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operations necessarily incident appurtenant thereto or connected therewith, the inclusion, by construction, of painting as a necessary part of paper hanging did not make the policy illegal as contrary to the classification of painting and paper hanging as distinct and different hazards by the Commissioner of Insurance and Banking.- Western Indemnity Co. v. Toennis, Tex., 250 S. W. 1098. 55.-- Returned Premiums.-The

general contractual provisions of an accident insurance policy, stipulating to pay specified amounts for particular designated accidental injuries, is followed by the further provision that if the policy be kept in force for full five years, the company will pay for any such injury, "in lieu of all other benefits," a sum equal to the premiums paid to maintain the policy in force. The total amount of such premiums may be less than the specific indemnities granted and for which the premiums were paid. It is held that the provisions for a return of the premiums in lieu of the specific benefits will in instances operate as a direct limitation upon the amount specifically stipulated to pe paid, and constitute a violation of G. S. 1913, § 3523.-Commercial Acc. Ins. Co. y. Wells, State Com'r of Insurance, Minn., 194 N. W. 22.

56. —Subrogation.--Where an automobile theft policy provided that on payments of loss insurer could be subrogated to insured's rights, by settling with insured for the theft of a motortruck, discovered 75 days after proof of loss, insurer could bring replevin and minimize its loss.-Cancilla y. Firemen's Fund Ins. Co. of San Francisco, Cal., Pa., 120 Atl. 824.


57.-Time of Claim.-An insurance agent's mere statement of opinion that proofs of loss need not be filed within the time named in the policy is not a waiver of such requirement.--Simon v. Safety Mut. Fire Ins. Co., Pa., 120 Atl. 822.

47. Good Will-Value.--Where a contract for the sale of a going business conveys also the good will of such business, the seller transfers all the advantages which the business possesses because of his efforts, popularity, and skill in conducting of the business, good will being that property incident to the business sold and the favor which the vendor of a business has won from the public and the probability that old customers will continue their patronage, and such good will is impaired if the new and competing business derogates from the good will sold and the seller in violation of his agreement injures or impairs the advantages due to the good disposition of the public towards the old place of business; in other words, the impairment of good will means the impairment of the value of the business and the place of business which the buyer purchased from the seller.-Scotton v. Wright, Dela., 121 Atl. 180. 48.

Injunction-Leave Employment.-In the absence of fraud, or of an express contract not to go into business or to solicit the employer's customers, a driver for a dyer and cleaner, whose business it is to deliver to and solicit tailors' trade, has a right on leaving the employment to try to build up his own business by direct solicitation of the former employer's customers and others, there being nothing secret about getting up a list of tailors, and injunctive relief should have been denied employer.-Goldberg v. Goldberg, N. Y.. 200 N. Y. S. 3.

49. Innkeepers — Place of Entertainment.-A "hotel," which, like a "tavern" or "inn," terms now usually restricted to small, old-fashioned establishments, is a house where travelers others are entertained and furnished with food and lodging, and sometimes other conveniences, is in common understanding, as seemingly recognized by Code 1907, § 7094, a “house of public entertainment," within Code 1907, 1342, authorizing the Birmingham town council, all the powers of which are given the city commission by Act Sept. 25, 1915 (Gen. Acts 1915, p. 793), § 7, to revoke licenses of such houses if the public safety, peace, good order, or decency require it (quoting Words and Phrases. First Series, House of Entertainment).City of Birmingham v. Bollas, Ala., 96 So. 591.

50. Insurance-Defendants Joined.-Under Civil Practice Act, $$ 211, 212, companies insuring the same goods against loss by burglary may be joined in one action, especially where the policies are substantially the same in form, and each company is liable only pro rata, as common questions of fact, and possibly of law, are involved.-Bossak v. National Surety Co., N. Y., 200 N. Y. S., 148.

51.-Discrimination.--A contract by an insurance company, that, in consideration of the purchase of a policy, it would make a loan to the purchaser on real estate owned by him would be invalid, under Rev. St. 1913, par. 3449, as to discrimination.-Western Union Life Ins. Co. v. MusgraveAriz., 215 Pac. 536.

