Central Law Journal.

ST. LOUIS, MO., MARCH 19, 1920.

ARE WOMEN BY REASON OF BEING VOTERS ENTITLED TO SIT ON THE JURY.

The suffrage laws and amendments which have emancipated women from the political domination of men in much the same way as the Married Women's Acts of a former generation released her and her property from the domination of her husband, are raising new questions as to the implications that arise out of the new rights thus granted.

Thus, the question has arisen in New York whether the right of jury service is not incidental to and implied in the grant of suffrage. A decision of the special term of the Supreme Court (Kings County). has decided that the right to serve as jurors was not conferred by the suffrage amendment to the New York Constitution. In re Grilli, 179 N. Y. Supp. 795. In this case the Court denied a peremptory writ of mandamus directing the Commissioner of Jurors to include in the jury list every qualified woman of Kings County. The Court said:

"The petitioner insists that the word 'jury' has always meant twelve voters, but there is not a single expression in any of the acts with reference thereto which warrants any such conclusion. For instance, she asserts that because the act of the Colonial Legislature of November 27, 1741 (3 Colonial Laws, c. 720), provided that jurors were to be selected from the freeholders, and freeholders were voters, therefore

or a person on trial, that meant a jury of voters. 'Peers' might mean voters, yet the claim would be met by having none but voters as jurors. But this would not require the inclusion of women, even if they be voters. But the word 'peers' in this country really means a citizen and nothing more. I can see absolutely no connection whatever between the right to vote and jury service. to justify relator's claim. Were this the only consideration on this application, there would be no difficulty whatsoever in concluding that women citizens are not entitled to serve as jurors in light of the statute."

In Wyoming the same principle was announced in the case of McKinney v. State, 3 Wyo. 719, 723, 30 Pac. 293, 295, 16 L. R. A. 710, 712, where the Court declared that they "had not much doubt that women were not eligible as jurors under the territorial statutes, as the right to vote and to hold office does not include the right, if right it may be termed, to serve as a juror."

It has been suggested that the case of Strauder v. West Virginia, 100 U. S. 303, establishes a different rule. In this case it was held that a county judge of Virginia, charged by the law of that state with the selection of jurors, was properly indicted under an act of Congress, passed for the enforcement of the Fourteenth Amendment, for excluding and failing to select as grand jurors and petit jurors certain citizens of his county of African race and black color, who possessed all other qualifications prescribed by law.

It has been argued that the declaration. by the majority of the Court in the Strauder case that "the state may confine the selection of jurors to males" is obiter and that logically the Fourteenth Amendment prohibits discrimination in the selection of jurors or account of sex. It is also contended that the suffrage amendments dethat the rights of citizens of the state to vote and hold office shall not be denied or abridged on account of sex also secures to women the privilege to serve as jurors.

service.

"It is also argued that the word 'peers' meant those of equal political rights, that is, a right to vote, and that since a jury is to be selected from the peers of the litigants

Both these contentions, it seems to us, fail to take into account that the duty to serve as a juror is not a "right" of the

Our principal purpose, however, in this editorial is to take the question of extending the duty of jury service to women, out of the realm of political discussion about the rights of women. We understand that in some Western states this ridiculous and wholly unfounded consideration swayed some legislators into voting for a measure which they thought was intended further to enfranchise women and confer on them additional rights. In all states where, by the Married Women's Acts, all the disabilities of coverture have been removed and where the right to vote and hold office is secured to her, all the so-called rights of citizenship are already hers. Now the question will recur not infrequently-How much of the burdens of citizenship is she able and qualified to bear without interfering with interests in which the state is vitally concerned and which she alone can. properly care for? Any duties imposed on women which seriously interfere with the obligations of motherhood or which tend to encourage women to shirk the highest of all duties she owes to the state-the duty to have and to care for children-will steer the ship of state upon the rocks of unavoidable disaster.

NOTES OF IMPORTANT DECISIONS.

