Imagens das páginas
PDF
ePub

UNITED STATES SUPREME COURT ABSTRACT.

INSURANCE-LIFE-BREACH OF CONDITION-HABITUAL INTEMPERANCE.-The true meaning and signification of the words "habitually intemperate" in a policy of life insurance, as they relate to the customs and habits of men generally in regard to the use of intoxicating drinks, is a question addressed rather to the jury, than to the court, and instructions which attempted to define approximately for the jury the number of times the assured must have got drunk or had a spree, or how closely such excesses must have succeeded each other, to constitute him an "habitual drunkard," and thus avoid the policy, are rightly refused. The questions which the jury have to respond to were whether Comstock was of intemperate habits at the time the policy was taken out, and whether he became habitually intemperate after that period. The whole case turned, so far as the jury was concerned, upon the true definition of the words "habitually intemperate," taken in connection with the testimony on the subject, at these two different periods. The plaintiff was not bound to prove that the assured was temperate, or that he was a temperate man; but the defendant was bound to prove, not only that Comstock was intemperate at those periods, but that he was habitually so. This it was bound to do by such a preponderance of testimony as should satisfy the jury that at one of these periods or the other he was habitually intemperate. We do not know of any established legal definition of those words. As they relate to the customs and habits of men generally in regard to the use of intoxicating drinks, and as the observation and experience of one man on that subject is as good as another of equal capacity and opportunities, their true meaning and signification would seem to be a question addressed rather to the jury than to the court. While there may be on the one hand such a clear case of intemperate habits as to justify the court in saying that such and such facts constitute a condition of habitual intemperance, or on the other such an entire absence of any proof, beyond an occasional indulgence in the use of ardent spirits, as to warrant the opposite conclusion, yet the main field of inquiry, and the determination of the question within it, must be submitted to the jury, and the question on this submission must be decided by them. The requests all, as near as they dare, attempt to define approximately for the jury the number of times a man must get drunk, or have a spree, or how closely such excesses must succeed each other, to constitute "habitual intemperance." They also attempt to say how long a time a man must have abstained from drunkenness or sprees in order to relieve him from that charge. And especially are the requests obnoxious in saying that under such circumstances a person comes within the definition of being habitually intemperate, although he might remain sober for a month, three or six months, or longer, at a time; one of them says, "or even a year at a time." What effect should be given to an entire abstinence from the use of liquors for a whole year, in connection with occasional drunken sprees before or after, is not for the court to determine. It would be rather harsh for a court to instruct a jury, as a matter of law, that a man who was sober nearly two years was at a period near the middle of that time "habitually intemperate." It was for the jury to weigh all these circumstances, and to determine, in view of them all, whether he was habitually intemperate. There are very few decisions by courts of high character relating to this question. The principal one which has been brought to our attention is Insurance Co. v. Foley, 105 U. S. 350. In that case

us.

[ocr errors]