52.--Immediate Notice.-An automobile liability insurance company whose counsel told insured, after notification of an accident. that he would try to be present at a hearing of the injured party's case before the Industrial Accident Commission, and that he thought they were trying to put one over on him, but would look after him, held not to have waived immediate notice of the accident and loss as required by the policy; insured, who had already forfeited his rights under the policy by failing to give immediate notice, not having been influenced to the prejudice of any such right. -Lewis v. Commercial Casualty Ins. Co., Md., 121 Atl. 259.

53.---License. -Under a policy covering risks of transportation of goods the contention that one through whom shipments were made was not a licensed truckman, as required by the policy, was without merit, where he was merely the agent to secure transportation, and those actually carrying the goods were duly licensed to operate.--Windsor Mfg. Co. v. Globe & Rutgers Fire Ins. Co., Pa., 121 Atl. 329.

54. Necessary Hazard. Where workmen's compensation policy covered paper hanging and all

58. -Vested Rights,-Under Rev. St. 1919. 6119, husband on divorce of wife had right to change the beneficiary in a policy to such wife *if living; if not, to his executors, administrators or assigns," the executor or administrator of the deceased having no vested interest in the policy.Mutual Life Ins. Co. v. Tuemler, Mo., 251 S. W. 727.

59. Larceny-Prohibition Act--National Prohibition Act, tit. 2, § 25 et seq.. must be construed as a whole in the light of the general object, and, though it is declared that “no property rights shall exist,” in liquor illegally possessed, a conviction for larceny of liquor illegally possessed will be sustained, since the value of the chattel to its possessor is not the test as to whether it is subject to larceny.--People v. Otis, N. Y., 139 N. E. 562.

60. Licenses-Inspection Fees.-In view of San Francisco City and County Charter, art. 2. c. 2. 1. subd. 15, prohibiting the imposition of license taxes on persons selling or manufacturing goods etc., at fixed places of business, except such as require permits from the board of police commissioners under chapter 3 or article 8, c. 4, § i, an ordinance requiring grocerymen to pay a sanitary inspection fee before issuance of certificates by the board of health is invalid, notwithstanding Const. art. 11, § 11, authorizing counties, cities, etc.. to make and enforce local sanitary regulations not in conflict with general laws.-Ex parte Hadeler, Calif., 215 Pac. 562.

61. Municipal Corporations-License.-Evidence of the license number and record of an automobile truck which

contradicted by unsatisfactory evidence as to the ownership of the truck, held to raise a question for the jury as to such ownership.-Ford v. Hankins, Ala., 96 So. 349

62. Negligence--Automobile Guest.-A guest riding in an automobile, traveling at an excessive speed, should caution the driver of danger, protest against it, and, unless delivered from it, he should quit the car, if that may be done with safety, or direct that the vehicle be stopped and, when stopped, got out of it.-Sheehan v. Coffey, N. Y., 200 N. Y. S. 55.


Central Law Journal

such transactions. Said he, “the pur

pose of the revisors was to remove disqualiSt. Louis, November 20, 1923

fications, not to create them in any case, nor

to impose burdens on witnesses already MODERNIZING THE RULES OF

competent.” EVIDENCE

A few years ago the spirit of advance

ment in Virginia was such as to cause the There is a growing demand in this coun

Legislature to erect a commission to revise try, both lay and professional, that there

the Code. It was happily composed of exshall be produced “all the facts before the perienced men instead of the average leg. court and jury," wherein is presented a

islator. It "undertook to make material serious scientific problem, but one not im

changes in the law governing the compepossible of practical solution. The vener

tency of witnesses to testify, so as to reable laws of incompetency are gradually

move practically all disqualifications and but surely falling away under the axe of ad- permit the courts to hear all evidence bearvancement and an awakening to the desir- | ing on the question at issue just as is usual ability of a greater certainty in the admin in the business affairs of life.” Conviction istration of justice. The text writer, Dean

for felony now merely affects the credit of John H. Wigmore, may be looked upon as

the witness, but does not disqualify him. the pioneer accepted text authority on the

Legatees and devisees are competent to subject.