DOES THE TERM "FAMILY" IN A WILL INCLUDE A WIFE.-The law is often compelled to make many illogical distinctions in reaching just results, which is evidence, if any is needed, that law is not logic. Law is an experimental science and follows the experiences and needs of men rather than the inexorable demands of logic. This thought is illustrated by the result in the recent case of Lemmon v. McElroy, 101 S. E. 852, where the Supreme Court of South Carolina held that, although the word "family" may, under different circumstances, mean a man's household, consisting of his wife, his children, and servants, or may mean wife and children, or only children, the last meaning is the primary meaning, which will be given to the word when used in a will, unless the context indicates a contrary intention.

In this case A's will gave property to B for life, remainder to B's children if she leaves

any, otherwise to B's brothers and sisters or their "families." At the date when the will took effect B had three brothers and sisters. One brother, Alexander McElroy, had died, leaving Fannie McElroy, his widow, but no children. Fannie McElroy claimed one-fourth of the estate as the "family" of her husband. The Court held she was not included in the term "family" and could not take under the will. The Court declared that while the term "family" has a varying signification and is sometimes used to include not only the wife but sometimes the servants of the household, its primary signification is "children." As the term enlarges it includes all those who are "closely related by blood." It is only for special purposes as in the homestead acts that it is further enlarged to include the wife and its furthest reach, popularly, but not often legally, takes in all the members of a man's household. Which of these meanings are to be assigned to the use of the word in a will is a matter of construction. In seeking to find the testator's intention in the principal case the Court said:

"Studying the general language of the will before us, we see that the testator has been very particular to provide that the bequest in the first clause of the will should be for the use of Sarah and her children, should she have any children, but in no event could her husband receive any portion of it, presumably because he was no blood relationship to the testator; in case Sarah had no children, then the bequest was to her brothers and sisters, or their families. It is hardly to be believed that the testator would be so particular to provide that the bequest should be free from interference or ownership by one who was not of the same blood while the bequest was in the hands of Sarah and her children, and yet be so indifferent upon that point if the bequest should fall into the hands of her brothers or her sisters. This being inconceivable, we must conclude that the testator used 'families' in the primary sense, and as interchangeable with and equivalent to children."

In spite of the authority which the majority of the court adduces in support of its position we cannot conceive that the court is really effecting the intention of the testator by its strained and unsual construction of the word "family." This word not being a word of technical legal meaning, like "heirs" or "next of kin," should be construed in its popular sense and in this sense the "wife" is a part of the husband's "family." Indeed, the word family necessarily includes the wife since a family could not exist in the legal or popular sense without a wife. Suppose the widow of Alexander McElroy had had one child living at the time the contingent remainder took effect there can be no doubt that she and her

child would have taken equally as constituting the class named in this devise under the term "family." Does a wife lose her membership in the "family" of her husband when her children die? Or, is birth of issue necessary before a "family" can be said to exist between those joined in the holy bonds of matrimony.

It seems to us that the word "family" was carefully chosen by the testator with the intention of providing for those toward whom the contingent remaindermen sustained a family relation. If the testator desired to limit the devise to blood relations of the remainderman, he could easily have used the term "descendants."

THE RECOVERY OF THE VALUE OF STOLEN PROPERTY BY ACTION OF ASSUMPSIT. In a recent case the Superior Court of Delaware discusses the following interesting question of procedure: Can the plaintiff, where there is a tortious or wrongful taking or detention of personal property, which has not been sold by the tortfeasor, waive the tort and recover the fair value thereof, in an action of assumpsit upon a count for goods sold and delivered?

In the case of Conaway v. Pepper, 108 Atl. Rep. 676, the evidence showed that defendant tortiously secured possession of plaintiff's wagon by misrepresenting to plaintiff's hired man that plaintiff had granted him permission to use the wagon. Defendant still retained the wagon and refused to return it, claiming that plaintiff had agreed to trade his wagon for one of defendant's. Plaintiff brought suit in indebitatus assumpsit for goods sold and delivered. Defendant secured instruction directing a verdict in his favor on the ground that an action in assumpsit was an improper count on the fact adduced, since it did not appear that defendant had sold the wagon and was retaining any proceeds thereof belonging to plaintiff.