CONCLUSIVENESS-ES

the insured, in answer to the question, "Is the party of temperate habits; has he always been so?" answered "Yes;" whereas the defendant company alleged that in fact he was a man of intemperate habits. The court, through Mr. Justice Field, said: "Te question was as to the habits of the insured. His occasional use of intoxicating liquors did not render him a man of intemperate habits, nor would an occa sional case of excess justify the application of this character to him. An attack of delirium tremens may sometimes follow a single excessive indulgence. *** When we speak of the habits of a person we refer to his customary conduct, to pursue which he has acquired a tendency from frequent repetition of the same acts. It would be incorrect to say that a man has a habit of any thing from a single act. * The court did not therefore err in instructing the jury that if the habits of the insured, in the usual, ordinary and every-day routine of his life, were temperate,' the representations made are not untrue, within the meaning of the policy, although he may have an attack of delirium tremens from an exceptional overindulgence. It could not have been contemplated, from the language used in the policy, that it should become void for an occasional excess by the insured, but only when such excess had by frequent repetition become a habit. And the testimony of witnesses, who had been intimate with him for years, and knew his general habits, may well have satisfied the jury, that whatever excesses he may at times have committed, he was not habitually intemperate." We think this language eminently applicable to the case before May 23, 1887. Northwestern Mut. Life Ins. Co. v. Muskegon Nat. Bank. Opinion by Miller, J. JUDGMENT BY DEFAULT TOPPEL--MANDAMUS.—In a proceeding by mandamus to compel the levy by a County Court of a tax sufficient to pay a judgment obtained against the county, the return of the respondents to the alternate writ of mandamus admitted that the judgment of the relator was recovered upon bonds and coupons issued by the county, but alleged that the said coupons were not issued in pursuance of law, making them the valid obligations of the county. Held, that the return was insufficient in law, the respondents being estopped to deny the validity of the bonds by the judgment in favor of the relator against the county, and that said judgment was none the less conclusive because rendered by default. As this is a direct proceeding upon the judgment, its effect as an estoppel is determined by the first branch of the rule as laid down in Cromwell v. County of Sac, 94 U. S. 351. That is: "It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered or received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. And as stated in Burlen v. Shannon, 99 Mass. 200, 203: "The estoppel is not confined to the judgment, but extends to all facts involved in it as necessary steps or the groundwork upon which it must have been founded." It is none the less conclusive because rendered by default. The conclusiveness of a judgment upon the rights of the parties does in nowise depend upon its form, or upon the fact that the court investigated or decided the legal principles involved. A judgment by default or upon confession is in its nature just as conclusive upon the rights of the parties before the court as a judgment upon demurrer or verdict." Gifford v. Thorn, 9 N. J. Eq. 722. The bar is all the more perfect and complete in this proceeding because it is not a new action. Mandamus, as it has been repeatedly decided by this court in such cases as the present, is a

[ocr errors]
[ocr errors]

remedy in the nature of an execution for the purpose of collecting the judgment. Riggs v. Johnson Co., 6 Wall. 166; Supervisors v. Durant, 9 id. 417; Thompson v. U. S., 103 U. S. 484. Certainly nothing that contradicts the record of the judgment can be alleged in a proceeding at law for its collection by execution. In Ralls Co. v. U. S., 105 U. S. 733, the chief justice said: In the return to the alternative writ many defenses were set up which related to the validity of the coupons on which the judgment had been obtained, as obligations of the county. As to these defenses, it is sufficient to say it was conclusively settled by the judgment, which lies at the foundation of the present suit, that the coupons were binding obligations of the county, duly created under the authority of the charter of the railroad company, and as such entitled to payment out of any fund that could lawfully be raised for that purpose. It has been in effect so decided by the Supreme Court of Missouri in State v. Rainey, 74 Mo. 229; and the principle on which the decision rests is elementary." As the execution follows the nature of the judgment, and its precept is to carry into effect the rights of the plaintiff as declared by the judgment, with that mode and measure of redress which in such cases the law gives, so the mandamus in a case like the present can be limited in its mandate only by that which the judgment itself declares. Ralls Co. v. U. S., 105 U. S. 733, distinguished. May 27, 1887. United States v. County Court. Opinion by Matthews, J.

NEGLIGENCE-CONTRIBUTORY-COUPLING CARS-INSTRUCTION-KNOWLEDGE.-Plaintiff's intestate was employed in coupling cars in defendant's depot yard in Detroit, Mich., and while coupling certain cars standing on a sharp curve, the draw-heads of the cars failed to meet, and passed each other, allowing the cars to come so close together that he was crushed to death. The evidence showed that deceased was standing on the inside of the draw-bar while coupling, and that the outside was free from danger. Held, that the plaintiff was not entitled to recover, the deceased having wantonly assumed the risk of remaining upon the inside of the draw-bar when he should have gone to the other side; and that having assumed the risks of the employment, he was bound to look out for and avoid the dangers arising from the sharpness of the curve, to which, as an experienced brakeman, deceased must have known he was exposed. In such a caso, when testimony has been introduced to the effect that draw-bars slip sometimes even upon a straight track, and there is no evidence to contradict it, it is not error for the trial court to charge the jury that "he (the deceased) knew, as he was an experienced man, that draw-bars do slip sometimes, even upon a straight track, and the sharper the curve the greater was the danger of slipping." The brakemen and others employed to work in such situations must decide for themselves whether they will encounter the hazards incidental thereto; and if they decide to do so they must be content to assume the risks. For the views of this court in a cognate matter see Randall v. Baltimore & O. R. Co., 109 U. S. 478, 483, where it was said: "A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any one who enters the service of a railroad company connected with the moving of trains assumes the risk of that condition of things." It is for those who enter into such employments to exercise all that care and caution which the perils of the business in each case demand. The perils in the present case, arising from the sharpness of the curve, were seen and known. They were not like the defects of unsafe machinery which the employer has neglected to repair, and which

