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jured by her hitting it accidentally stable who lived on the top floor of with her thumb in trying to ward off a the stable building, from a fall while cockchafer that flew through an open going downstairs from his apartment, window toward an electric lamp on a has been held to have arisen out of and hot night, while the maid was sewing, in the course of his employment. Leshas been refused compensation upon lie v. O'Connor & Richman (1917) 220 the ground that the accident did not N. Y. 672, 116 N. E. 1057, affirming arise out of her employment. Craske (1916) 173 App. Div. 988, 158 N. Y. v. Wigan (1909] 2 K. B. (Eng.) 635-C. Supp. 1120. This is a memorandum A. The court said: “The risk that a decision, but it is stated by Kellogg, cockchafer may, on a hot summer eve- P. J., in Murphy v. Ludlum Steel Co. ning, fly into a lighted room, is a risk, (N. Y.) infra, that the record shows if a risk at all, which is common to all that the manager at first received his humanity, and bears no relation to the wages and paid for the apartment, but employment of a lady's maid. The later he was not charged for it. fact that the appellant struck herself A finding has also been held warinvoluntarily, owing to the excessive ranted in favor of a caretaker of club susceptibility of her nerve centers grounds and buildings who was inproduced by her alarm at the cock- jured in trying to put out a fire which chafer, does not make this an accident started from his burning some dry arising out of the employment. The grass. Dietz Club v. Niehaus (1923) arguments on behalf of the appellant Neb. —, 193 N. W. 344. have been too extravagant to do more And in Prevost v. Gheens Realty Co. than provoke a smile. I feel a difficul- (1922) 151 La. 508, 92 So. 38, compenty in dealing with them in a serious sation was awarded (under the Emvein. The arguments have been full ployers' Liability Act, which appears of amusement, but have carried with to correspond with the Workmen's them no conviction."

Compensation Acts) for an injury to a In Griffiths v. Robins [1917] W. C. laborer at a sugar factory who had & Ins. Rep. (Eng.) 44, 10 B. W. C. C. been working until nearly midnight, 90, an injury to a parlor maid from a and was on his way to a bunk house needle sticking in her knee, she hav- on the premises, where the men were ing left it in her dress which she had permitted to sleep, he having apparbeen repairing when called by her em- ently fallen on or near a railroad ployer, was held to have not arisen 'track. out of her employment, being not a In upholding a common-law finding risk specially incident to it.

of damages for the death of a janitor In denying compensation to a cook of an office building by being struck by who was injured by a fall in walking an electric wire that fell in front of across a kitchen to get some water for the tenement house where he lived, washing towels, due apparently to and which belonged to the company wearing a slipper that did not fit, rath- that owned also the office building and er than to a slippery condition of

plant, the janitor having just started the floor, the court remarked that, if

for work in the morning, carrying a such an accident should be held to basket of laundry to the restaurant in arise out of the employment, it would the office building for his wife, who appear to be impossible to avoid the conducted the restaurant for the same conclusion that every domestic serv

company, the court held that the case ant, so long as she is in her employ

did not come within the provision of er's house, is insured by her employer

the act, inasmuch as the janitor was against any accident whatever. Han

not acting in the course of his employnifin v. Fitzmaurice (1921] W. C. &

ment at the time of the accident, nor Ins. Rep. 143, [1921] 2 Ir. R. 44, 55 Ir.

was he upon the employer's premises L. T. 65, 14 B. W. C. C. 320-C. A.

nor at the plant, the buildings consti

tuting the plant being about 800 feet e. Miscellaneous.

from the house. In a well-reasoned An injury to the manager of a livery dissenting opinion it was argued (by


