specified in the order, the buyer waived the objection that they were prematurely shipped by accepting them and, without objection, permitting them to remain in his storehouse until they were destroyed by fire six days later.-J. B. Camors & Co. v. Morlet, Miss.. 95 So. 317.

56.

-Notice.-In a suit by the purchaser against the seller. to recover the amount paid under the first contract, upon the ground that there has been a breach of warranty by the seiler, where the evidence authorizes the inference that the seller has committed such a breach, and has waived his right to the written notice required by the contract and there is no evidence demanding the inference that by the execution of the second contract the parties undertook to settle all prior differences between them, the plaintiff's right to recover is not barred as a matter of law by his failure to give the seller the required notice in writing, and it was therefore error to grant a nonsuit. Smith v. Stevens. Ga., 116 S. E. 36,

57. Provisons of Contract.-Where defendant buyer sought to avoid liability under a contract on the ground that its execution was induced by the false representations of plaintiff's agent, held that a provision of the contract that "there are no representations, guaranties, or warranties, except as may be written on the face hereof," was not binding on the defendant.-International Milling Co. v. Priem, Wis., 192 N. W. 68.

58. Representations-Where contract to buy thresher and engine was signed by four buyers, false representations. inducing the signature of the buyer who first signed, were a defense to suit on the contract, where, although the representation was made after his signature was affixed, it was made at a time when the contract had not been so executed and delivered by all the buyers and accepted by the sellers as to be a binding ob'igation.-Zorns V. Brownfield Hardware Co., Tex., 247 S. W. 894.

59. Street Railroads-Right of Way.-A city ordinance, giving the right of way to police vehicles, requiring every vehicle to draw up as near the curb as possible, and a street car to stop upon the approach of any fire apparatus, gives a police automobile the right of way over a street car at a street intersection-Nolan v. Kansas City Rys. Co., Mo., 247 S. W. 429.

60.

no

United States-Contractors.-Where a company, operating its plant for waterproofing and fireproofing cloth wholly on cloth received from the government prior to the Armistice, had other business on which it could continue after the government work ceased, and expended considerable sums in operating at a loss, to keep its business alive and its organization existent, such expenditures were not recoverable, under Act March 2. 1919 (Comp. St. Ann. Supp. 1919. §§ 315 14/15a3115 14/15e), since they were not expenditures, obligations or liabilities incurred in performing or preparing to perform the contract with the government, and they were not incurred prior to November 12, 1918.-Price Fire & Water Proofing Co. v. United States, U. S. S. C., 43 Sup. Ct. 299.

61. Workmen's Compensation Act-Agent of Public.-A town superintendent of highways is the agent of the public at large for the purpose of constructing, repairing and maintaining the highways of the town, and no relationship of employer and employee, principal and agent, or master and servant exists between him and the town, and, in the absence of such relation, he is not within the coverage of the Workmen's Compensation Law. -Youngman v. Town of Oneonta, N. Y., 198 N. Y. S. 217.

62. Cause of Injury.-Where the accident is the immediate cause of death, it is immaterial under the Workmen's Compensation Act whether or not the employee be or be not peculiarly subject to have such accident befall him or to suffer therefrom more than another differently situated. the sole question being whether the accident was the immediate cause of the injury.-Hicks V. Meridian Lumber Co., La., 94 So. 903.

63. Independent Contractor.-W. contracted with the county to haul gravel at an agreed price per cubic yard. Plaintiff agreed with W. to haul

with W.'s team for half the earnings. The county paid W., who divided the amount with plaintiff. Held, that plaintiff was not an employee of the county within the meaning of the Workmen's Compensation Act.-Arterburn V. Redwood County, Minn., 191 N. W. 924.

64. -Minor.-An infant employed in violation of Acts 1911, c. 57, and Acts 1917, c. 77, is not bound by her election to claim compensation under the Workmen's Compensation Act, in view of her minority, and may bring an action at law for damages for injuries suffered, although a guardian was appointed for her under such act, and some payments were received by him.-Manning v American Clothing Co., Tenn., 247 S. W. 103.