*

*

*

his employees have reason to suppose is in proper working condition. Every thing was open and visible, and the deceased had only to use his senses and his faculties to avoid the dangers to which he was exposed. One of these dangers was that of the drawbars slipping and passing each other when the cars were brought together. It was his duty to look out for this and avoid it. The danger existed only on the inside of the curve. This must have been known to

him. It will be presumed that as an experienced brakeman, he did know it; for it is one of those things which happen, in the course of his employment, under such conditions as existed here. The defendant, as we have seen, had a right to construct its side track with such curves as its engineers deemed expedient and proper; and as to the draw-heads, and the absence of bumpers, the plaintiff herself abandoned all claim founded upon any supposed misconstruction of the cars in relation thereto. Then it was clearly shown to be a not uncommon accident, especially on sharp curves, for the draw-heads of cars to slip by and pass each other. Tuttle, the deceased, entered into the employment of the defendant as a brakeman in the yard in question, with a full knowledge (actual or presumed) of these things-the form of the side tracks, the construction of the cars, and the hazards incident to the service. Of one of these hazards he was unfortunately the victim. The only conclusion to be reached from these undoubted facts is that he assumed the risks of the business, and his representative has no recourse for damages against the company. May 23, 1887. Tuttle v. Detroit, G. H. & M. Ry. Co. Opinion by Bradley, J. Miller and Harlan, JJ., dissent.

[ocr errors]

CUSTOMS DUTIES APPRAISALS- 66 ROSARIES. "Rosaries are not an enumerated article in the tariff act (Rev. Stat. U. S., tit. 33), and under section 2499, which provides, as to non-enumerated articles, that "on all articles manufactured from two or more materials the duty shall be * * * the highest rate at which any of its component articles may be chargeable," they are liable to the duty of fifty per cent ad valorem imposed by section 2504 on “beads and bead ornaments." May 27, 1887. Benziger v. Robertson. Opinion by Blatchford, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

BANKRUPTCY · -DISCHARGE-NEW PROMISE. We consider next the nature of the new promise which will revive a debt discharged by bankruptcy, or what is the same in legal effect, will operate to waive the discharge of the bankrupt. In Wolffe v. Eberlein, 74 Ala. 99; S. C., 49 Am. Rep. 809, we discussed at length the effect of such promise in its relation to the plea of bankruptcy, and the rules of pleading on the subject, to which we need add nothing further. Speaking of the discharged debt, we there said: "The old debt has become extinguished by operation of law, and no longer exists. But the moral obligation to pay still exists, and this coupled with the antecedent valuable consideration, is sufficient to support a new promise, if clear, distinct and unequivocal in its nature." An implied promise is insufficient. It must be express; thus differing from the promise required at common law to take a debt out of the operation of the statute of limitations. It must be clear, distinct and unequivocal, such as to indicate on the part of the debtor a clear intention to bind himself to the payment of the debt." So partial payments on a discharged debt are insufficient evidence of a new promise to pay the residue. Allen v. Ferguson, 18 Wall. 1; Dearing v.

