and fixtures can be had where entry was by the use of a key in the hands of an employee who knew the combination to the book vault, there being no forcible entry, and within the terms of the policy.-Citizens' Nat. Bank V. Union Indemnity Co., Ark., 250 S. W., 329.

39 -Misrepresentation of Previous Sickness.Where the application for a life insurance policy is made a part of a contract of insurance, and the applicant has therein stated that his answers to the questions were true and are material to the risk, and therein states that he has neither consulted nor been treated by a physician for any ailment or disease within the last five years, and where the testimony shows that ten days previous to the application for insurance he called a physician to prescribe for him, at which time he was sick either with influenza or some other disease, and from which illness he never completely recovered, this was a misrepresentation of the material fact, for which the insurance

41. Municipal Corporations-Child Suddenly Darts In Front of Car.-An automobile driver, though required to be vigilant, is not bound to anticipate that a child will suddenly dart in front of his car.-McAvoy v. Kromer, Pa., 120 Atl., 762.

42. -Operating Automobile at Night.-Though the rule making it negligence as matter of law to operate an automobile at night at such speed that it cannot be stopped within the distance that the highway is illuminated by its lights has never been adopted, it cannot be said that it is no negligence whatever for a driver of an automobile to travel at a speed of 20 miles an hour with his lights so dim that he is unable to more than 10 feet in advance of his headlights, and when he cannot stop within 20 or 25 feet, and particularly where the evidence shows that he did not in fact stop for 50 or 60 feet.Burgesser v. Bullock's, Calif., 214 Pac. 649.

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43. Negligence-Fence and Warning Signs Negative Attractive Nuisance.-In an action for the death of an 11-year-old boy drowned in a millpond covered by floating logs on which children. were tempted to play, evidence that the mill and lumber yards adjoining it were fenced, that danger signs warning every one to keep off the logs were located at various places near the pond, and that a part of the pond was not and could not be fenced because of the proximity of a railroad right of way, held not to establish negligence in creating an attractive nuisance.-Smith v. McGoldrick Lumber Co., Wash., 214 Pac., 819.

*

44. Principal and Agent-Words and Not Punctuation Prevail.-A contract making plaintiff sole selling agent for five years provided that "at the expiration of such time said agreement may be extended for an additional five years. Further like five-year extensions may be made at the option of either party upon like notice, provided, however, that if # the yearly sales by" defendant to plaintiff "shall be less than" $150,000 defendant "may terminate this agreement." Held that, under the rule that the words and not the punctuation of a contract control the meaning the fact that the proviso clause was separated from the antecedent clause by a comma and commenced with a small "p" did not make the proviso applicable only to the antecedent clause but the proviso permitted a termination in any year during the first five-year period, as well as during the renewal period.-RelianceGrant E. E. Corp. v. Reliance, Etc., Co., N. Y., 199 N. Y. S., 476.

45. Railroads Absence of Signals at Railroad Crossing. The absence of statutory signals at a crossing will not justify a traveler in failing to use ordinary care to avoid collision on the crossing, but he is justified in assuming the railway company will make an effort to comply with the law, and his reliance on signals may be considered as bearing on the question of his negligence.-Alitz V. St. L. Minneapolis & R. Co., Iowa, 193 N. W., 423.

48. Sales-Making New Contract Does Not Breach Original Contract.-Under contract whereby defendant agreed to erect a mill and deliver to plaintiff for a term of years its output of paper board, on a cost plus basis, held, that defendant's announcement that, for three months beyond the time for which it had a valid excuse, it would be impossible to commence deliveries (it having agreed to make deliveries in the meantime from another mill), was not such a material breach as to authorize plaintiff, under St. 1921, § 1684t-45, subd. 2, to refuse to proceed further, and to sue for breach of the entire contract.-Kieckhefer Box Co., V. John Strange Paper Co., Wis., 193 N. W., 487.

49. Taxation-Income Tax On Mortgage Revenue. Recording Tax Law N. Y. § 251, providing that all mortgages of real property taxed by that article, and the debts and obligations they secure, shall be exempt from other taxation by the state and local subdivisions, did not establish a contract exempting from the tax, which was impaired by the subsequent taxation of income from the mortgage, in view of the fact that at the time the law was enacted the only state taxes on mortgage debts were taxes on the principal, and no one thought of an income tax.-People v. Law, U. S. S. C., 43 Sup. Ct., 501.

