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pensation was awarded for injuries sustained by an employee in a fight with another employee, the light growing out of a quarrel about the work. A writ of error was granted in the case, and, as this prevents the decision from having authoritative weight, we do not discuss it further. The Court of Civil Appeals in the Behnken Case (Tex. Civ. App.), 226 S W. 154, drew a distinction between the term "injury
The Court, in the same connection, expressly charged the jury in the language of the statute that the term “injury sustained in the course of employment" did not include an injury "caused by the act of a third person," etc. And hence we think there was no error in refusing to submit an issue as to whether Salisbury shot plaintiff because of reasons personal to himself, etc.
(4) The judgment, allowing $374 for pay. ment of plaintiff's doctor's bills for the first two weeks of the injury, is not sustained by the evidence. The physician who was employed testified that his charges for services during the first two weeks was about $275, which amount was a reasonable charge. When he came to giving the items of the charges, the aggregate thereof was 262. The judgment will be affirmed on condition of remittitur within 15 days of the sum of $112; otherwise it will be reversed. The appellee's offer to remit comes too late to entitle him to recover costs of appeal. A, T. & S. F. Ry. Co. v. Boyce (Tex. Civ. App.), 171 S. W. 1096 (2), and authorities there cited.
We think the award of $280 for hospital fees is sustained by the evidence.
ment" and that used in our statute, to-wit, “having to do with and originating in the work of the employment,” holding that under our statute there need be no direct casual connection between the employment and the injury. However, the Supreme Court, in disposing of the case, did not place the decision on such grounds.
(1) Without attempting to state any test for general application, we think the authorities discussed sustained at least this conclusion: That, since Salisbury was at the time of the shooting acting in the performance of the duties of his employment, then the injury inflicted by him would be compensable, notwithstanding he acted in a reckless manner, and notwithstanding the fact that the employees themselves may have acted negligently in failing to give the signals Salisbury had informed them they should give on entering the premises. We therefore hold that the evidence is sufficient to sustain the finding that the injury had to do with and originated in the work
As to the other requirement, that the injury be sustained by the employee "while engaged in or about the furtherance of the affairs or business of his employer.” we cite the cases of Kirby Lumber Co. v. Scurlock (Tex. Sup.), 246 S. W. 76, Western Indemnity Co. v. Leonard (Tex. Com. App ), 248 S. W. 655, Behnken Case, supra, and Employers' Indemnity Corporation v Kirkpatrick (Tex. Civ. App.), 214 S. W. 956, as being conclusive against appellant's position on this phase of the case.
(2, 3) The Court submitted a special issue inquiring as to whether Gill's injury was sustained in the course of his employment, and in connection therewith gave a definition of the term “injury sustained in course of employment.” This definition is not in the language of the statute, and one proposition presented by appellant complains of error in such definition. We do not approve the practice of the Court in varying the statutory definition, but are of the opinion that the definition given in this case was substantially the same as that of the statute, and overrule this proposition.
NOTE-Injury by Shooting as Compensable Within the Workmen's Compensation Acts A head waiter whose duties included the hiring, supervision and control of the employees under him, discharged an employee for refusing to obey his orders. Later in the day the employee returned and shot and killed the head waiier. It was held that the dependents were entitled to receive compensation.
Cranney's Case, 232 Mass. 149, 122 N. E. 266.
Deceased, a waiter in a cabaret, was shot when he attempted to interfere in a quarrel between a patron and another waiter. Upon the evidence that the employees were expected to interfere in such quarrels, for the purpose of suppressing them, and that this particular cabaret was of a type where such brawls were likely to occur, the Court held that the de ceased was acting within the course of his employment and that the injury resulting in death arose out of the employment, entitling his de pendents to compensation. Stevens v. Commission, 179 Cal. 592, 178 Pac 296.
A boiler worker's helper quit and the boiler worker applied to the foreman for another assistant. This angered the first helper, who in an ensuing quarrel shot the boiler worker. It was held that the accident arose out of the employment, justifying the payment of compensation. That such is an unusual and extraordinary result makes it none the less an incident of the employment. Chicago, R. I. & P. R. Co. v. Commission, 288 Ill. 126, 123 N. E. 278.