66

Moffitt, 6 Ala. 776; Evans v. Carey, 29 id. 99; Bump Bankr. (8th ed.) 744; Hill Baukr. 265, § 53. Such a promise may be either absolute, or it may be conditional. But if dependent on a condition or contingency, this fact must be stated by the pleader, and it must be averred and proved that the condition has been performed or the contingency has happened. Branch Bank v. Boykin, 9 Ala. 320; Dearing v. Moffitt, supra; Allen v. Ferguson, supra; Maxim v. Morse, 8 Mass. 127. A promise to pay as soon as the bankrupt is able is a valid condition, not void for uncertainty, and is so held generally by the authorities. Taylor v. Nixon, 4 Sneed, 352; Sherman v. Hobart, 26 Vt. 60; Bump Bankr. (8th ed.) 745, 746, and cases cited; Dearing v. Moffitt, 6 Ala. 776, and cases cited. But to be available, the promise must be averred in proper form, and satisfactory proof adduced of the defendant's ability to pay; that is, of the fact that he has sufficient property or means to pay. Mason v. Hughart, 9 B. Mon. 480; Hill Bankr. 266. § 55. The plaintiffs failed to aver in their replication any but an unconditional promise to pay. Ala. Sup. Ct., May 11, 1887. Griel v. Solomon. Opinion by Somerville, J. BURGLARY-CHARACTER OF BUILDING. A small building separated from a hotel by a passage-way was connected with it by a bridge passing between the second stories. The ground floor of the building was used as a saloon by the proprietor of the hotel, and the upper floor was divided into rooms for the accommodation of guests of the hotel. There was a privy also on the ground floor, used both by guests of the hotel and patrons of the saloon. There was no stairway or means of communication between the saloon and the story over it. Held, that a breaking and entering of the saloon at a time when the rooms overhead were occupied by the bar-tender and a son of the proprietor, was not indictable as a breaking and entering of a saloon "not adjoining to or occupied with a dwelling-house." Mich. Sup. Ct., May 5, 1887. People v. Calderwood. Opinion by Champlin, J.

CONSTITUTIONAL LAW-POLICE POWER--LIQUOR LICENSE-RESTRAINT OF TRADE.-A statute imposing a fine on any person, who during the holding of a campmeeting, sells or hawks any goods, merchandise, or gives away or sells any liquor, without the consent of the parties in charge of such meeting, within one mile thereof; provided that whosoever has his regular place of business within such limits is not required to suspend his business-is not void as in restraint of trade, or as creating a monopoly in favor of those persons referred to in the proviso, and discriminating against others, or as illegally vesting power to license in the managers of the meeting, but is a legitimate exercise of police power, and as such valid. If it was intended by the proviso to protect any person who might have a business within the designated limits at the time the act was passed, and not afford protection to any person who might engage in regular business within the designated limits after the passage of the act, there might be much force in the position of appellant, but we do not understand that such is the meaning of the proviso. But on the other hand, we think the manifest intention was to allow any person who might think proper to establish a place for the vending provisions or refreshments within the designated limits at a time when the camp-meeting was not in progress, and after such person became established in a regular business, he would not be required to suspend bis business during the time the camp-meeting was held. In other words, we think the word "bas" in the proviso should be read " may have." The proviso would then read: "Whoever may have his regular place of business within such limits is not

hereby required to suspend his business." Under this construction no privilege or right is conferred on one which is not granted to all-no monopoly is created by the act which protects the one and excludes the others but all persons stand upon an equality under the law, as they should-all who desire may establish a regular place of business, not temporary, but permanent. We do not hold that a person, on the eve of a meeting being held, would have a right to establish a booth or place for selling provisions or refreshments for a short period, or during a session of the camp-meeting, and claim protection under the statute, as this would be a design to defeat the purpose of the law, which could not be sanctioned; but in order to be protected, whoever undertook to avail of the law would have to establish a regular, permanent business, and after such regular business was established, the person engaged in such regular business would not be required to suspend during the session of a campmeeting. It is also said that vendors of provisions and refreshments cannot under the Constitution be taxed, and that the act empowers the authorities in charge of the meeting to license, which in effect is a tax. As we understand the statute, it does not confer the power to license on the authorities in charge of the meeting. The act merely declares that whoever, during the time of holding any camp or field meeting, without the permission of the authorities having charge of such meeting, establishes any tent, booth or place for vending provisions or refreshments within a certain distance of the meeting shall be fined. The fact that the act confers on the authorities the right to consent or refuse consent cannot be held to authorize such authorities to license. The right to consent or refuse consent is one thing, while the right or power to license a person to conduct a certain business at a certain place is quite a different thing. Had the Legislature intended to authorize the authorities to license, language expressing that intention in plain words would no doubt have been used; but however this may be, we see nothing in the language of the act which can be construed as authorizing the authorities to license. The act is a mere police regulation. The purpose of the act is to preserve order, and prevent the disturbance of those engaged in public worship. For many years we have had similar acts in our statute. Section 147 of the Criminal Code of 1845 is an act of a similar character; one enacted as a police regulation to prevent a disturbance of a religious congregation. There is in our judgment no question in regard to the power and authority of the Legislature to pass such laws. The tendency of such laws is to prevent disturbance and disorderly conduct, and preserve peace and quiet, where a large number of people are assembled for religious worship. The statute is a mere police regulation-one which the Legislature had the right to enact. We regard it valid, and free from the objections urged against it. Ill. Sup. Ct., May 12, 1887. Meyer v. Baker. Opinion by Craig, J.