The He has probably done more to testify without suffering forfeiture. restate the law of evidence than any other competency of husband and wife as witman. He did it not so much by argument nesses was materially enlarged, excepting as by an arbitrary ipse dixit that has been uncorroborated testimony in divorce cases. complacently accepted by receptive courts. The first application of this meritorious (1 Wigmore Evidence, Sec. 578.)

legislative effort at a sensible judicial It fell to the lot of another able law dean search for the truth arose out of the denial and text writer, Judge Martin P. Burks, by counsel of the right of the survivor of a of the Supreme Court of Appeals of Vir- transaction to testify. The learned advoginia, both to write and to apply the stat- cate seemed unable to grasp such a solecism. ute releasing the limitation of incompe- It presented an excellent opportunity for tency in Virginia. As one of the Codifiers interpretation by the author of the Act, a of the Virginia Code of 1919, he prepared law teacher, a practical lawyer, a text the statute; as judge he interpreted it and writer on practice and procedure, who was gave it life, instead of hobbling it. (Epes the judge. The opinion recites that “in v. Hardaway, 28 Va. Appeals (Feb., 1923), order to meet the difficulties that may arise S. E. Ark.). His opinion supplies one of in consequence of a removal of disqualifithe most illuminating histories extant of cations, the revisors have added a new secthe effort of the legislative department, un- tion declaring: In an action or suit by or der the direct guidance of presiding judges against a person who, from any cause, is and practicing lawyers, "to permit the incapable of testifying, or by or against the production of all evidence bearing upon committee, trustee, executrix, administrathe question at issue,” just as in “the busi- tor, heir, or other representative of the perness affairs of life it is received and con- son so incapable of testifying no judgment sidered by the business world." "It seems or decree shall be rendered in favor of an proper,” said Judge Burks, “that the same adverse or interested party founded on his rule should obtain in courts of justice uncorroborated testimony; and in any such which are enforcing rights arising out of action or suit, if such adverse party testi


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fies, all entries, memoranda, and declara- the level of laymen in the mechanics of tions by the party so incapable of testify- the law. It originated under James I, ing made while he was capable, relevant to that hater of mystery, when he abolished the matter in issue, may be received as evi- all Latin from the courts and, for that dence."

matter, from the Church. While pleading, The reason for the statute as furnished as now practiced, is a mystery yet ungives both a human and an economic ap- solved by the lawyer and to which judges peal. Said the Court, “it was believed are still devoting fifty per cent of their that this section, together with the great time, the rules of evidence are proving a safeguard of cross-examination, would be close rival. But the pleadings are never ample protection for the estates of persons seen by the layman while the application laboring under disability or who are in- of the rules of evidence occur in his prescapable of testifying." Then comes the

The incompetency of a reputable forceful and prophetic words set down in citizen as a witness, known to the comthe first lines hereof and which we respect-munity as possessing first-hand knowledge fully but earnestly commend to the pro- | is popularly ascribed "to the smartness of fession. “In the business affairs of life all the successful counsel”; it is attributed evidence bearing upon the question at issue by counsel to sacred principles and inexis received and considered by the business orable laws many centuries old. Now it world, and it seemed proper that the same appeals very strongly that the layman rule should obtain in courts of justice thought out his reason and the lawyer abwhich are enforcing rights arising out of sorbed his; that both are justified in their such business transactions."

respective positions, but that both view the We shall never reach the extent of un

situation in error. The lawyer simply limit in vogue in the French courts nor is called antiquity to his aid. He might as such an opera bouffe necessary in order to well have snatched a leaf from the “Blue achieve the end desired. It is a meritorious Laws” of the sixteenth century immured custom of the common law, that at the a law-abiding man of today—and such an trial of a case a statement of the facts of improbability with measurable frequency the cause of action, from which the alleged happens. The latter would have been legal liability can be drawn, must be pre

futile under the condemnation of a rightsented upon a permanent mandatory rec- eously indignant public opinion, because ord. Anything beyond is corum non judice the layman's education had advanced beand void. So all irrevelant evidence must yond the spell of witchcraft. The former be excluded. The doctrine of res adjudi- stands in all its pristine glory because the cata and the protection afforded by due lawyer's education has not advanced to the process of law are in this way preserved, faculty of adducing the whole truth. which imports the participation of the There is no one else to do it. And that is State as the third party as well as the the point. Shall we prediet, without too finality of the litigation.