The collector for a brewery, who was shot and killed by robbers while he was on his rounds of collection, was held to be within the
compensation statute of New York. Spang v. Broadway Brewing & Malting Co., 182 App. Div. 443, 169 N. Y. Supp. 574.
The deceased was employed to check up ice shortages on drivers and to report such shortages to the bookkeeper. Having reported one driver as short, an altercation followed and deceased was shot while seated at his desk, by the employee whom he had reported. An award in favor of the claimant was sustained. Polar Ice & Fuel Co. v. Mulray, Ind. App., 119 N. E 149.
In the case of Schmoll v. Weisbrod & Hess Brewing Co., 89 N. J. L. 150, 97 Atl. 723, it was held that where a delivery man and collector for a brewery was shot by one while making a delivery, there could be no compensation, as the assailant and his motive for shooting were unknown.
an 'Economic and Social History of the World Wan' it was felt, if undertaken by men of judicial temper and adequate training, might ultimately, by reason of its scientific obligations to truth, furnish data for the forming of sound public opinion, and thus contribute fundamentally toward the aims of an institution dedicated to the cause of international peace."
Upon the termination of the war the Endowment once more took up the original plan, and it was found with but slight modification to be applicable to the situation. Work was begun in the summer and autumn of 1919, and this book is the result of such work.
KEEZER ON MARRIAGE AND DIVORCE
LABOR SUPPLY AND REGULATION
A copy of the work as above entitled has come to hånd from the Oxford University Press, American Branch, New York. It is by Mr. Humbert Wolfe, and is one of the works of the Carnegie Endowment for International Peace. The book contains something over four hundred pages, is well constructed, and is bound in cloth.
It was sought to make the book impersonal and uncontroversial. Attempt was made to leave the plain facts to speak for themselves, and to arrange them without bias, and without imposing upon them any preconceived point of view. It will be interesting to quote the first paragraph of the Editor's Preface, which is as follows:
"In the autumn of 1914, when the scientific study of the effects of war upon modern life passed suddenly from theory to history, the Division of Economics and History of the Carnegie Endowment for International Peace proposed to adjust the program of its researches to the new and altered problems which the war presented. The existing program which had been prepared as the result of a conference of economists held at Berne in 1911, and which dealt with the facts then at hand, had just begun to show the quality of its contributions; but for many reasons it could no longer be followed out. A plan was therefore drawn up at the request of the Director of the Division, in which it was proposed by means of an historical survey, to attempt to measure the economic cost of the war and the displacement which it was causing in the processes of civilization. Such
We are in receipt of a copy of the second edition of this work, the full title of which is A Treatise the Law of Marriage and Divorce, with synopses of the marriage and divorce statutes of all states and containing complete forms for all purposes. The original work was by Mr. Frank H. Keezer. This edition was revised and enlarged by the Editorial Staff of The Bobbs.Merrill Company, of Indianapolis, the publishers.
The purpose of the work is stated to be, "To present in a concise manner how marriage, the most important institution of human society, may be legally entered into and dissolved, stating the law of the different states and cit. ing the most important decisions of the courts." In the present edition there are included and developed many matters either not touched upon in the original edition or at most only adverted to. Among the subjects of this char. acter are the promise of marriage and its breach; alienation of the affections of one of the parties to the marriage; the annulment of marriage contracted in violation of law and good morals without resort to divorce, and separate maintenance. The portion of the book devoted to forms has been greatly expanded and made more serviceable. The entire body of the work has been revised and very largely rewritten and its order changed to present a logical and orderly treatment of the marital relation from the time of its inception to its close by complete dissolution through decree of divorce. The book contains a total of more than eleven hundred pages, and is divided into fifty-one chapters, containing in all eleven hun. dred and seventeen sections. It is well printed on excellent paper and bound in buckram.