MASTER AND SERVANT- NEGLIGENCE OF VICEPRINCIPAJ.. - A railway train dispatcher is a representative of the company, and for an accident occurring through his negligence to a subordinate employee subject to his orders, the company will be liable. The authorities bearing upon the question as to whether or not a train dispatcher, invested with such control, is a fellow-servant with the conductor and engineer and others engaged in actually operating and moving trains, are conflicting and irreconcilable. The rule laid down in Massachusetts, and cases cited from other States, where it is held that all who are engaged in a common employment, working to accomplish a common result, without regard to rank, are to be regarded as fellow-servants,

In

supports defendant's contention. While this court has held that, where one servant is injured by the negligence of a fellow-servant, no action therefor can be maintained against the master, only in exceptional cases (such as when the servant employed was incompetent, which was either known or might with ordinary care have been known by the master!, we have never gone so far as to adopt a rule by which to determine who are fellow-servants so broad as that adopted in Massachusetts, nor are we disposed to do So now. The tendency of recent decisions is to narrow and not broaden the rule, notably so the case of Railroad Co. v. Ross, 112 U. S. 377, where it is said: "There is a clear distinction to be made, in relation to their common principal, between the servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of a corporation clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence Sheeban v. Railway Co., 91 N. Y. 332, and Railroad Co. v. McCollen, 84 Ill. 109, the superintendent and assistant superintendent, acting as train dispatchers, were held to be vice-principals. In the case last cited it is said that, as between the conductor and company, the assistant superintendent, to whose orders the trains are all subject, is the representative of the corporation, and that the rule applies as well to all orders issued by his assistants as in his name." That a train dispatcher is to be regarded as the representative of the company is, in effect, held in the following cases: Booth v. Ry. Co., 73 N. Y. 38; Ry. Co. v. Henderson, 37 Ohio St. 552; Washburn v. Railroad Co., 3 Head, 638; Darrigan v. Railroad Co., 24 Am. Law Reg. 453. In the case last cited it is said: "It is immaterial that these men are hired and paid by a common employer, and that their employment is designed to accomplish one common result. That argument, if pressed to its logical conclusion, would obliterate all distinctions among those engaged in railroad business, from the president down to the humblest servant, and would practically exempt the company from all duty and all liability to those in its service." It is further said that cases are constantly arising, especially in the operation of railroads, which no general rule can provide for, in which the master must be regarded as constantly preseut, in which some one must be invested with a discretion, and a right to speak and command in his name and by his authority. Such a right carries with it the corresponding duty of obedience; some one must hear and obey. It must also devise some suitable and safe method by which to run special and irregular trains, and regular trains when off their regular time. Emergencies will arise which no system or rules can anticipate and provide for, in which the company must act promptly and efficiently. In this case the scheme devised was to have these trains controlled by one who knew the position and movement of every train on the road liable to be affected by them, a train dispatcher acting in the name and by the authority of the superintendent. Is there not a wide difference between the duty of such an agent, and the duty of a locomotive engineer? The duty of the former pertains to management and direction; that of the latter to obedience." Mo. Sup. Ct,, March 21, 1887. Smith v. Wabash, St. L. & P. Ry. Co. Opinion by Norton, C. J. Sherwood, J., dissented.