Kellogg, P.J.) that this was a case for Sherwood (1909) 127 L. T. Jo. (Eng.) compensation under the act, inasmuch 86, 2 B. W. C. C. 462. as the husband and wife had been Asphyxiation of steel worker hired together and the company ex- while asleep in his bed in a cottage pected them to assist each other, and which he was allowed by his employer housed them as part of the contract. to occupy in consideration of attendHe also believed that the wire was es- ing to cleaning of offices did not arise sentially a part of the plant, but in- out of or in the course of his employtimated that an injury to the janitor ment, where he was not obliged to live after hours from the fall of a chimney in the cottage. Wray v. Taylor Bros. on the house would probably not arise & Co. [1913] W. C. & Ins. Rep. (Eng.) out of or be in the course of his em- 446, 109 L. T. N. S. 120, 6 B. W. C. C. ployment. Murphy v. Ludlum Steel 529—C. A. Co. (1918) 182 App. Div. 139, 169 In Butler v. Burton-on-Trent Union N. Y. Supp. 781, affirmed in (1919) 227 (1912) 106 L. T. N. S. (Eng.) 824, 5 N. Y. 634, 126 N. E. 915.

B. W. C. C. 355—C. A., a fall of a In Briskin v. Hyman (1922) 203 workhouse master down some steps App. Div. 275, 197 N. Y. Supp. 111, near his residence on the workhouse affirmed in (1923) 236 N. Y. 522, 142 grounds, resulting from his becoming N. E. 268, compensation was denied dizzy from coughing as he was sitting for the death of an acting manager of at the head of the steps, was held not a garage from a fire at the garage on a to arise from his employment, there night when he was staying there, as being "nothing peculiar to his employhe had been in the habit of doing at ment which rendered the risk of this times for his own convenience mostly, accident happening greater than that but was not required to do.

to which other people are exposed.” An injury to a club porter from try- A finding that a hospital porter who ing to climb into an open window at had been cleaning out a mortuary conabout midnight, upon returning after tracted scarlet fever from an "accia day off and finding the clubhouse dent” arising out of and in the course closed, has been held to be without the of his employment has been held to be scope of his employment, and the por- unwarranted in the absence of eviter also was apparently guilty of "se- dence that, at the time of his cleaning rious and wilful misconduct,” the the mortuary, any body of a person court holding, that, “during the time who had died of scarlet fever was of his absence from the club premises there,'notwithstanding he had been in for purposes of his own, the risk of an the fever wards the same day, the fact accident was his risk, and not that of of “injury” being not of itself suffithe employer, and not until he had cient. Martin V. Manchester Corp. reached the inside of the premises, [1912] W. N. (Eng.) 105, 106 L. T. where his duties lay, was such a risk N. S. 741, 28 Times L. R. 344, 76 J. P. transferred from his shoulders to 251, 10 L. G. R. 996, [1912] W. C. Rep. those of the employer.” Watson v. 289, 5 B. W. C. C. 259—C. A.

E. W. H.


D. J. MALLOY et al., Trading as Malloy Brothers.

United States Supreme Court - February 18, 1924.

(264 U. S. 160, 68 L. ed. — Adv. Ops. p. 288, 44 Sup. Ct. Rep. 296.) Banks – effect of regulation relieving from liability.

1. The regulation of the Federal reserve banks, that they assume no

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liability in collections except for negligence, does not authorize them to accept drafts in payment of checks sent them for collection.

[See note on this question beginning on page 1269.] - liability of collecting bank to de- Banks effect of right to send checks positor.

to drawee. 2. Where, by statute, a bank in 6. The regulation of the Federal rewhich a check is deposited for col- serve banks, permitting them to send lection becomes liable only after pay

checks for collection directly to the ment is received, banks to which the drawee, does not include authority to check is sent in course of collection accept drafts in payment. become agents of the depositor,

Custom as to bank collections against which he may maintain suit

how far bound. in case of their negligence.

7. One depositing a check for colduty of collecting agent.

lection cannot, without knowledge of 3. A collecting agent is without au- a custom of collecting banks to acthority to accept for the debt of his cept drafts in payment, be charged principal anything but that which the

therewith, where the custom, as law declares to be legal tender, or proved, is that remittance is either by which is, by common consent, con- draft or in currency. sidered and treated as money, and [See 27 R. C. L. 178.] passes as such at par.

- alternative method of performance [See 3 R. C. L. 616; 1 R. C. L. Supp.

effect. 864; 4 R. C. L. Supp. 208.]

