Central Law Journal. which a large section of the population, whose occupation is out-of-doors, is ordi ST. LOUIS, MO., JANUARY 23, 1920. narily exposed. Probably no set of words in the compensation acts, or in any other statute for that matter, is likely to give rise and has already given rise to more litigation than the phrase "arising out of the course of employment." The refinements possible in construing these words are almost infinite and the field of discussion is attracting the metaphysicians and other word twisters until the ordinarily clear thinker is almost prepared to admit the need of a strait jacket and a padded cell. To begin with let us consider an early case often cited and likely to be regarded as a leading case; to-wit, the case of Warner v. Couchman, L. R. (1911), 1 K. B. 351, 1 Negligence and Compensation Cases Annotated 51. The facts in this case were exceedingly simple. A driver of a bakery wagon, while delivering bakery goods to retail customers on a very cold day, suffered severe and permanent injury to his right arm by reason of having it frostbitten. It appeared that this particular arm suffered the injury by reason of the driver being compelled to pull off his glove at frequent intervals to make change for the customers. The main question over which much gray matter was expended was whether this accident arose "out of and in the course of the employment." There was, of course, no doubt that the accident arose "in the course" of the employment, but after much labored reasoning, as it appears to us, the Court of Appeals finds that the particular accident did not arise "out of" the employment, simply because the injury suffered was one to If this reasoning is to be accepted by the courts in this country, then, indeed, will the great and beneficent purposes of the Workmen's Compensation Acts be defeated. For the great underlying sociological idea in such legislation is to require the master directly and society indirectly to compensate such servants who, by reason of their employment, are subjected to unusual hazards and who while thus serving their masters and society suffer an injury which it is not fair nor just that they should bear alone. Surely it is not a proper argument against a servant's claim for compensation that other servants in other employments are exposed to the same hazards, at least not if such hazard is increased by reason of the peculiar nature of the employments. The dissenting opinion of Lord Justice Fletcher Moulton, in the Warner case, is so clear and convincing that we venture the following quotation, which is worthy of being carefully considered by the courts when confronted with a question of this character. Justice Moulton said: "The judgment of the learned judge of the County Court shows that he thought himself permitted, and even bound to compare the man's employment with other employments in order to ascertain whether the accident arose out of the applicant's employ ment. stratio. The law does not say 'arising out To my mind this is falsa demonof his employment and out of that employment only.' Other employments have nothing whatever to do with the question. A shepherd who has to bring in his sheep in a snowstorm, and suffers frostbite and loses his life thereby, is the victim of an accident arising out of his employment none the less because a railway guard or a night watchman or a postillion might be equally exposed to the weather. The comparison of one employment with another is to my mind wholly illegitimate. But when we deal with the effect of natural causes affecting a considerable area, such as severe weather, we are entitled and bound to consider whether the accident arose out of the employment or was merely a consequence of the severity of the weather to which persons in the locality as such and, whether so employed or not, were equally liable. If it is the latter, it does not arise 'out of the employment,' because the man is not specially affected by the severity of the weather by reason of his employment." Accidents occurring by reason of natural conditions, as rain, cold, heat, lightning, wind, water, fire, etc., are usually those that give the greatest difficulty. But the problem is not solved by referring to the universality of the general natural conditions that bring about the injury, but solely by the consideration whether the particular employment rendered the injury from natural causes greater than if one had not been engaged in such employment. Thus, the most uncertain active force in nature is probably the lightning. Nobody within the area of the storm is exempt. Yet even in the face of a force so indis criminate in its action the courts of England have already announced distinctions which they seem to have ignored in the Warner case. Thus, in Kelly v. Kerry County Council, 42 Ir. L. T. 23, the Irish Court of Appeals held that a man, working on the roads, who was struck by lightning was not injured by reason of an accident arising "out of" his employment. On the other hand, the English Court of Appeals, in Andrew v. Failsworth Industrial Society, 2 K. B. 32 (1904), held that a bricklayer, working on a high scaffold, is subjected to greater danger from lightning, by reason of his position, than one on the road and was, therefore, entitled to compensation for injury resulting from being struck by lightning. The law in these cases, as all other cases. follows in the wake of science and where science discovers that dangers from the operation of natural forces are increased by certain occupations, or by reason of