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with Wi'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 guardia 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, C. 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 serv. ice, 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 corered 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.

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 seller, 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. United States-Contractors.—Where a companyoperating its plant for waterproofing and fireproofing cloth wholly on cloth received from the government prior to the Armistice, had no 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 no 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.

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

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 eve 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 å 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 workman was a servant within the Workmen's Com. pensation 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 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


tion sole or a corporation aggregate whose shares are all owned by one or a few per

And the rule applies as well where St. Louis, June 20, 1923

the stock of a corporation is owned partly

or entirely by another corporation as WHEN FICTION OF CORPORATE

where it is owned by natural persons, so ENTITY MAY BE DISREGARDED

that there is no identity between a corpora

tion owning practically all of the stock in It is only when necessary in furtherance

another corporation and the latter corporof justice, and usually when there are ele

ation" (14 C. J., 63). ments of fraud or estoppel, that corporate

The fact that all the stock of one corentity may be disregarded, either at law

poration is owned by another corporation or in equity.

does not make it any the less a corporation But there is no doubt that courts, both

and, legally speaking, the two companies law and equity, will disregard the fiction

are separate and distinct (Exchange Bank of corporate entity apart from the mem

of Macon v. Macon Construction Co., 97 bers of the corporation when it is at

Ga. 1, 25 Southeastern, 326; see also the tempted to be used as a means of accom

able opinion of Mr. Justice (Now Govplishing a fraud or an illegal act (14 C. J. 61).

ernor) Miller, in Palmer v. Ring, 113 A.

D., 643, 99 N. Y. Supp., 290). The two The fiction of corporate entity has been disregarded in order to do justice in de

corporations are, legally speaking, separate termining right and liabilities where the

and distinct entities and different personal

ities in the eye of the law, though the one same persons have associated themselves together under corporate names and or

may own the entire stock of the other. The ganizations for the purpose of carrying out

rule would, however, he different if one several branches of a single common

corporation caused the other to be organterprise, and that the legal fiction of dis- ized, and maintained it as a mere departtinct corporate existence may be disre- ment, agency or bureau of the parent comgarded in a case where a corporation is so pany (Interstate Telegraph Co. v. Baltiorganized and controlled and its affairs more & Ohio Telegraph Co., 51 Fed. 49, are so conducted as to make it merely an

aff'd 54 Fed. 50; cf. Quaid v. Ratkowinstrumentality or adjunct of another cor- sky, 183 A. D., 428, 170 N. Y. Supp., 812, poration (14 C. J. 62).

aff'd without opinion, 224 N. Y. 624). However, unless the facts show that such While the fiction of corporate entity orseparate corporate existence is a mere dinarily must be strictly observed, for sevsham or has been used as an instrument eral years past we have noted a growing for concealing the truth, a holding corpor- indisposition on the part of courts, espeation will be treated as a separate entity. cially in equity and bankruptcy, to permit

In the article on Corporations in 14 C. the doctrine of corporate entity to be emJ., 2, written for the most part by the late ployed either as a cloak for or an instruWilliam R. Clark, who before his death mentality of fraud, or in order to circumhad made an enviable reputation as a law vent successfully some statute or contractwriter, the general doctrine that for most ual obligation (In re Watertown Paper purposes a corporation becomes in law a Co., 169 Fed. 252; McCaskill Co. v. United legal entity or artificial person entirely States, 216 U. S., 504; Garrigues Co. v. distinct from its members and its officers International Agricultural Corporation, is stated, and it is added that “this doc- 159 A. D., 877; see also article “Piercin, trine applies even in the case of a corpora- the Veil of Corporate Entity”, 12 Coluni.


bia Law Review, 496, June, 1912.-N. Y. CHARACTER OF CHRISTMAS CLUB Law Jour., Nov. 10, ?22).

DEPOSITS In the case of Ilinois Central R. Co. v. Buchanan (88 S. W. 312, 27 Ky. Law Rep., The case of Re Hanover Trust Co. (135 1215), where a railroad hospital association N. E. 166, 21 A. L. R. 1126), decided by was organized as a corporation independ the Supreme Judicial Court of Massaent of the railroad company, but by its chusetts, fixes the character of Christmas articles its directors were declared to be Club deposits as that of savings deposits certain officers of the railroad company, in the particular instance. This seems to and all employes of the railroad were made be a case of first impression, and it is of members, it was held that the hospital cor- considerable importance, especially in those poration was a separate and distinct or- states which treat the commercial and sav. ganization from the railroad company and ings departments of banks and trust comthat the latter was not liable for the con- panies as distinct and independent. duct of the hospital directors nor for the The rules of the Christmas Club in the negligence of physicians or attendants of Hanover Trust Co. provided that the book the hospital in treating railroad employees. must be presented when making a deposit,