[ocr errors][merged small][ocr errors][merged small][merged small]

the latter, and not the former, must bear the loss. In the sale of land it becomes the real property of the vendee from the execution, delivery, and acceptance of the written contract. "It is vendible as his, chargeable as his, aud capable of being devised or descending as his." Consequently it is a well-established and reasonable rule that the destruction of buildings thereon by fire, between the time of such contract of sale and the time fixed upon in the contract for the delivery of possession by the vendor to the vendee, must be the loss of the latter and not of the former. Calhoon v. Belden, 3 Bush, 674. There are only two exceptions to this rule. The first is when, as was the case in Comb v. Fisher, 3 Bibb, 51, there is an express contract to deliver the possession of the land, with the improvements or buildings thereon, in the same situation as was the case when the sale was made. The second is when, as was in Cornish v. Strutton, 8 B. Mon. 586, the building has been destroyed by the culpable negligence of the vendor. There is no allegation or proof that the destruction of the dwellinghouse in this case was caused by the negligence of the vendor, or any other person, nor do we think the contract, fairly construed, amounts to an express agreement by the vendor to assume the risk of the destruction of the buildings by fire. The purpose of the supplemental contract executed by appellee was to provide for the repair by him of the house as therein agreed, and which the evidence shows he did do, but not to insure it against destruction by fire, or to shift the risk from appellants to himself. He simply covenanted to deliver possession, without any express undertaking to sustain any loss that might arise from the burning of the house. Ky. Ct. App., May 5, 1887. Marks v. Tichenor. Opinion by Lewis, J.

[ocr errors]

WAREHOUSEMAN NEGLIGENCE DELAY IN SHIPPING- DANGER OF FIRE - PROXIMATE CAUSE. In an action against a warehouseman to recover for the destruction of goods in his yard by fire, an instruction that tells the jury that if the condition of the yard, the proximity of laborers' cabins, the habit of smoking in the yard, and the fact that railroad engines ran in the yard warned the defendant of the danger of fire, then if a fire occurred, though not originating from either of these sources, and though neither of them contributed to the loss, he will be responsible therefor, is erroneous. It is conceded by the appellees that the defendant, under ordinary circumstances, would have performed its duty by holding the cotton until the arrival of the Helena or Choteau, if either should arrive within a reasonable time, and that it is not the unvarying duty of a warehouseman and forwarder to ship by the first opportunity. The contention is, that if by all the surrounding and accompanying facts and circumstances, the warehousemen, as men of ordinary prudence, were admonished of the danger to which the property was exposed by reason of its liability to fire, it was their duty to ship out the cotton by the first opportunity afforded, because to retain it in the yard endangered its safety. That it was dangerous to permit it to remain, they contend was an inference that the managers must have drawn from the fact that the yard was in a crowded condition; that much of the cotton had been sampled, and the combustible cotton, drawn from the bales, scattered around where men were in the habit of smoking, and where the engines of the railroads ran in drawing their cars into the yard; that the adjacent cabins, occupied by laborers, and the seed-house, were sources from which accidental fires might be expected; that the oil-mill and other buildings located within dangerous limits should also have been considered by the warehouseman; and if, from all these, danger from fire might reasonably have beeu feared, it was negligence to retain the cotton after the