a person being in certain positions, the law will, and should, give effect to such distinctions. Thus, woodmen, workers on electrical lines, or steeplejacks, may very well be regarded as being exposed to greater dangers from lightning, by reason of their employment, than other persons, even if such increased hazard is impossible to estimate. If such distinctions can be drawn as to a natural force so indiscriminate in its action as lightning, they are surely warranted in cases where the accident is occasioned by natural forces, whose operation is better understood and danger from which is more easily avoided. Thus, heat and cold are common and complementary forces of nature, whose laws are well understood. Thus, a man who is compelled by his employment to paint the side of a ship on a hot day in the tropics is not to be denied compenstion simply because other men in other occupations were similarly exposed. It was so held in Morgan v. The "Zenaida," 25 Law T. Rep. 446 (1909). So, also, it would seem to follow if one is compelled by his occupation to work out-of-doors when the weather is severely cold is not to be denied compensation simply because certain others may be exposed to the same hazard. The sole question in all these cases would seem to be, does the servant's employment expose him to a greater hazard by reason. of the operation of natural forces than the community in general? If so, the accident clearly arises "out of" the employment. NOTES OF IMPORTANT DECISIONS. RIGHT OF HUSBAND TO ACQUIRE PROPERTY BY ADVERSE POSSESSION AS AGAINST HIS WIFE.-It is difficult to change established rules of law even where the reason for the rule has failed. This is particularly true in respect to the rules of the common law respecting the disabilities of married women. The common law regarded the husband and wife as one person and from this fact of unity logically were derived certain familiar rules which not only deprived the feme covert of her freedom of contract but also restricted the husband in contracting with his wife or acquiring any adverse rights against her or her property. The fact, however, that the Married Women's Acts in most states have repudiated the common law idea of the unity of the marriage relation and have substituted therefor the civil law idea of the duality of such relation has not been fully appreciated by the courts, who still hesitate to recognize the logic of the situation and frankly declare the wife a feme sole for all purposes except in respect of the duties and obligations which she, as well as her husband, have voluntarily assumed by virtue of the marriage relation. One rule, to which the courts tenaciously cling, is the common law rule which prevented a husband or wife from acquiring property adversely as against the other. In the recent case of Kornegay v. Price, 100 S. E. Rep. 883, this rule is recognized in a case the facts of which raise a very clear issue on which we wish to make a few comments. We do not wish to be understood as criticising the North Carolina Court which rendered this decision, as we have not had the opportunity to make a careful study of the North Carolina Married Women's Act to determine to what extent the disabilities of coverture have been removed in that state. In the Price case Margaret Price conveyed certain property to her husband, the defendant in this case, by a deed which is admitted to have been void for failing to comply with certain statutory requirements as to securing the approval of a probating officer, etc. After the death of the wife the plaintiff, as the only heir at law of the wife, sued to recover the title and possession of the land. The husband's defense was that his wife's deed, admitting it to be void, was color of title which his adverse possession had ripened into a good title. The trial court sustained the defendant's contention and directed the jury that the plaintiff was not entitled to recover. The Supreme Court, how ever, disagred with the lower court's view of the law and reversed and remanded the case for a new trial. In reaching this conclusion the Court discusses the case wholly from the view. point of the common law and, of course, could find no justification for the trial court's ruling. The Court said, in part: "It seems to be well settled that, owing to the unity of husband and wife, adverse possession cannot exist between them so long as the coverture continues. But where the marital relations have been terminated by divorce or abandonment, it seems that one may acquire title from the other by adverse possession. I. A. & E. Ency., p. 820, § 11. In First National Bank v. Guerra, 61 Cal. 109, it is held that a wife cannot claim adversely to her husband or those claiming under him so long as he remains the head of the family. It is held further in Hendricks v. Rasson, 53 Mich. 575, 19 N. W. 192, that the husband cannot hold, adversely to his wife, premises belonging to her. Joint possession by husband and wife held under the wife's claim of title inures to her benefit. Templeton v. Twitty, 88 Tenn. 595, 14 S. W. 435. In Vandervoort v. Gould, 36 N. Y. 639, it is held that the possession of premises by husband belonging to his wife can in no sense be deemed adverse. In the note to A. & E. Ency., supra, a large number of cases is cited sustaining the text. See, also, Union Oil Co. v. Stewart, 158 Cal. 149, 110 Pac. 313, Ann. Cas. 1912A, 570 and notes." There can be no possible criticism of this decision if the common law idea of the unity of the marriage relation has not been changed by the Married