October 27, 1923. Editor, Central Law Journal, St. Louis, Mo.:
In the Central Law Journal of the 20th inst. No. 20, on page 350, is an editorial on the “Burden of Proof of an Issue of Want of Consideration under the Negotiable Instruments Law.” On account of my connection with the origin of that law in this country, I was deeply interested in it.
Act, suggesting that it be recommended for adoption to the legislatures of the respective States."
I have no doubt that you have that address in your Law Library in St. Louis.
In January, 1917, in the magazine, “Case and Comment,” published by the Lawyers CoOperative Publishing Co., Rochester,
New York, the Hon. W. 0. Hart, of Louisiant, on page 646, in an article on the movement for Uniform State Laws, on page 248, says:
"The greatest work of the conference was the preparation and submission to the State3 in 1896, of the Negotiable Instruments Law."
He goes on to refer to a letter which the Committee on Correspondence of the Alabama State Bar Association, on August 20, 1886, addressed to the secretary of every Bar Association in the United States, suggesting the preparation and adoption in all the States of a uniform law on this important subject, basei upon the English Bills of Exchange Act, which had been adopted in 1882, and this letter may be considered as the beginning of the work of uniform legislation in the United States.
On page 354, the writer says: "It would seem apparent that the draftsmen of the act must have intended to place both of these defenses in the same class, so far as the burden of proof was concerned, and declare the law accordingly, by the language of Section 28."
On the same page further down, he says: “It must be conclusively presumed that the com mittee drafting the act, and the several legislatures adopting it, hau these conditions in mind."
It seems to me that all doubt and conflict would be removed if Courts would bear in mind the origin of the law and recognize that they ought, in every event, to go back to the decisions of the English Courts on the same questions arising under the law, because the purpose of the act was to render the law in the United States that of England in the matter of Negotiable Instrument.
I will give you a brief reference to that history in confirmation of what I say.
Not to extend this communication unreason. ably, I will close by referring you to the article in the English Law Quarterly Review which called my attention to the fact that the law of England on the subject of Negotiable Instruments had been codified in 1882, and up to the year 1886, had proved to be so perfect a codifica ion that only one or two cases had arisen under it, requiring construction by the courts In support of this statement, I refer second volume of the Law Quarterly Review, edited by Sir Frederick Pollock, published in London in 1886. On page 125 is an interesting his'orical article, entitled “An Experiment in Codification," by M. D. Chalmers, a member of the English Judiciary at the time of writ. ing. I think a perusal of that article will convince every lawyer and every judge that there are any doubts arising as to the construction to be given to any portion Negotiable Instrument Law, reference be first had to the decisions of the English Courts in construing the Bills of Exchange Act of 1882, so, in solving the difficulty, in to keep our Negotiable Instrument La v uni. form, not only in the States of this Union, but also uniform with the decisions of England, Canada, and in other parts of the Empire.
Yours very truly,
FREDERICK G. BROJI BERG,
On September 23, 1905, Judge Amasa M. Eaton, President of the Conference of Commissioners on Uniform State Laws in an address delivered before the State Bar Association of Missouri, at St Louis, on page 4, gives the history of the origin of the Negotiable Instrument Law as adopted by the Conference of Commissioners on Uniform Laws. He says:
"In 1886 the Committee on Correspondence of the State Bar Association of Alabama sent out a circular to the secretary of every State Bar Association and of the American Bar Association, dwelling especially upon the desirability of uniformity in legislation concerning negotiable instruments, calling attention to the English Bills of Exchange
when proper of our should
1. Automobiles Agency.-Defendant owned and kept upon his premises an automobile for business purposes, and also for the comfort and pleasure of the members of his family, and a minor son was authorized and permitted to operate and use
it at any time. While the son was using the car for a specific purpose, with defendant's express permission. his negligent and careless operation thereof caused injury to plaintiff. It is held; (a) That, although using the car for his own personal pleasure, the son was acting within the scope of his authority, and defendant is liable for his negligence in operating the same. (b) The evidence supports the verdict in finding the son guilty of negligence, and in exonerating the plaintiff from the charge of contributory negligence.-Dillingham V. Teeter, Okla., 216 Pac. 463.