arrival of the Richardson. We concur in the position thus assumed, and are of opinion that it was properly left to the jury to determine whether the defendants were guilty of negligence in failing to ship out the cotton by the opportunity afforded by the Richardson on Sunday; and this brings us to the final question in the cause. The plaintiffs insist that a wrong-doer cannot apportion his own wrong; wherefore, since but for the negligent act of the defendant in failing to ship the cotton by the Richardson (which failure the verdict of the jury has found to have been negligence) it could not have been destroyed by the fire, it is liable for the injury sustained; or in other words, that if the negligent act furnished the opportunity for the injury, the defendants must respond in damages regardless of the immediate cause of the injury; or if mistaken in this, then the plaintiffs contend, that if certain surrounding and attendant circumstances admonish the defendants that to retain the cotton would expose it to danger of fire from these sources, then if the fire did destroy it, the defendant is liable, even though it did not originate from those things which admonished of the danger, but occurred from a source from which no dauger was or could have been reasonably apprehended. It is contended for the defendants that if it be conceded it was negligent in not shipping out the cotton, such negligence was the remote and not proximate cause of the loss, and causa proxima non remota spectatur. It would be unprofitable to attempt au investigation of the very numerous, perplexing, and contradictory decisions which have been made upon this much vexed subject. We have examined the cases cited by counsel, and find them to have been selected with discrimination, and to fairly represent the conflicting views which prevail in different States. We have found no more intelligent and satisfactory deductions from the general course of decisions than the following propositions laid down by Mr. Cooley in his work on Torts: (1) That in the case of any distinct legal wrong, which in itself constitutes an invasion of the right of another, the law will presume that some damage follows as a natural, necessary, and proximate result. Here the wrong itself fixes the right of action. We need not go further than to show a right of recovery, though the extent of the recovery may depend upon the evidence. (2) When the act of omission complained of is not in itself a distinct wrong, and can only become a wrong to any particular individual through injurious consequences resulting therefrom, this consequence must not only be shown, but it must be so connected by averment and evidence with the act or omission as to appear to have resulted therefrom according to the ordinary course of events, and as a proximate result of a sufficient cause. (3) If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent. But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission of another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote. Cooley Torts, 69. We accept the second proposition, assuming that the words "according to the ordinary course of events "include, not only those consequences which necessarily and invariably follow from known causes, but those which may and probably will follow. The verdict of the jury has established, for the purposes of this examination, the fact that the circumstances existing at the time when the cotton might have been shipped from the yard were such as to warn

the defendants it was dangerous to keep it there, and that they were guilty of negligence in so doing. If the fire had resulted from those circumstances which were relied on by the plaintiff as indicating the danger to which the property was exposed, or either one of them, the defendants would have been responsible for the loss; but it does not follow that because the injury resulted from fire, and the defendants were admonished of danger from fire, they are to be held responsible. The inquiry returns, was it a fire from which a reasonably prudent man would have anticipated danger? To illustrate: If a bailee should deposit the goods of the bailor near the walls of a building which were toppling and threatening to fall, and the wall should fall and injure the property, he should be answerable; for it was his duty to have avoided the danger. But if the dangerous building do not fall, and another building from which no danger could reasonably be anticipated unexpectedly fall and injure the goods, here he is not answerable, though the injury has resulted from a like cause, the falling of a wall; for the wall which fell, fell not according to the ordinary or probable course of events, but unexpectedly. In Morrison v. Davis, 20 Penn. St. 171, a carrier by canal used a lame horse in pulling his boat, by reason of which it was delayed, and because of the delay it was subjected to a flood, whereby the goods were injured. It was held that he was not liable, for the reason that he could not foresee the danger. In McGrew v. Stone, 53 Penn. St. 440, the owner of a canal-boat anchored in a dangerous part of the stream, in the vicinity of many other boats. One of his boats was injured, and sinking, floated under the boat of the plaintiff, which, upon the subsiding of the waters, settled upon it and was lost. It was held to be a question of fact, to be decided by the jury, whether under all the circumstances the defendant should have anticipated the probability of danger to the boat of the plaintiff, the court saying: "If he knew that barges filled with coal are ponderous, unwieldy, and difficult of control, are liable to injury, and easily sunken, and that the place of mooring, by reason of the strength of the current and floating drift, was one of danger, and most likely to cause such boats to sink, and also knew that this place, in case of the sinking of his boats, was likely to prove to be dangerous to some of the boats lying below, and that the flood would come, (for it was his purpose to await its coming to carry him out), it could scarcely be held that these circumstances did not indicate to his mind the greater danger of mooring there; and if an accident should happen there, the danger to which it would expose others. The injury, under such circumstances, would not be so remote that it ought not to be taken into account. But it must be observed that these are inferences of fact which belong to the jury, whose province it is to determine what are the circumstances, and the inferences of probability to be drawn from them." Miss. Sup. Ct., April 25, 1887. Merchants' Wharf-Boat Ass'n v. Wood Opinion by Cooper, C. J.

CORRESPONDENCE.

MARRIAGE LAWS.

Editor of the Albany Law Journal:

I have been wondering why you have been expending so much wit and sarcasm of late upon the "Marriage License Bill," but the colored individual in the woodpile makes his appearance in your issue of July 2, wherein you say, "To declare that a common-law marriage shall be void is going too far." There was no such provision as you suggest in the proposed act,

« AnteriorContinuar »