50. United States-Interest Charges Against Surety. Code, § 1184, regulating allowance of interest on liquidated debts, and § 1185, regulating allowance of interest on damages for breach of contract, do not charge the surety of the government contractor with interest on claims of materialmen before demand is made by the materialmen on the surety.-London & Lancashire Indemnity Co. v. Smoot, U. S. C. C. A., 287 Fed., 952. 51. Officer, Receiving or Agreeing to Receive Compensation.-Under Penal Code, § 113 (Comp. St. § 10283), making it an offense for an officer to receive or agree to receive compensation for service relating to a claim to which the United States is a party, receiving and agreeing to receive the forbidden compensation are separate offenses.-Egan v. United States, U. S. C. C. A., 287 Fed., 958.

52. Witnesses-Officer of Corporation Must Produce Books.-The officer of a corporation cannot refuse to produce the books and papers of the corporation which he holds, not as an individual, but as a corporate officer, on the ground that the production thereof would tend to incriminate the officer.-Essgee Co. of China v. United States, U. S. S. C., 43 Sup. Ct., 514.

Act-Altercation

53. Workmen's Compensation Arising Out of Contention for Use of Tools Within Course of Employment.-Where an employee, while engaged in his work with his master's tools provided for that purpose was assaulted and fatally injured by another employee during an altercation which arose out of a contention for the use of the tools, deceased merely defending himself and retaining the tools for use in finishing his work, and there was no personal grudge between them, held, the altercation not being a personal one, but growing out of matters connected with deceased's work, the injury was received "in the course of his employment" within the terms of Workmen's Compensation Act, pt. 1, § 1 (Vernon's Ann. Civ. St. Supp. 1918, art. 5246-1) defined by part 4, § 1, subd. 4 (article 5246-82, subd. 4); the expression "in the course of his employment" having reference to the time, place, and circumstances under which the injury cured. Consolidated Underwriters v. Saxon, Tex., 250 S. W., 447.

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54. Assault By Striker Not in Course of Employment.-Injuries to a department head, who continued to work during a strike of the ployees, and who was assaulted by a striker on his way to work held not to have arisen in the "course of the employment" within the Workmen's Compensation Law.-Lampert v. Siemons, N. Y., 139 N. E., 278.

55.--Injury, During Noon Hour, in Fellow Employee's Automobile Not in Course of or Arising Out of Employment.-An employee of the Highway Commission, injured during noon hour while riding in a defective automobile belonging to a fellow employee from the place of employment to a camp maintained by the employer about two miles' distant, where he intended to purchase his dinner, held not to have sustained an "injury in the course of and arising out of his employment," with

in the Workmen's Compensation, Insurance and Safety Act; nor would the employer's failure to furnish transportation be creative of any liability for risks connected with the means adopted, though it was a custom for the employees to ride employer's truck to and from camp.-California Highway Com. v. Industrial Accident Com., Calif., 214 Pac., 658.

56. Injury During Working Hours Not in Course of Employment.-Where an employee, having the option to ride to work on a trolley or in employer's bus on paying fare, was injured by an accident occurring after the regular work hours had commenced, while the bus was delayed for repairs during the journey, and he was paid for a full day, as he had been on other occasions when the bus was late, the injury did not arise in the "course of employment," within the Workmen's Compensation Law.-Stimal v. Jewett & Co., N. Y., 199 N. Y. S., 473.

57.--Injury Lighting Cigar Not in Course of Employment.-Where apprentice painter, while sandpapering the walls of an unoccupied dwelling which his employer was renovating under contract, lost his eyesight by explosion of dynamite caps which in some unknown manner had been placed on a window sill of the room, and which were caused to explode by coming in contact with a spark from a match with which the painter lit a cigar, held, that the injury did not arise out of, nor was it proximately caused by, the employment.-Storm v. Industrial Accident Commission, Calif., 214 Pac., 874.