2.- -Drivers.—Where plaintiff, whose 14-year-old daughter was driving his automobile, placed his hands on the steering wheel, while the daughter remained in control of the clutch, brake and gas, and on overtaking defendant's automobile defendant turned to the right on plaintiff's sounding the horn, as required by General Highway Traffic Law, $ 12, subd. 8, but as plaintiff was passing defendant turned to the left and came in contact with plaintiff's car, which struck a tree and overturned, held that, under Highway Law, § 282. subd. 2, it was not unlawful for plaintiff to permit his daughter to drive the car when he was with her, and it could not be said, as a matter of law, that plaintiff was guilty of contributory negligence, because the daughter was in control of the brakes, clutch, and gas while plaintiff took the wheel, but it was for the jury to determine.-Dunston v. Greenberger, N. Y., 200 N. Y. S. 426.
4. -Passengers.—Where defendant's automobile was going about 55 miles an hour as it approached the top of a hill, and for 8 miles had been running from 40 to 55 miles an hour without protest on the part of the plaintiff, who was riding by invitation and was injured by the overturning of the car as it passed down the hill at an increased speed after the brakes failed to work, held that, even if defendant was negligent, plaintiff was guilty of contributory negligence, precluding recovery.-Joyce v. Brockett, N. Y., 200 N. Y. S. 394.
5. - -Passengers.-One hired to drive truck in delivering freight had no implied authority to transport guests, and guest could not recover from the employer for his negligence.—O'Leary v. Fash, Mass., 140 N. E. 282.
6. -Signals.-Burns' Ann. St. Supp. 1921, 10476u, providing that no driver shall stop suddenly, slow down, or attempt to turn around without first signaling his intentions, applies to backing the car preparatory to turning, and plaintiff, injured by such backing, was entitled to an instruction to that effect; the statute being a police regulation to promote safety, and not of the class of penal statutes which are strictly construed.Doering v. Walters, Ind., 140 N. E. 74.
7. Assault and Battery-Intent.-Where overt act was accompanied by threat to do violence in case a condition specified is not complied with, such act was not an “assault," if there was no present purpose to do harm, and circumstances were such that person threatened must have known no present assault was intended.-Ross v. Michael, Mass., 140 N. E. 292.
8. Bankruptcy — Assignment for Creditors.-Where bankrupt, before filing of the petition against it, had made an assignment for the benefit of creditors the court of bankruptcy is without power by summary order to require the assignees to pay to the trustee the amount of a bank deposit which the bank had previously applied on an indebtedness from bankrupt to it, and of which the assignees have neither possession nor control.-In re Geo. W. Cowen Co., U. S. C. C. A., 289 Fed. 192.
9. Claim Proceedings.-Summary proceeding before the referee was not the proper mode of procedure for trustee in bankruptcy to assert claims against a creditor of the bankrupt for an item claimed by the creditor to have been settled in accounting between him and the bankrupt, or for an item which trustee claimed should have been credited to the bankrupt for the use of his property, but such claims could only be determined in a plenary proceeding.-In re McKinney, U. S. C. C. A., 289 Fed. 242.
10.—Pledged Securities.-On bankruptcy of a broker, who, without express authority, has pledged securities deposited with him by customers. Some to secure indebtedness, and some not, those customers who were indebted, but whose securities were pledged for more than their indebtedness as to the excess are in the same class as customers owning pledged securities who were not indebted.In re Archer, Harvey & Co., U. S. D. C., 289 Fed. 267.
11. -Royalty Payments.-An unrecorded mining lease was not void as to creditors and purchasers, under Code W. Va. c. 74, $ 3 (sec. 3831), and payment of royalties made within the four months of bankruptcy and with knowledge on the part of lessor of lessee's insolvency is not recoverable by the trustee for the benefit of the estate; such statute applying only to lien or judgment creditors. - Woods v. Stemple, U. S. C. C. A., 289 Fed. 239.