There can be no doubt that this was the common law rule, which was due to the fact that for a long while, in the history of the English law, the count for money had and received was the only form of indebitatus assumpsit which was used in cases involving the waiver of tort. 2 Street, Foundations of Legal Liability, 216.

The old rule in Delaware was the common law rule and the trial court was justified in its ruling. Hutton v. Wetherald, 5 Harr. 38. In reversing the decision of the lower court, therefore, the appellate court was compelled to overrule its former decision which it proceeded to do, however, without apparent reluctance. The Court said:

"It would seem that every reason for allowing a recovery in assumpsit, upon a count for money had and received, of the amount for which the property was sold, will apply with equal force, to a case for the recovery of the fair value of the property, upon a count for goods sold and delivered, where the property is not sold, but retained or consumed by the tortfeasor."

The rule announced by the Court in this case is abundantly sustained by the authorities of many states. Keener, Quasi Cont. 192; 2 Page on Cont. § 843; 2 R. C. L. 756, 757; Woodruff v. Zaban, 17 Ann., Cas. 975 (note) 977; 1 Cooley on Torts, §§ 109, 111; 1 Hilliard on Torts, 47; Putnam v. Wise, 1 Hill (N. Y.) 240 (note); Hill v. Parrott, 3 Taunton, 274; Bradfield v. Patter son, 106 Ala. 397, 17 South. 536; Roberts v. Evans, 43 Cal. 380; Fountain v. Sacramento, 1 Cal. App. 461, 82 Pac. 637; City of Elgin v. Joslyn, 136 Ill. 525, 26 N. E. 1090; Reynolds v. N. Y. Trust Co., 188 Fed. 611, 110 C. C. A. 409, 39 L. R. A. (N. S.) 309; Douns v. Finnegan, 58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. 488; Crane v. Murray, 106 Mo. App. 697, 80 S. W. 280; Galvin v. Mac Mining & Milling Co., 14 Mont. 508, 37 Pac. 366; Abbott v. Blossom, 66 Barb. (N. Y.) 353; Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803; Braithwaite v. Akin, 3 N. D. 365, 56 N. W. 135; Barker v. Cory, 15 Ohio, 9; Albrook v. Hathaway, 3 Sneed (Tenn.) 454; Tidewater Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835, 115 Am. St. Rep. 864, 8 Ann. Cas. 736.

The basis of the rule today of the right to waive the tort and sue on indebitatus assumption for goods sold and delivered is the unjust enrichment of the tortfeasor. There is a quasi contract, for breach of whch the plaintiff is allowed to recover the amount which it is against conscience for the defendant to keep. Keener, Quasi Contracts, 159, 160.

A CONFESSION NOT AFFECTED BY THE FACT THAT ACCUSED WAS SUFFERING WITH THE INFLUENZA-The "flu" is not a disease to be "sneezed at" or made light of, as the writer can well certify to from experience. But whether it is a disease serious enough to interfere with the ordinary operations of a rule of evidence might well be left to the circumstances of each individual case. In the recent case of State v. Babineaux, 83 So. Rep. 558, the "flu" was interposed as an objection to the introduction of a confession on the part of the defendant who alleged that he was out of his head at the time it was made. In overruling the objection the Supreme Court of Louisiana said:

"The confessions of two of the accused were objected to as having been induced by promises, and that of the other accused as having been

made while sick with the "Flu," and out of his head. The accused testify to the promises having been made, but the persons to whom the confessions were made testify positively and unqualifiedly to the contrary. While the accused, who was sick, testifies to his having been out of his head when he made the confession, and the person to whom he made it says that the accused was very sick-said he had pneumonia -the fact remains that he was not so far out of his head as not to have been able to make the confession; and there is no pretense that he was induced to make it by any promise or prompting from anybody."