In the case of In re Watertown Paper that there could be no withdrawals before Co. (169 Fed. 252, 94 C. C. A., 528) the the final due date, and that the book must stockholders of a paper company caused be surrendered immediately afterwards. the organization of a pulp company, with Statutes of Massachusetts provide, in subfunds advanced by the paper company, stance, that every trust company receiving but for the account of its stockholders, and deposits which are to be withdrawn only while the two corporations mingled their on presentation of the pass book, or other affairs, the paper company purchasing its similar receipt permitting deposits and pulp from the pulp company, and the con- withdrawals to be entered thereon, or trolling stockholders regarding the two which at the option of the trust company corporations generally as different departmay be withdrawn at the expiration of a ments of their business etc., it was held stated period after notice, or in any way that the separate existence of such corpora- where the public might be led to believe tions was not fraudulent, nor were they so that such deposits are received under the conducted as to make one a mere adjunet same conditions as deposits in the savings of the other, so as to prevent the recovery banks, shall have a savings department; of claims of the pulp company against the that such deposits shall be placed in the paper company.

savings department; and that such deposits In the recent case of Bethlehem Steel Co. shall not be mingled with other money of v. Raymond Concrete Pile Co. (118 Atl. the corporation. 279), the Court of Appeals of Maryland, Under the facts and law as stated the while recognizing that the circumstance Court held that the Christmas Club dethat all the stock of one company is held by posits belonged to the savings, and not to another company does not constitute it any the commercial department on liquidation the less a genuine corporation, held, how of the trust company, within the express ever, that where there is fraud or some provisions of the statutes. other equally good ground for such action And further: "In addition to this, it a court in furtherance of justice may go appears that the deposits were solicited and behind the legal entity and for certain pur received by the trust company in a man. poses treat the corporation and the owners ner which led the public to believe they of its capital stock as identical in the eye were received as savings deposits. They of the law.

were solicited through advertisements, and

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."


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 essentialıy 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 indicat ed, 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."

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. Justice Van Deventer, is as follows:

“The plaintiff's contention to the con rary 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

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 ap. proaching the crossing and in what he did to prevent the accident after he saw the ap. proaching train, he exercised reasonable care."

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CONFESSIONS OF ERROR IN CRIMI- our practice to examine the record careNAL CASES

fully ourselves before setting aside a conBy Frank Swancara

viction for crime and directing another

trial.” Some of the appellate courts, acting in It is not the purpose of this article to accord with a desire to minimize their show what the practice is in various states. labors, have adopted the rule that on an The writer desires to comment only on the unequivocal confession of error by ap- practice of reversing a judgment in a crimpellee or defendant in error the judgment inal case solely on the ground that the Atwill be reversed. In criminal cases, it is torney General has filed a confession of the practice, in some jurisdictions, to re- error, and doing so without consideration,

a judgment of conviction without investigation, opinion or comment. Such further consideration or comment, when a appellate practice is vicious. The North confession of error is filed. Some courts Carolina case and the late Oklahoma cases which usually follow this practice, depart have been cited to show that all courts do from it under certain circumstances. In not follow it, and no Court is required to North Carolina it is the practice of the appellate court carefully to examine the

Confessions of error by the Attorney record before setting aside a conviction of General, instead of being looked upon or crime, whether error has been confessed

treated with favor, ought to be disreor not. State v. Stevens, 153 N. C. 604, garded. The very filing of them is a cir69 S. E. 11.

cumstance sufficient to raise a doubt conIn one Oklahoma case the Attorney Gencerning the good faith of the official acting, eral filed a confession of error, and the for the reason that but seldom is a conCourt said, noting that fact, that the cause fession of error filed. It is generally not is “therefore" reversed. Brasheers v. filed, even when the record, in the case on State, 192 Pac. 433. In a later case in review, shows palpable errors. Every rolthat state, the Court, in reversing the judg- ume of reports is likely to contain criminal ment, justified itself by the record, and did

cases which have been reversed where the not base its action solely on the fact that Attorney General did not file a confession there was a confession of error. Hender

of error, but apparently, and in fact, son v. State, 197 Pac. 720. In the opinion, sought an affirmance, or directed or perthe Court said:

mitted his assistants to prepare briefs on The record supports the allegations behalf of the state. A confession of error of the Attorney General's confession.

unexpectedly appearing in any particular This Court is of the opinion that the

case ought not to be welcomed with opened confession of error is well founded in

arms (and closed eyes) by the Court. Belaw, and that the same should be sus

fore adopting this infant left on its doorstained, ..."

step, or bench, the Court should first as

certain whether it is a legitimate offspring In another recent case, in that state, the

of the record. There should at least be “a Court said that "a reading of the record

reading of the record” by the Court, as bears out the Attorney General's con

there was in the Oklahoma case cited. tention." Green v. State, 193 Pac. 1077.

It is not probable that any Attorney In North Carolina, the Court in State v.

General will assume, or usurp, judicial Stevens, supra, said:

functions and reverse, or seek to reverse, “While the opinion of the state's at- a conviction by the use or filing of a contorney has much weight with us, it is fession of error, in the ordinary case.

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