Women's Acts. The authorities cited by the Court could be multiplied many times over by authorities from practically every state in the Union adhering to the rule announced by the Court, although most of these cases will be found to have been decided before the Married Women's Acts were passed or without reference to their effect. Where, however, such acts are so far-reaching in their scope as practically to remove all the disabilities of coverture, so that a wife becomes practically a feme sole even in respect to her dealings with her husband, there is no possible ground for holding that a husband and wife cannot acquire title from each other by adverse possession. (See Trammell v. Craddock, 93 Ala. 452; Lide v. Park, 135 Ala. 131, 33 So. Rep. 175, 93 Am. St. Rep. 17.) In Warr v. Honeck, 8 Utah 61, 29 Pac. Rep. 1,117, it was held that where a void decree of divorce transferred certain property to the wife, and she lived on it apart from her husband, although still his wife, her possession was adverse to her husband so as to vest title in her. We do not wish to contend, however, that under certain circumstances, as where the property is held as a common home, the right of the husband or wife to hold such property ad versely to the other might not be denied. We wish merely to contend that under the Married Women's Acts some other reason than that of the unity of marital relation must be discovered which prevents acquisition of title by adverse possession under such circumstances. Thus in Berry v. Wiedman, 40 W. Va. 36, 20 S. E. 817, it was held that where land is bought in the husband's name with the wife's money his possession of it as their common home without claim of owenrship expressed to her or to anyone likely to inform her is not adverse to her right to a resulting trust. The West Virginia case last cited does not arbitrarily adhere to the rule as to the impossibility of husband and wife to hold adversely to the other, but discusses the circumstances under which such holding would not be adverse. It is quite clear that proof of the notoriousness, exclusiveness and hostility of the possession of husband or wife against the other will often be a matter difficult of proof, especially where the property is used as a common home, but this fact does not change the rule that where the disabilities of coverture have been removed and a married woman is regarded as a feme sole it is possible, under proper conditions, for either spouse to acquire property from the other by adverse possession as well as by deed. RIGHT OF ADMINISTRATOR TO RECOVER INSURANCE FOR DEATH OF DECEDENT WHERE DEATH WAS PROCURED BY ONE WHO IS THE DECEDENT'S SOLE DISTRIBUTEE.-The right of a murderer to sue for any benefits secured to him by the death of the one whose life he has feloniously taken is quite universally denied. Riggs v. Palmer, 115 N. Y. 502, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep 819 (leading case); New York Mutual Life Insurance Co. v. Armstrong, 117 U. S. 591, 6 Sup. Ct. Rep. 877, 29 L. Ed. 997. See, also, 14 R. C. L. 1,228, title Insurance, § 409, and authorities there cited. In the Riggs case a legatee was declared to have forfeited a legacy bequeathed to him by the will of the testator, whom he murdered. The Armstrong case applies the same principle to a suit for the proceeds of insurance by a beneficiary who murdered the insured. This rule is, of course, founded on public policy, which will not permit the felon to reap a legal benefit from his own crime. In all these cases, however, and many others the courts have merely declared the right of the plaintiff forfeited in favor of other beneficiaries and have permitted suit to be brought in the name of the personal representative of the deceased for the benefit of the latter's estate. For in such cases the defendant who rightfully owes money under a contract with deceased should not be excused from paying it because of the inability of the beneficiary to take. It properly belongs to the estate. But suppose the murderer is also the sole distributee of the estate. Will the law permit the personal representative to acquire the fund and thus indirectly confer on the murderer that which he could not have acquired directly? This was the interesting question discussed by the Supreme Court of West Virginia in the recent case of Johnston v. Metropolitan Life Ins. Co., 100 S. E. 864. In this case the defendant issued a policy to one Frank Pickens, whose life was subsequently taken by Susie Pickens, his wife, the beneficiary in the policy. The plaintiff, Johnston, however, brought suit on the policy for the benefit of the estate of the insured, but the Court held that he could not recover on the ground that Susie Pickens was under the law the sole distributee of the estate. It was suggested that a recovery would be allowed in favor of the administrator and Susie Pickens denied the right of inheritance. The reasons why this result was not possible are well stated by the Court: "Under our law there is no longer corruption of blood or forfeiture of estates upon conviction of crime, and there is no exception in our statutes of descents and distributions precluding one from inheriting in a case like this. The laws governing the devolution of property are an expression of the public policy of the state contained in its Constitution and legislative acts, and the courts are not justified in attaching to these acts exceptions or limitations which have not been placed thereon by the lawmaking bodies. It therefore follows that if the personal representative of the insured in this case is permitted to recover this fund, the beneficiary will accomplish by indirection that which she could not do directly. That the property of one who has been murdered will devolve upon the murderer where such is the course of distribution provided by law seems to be well settled in most of the American states. McAlister v. Fair, 72 Kan, 533, 84 Pac. 112, 3 L. R. A. (N. S.) 726, and note, 115 Am. St. Rep. 233, 7 Ann. Cas. 973; Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. 