LIABILITY FOR COLLISION BETWEEN RAILROAD AND AUTOMOBILE WHERE VIEW IS UNOBSTRUCTED. The great number of automobile accidents at railroad crossings and the many legal questions that arise out of such accidents is sufficient to make the recent case of Barrett v. Chicago, M. & St. Paul Ry. Co., 175 N. W. Rep. 954 of some interest.

In this case plaintiff's intestate was riding as a guest in an automobile being driven through the city of Tama, Iowa, across the tracks of the defendant railroad. The plaintiff could have seen the train, probably did see it a long way off, but claimed that the train was exceeding the speed allowed by city ordinance. He also claimed that the enginer could have seen the automobile in time to have stopped the train and that under the last clear chance doctrine the defendant was liable. The plaintiff secured a judgment, which, however, was reversed on appeal and the Supreme Court carefully reviews the whole case and clearly states the respective rights of automobile and railroad under such circumstances.

On the question of speed the Court holds that, although plaintiff's intestate saw the train approaching, he had a right to assume that the engineer would give the customary warning and would not run at a speed in excess of that allowed by law.

The point in the case on which the Court reversed the judgment was the declaration in the instruction that the defendant was liable on the doctrine of last clear chance if the engineer by the exercise of ordinary care should have discovered the peril of the deceased. On this point the Court said:

"Nor does the instruction under which this issue was submitted correctly state the law. In the twenty-fourth paragraph of the charge, the Court said that:

"The rule that, where one, through his own fault, puts himself in a place of danger on a railroad track, he is precluded from recovering damages for his resultant injury or death, is subject to the qualification that where the engineer has, or by the exercise of ordinary care

should have, discovered the peril of the deceased or his position, and it is apparent that he cannot escape, or he, for any reason, does not make effort to do so, it becomes the duty of the engineer to use all means in his power to avoid injuring the person."

"The italics are ours, and are used to point out the precise error the court fell into. It is the settled doctrine of this court that, in order to render the employes of a steam railway company negligent under the doctrine of last fair chance, they must have actually seen the persons injured in such time that, by the exercise of ordinary care, they could have avoided injuring them. It is not enough that, by the exercise of ordinary care, they must have seen. It must appear from the evidence that they in fact did see or knew of their perilous position."

We discussed this rule in an annotation to the case of Aiken v. Metcalf, 102 Atl. Rep. 330; 86 Cent. L. J., 68. The rule of last clear chance is generally limited to cases of wanton, willful injuries inflicted on those whose contributory negligence has placed them in a position of peril. A very recent case by the Supreme Court of Connecticut was announced requiring the injuring party to use every reasonable precaution to discover one who is in a position of danger due to his own negligence. Tullock v. Connecticut Co., 108 Atl. Rep. 556. We believe this rule is open to the objection that one is not expected to anticipate that another will act carelessly in a given emergency.

Another interesting question in the case was that plaintiff claimed that his decedent, Berger, was a guest in the machine operated by one Reinig and that therefore the latter's negligence was not to be imputed to him. The defendant insisted that Berger and Reinig were engaged in a joint enterprise. But the Court, after declaring that the evidence clearly showed that Berger was a guest, held that this was unimportant since even a guest in a machine is liable for failing to look out for his own protection. On this point the Court said:

"Whether or not they were engaged in a joint enterprise, however, was not very important, for Berger, even though a guest, was required, in the exercise of ordinary care for his own protection, to keep a vigilant lookout for approaching trains, when about to pass over the railroad crossing. He was sitting on the front seat with the driver, and enjoyed opportunities for seeing and listening equal to those of the driver. There is no reason for exacting a less degree of care in these respects than Reinig was required to exercise. Beemer V. Railroad, 181 Iowa, 642, 162 N. W. 43."

This last holding by the Court should not be understood to change the well-settled rule that the contributory negligence of the driver of an automobile is not to be imputed to the guest. The rule stated by the Court and which