65. Persons Excluded. The provision of the Workmen's Compensation Act (Code Supp 1918, e 15P [secs. 657-711]), excluding from its operation persons prohibited by law from being employed, means such persons as are by statute prohibited from being employed in a particular kind of service, and cannot be extended to include the minor son of one who has forbidden his employment in a particular capacity, when by the law of the land his employment in such capacity is not prohibited. -Byrd v. Sabine Collieries Corporation, W. Va, 114 S. E. 679.

66.

-Total Disability.-Where an employee, aged 79, was suffering from an ununited fracture of the neck of the left femur in that part of the bone that forms the hip joint, causing a complete loss of the leg, which injury was permanent, but cov ered a wider area and extended beyond the leg proper to other parts of the body, rendering such parts useless, the injury was compensable under Workmen's Compensation Act, $ 306, par. (a). being Pa. St. 1920, § 21993, providing for "total disability," paragraph (c) being section 21995, not covering injuries to other members of the body not therein mentioned, though produced by the same accident.-Rudisill's Trustee v. Wildasin, Pa., 119 Atl. 136.

67. Total Disability.-An empolyee blind in one eye who suffers loss of the other eye as a result of injury in his employment is entitled to com pensation under Workmen's Compensation Act. $ 31 (d), for total disability subject to the reduction allowed by section 35 if the loss of the first eye occurred in the same employment, notwithstanding the provisions of section 33.-Calumet Foundry & Machine Co. v. Mroz, Ind., 137 N. E. 627.

68.-Within Scope of Employment-Where a lumber company owned a whole town wherein the residences of its employees were separated from the boarding house, store, and main works by a railroad track, over which there was but one welldefined dirt road crossing, which was necessarily used by all employees in going to and coming from work, held that an injury to an employee at such crossing while returning to his work after his noonday meal, by a train not under the control of the company, occurred in the course of his em ployment, and had to do with and arose out of the business of the employer within the Workmen's Compensation Act.-Lumberman's Reciprocal Ass'n v. Behnken, Tex., 246 S. W. 72.

69. Within Scope of Act.-Where a workman was a mere laborer employed as part of a logging outfit engaged in cutting down trees and sawing them into logs on the employer's timber holdings. and the employer required the workmen to cut their allotted strips clean and to cut the trees at a required distance from the ground and the logs into required lengths, and reserved the right to discharge workmen violating these requirements, and conducted a store, operated a commissary, and employed a physician, though workmen were not obliged to avail themselves thereof, the work. man was a servant within the Workmen's Compensation Act, and not an independent contractor. though paid by the thousand feet, and though if workmen were lazy or failed to cut as many logs as the employer thought ought to be cut. they were not discharged additional laborers being employed.-Dick v. Gravel Logging Co., La., 95 So. 99.

Central Law Journal

St. Louis, June 20, 1923

WHEN FICTION OF CORPORATE ENTITY MAY BE DISREGARDED

It is only when necessary in furtherance of justice, and usually when there are elements of fraud or estoppel, that corporate entity may be disregarded, either at law or in equity.

But there is no doubt that courts, both law and equity, will disregard the fiction of corporate entity apart from the members of the corporation when it is attempted to be used as a means of accomplishing a fraud or an illegal act (14) C. J. 61).

The fiction of corporate entity has been disregarded in order to do justice in determining right and liabilities where the same persons have associated themselves together under corporate names and organizations for the purpose of carrying out several branches of a single common enterprise, and that the legal fiction of distinet corporate existence may be disregarded in a case where a corporation is so organized and controlled and its affairs are so conducted as to make it merely an instrumentality or adjunct of another corporation (14 C. J. 62).

However, unless the facts show that such separate corporate existence is a mere sham or has been used as an instrument for concealing the truth, a holding corpor ation will be treated as a separate entity.

In the article on Corporations in 14 C. J., 2, written for the most part by the late William R. Clark, who before his death. had made an enviable reputation as a law writer, the general doctrine that for most purposes a corporation becomes in law a legal entity or artificial person entirely distinct from its members and its officers is stated, and it is added that "this doctrine applies even in the case of a corpora

tion sole or a corporation aggregate whose shares are all owned by one or a few persons. And the rule applies as well where the stock of a corporation is owned partly or entirely by another corporation as where it is owned by natural persons, so that there is no identity between a corporation owning practically all of the stock in another corporation and the latter corporation" (14 C. J., 63).