8. A custom to do a thing in either liability for accepting worthless

one or the other of two methods, as draft.

the person relying on it may choose, 4. A bank to which a check is sent

can furnish no basis for an implicafor collection becomes personally

tion that the person sought to be liable in case it accepts as payment a

bound by it had in mind one mode draft which proves to be worthless.

rather than the other. [See 3 R. C. L. 617; 1 R. C. L. Supp. 864; 4 R. C. L. Supp. 208. See also to supplant rule of law - definitenote in 19 A.L.R. 589.]

ness. Checks release of liability of 9. A custom relied upon to take the drawer.

place of a settled principle of law, 5. The acceptance by a bank having and therefore to have the force of law, a check for collection, of a draft in must be as definite and specific in payment, releases the liability of the negativing the principle as the law drawer.

which it assumes to supplant is in [See 3 R. C. L. 641; 1 R. C. L. Supp. affirming it. 870.]

[See 27 R. C. L. 155.]

ERROR to the United States Circuit Court of Appeals, Fourth Circuit, to review a judgment affirming a judgment of the District Court for the Eastern District of North Carolina in favor of plaintiffs in an action brought to recover the amount of a check alleged to have been lost through defendant's negligence. Affirmed.

The facts are stated in the opinion of the court.

Mr. M. G. Wallace, for plaintiff in 141; American Bank & T. Co. v. Federror:

eral Reserve Bank, 256 U. S. 350, 65 There was no privity of contract be- L. ed. 983, 25 A.L.R. 971, 41 Sup. Ct. tween the parties.

Rep. 499; Cohen v. Tradesmen's Nat. Taylor & B. Co. v. National Bank, Bank, 262 Pa. 76, 4 A.L.R. 518, 105 Atl. 262 Fed. 168; Balcomb v. Old Nat. 43; Montgomery County Bank v. AlBank, 120 C. C. A. 27, 201 Fed. 679; bany City Bank, 7 N. Y. 459. First Nat. Bank v. Federal Reserve There is an irreconcilable conflict Bank, 283 Fed. 700; Hoover v. Wise, in the decisions of the various state 91 U. S. 308, 23 L. ed. 392; Exchange courts upon the question of the nature Nat. Bank v. Third Nat. Bank, 112 U. of the responsibility which should be S. 276, 28 L. ed. 722, 5 Sup. Ct. Rep. inferred or implied from the mere act (264 U. 8. 160,68 L. ed. - , Adv. Op8. p. 288, 44 Sup. Ct. Rep. 296.) of accepting a check for collection Bank, 52 L.R.A.(N.S.) 634, note; Wilwhen there is no express contract set- son v. Smith, 3 How. 763, 11 L. ed. ting forth the liability of the collect- 820; Miller v. Farmers' & M. Bank, ing bank.

30 Md. 392; Farmers' Bank v. Owen, Exchange Nat. Bank v. Third Nat. 5 Cranch, C. C. 504, Fed. Cas. No. Bank, 112 U. S. 276, 28 L. ed. 722, 5 4,662; Bank of Lindsborg v. Ober, 31 Sup. Ot. Rep. 141; Bank of Washing- Kan. 599, 3 Pac. 324; City Nat. Bank ton v. Triplett, 1 Pet. 25, 7 L. ed. 37; v. Cooper, 91 S. C. 91, 74 S. E. 366; 3 R. C. L. 623, $8 251, 252.

Bank of Washington v. Triplett, 1 Pet. In those jurisdictions in which the 25, 7 L. ed. 37; Elliott, Contr. 88 2831, courts adhere to the so-called Massa- 2832; Mechem, Agency, § 1; State v. chusetts rule, there is some diversity Hubbard, 58 Kan. 797, 39 L.R.A. 860, of opinion as to whether or not the 51 Pac. 290; Sternaman v. Metrodrawee is a proper subagent. The politan L. Ins. Co. 170 N. Y. 13, 57 majority of courts hold that it is never L.R.A. 319, 88 Am. St. Rep. 625, 62 proper to select the drawee as a sub- N. E. 763; Planters' & F. Nat. Bank agent, for the drawee always has an v. First Nat. Bank, 75 N. C. 534; Bank interest adverse to the holder of the of Rocky Mount v. Floyd, 142 N. C. check.