935, 25 L. R. A. 564, and note; Kuhn v. Kuhn, 125 Iowa 449, 101 N. W. 151; Carpenter's Appeal, 170 Pac. 203, 32 Atl. 637, 29 L. R. A. 145, 50 Am. St. Rep. 765; Owens v. Owens, 100 N. C. 240, 6 S. E. 794; Ellerson v. Westcott, 148 N. Y. 149, 42 N. E. 540; Deem v. Milliken, 6 Ohio C. C. 357, affirmed on appeal 53 Ohio St. 668, 44 N. E. 1,134." The Court in the principal case was therefore left with no alternative but to deny the administrator of the deceased the right to recover on the policy in view of the ultimate inheritance of the entire proceeds by the murderess. On this point the Court said: "Will the courts then allow themselves to be used for the purpose of bringing into existence an estate which will by operation of law devolve on one who because of his conduct is not entitled to it? The administrator has no interest in the subject-matter. It is agreed here that the insured left no debts, and it follows that every dollar of the fund recovered by the administrator in his representative capacity must go to the murderess. The suit is simply in his name for the benefit of the one who feloniously caused the insured's death. The case of McDonald v. Mutual Life Ins. Co., 178 Iowa 863, 160 N. W. 289, is very much like this case in its facts. In that case the administrator of the insured brought the suit to recover on the policy of insurance. It appeared that the sole distributees of the insured's estate were her father and mother, and that they had assisted in a criminal operation which produced her death. The court held that the administrator, if such facts were shown, would not be entitled to recover, for it would be for the benefit of those who are by the public policy of the law denied such right." It seems to us the decision of the Court is eminently sound if restricted to cases where the murderer is the sole distributee. Where, however, other distributees would share the fund, it would hardly be fair to the innocent to deprive them of their rights in order to prevent the guilty party from securing any benefit from his crime. It is interesting to note that this principle is not confined in its operation to the cases of homicide. It applies to all cases where one seeking a benefit has been guilty of an offense which brings about the condition on which the benefit is conferred. Thus where the basis of the recovery in a damage suit was the wrongful employment of plaintiff's decedents, who were under legal age, the administrator will not be allowed to recover, if the sole distributee is the father who himself sought and procured the employment of his child by the defendant. Dickinson v. Colliery Co., 71 W. Va. 323, 76 S. E. 654, 43 L. R. A. (N. S.) 335; Swope v. Coal Co., 78 W. Va. 517, 89 S. E. 284, L. R. A. 1917A 1,128. In all these cases the defendant is not excused from his obligation. In fact, the obligation or the liability, as the case might be, is sustained, but the plaintiff prevented from recovering because he himself, or, if the plaintiff is the personal representative of the deceased, the sole distributee of the estate, would receive the benefit of a situation created by his own wrongful act. In all such cases the party who has united with a defendant in the commission of the wrongful act will be prevented from taking advantage of his own wrong. ODD WILLS AND PECULIAR TESTATORS. Says Mr. Dooley: "So f'r wan reason or another I've niver made a will, but I'll not deny it must be considhrable spoort f'r thim that has th' manes an' th' imagination to enjye it. To be enjyeable a will must be at wan an' th' same time a practical joke on th' heirs an' an advertisemint iv th' man that made it."1 In looking through the books one is forced to admit that this witticism seems to be justified. Of Sir Joseph Jekyll, who by will left his large fortune to pay the national debt, Lord Mansfield said: "Sir Joseph was a good man and a good lawyer, but his bequest was a very foolish one." The heirs contested the will and it was set aside on the ground of imbecility. Sergeant Meynard in the reign of William III purposely worded his will in obscure terms, so there might be litigation to settle intricate law points which had troubled him in his practice at the bar. Curiosity of Law and Lawyers, page 491. It was the will of Lord Chancellor Cowper that his son should never travel, giving as a reason "that there was little to be hoped and much to be feared from traveling." Two centuries later we find a similar request in the will of a Mr. James of San Francisco, who died May 10, 1910. Leaving a large estate to be disposed of under a holographic will, he specially admonished the devisees that there were to be no expensive trips to Europe. His advice was: "Spend your money in this country. Buy or build nice residences and live and enjoy yourselves among people you know." In a codicil he reiterated that there were to be "no trips to Europe."2 Thellusen was a shrewd London merchant of Swiss origin, who had accumulated a fortune of $3,000,000 when he died, in 1797. Leaving a widow, three sons and |