12. --Trustee Claims.- Where bankrupt shoe company had agreed with seller of leather to it that, in consideration of seller's extension of credit, it would pay him either in shoes or accounts of its customers, and gave such creditor a power of attorney to collect its accounts with customers, the agreement did not transfer the title to the accounts to the creditor, nor was his power of attorney a power coupled with an interest, but was revoked by operation of law by the filing of the bankruptcy petition; hence where the creditor, by virtue of the power of attorney, collected accounts
Garage Keeper.--If the turning over by defendant's employee of defendant's car to a garage keeper's employee, to be returned to the garage, was not an arcommodation in furtherance of defendant's business, but in pursuance of defendant's agreement with the garage keeper to include this act of driving as a part of the general charge inclusive of the storage, then the driving was the art of the garage keeper's servant, and not that of defendant's servant.--Ryciak v. New York Oversea Co., N. Y., 200 N. Y. S. 379.
due the bankrupt after the filing of the bankruptcy petition, his claim to the proceeds of such collection was colorable, and the trustee of the bankrupt was entitled to reclaim from the creditor by summary proceeding in the bankruptcy court to compel the creditor to turn over such proceeds. -In re Columbia Shoe Co., U. S. C. C. A., 289 Fed. 465.
13.-Unincorporated Associations.—The executive committee of the Tidewater Coal Exchange, an unincorporated association, on failure of members to make good their overdrafts of coal, and in order to effect liquidation between its debtor and creditor members on closing its business, held to have authority, after due notice, to commute the liability of debtor members for coal withdrawn to a money liability at the then market price, and the trustee in bankruptcy of the association held entitled, after demand, to enforce such liability.Coyle v. Morrisdale Coal Co., U. S. C. C. A., 289 Fed. 429.
14. Banks and Banking-Absolute Purchaser.Where an order bill of lading, with draft attached properly indorsed, was accepted, as a deposit, the bank became an absolute purchaser, and, under Personal Property Law. 88 218, 224, acquired title to the property, unless it took with notice of some infirmity.-Commercial Sav. Bank v. Mann, N. Y., 200 N. Y. S. 587.
15. -Charged With Notice.-The addition of the word “Executor," or its abbreviation, “Exr.,' to the name of the payee of a check, draft or note, is enough to charge a bank receiving the proceeds of such instrument with notice that such funds belong to some estate of which the payee was trustee, and that such funds were not his private moneys.—Hall v. Windsor Savings Bank, Vt., 121 Atl. 582.
16. Drawee Checks.-A promise by the drawee of a check to accept and pay the same does not make the drawee liable in an action by a holder, unless such holder has taken the check with knowledge of the promise of the drawee and on the faith of such promise.—Citizens' Bank V. Mabray, Okla., 215 Pac. 1067. 17.
Letter of Credit.-A letter of credit, issued by a bank at the request of the buyer, authorizing the seller to draw drafts thereon, is entirely distinct from the contract of sale, and remains unaffected by any
transaction between buyer and seller, or by the fact that the drafts and shipping documents were forgeries. --Brown v. C. Rosenstein Co., N. Y., 200 N. Y. S. 491. 18.
Secured Deposits.—While a bank deposit secured by the state guaranty fund remains secured until paid by the bank, payment need not be made in money. any form of settlement with holder of a check thereon which releases the drawer of the check, being a payment which extinguishes the deposit to such extent.-Hall v, First Nat. Bank, Tex., 252 S. W. 828. 19.
-Sight Drafts.-Since, under Negotiable Instruments Act May 16, 1901, $$ 136, 137 (P. L. 194; Pa.
St. 1920, $$ 16128, 16129), a sight draft is deemed accepted unless dishonored within 24 hours, a bank not acting with the utmost promptness, diligence, and good faith on receiving negotiable bonds forwarded to it by another bank, as the owners' collecting agent, with a sight draft drawn on such receiving bank as purchaser of the bonds, and failing to give immediate notice of the subsequent theft of the bonds, held liable for the entire loss, though it did not authorize the purchase. Fidelity Title & Trust Co. v. First Nat. Bank, Pa., 121 Atl. 505.