58. Interlocutory Divorce Judgment Awarding Custody of Infant Child to Mother No Bar to Compensation.-The mere fact that an interlocutory divorce judgment awarded the custody of an infant child to the mother, and that the mother thereafter for some time supported the child, did not preclude the child from recovering compensation for death of the father as a dependent of the father, under Workmen's Compensation Act, § 14 (b), in view of failure of final decree to award custody to mother, and facts showing that at the time of his death the father was in fact supporting the child.-Llewellyn Iron Works V. Industrial Acc. Commission, Calif., 214 Pac., 846.

59. Judgment Will Not Be Reversed When Release Was Executed By Mistake.-Where a workman for a packing company, while engaged in the performance of his duties, lifted a 600pound barrel, sustained a hernia, was treated and operated upon by the company's surgeon, and where a milk leg" developed two weeks after the operation while the workman was still in the hospital, and where a release relieving the company of all liability was executed for a grossly inadequate consideration, both parties believing the injury temporary, and where it was afterwards found that the workman would be partially incapacitated for a long period of time, held, that a judgment supported by findings of the jury that the release was executed by mutual mistake and for a grossly inadequate consideration will not be reversed.-Bidnick v. Armour & Co., Kan., 214 Pac., 808.

60.-One Who Assists Employee Not Entitled to Compensation.-One who assists an employee for a few minutes at his request, without expecting pay therefor, and without the knowledge of the employer, is not entitled to compensation from the employer for injuries, as he was not an "employee" within the definition of the Compensation Act.-State v. Industrial Commission, Minn., 193 N. W., 450.

61. Person Employed By Corporation During Club Season Was Engaged in Usual Course of Trade. When a corporation, whose business was the building, furnishing and maintaining a clubhouse, and all necessary and suitable ground for the promotion and encouragement of outdoor sports, and to provide entertainment, instruction and profit for its members and stockholders, employs a person for a certain period at a fixed sum per hour to care for said grounds, repair the buildings, and prepare and maintain the grounds for outdoor sports, under the direction and supervision of the officers of such corporation during the club season, held, such employment was not casual and such employee was engaged in the usual course of the trade and business of such corporation.-Dietz Club v. Niehaus, Neb., 193 N. W., 344.

Central Law Journal

St. Louis, October 5, 1923

ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE

DISTINGUISHED

In many actions by employees against employers to recover for injuries received in their employment it is of vital importance to hold within their proper spheres the defenses of contributory negligence and assumption of risk. The two are wholly unalike, but the courts in many states have so confused them that there is now no telling one from the other.

Properly speaking, an employee does not assume a risk arising from his employer's negligence. This rule is followed in some few states, Missouri being one of them, and it has even been declared to be the law in at least one Federal court (Davis v. Scroggins, C. C. A. Fifth Cir., 284 Fed. 760).

Contributory negligence is negligence on the part of the plaintiff. It consists of an act or a failure to act, amounting to negligence. Assumption of risk has nothing to do with action or a want of action. Neither of these forms an element in this defense.

The importance of this distinction is obvious in actions under the Federal Employers' Liability Act, because contributory negligence does not defeat recovery, while assumption of risk does. If the courts twist contributory negligence into assumption of risk, which they are doing, they defeat the purpose of Congress in expressly providing that the former does not defeat recovery, but has the effect merely of reducing the amount.

In the recent case of Atlantic Coast Line R. Co. v. Banks (288 Fed. 826), an instruction was held sufficient on assumption of risk, which stated that plaintiff could not recover if what he was ordered

to do was so patently and obviously dangerous that a person of his intelligence was justified in refusing to carry out the orders. This instruction had no place in the case, because it did not relate to assumption of risk and was not proper (the action being under the Federal Employers' Liability Act) as an instruction on contributory negligence. The employee's act, on the one hand, or his failure to act, on the other, had to do with contributory negligence, and not with assumption of risk. His knowledge or want of knowledge had nothing to do with the defense in this case of assumption of risk.

A rule very generally followed is thus expressed in McAdoo v. Anzellotti (271 Fed. 268): "Where a defect is known to the employee, or is so patent as to be readily observed by him, he cannot continue to work in the unsafe place or use the defective apparatus, in the face of knowledge and without objection, without assuming the hazard incident to such a situation." This is clearly and purely a question of contributory negligence. If a man of ordinary prudence would have continued at work in the dangerous situation, then the plaintiff is not barred from

recovery.