The fact that all the stock of one corporation is owned by another corporation does not make it any the less a corporation and, legally speaking, the two companies are separate and distinct (Exchange Bank of Macon v. Macon Construction Co., 97 Ga. 1, 25 Southeastern, 326; see also the able opinion of Mr. Justice (Now Governor) Miller, in Palmer v. Ring, 113 A. D., 643, 99 N. Y. Supp., 290). The two corporations are, legally speaking, separate and distinct entities and different personalities in the eye of the law, though the one may own the entire stock of the other. The rule would, however, be different if one corporation caused the other to be organized, and maintained it as a mere department, agency or bureau of the parent company (Interstate Telegraph Co. v. Baltimore & Ohio Telegraph Co., 51 Fed. 49, aff'd 54 Fed. 50; cf. Quaid v. Ratkowsky, 183 A. D., 428, 170 N. Y. Supp., 812, aff'd without opinion, 224 N. Y. 624).

While the fiction of corporate entity ordinarily must be strictly observed, for several years past we have noted a growing indisposition on the part of courts, especially in equity and bankruptcy, to permit the doctrine of corporate entity to be employed either as a cloak for or an instrumentality of fraud, or in order to circumvent successfully some statute or contractual obligation (In re Watertown Paper Co., 169 Fed. 252; McCaskill Co. v. United States, 216 U. S., 504; Garrigues Co. v. International

International Agricultural Corporation. 159 A. D., 877; see also article "Piercing the Veil of Corporate Entity", 12 Colum

were regarded by the depositors as such; and the printed statement on the coupon in the deposit book would naturally lead the depositor to believe that they were savings deposits."

NOTES OF IMPORTANT DECISIONS

REMOVAL OF CAUSE WHEN NEITHER PARTY IS CITIZEN OF STATE WHERE ACTION BROUGHT.-Contrary to the rule heretofore prevailing, the Supreme Court of the United States in Lee v. Chesapeake & O. R. Co., 43 Sup. Ct. 230, holds that where a citizen of one state brings suit against a citizen of another state in a court in a state of which neither is a citizen, such cause is removable to the Federal District Court in which the county where the action is pending is located. A portion of the Court's opinion, written by Mr. Jus tice Van Deventer, is as follows:

"The plaintiff's contention to the contrary is predicated largely on a decision by this court in Ex parte Wisner 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, which, it must be conceded, is not in accord with the views expressed in this opinion. In that case the facts were like those here and the same statutory provisions were involved. These provisions were then part of the Act of August 13, 1888, c. 866, 25 Stat. 433, but, as respects the matter now under consideration, their meaning has not been changed by their inclusion in the Judicial Code. In that case it was ruled that the provision, now embodied in section 51, respecting the venue of actions originally begun in the Circuit (now District) Courts was strictly jurisdictional, could not be overcome even by the consent of both parties, and affected removals accordingly. The ruling proceeded on the theory that this was a right, if not a necessary, conclusion, inasmuch as the general purpose of Congress in adopting the act of 1888 was to contract the jurisdiction of the Circuit Courts. The decision was given in 1906 and was a departure from what had been said of the same provisions in prior cases, notably Mexican National R. R. Co. v. Davidson, 157 U. S. 201, 208, 15 Sup. Ct. 563, 39 L. Ed. 672, and Sweeney v. Carter Oil Co., 199 U. S. 252, 259, 26 Sup. Ct. 55, 50 L. Ed. 178. Much that was said in the opinion was soon disapproved in Re Moore, 209 U. S. 490, 28 Sup. 706, 52 L. Ed. 904, 14 Ann. Cas. 1164, where the court returned to its former rulings respecting the essential distinction be

tween the provision defining the general jurisdiction of the Circuit Courts and the one relating to the venue of suits originally begun in those courts. But as the decision was not fully and expressly overruled, it has been a source of embarrassment and confusion in other courts. We had occasion to criticise it in General Investment Co. v. Lake Shore & Michigan Southern Ry. Co., supra, and now on further consideration we feel constrained to pronounce it essentially unsound and definitely to overrule it.