serious an objection, that some Greenleaf, But, while the evidence is confined to Jr., will within the fullness of time re

, . the issues created by the record, the limit write the Senior's great epic, saving the

, upon it should be gauged by the common

immutable canons, but refining the other sense view of the business world. This in the cauldron of twentieth century juriis the principle settled by the Virginia law

dicial improvement? Unless we greatly and which is worthy of emulation. It is err, the conservative Old Dominion has within these broad limitations that the made a splendid start. obligation was created and was breached.

THOMAS W. SHELTON. Courts are more and more coming down to Norfolk, Va.


under section 3170, in the dwelling house, in such a sense as that a felonious taking therefrom would constitute a taking in the dwelling house. A taking from the dwelling house is very different from taking in the dwelling house.'

"Chase v. Hamilton Ins. Co., 20 N. Y. 52, cited by appellee, merely decides that the words dwelling house' are to be construed as including the kitchen, although the subject of the risk is described in the application a stone dwelling house, and the kitchen attached is a wooden kitchen"



THEFT OF FUR COAT FROM PORCH NOT COVERED BY INSURANCE POLICY.-It is held by the Court of Appeals of Maryland, in Fidelity & Deposit Co. v. Panitz, 120 Atl. 713, that no recovery can be had for the theft of a fur coat, stolen from a porch, under a policy of insurance covering theft from the interior of insured's apartment. That the porch had

xterior entrance, was held to be immaterial. We quote from the opinion of Adkins, J., as follows:

“It seems to us that the reason for the express restriction of the risk incurred by the policy to goods contained in the interior of the apartment is obvious, and that the word 'interior' should be given a common sense meaning. The mere fact that no exterior entrance to the porch is provided has no bearing, when the purpose of the restriction is considered. If it did, then a porch of the same character on the first floor showd be considered as the interior of the first floor apartment.

“In the latter case a thief could more easily step over the rail; but it is a matter of no serious difficulty to climb up to the second floor or to reach up with a pole. It is just such a risk that the terms of the policy excludes.

"The only case cited by either side that seems to be in point is Driver et al v. State, 18 Ala. App. 261, 89 South. 897, cited by appelant. This was an indictment for theft of seed corn under section 7324 of the Code of 1907: Any person who commits larceny from or in any dwelling house, storehouse. smokehouse, etc., on conviction must be imprisoned in the penitentiary not less than three nor more than six years.

"The law as it stood prior to that time omitted the word 'from.' In the case cited the Court referred to the earner case of Henry v. State, 39 Ala. 680, in which it was held that the taking of goods from the banister or rail of the porch attached to the dwelling house would not come under the earlier statute, and that such taking was not a taking 'in' the dwelling house The word 'from was incorporated in the later act to meet the decision in the Henry Case. The Court added:

" 'Our undertanding, however, of the holding in the Henry Case, is that the Court mere. ly held that, while the porch may, in some sense, be a part of the horse, it was not

DIFFERENCE BETWEEN VALUE OF SECURITIES RECEIVED ON REORGANIZATION AND STOCKHOLDER'S INVESTMENT HELD TAXABLE INCOME.-It is held by the Supreme Court of the United States, in Cullinan v. Walker, 43 Sup. Ct. 495, that upon reorganization of a corporation and the exchange of securities, the difference between the value of the securities received by a stocanolder and the amount of his investment, constitutes taxable income. In part the Court say:

“Cullinan insists that his gain so ascertained was merely an incident of a reorganization. This was equally true in the Phellis and the Rockefeller Cases. It is sought to differentiate those cases on the ground that there the distributed stock of the new corporation was technically a dividend paid out of surplus, and that here the segregation is not of that character. But the gain, which when segregated becomes legally income subject to the tax, may be segregated by a divi. dend in liquidation, as well as by the ordinary dividend. If the trustees in liquidation had sold all the assets for $6,000,000 in cash, and had distributed all of that, no one would question that the late stockholders of Farmers' Petroleum Company would, in the ag. gregate, have received a gain of $5,900,000, taxable as income. The result would obviously have been the same, if the trustees had taken in payment, and distributed, bonds of the value of $6,000,000, in some new corporations. And the result must also be the same where that taken in payment is $3,000,000 of such bonds and $3,000,000 in stock of a third corporation. All the material ele. ments which differentiate the Phellis and Rockefeller Cases from Eisner v. Macomber are present also here. The corporation, whose stock the trustees distributed was a holding company. In this respect, it differed from Farmers' Petroleum Company,

which was a producing and pipe line com- HAS A COURT OF EQUITY POWER pany It differed from the latter, asso, be

TO ENJOIN PARADING BY THE cause it was organized under the laws of

KU KLUX KLAN IN MASKI another state. It is true that, at the time this Delaware corporation's stock was dis

Ву tributed, it held the stock of the new oil

Chas. B. Griffith, producing company and likewise the stock of

Attorney General of Kansas. the new pipe line company. But the Delaware corporation was a holding company. It

Donald W. Stewart, was free, at any time, to sell the whole, or

Assistant Attorney General. any part, of the stock in either of the new Texas companies and to invest the proceeds otherwise. By such a sale, and change of

The question propounded above, in view investments, all interest of the holding com- of the recent riots and disturbances in pany in the original enterprise might be Ohio, Pennsylvania, New Jersey and Oklaparted with, without in any way affecting | homa, is a timely one.

The remedy sug. the rights of its own stockholders. When

gested is novel and so far as we can ascerthe trustees in liquidation distributed the securities in the three new corporations,

tain has been raised for the first time in Cullinan, in a legal sense, realized his gain,

Kansas. It may serve to provide a legal, and became taxable on it as income for the orderly method of disposing of a situation year 1916."

and practice that is fraught with grave danger to the peace and dignity of any


ruled that public parades by masked memstatute regarding the protection of employees

bers of the Ku Klux Klan are a disturbusing machines was intended to cover all appliances, machines, and machinery in manufac

ance of the peace. That ruling has been turing plants, and to extend its protection to followed in portions of Kansas. It is all persons employed in such establishments, a disputed question and has never been whether working at and with the machines or

ruled upon by any court. about, them, and a machine is “dangerous” in

The Klan of Fort Scott, Bourbon Counsuch sense that the employer is required to guard it, if, in the ordinary course of human

ty, Kansas, recently advertised a public affairs, danger may be reasonably anticipated parade in mask to take place in the City from the use of it without protection. To

of Fort Scott on the evening of October "guard” a dangerous machine within the mean.

6th, 1923. The attention of the Attorney ing of the statute is to provide it with a guard,

General was called to this proposed parade that is, any device, fixture, or attachment designed to protect or secure against injury from

and on October 5th, 1923, a petition and it. To “guard” a stamping press within the application for an injunction was filed in meaning of the statute, held to impose the the District Court of Bourbon County, duty to provide a device to warn the operator

Kansas, in the name of the State on the that the upper die is descending and to push his hand from under it, if he does not remove

relation of the Attorney General and it himself in time. The statute leaves it pri- County Attorney. marily to the master to determine whether a

The petition named the State as party machine needs guarding or fencing, and, if 30

plantiff and Thomas Daly, John Doe and the means and the manner of complying there. with, subject to the duty, which is absolute, to

Richard Roe as defendants. Mr. Daly is exercise all ordinary care with respect to the alleged to be the leader of the Fort Scott matter, and there is a safety device known Klan and the only member definitely and in general use which will prevent injury

known to the State. The petition alleged to employees, a master in failing to guard his

in substance, among other things that the machine with such device fails to exercise ordinary care. Simon v. St. Louis Brass Mfg.

defendants, and many others unknown to Co. (Mo. Sup.), 250 S. W. 74.

the State, would, unless enjoined by the

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