Knowledge on the part of the employee of the dangerous condition of place or appliance has nothing to do with assumption of the risk arising from such condition. The same courts that hold the contrary hold that assumption of risk is contractual in character, and also hold that a contract relieving the employer from liability to his employee for injuries resulting from his (the employer's) negligence is void.

This rule got its start at a time when the courts seemed to exercise much more ingenuity than sound judgment in finding a way to defeat recovery by the employee. Thus it was that a false theory was injected into the law that cannot be made to fit in with sound ones.

In actions under the Federal Employers' Liability Act, the Federal Courts are justified in resorting to what they term general law for definition of assumption of risk, as that statute is a Federal law. But they should adopt the reasonable and proper construction of this phrase, and not one that has been so strained that it won't hold water.

Assumption of risk amounts merely to this, that when a person, regardless of whether or not he is an employee, is injured by something not flowing from a tartious act or neglect of another, the loss falls on him.

NOTES OF IMPORTANT DECISIONS

HELPER ON TRUCK ACTING OUTSIDE EMPLOYMENT IN DRIVING TRUCK.-A helper on an express truck, employed to assist in loading and unloading, to guard the truck and its contents, and to see if anything was in the way when the driver was backing the truck, was not acting within the scope of his employment in moving the truck during the driver's absence. Evidence that helpers on the company's trucks drove trucks to parking place all the time, in violation of rule, was held not to show that unlicensed helper had such authority, or that the rule was waived or had become a dead letter. Seaboyer v. Davis, 138 N. E. 538, decided by Supreme Judicial Court of Massachusetts. Relative to the alleged customary violation of rule in question, the Court said:

"One Gillispie testified that he was an employe of the defendant as helper on a gasoline truck from February to September, 1919, and that he moved the truck upon which he was helper to the parking place alone all the time, that no one gave him the privilege of operating a car without a license, and that, subject to the defendant's exception, he had seen others, mostly helpers, moving trucks and taking them alone to the parking place when the regular drivers were turning in their money. Rules of the defendant were put in evidence to the effect that 'trucks must not be operated by other than an employe holding the required chauffeur's license except that an employe being instructed by a licensed chauffeur officially detailed as a demonstrator or instructor, may operate vehicle under personal direction of

such demonstrator or instructor' and that 'helpers should not be allowed to tamper with nor start engine.'

"If it be assumed without deciding that this evidence was competent, it fails to show that the defendant authorized the unlicensed helper on the electric truck to drive it alone apparently across or along a public way to a parking place. For aught that appears other helpers who took trucks to the parking place were licensed chauffeurs. The rules of the defendant were explicit. There is nothing in the record to warrant a finding that the rule to the effect that trucks could not be operated by one without a chauffeur's license had been waived or had become a dead letter. The limits of duty of the helper on the electric truck were strictly defined by the defendant. The driving of the truck was unequivocally excluded from his duty. His act in overstepping those limits did not bind the defendant."

EFFECT OF DESTRUCTION OF BUILDING BETWEEN TIME OF SIGNING CONTRACT AND DELIVERY OF DEED. In a recent number of Case and Comment there was a note dealing with the subject of destruction of property between the date of signing a contract for its sale and the date of delivery of the deed. Mr. Justice Rodenbeck, sitting at Special Term of the Supreme Court, Monroe County, had occasion to consider this topic in the case of Cammarata v. Merkewitz (120 Misc. Rep., 503, Advance Sheets of May 19, 1923). It was held by the court that where, prior to the delivery of the deed of conveyance of a farm, a barn on the farm was, to the knowledge of the grantors, consumed by fire, the grantees must bear the burden of the loss, in the absence of special agreement. In other words, the loss falls on the purchaser and not on the seller.

The learned court relied largely upon the authority of Goldman v. Rosenberg (116 N. Y. 78), which holds that the vendee becomes the equitable owner from the date of the making of the agreement of sale, and, therefore, in the absence of a provision in the agreement to the contrary, assumes the risk of any destruction of the building by fire without negligence on the part of the seller, just as the vendee receives the benefit of any enhancement in value of the property in the interim. To similar effect see Sewell v. Underhill (197 N. Y., 168), following the English rule promulgated in the leading case of Paine v. Miller (6 Ves., Jr.. 349).

In Massachusetts, however, the rule would seem to be otherwise. (Wells v. Calman, 107 Mass., 514.)