187, 55 S. E. 95. Bank of Rocky Mount v. Floyd, 142 The Federal Reserve Bank of RichN. C. 187, 55 S. E. 95; 3 R. C. L. 627. mond was negligent in sending the

Some courts, however, recognize check direct to the Bank of Lumber that under modern conditions the risks Bridge, notwithstanding the regulaincident to the method of collecting tions of the Federal Reserve Board. a check by sending it to the drawee Brady, Bank Checks, § 229; People for remittance were no greater than v. St. Nicholas Bank, 77 Hun, 159, 28 those incident to the employment of N. Y. Supp. 407; National Union Bank some independent agent in the same v. Earle, 93 Fed. 330; Merchants' Nat. place.

Bank v. National Bank, 139 Mass. 513, Hilsinger v. Trickett, 86 Ohio St. 2 N. E. 89; Overman v. Hoboken City 286, 99 N. E. 305, Ann. Cas. 1913D, Bank, 30 N. J. L. 61; Louisiana Ice 421; Kershaw v. Ladd, 34 Or. 375, 44 Co. v. State Nat. Bank, McGloin (La.) L.R.A. 236, 56 Pac. 402; Wilson v. 181; Dorchester v. Merchants Nat. Carlinville Nat. Bank, 187 Ill. 222, 52 Bank, 106 Tex. 201, 50 L.R.A.(N.S.) L.R.A. 632, 58 N. E. 250.

542, 163 S. W. 5, 7 N. C. C. A. 388; Authority to send checks directly Winchester Mill. Co. v. Bank of Winto the drawee implies authority to chester, 120 Tenn. 225, 18 L.R.A.(N.S.) accept exchange drafts from drawee. 441, 111 S. W. 248; 3 R. C. L. “Banks,"

First Nat. Bank v. Davis, 114 N. C. $S255–258, pp. 627-630; Anderson v. 343, 41 Am. St. Rep. 795, 19 S. E. 280; Rodgers, 27 L.R.A. 249, and note, 53 First Nat. Bank v. Wilmington & W. Kan. 542, 36 Pac. 1067. R. Co. 23 C. C. A. 200, 42 U. S. App. Plaintiff in error had no right to 232, 77 Fed. 401; Farmers' Bank & T. accept the exchange draft, as collectCo. v. Newland, 97 Ky: 464, 31 S. W. ing agent for defendants in error. 38; American Bank & T. Co. v. Federal Ward v. Smith, 7 Wall. 447, 19 L. Reserve Bank, 262 U. S. 643, 67 L, ed. ed. 207; Brown v. People's Bank, 52 1153, 43 Sup. Ct. Rep. 649; Brookings L.R.A.(N.S.) 652, note; Elliott, Contr. State Bank v. Federal Reserve Bank, 8 1767; 3 R. C. L. "Banks," $ 245, p. 277 Fed. 430, 281 Fed. 222.

616; Pinkney v. Kanawha Valley Bank, The acceptance of the exchange 68 W. Va. 254, 32 L.R.A.(N.S.) 987, draft was not a direct cause of loss. 69 S. E. 1012, Ann. Cas. 1912B, 115;

American Nat. Bank v. Miller, 229 Bank of Rocky Mount v. Floyd, supra; U. S. 517, 57 L. ed. 1310, 33 Sup. Ct. Bank of Antigo v. Union Trust Co. 149 Rep. 883; Bank of Rocky Mount v. Ill. 343, 23 L.R.A. 611, 36 N. E. 1029; Floyd, supra.

Winchester Mill. Co. v. Bank of WinMr. Robert H. Dye, for defendants chester, 120 Tenn. 225, 18 L.R.A. (N.S.) in error:

441, 111 S. W. 248; Kirkham v. Bank The Federal Reserve Bank of Rich- of America, 165 N. Y. 132, 80 Am. St. mond was the agent of Malloy Rep. 714, 58 N. E. 753; 6 R. C. L. 164; Brothers.