"In this connection it should be observed that the opinion in Re Moore is open to the criticism that it seemingly assumes that, where neither party is a resident of the district, the removal, to be effective, needs the plaintiff's assent. We find no support for such an assumption in the provisions we are considering. Under them, as before indicated, the exercise of the right of removal rests entirely with the defendant and is in no sense dependent on the will or aquiescence of the plaintiff. The opinion in Re Moore is qualified accordingly."

DRIVER NEED NOT HAVE SUCH CONTROL OF AUTOMOBILE AS TO PRECLUDE POSSIBILITY OF COLLISION AT RAILROAD CROSSING.-The law in this respect as laid down by the Supreme Court of Iowa, in Dombrenos v. Chicago, R. I. & P. R. Co., 191 N. W. 158, appears from the following quotation taken from the Court's opinion:

"According to the testimony of appellant and a companion who was with him, the car was traveling at a moderate rate of speed, and the attempt made by him to avoid a collision was very nearly sucessful. He turned the bus in the direction the train was going, and the side of the automobile collided with the left side of the engine. The morning was sloppy, and it is not improbable that appellant's car skidded to some extent. According to his testimony, he saw the approaching train immediately after he passed beyond the brick building, and instantly turned the automobile to the left for the purpose of avoiding a collision. He was not bound to drive at a rate of speed, when approaching the crossing, or to have his car under such control as to preclude the possibility of a collision. He could not exercise infallible judgment. The question, upon the whole record, is whether, in approaching the crossing and in what he did to prevent the accfdent after he saw the approaching train, he exercised reasonable care."

CONFESSIONS OF ERROR IN CRIMINAL CASES.

By Frank Swancara

Some of the appellate courts, acting in accord with a desire to minimize their labors, have adopted the rule that on an unequivocal confession of error by appellee or defendant in error the judgment will be reversed. In criminal cases, it is the practice, in some jurisdictions, to reverse a judgment of conviction without further consideration or comment, when a confession of error is filed. Some courts which usually follow this practice, depart from it under certain circumstances. North Carolina it is the practice of the appellate court carefully to examine the record before setting aside a conviction of crime, whether error has been confessed or not. State v. Stevens, 153 N. C. 604,

69 S. E. 11.

In

In one Oklahoma case the Attorney General filed a confession of error, and the Court said, noting that fact, that the cause is "therefore" reversed. Brasheers v. State, 192 Pac. 433. In a later case in that state, the Court, in reversing the judgment, justified itself by the record, and did not base its action solely on the fact that there was a confession of error. Henderson v. State, 197 Pac. 720. In the opinion, the Court said:

"The record supports the allegations of the Attorney General's confession. This Court is of the opinion that the confession of error is well founded in law, and that the same should be susstained,

In another recent case, in that state, the Court said that "a reading of the record bears out the Attorney General's contention." Green v. State, 193 Pac. 1077. In North Carolina, the Court in State v. Stevens, supra, said:

"While the opinion of the state's attorney has much weight with us, it is

our practice to examine the record carefully ourselves before setting aside a conviction for crime and directing another trial."

It is not the purpose of this article to show what the practice is in various states. The writer desires to comment only on the practice of reversing a judgment in a criminal case solely on the ground that the Attorney General has filed a confession of error, and doing so without consideration, investigation, opinion or comment. Such appellate practice is vicious. The North Carolina case and the late Oklahoma cases have been cited to show that all courts do not follow it, and no Court is required to do so.

Confessions of error by the Attorney General, instead of being looked upon or treated with favor, ought to be disre garded. The very filing of them is a circumstance sufficient to raise a doubt concerning the good faith of the official acting, for the reason that but seldom is a confession of error filed. It is generally not filed, even when the record, in the case on review, shows palpable errors. Every volume of reports is likely to contain criminal cases which have been reversed where the Attorney General did not file a confession of error, but apparently, and in fact, sought an affirmance, or directed or permitted his assistants to prepare briefs on behalf of the state. A confession of error unexpectedly appearing in any particular case ought not to be welcomed with opened arms (and closed eyes) by the Court. Before adopting this infant left on its doorstep, or bench, the Court should first ascertain whether it is a legitimate offspring of the record. There should at least be "a reading of the record" by the Court, as there was in the Oklahoma case cited.

It is not probable that any Attorney General will assume, or usurp, judicial functions and reverse, or seek to reverse, a conviction by the use or filing of a confession of error, in the ordinary case.