The late Judge Keener, in a well known article printed in 1 Colorado Law Review, 1, agreed with the New York doctrine, that the burden of the loss should be thrown upon the vendee. Professor Williston, of the Harvard Law School, in an equally well known article upon this subject (9 Harvard Law Review, 106), emphasizes the element of possession as the controlling criterion, and argues that the burden of the loss should be thrown upon the party in possession at that particular time. For a full collation of the authorities, see Professor Ames' Cases in Equity Jurisdiction (pp. 227-238), and the notes. Also, Pomeroy Specific Performance of Contracts (2nd Ed., Sec. 322).

In the Cammarata case (supra) omitting the statement of facts, we quote as follows, in part, from the able opinion of Mr. Justice Rodenbeck:

"There is no claim that the defendants had agreed to deliver the property in the condition in which it was at the time that the agreement to sell was made or that there were any other special terms in the contract which modified the general rule applicable to a purchase and sale of land and a destruction of buildings by fire before the delivery of the deed. "The general rule in regard to contracts for the sale of land is that the owner of the real estate from the time of the execution of a valid contract for such sale is to be treated as the owner of the purchase money, and the purchaser of the land is treated as the equitable owner thereof. The vendor is deemed in equity to stand seized in the land for the benefit of the purchaser, and the latter, even before the conveyance to him, can devise the same and it descends to his heir and the land which was agreed to be sold has been turned into money belonging to the vendor' (Williams v. Haddock, 145 N. Y., 144, 150). If the vendor die prior to the completion of the bargain, provided there have been no default, the heir of the vendor may be compelled to convey and the proceeds of the land will go to the executors as personal property' (id.). 'It is now too well established to be questioned that the interest of a vendee in such a case in the contract is real estate, and in case of his death it descends to his heirs, and not to his executors or administrators; and it is devisable as real estate' (Hathaway v. Payne, 34 N. Y., 92, 102). The vendee, therefore, becomes the equitable owner, and in the absence of provisions in the agreement

to the contrary assumes the risk of any destruction of the buildings by fire without negligence on the part of the vendor, as he receives the benefit of any enhancement in value or other advantages happening to the property (Goldman v. Rosenberg, 116 N. Y., 78, 85). "The general rule is that the vendee in a contract for the sale of land is entitled to any benefits or improvements happening to the land after the date of the contract, and must bear any losses by fire or otherwise which occur without the fault of the vendor' (Clinton v. Hope Ins. Co., 45 N. Y., 454, 465; Pom. Spec. Perf., 2d ed., sec. 322, 39 Cyc., 1641). This is the English rule announced in Paine v. Meller (6 Ves. Jr, 349), concerning which Judge Gray said: 'I am unable to find that the authority of the English rule has been shaken in this state, that a loss by fire or other accident, not due to the fault of the vendor, must fall upon the vendee where the title is satisfactory and the contract is therefore capable of being specifically performed by the vendor' (Sewell v. Underhill, 197 N. Y., 168, 172; Mott v. Coddington, 1 Abb. Pr., N. S., 290; Pellegrino v. Guiliani, 118 Misc. Rep., 329; Neponsit Realty Co. v. Judge, 106 id., 445; Gates v. Smith, 4 Edw. Ch., 702; Gerard Titles, 5th ed., 500).

"The fact that plaintiffs were not in possession when the fire occurred creates no distinction, as the rule, in the absence of special agreement, turns upon the title and rights of the parties at the time that the agreement of sale is made, and not as in the case of personal property upon the question of delivery. There are cases in which the loss is made to depend upon possession (Wicks v. Bowman, 5 Daly, 225) or the right to immediate possession under the contract (McKechnie v. Sterling, 48 Barb., 330) or upon the destruction of personal property in conjunction with the real property (Listman v. Hickey, 65 Hun, 8, aff'd 143 N. Y., 630), but the great weight of authority is that, in the absence of special agreement, the equitable interest that is created by an agreement to sell casts the loss upon the vendee (27 L. R. A., 1910, N. S., 233). The court is bound to follow this ruling even if it does not appeal to one's sense of justice, that a person out of possession or without the right of possession, with no control over the care of the property, should be obliged to pay for something the vendor is unable to deliver."-N. Y. Law Journal.