Rogers v. Tiedeman, 9 Ga, App. 811, Exchange Nat. Bank v. Third Nat. 72 S. E. 285; Goldsborough v. Turner, Bank, 112 U. S. 276, 28 L. ed. 722, 5 67 N. C. 410; Moye y. Cogdell, 69 N. Sup. Ct. Rep. 141; Brown v. People's C. 95; Farmers & M. Bank v. Federal Reserve Bank, 262 U. S. 649, 67 L. ed. check, draft, note, or other nego1157, 30 A.L.R. 635, 43 Sup. Ct. Rep. tiable instrument, and forwards the 651; Baldwin State Bank v. National

same for collection, as herein proBank, 144 Ga. 181, 86 S. E. 538; Miller

vided, it shall only be liable after v. Norton, 114 Va. 609, 77 S. E. 452.

actual final payment is received by Mr. Justice Sutherland delivered it, except in case of want of due the opinion of the court:

diligence on its part, as aforesaid.” Malloy Brothers brought this ac- The Perry Banking Company intion against the Federal Reserve dorsed and transmitted the check Bank of Richmond in a state court, to a bank at Jacksonville, Florida, to recover $9,000, alleged to be the which, in turn, indorsed and transamount of a check drawn to their mitted it, on account of the Atlanta order upon

the Bank of Lumber Federal Reserve Bank, to a bank at Bridge, North Carolina. The case Atlanta, Georgia; and by the latter was removed to the Federal district bank it was transmitted for colleccourt for the eastern district of tion to the Richmond bank, defendNorth Carolina, where it was tried ant herein. without a jury and judgment ren- On December 10, 1920, the Richdered for plaintiffs (281 Fed. 997), mond bank transmitted the check, which was affirmed by the court of together with several other small appeals (291 Fed. 763).

checks, to the Lumber Bridge bank The check was drawn on Novem- for collection and return. The letber 30, 1920, delivered to and re- ter containing these checks, by ceived by plaintiffs, and the amount regular course of mail, should have credited to the drawer.

It was

been received, and, so far as approperly indorsed and deposited pears, was received, by the Lumber with the Perry Banking Company Bridge bank, on Saturday, Decemof Perry, Florida, for collection and ber 11th. On Tuesday, December credit, on December 1. A credit 14th, the check in question was card was delivered to plaintiffs, upon stamped "Paid," and charged to the which was printed: "Checks, drafts, account of the drawer, and on the etc., received for collection or de- same day the Lumber Bridge bank posit, are taken at the risk of the transmitted to the Richmond bank indorser until actual payment is re- its draft on the Atlantic Banking & ceived."

Trust Company, of Greensboro, A statute of Florida, then and North Carolina, for the aggregate ever since in force (Laws of Florida amount of the checks, including the 1909, chap. 5951, p. 146), provides one here in question. The draft as follows:

was received by the Richmond bank “That when a check, draft, or on December 15th, and immediately other negotiable instrument is de- forwarded to the bank at Greensposited in a bank for credit, or for boro for payment. On December collection, it shall be considered due 17th the Greensboro bank notified diligence on the part of the bank in the Richmond bank by wire that the collection of any check, draft, the Lumber Bridge bank did not note or other negotiable instrument have sufficient funds to its credit to so deposited, to forward en route pay the draft. Thereupon the Richthe same without delay in the usual mond bank wired the Lumber commercial way in use according to Bridge bank that its draft had been the regular course of business of dishonored, and called upon it to banks, and that the maker, indorser make it good. The Lumber Bridge guarantor, or surety of any check, bank answered, promising to do so. draft, note or other negotiable in- It failed, however, and the Richstrument, so deposited, shall be lia- mond bank thereupon sent a repreble to the bank until actual final pay- sentative to Lumber Bridge, who ment is received, and that when a reached there on the morning of Debank receives for collection any cember 20th, and demanded pay

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