20.-- Transfer of Assets. ---Where, at expiration of charter of a national bank, the directors thereof transferred its assets, good will, and bank building to a new national bank organized by them, pursuant to a plan or scheme kept secret from plaintiffs, minority stockholders, paving full value for all assets, except the bank building and lot and the good will, the bank building being undervalued, and nothing at all paid for good will, held in plaintiff's suit against the new bank and the directors of the old bank, that defendants would be compelled to pay full value for both these items to the stock
holders pro rata of the old bank-Kaufman v. Marquette Nat. Bank, U. S. D. C., 289 Fed. 295.
21. Bills and Notes-Negotiable Characteristics. -A promissory note in other respects negotiable does not lose its negotiable character by reason of a recital therein of its “having been given to the payee] as per contract for" certain property described.-State Banking Co. v. Morgan, Ga., 118 S. E. 415.
22. Carriers of Passengers-Bus Line Charter. To authorize the Commerce Commission to grant a bus company authority to operate its lines and to serve the same public already served by an existing street railroad system, it must appear that the street railroad company was not rendering adequate and convenient service, and that the operation of the bus lines would eliminate such inadequacy and inconvenience;
convenience and necessity of the public being a primary consideration.-West Suburban Transp. Co. v. Chicago & W. T. Ry. Co., Ill., 140 N. E. 56.
23.-—Land Safe.-It is not the duty of a conductor motorman to
passengers, upon leaving a street car at a regular stop, of the danger of automobile traffic in a city street, and failure to caution such passenger of approaching automobiles will not render the company liable for injuries caused by an automobile passing the car at an excessive rate of speed, and striking the passenger after he had alighted from the street car in safety.-Reining v. Northern Ohio Traction & Light Co., Ohio, 140 N. E. 84.
24. Commerce—Demurrage.-Under the rule established by the Interstate Commerce Commission, demurrage charges for the detention of cars must be exacted and collected by the carrier in accordance with the tariffs on file, and where certain exceptions or exemptions are specified therein, no others can be permitted. The validity of such rule as demurrage charges upon interstate traffic, adopted and applied by the Interstate Commerce Commission, is not open to question in state courts. Swift & Co. v. Hocking Valley Ry. Co., 93 Ohio St. 143, 112 N. E. 212, L. R. A. 1917, 916, approved and followed.-Anthony Carlin Co. v. Hines, Ohio, 140 N. E. 99.
25. -Fuel Administration.—The Fuel Administration Law, so far as it applies to deliveries by dealers after coal had arrived in their yards and was in their possession, related solely to intrastate commerce, and was not an interference with interstate Commerce or in conflict with the federal Fuel Law.—People v. Moynihan, N. Y., 200 N. Y. S. 434
26. Railroad Ticket.-A passenger on an electric railroad car, who had a ticket from Annapolis to Washington, was an interstate though the car on which he was riding was destined only to Baltimore, and he would have to change to a Washington car at a junction point.Washington, B. & A. Electric R. Co. v. Waller, U. S. C. C. A., 289 Fed. 598.
27. Withdrawal From Commerce-A machinist injured while working on
a railroad engine withdrawn from commerce by being placed in the shop for repairs consuming two months' time was not engaged in interstate commerce, and hence was not within the federal Employees' Liability Act (C'. S. Comp. St. $$ 8657-8665). ---Chesapeake & 0. Ry. Co. v. Mizelle, Va., 118 S. E. 241.
28.--Yardmen. --Railroad workman employed in yard of interstate carrier in pulling up od ties and putting in new ones was employed in “interstate commerce."Pallocco
v. Lehigh Valley R. Co., N. Y., 140 N. E. 212.
29. Constitutional Law-Appeal Bonds.-Practice Act, $ 123, providing for appeals from interlocutory orders appointing a receiver, held not unconstitutional as giving judicial powers court, in that it authorized him to fix and approve appeal bonds; such power being ministerial. --BagN. E. 49. donas V. Liberty Land & Investment Co., Ill., 140
30. isdiction as incident to the protection of the prop
-Contraband Property.-Equity has no jur. erty to enjoin the arrest of the owner or the seiz.
his property, with or without warrant, em
to the clerk of