their switches." 46 N. J. L. 7, 12. It will be observed that in that case there was fault on the part of the company in leaving its loaded car on a switch inclining towards its main track, and liable to be sent down on the latter track. In the present case, so far as the act of the company and of its servants are concerned, there was no fault in the rais cases such as Exton v. Central R. Co. 62 N. J. L. 7, 42 Atl. 486, where a railroad company was held liable for injuries from the acts and conduct of intruders or strangers. applicable in this litigation. Cases of this class rest upon the duty of the carrier to its passengers, and liability springs from the want of care to protect passengers from injury. on the plaintiff to show negligence on the part of the defendant or of its servants. There is no question but what the company would be responsible for the mode in which the gates were operated by the gateman or its servants. Boggs was not in the employ of the company. It had neither given him authority to do this act, nor had the company done anything to give him the appearing or turning down of these gates. Nor are ance of authority to work the gates. He was, so far as the company was concerned, either a stranger or a trespasser. Cases which decide that a principal is responsible for the act of a stranger, where his servant employs some third person to perform an act within the scope of a servant's employment, and injury results to another, are inapplicable to this case. Simons v. Monier, 29 Barb. 419; Althorf v. Wolfe, 22 N. Y. A duty rested on the railroad company in 355; Wood, Mast. & S. Perrine, the com- this instance to protect persons using the pany's gateman, neither employed Boggs, highway from injury from passing trains. nor knew that he was about to meddle with | That duty had been performed by the gatethe gates. In Smith v. New York, S. & W. man in turning down the gates. It is also R. Co. the company left a loaded car, coupled conceded that when danger from an approach with two empty cars, standing on a switch ing train had passed it was the duty of the which inclined towards their main track; company to have the gates raised to permit the same being secured by their brakes and travel over the public highway. The coma railroad tie placed under the wheels of the pany had provided for the performance of loaded car. The car got on the main track, that duty by employing a person as gate and thereby an accident occurred, the plain- keeper. There is no evidence from which it tiff being injured. It was held that the com- could be inferred that the gates were kept pany was not irresponsible, as a matter of down for an unreasonable length of time. law, even though the cars could not have The suit is not brought for damages arising gotten on the main track but for the wrong from the unreasonable obstruction of the ful act of a stranger. Chief Justice Beasley, crossing. The injury which is the subjectin delivering the opinion of the court, used matter of this suit was due to the unauthorthis language: "Nor would it have been ized act of Boggs, who was, as against the proper to have yielded to the request to tell company, both a stranger and a trespasser the jury that the company was not answer-assuming to act for the company. The mas able if the collision was produced by the loosening of the car by the unlawful act of a stranger;' for this would have been tantamount to saying that a railroad company has the legal right to have a loaded car on a plane inclining towards their track in such a condition that it is subject to become freed from its restraints by any unlawful intervention of human agency, though such intervention should be the mere result of accident. I am not aware of any legal principle that would justify a railroad company in leaving loaded cars in such a situation that they could be caused to run onto its main track, in the way of its passing trains, by the carelessness of persons passing by or by the act of children playing near 50 L. R. A. ter is liable for the acts of his servants within the scope of the latter's employment. The relation of master and servant which creates the liability of the former for the acts of the latter arises from contract. The consent of the master, express or implied, is essential to such a relation: Here Boggs was not the servant of the railroad company. He did the act complained of without the consent or knowledge of the company or its servants. He could not fix the responsibility for his acts upon the company by volunteering to do this act in behalf of the company, or to accommodate Perrine, the gate tender, and not call to him to raise the gates. The rule to show cause should be made absolute. END OF CASES IN Book 50. RÉSUMÉ OF THE DECISIONS PUBLISHED IN THIS BOOK. SHOWING the Changes, Progress, and Development of the Law during the Second Quarter of the Judicial Year Beginning with October 1, 1900. Classified as Follows: I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS. IV. DOMESTIC RELATIONS. V. FIDUCIARY RELATIONS. VI. TORTS; NEGLIGENCE; INJURIES. VII. PROPERTY RIGHTS; WILLS; LIENS. VIII. CIVIL REMEDIES. IX. CRIMINAL LAW AND PRACTICE. I. PUBLIC, OFFICIAL, AND STATUTORY MATTERS. Approval by the governor of a proposed be exempt from taxation, although the lodge amendment to the Constitution is held not to be required by a constitutional provision to the effect that he must approve every order, resolution, or vote of the legislature. (Pa.) 568. Cigarettes, the sale of which is made unlawful by statute, are held not to constitute legitimate articles of commerce within the provisions of the Federal Constitution. (Tenn.) 478. Local self-government. A statute appointing a board of police commissioners with power to appoint a chief of police for a city is held not to be unconstitutional as interfering with local selfgovernment. (R. I.) 330. Bankruptcy and insolvency laws. As to assets, see infra, VII. The operation of a state insolvency law is held to be so fully suspended by the bankrupt law that a trustee in insolvency cannot maintain an action to set aside a conveyance in fraud of creditors, though the insolvent has not been declared a bankrupt. (Conn.) 641. The extraterritorial effect of an assign ment for creditors under the Wisconsin statute with respect to money on deposit in a bank in another state is denied on the ground that the insolvency law of Wisconsin is in the nature of a bankrupt law providing for discharge of debts, and making the distribution of the estate statutory instead of voluntary. (Wis.) 327. is organized for charitable and benevolent purposes, where part of the building is rented for stores, notwithstanding that the rents are used for the lodge purposes. (Mo.) 191. Real estate the title to which is held by a Catholic priest in trust for the congregation of a parish, though used for an entirely free school, without regard to the race, color, or religion of the pupils, is held not to be exempt from taxation as the property of an institution of learning. (III.) 517. A statute taxing grain in elevators, warehouses, etc., in the name of the proprietor is held valid, and not to be a violation of the constitutional rule of uniformity or of the provisions against local and special laws for taxes. (N. D.) 266. A collateral-inheritance tax law is held void for want of notice of proceedings to fix the amount of the tax, but such defect is held cured by a retroactive amendment, at least as far as it affects personal property not yet distributed. (Iowa) 92. License and regulation of business. The business of loaning money on household furniture is held to be a legitimate one which cannot be subjected to a prohibitory license tax. (Ga.) 485. A statute requiring a license for engaging in the business of guiding in inland fishing and forest hunting is held constitutional on the ground that fish and game belong to the (Me.) 544. state. An ordinance restricting all scavenger work to licensed scavengers, and giving the board of health power to decide who are competent bidders for the work, is held unconstitutional as in derogation of common right. (N. C.) 473. A statute taxing venders of merchandise according to the amount of their annual sales, and fixing different rates for retailers, wholesalers, and sellers on the boards of trade or exchanges, is sustained. (Pa.) 86. (PUBLIC, OFFICIAL, AND STATUTORY MATTERS.) The imposition of a tax upon an emigrant upon a mortgage is held to be enforceable by agent is held not to constitute a regulation foreclosing the mortgage against one who of interstate commerce. (Ga.) 685. had bought the property with full knowl edge of it, since the city is not bound by the unlawful acts of its officers. (Minn.) 170. Highways. A statute regulating the business of temporary and transient dealers is held to apply to dealers having a permanent place of business elsewhere in the state, and is also held constitutional. (R. I.) 339. A statute requiring a large bond from merchants selling farm produce is held unconstitutional as class legislation, and an unjustifiable interference with the right to do lawful business. (Mich.) 493. Physicians. The practice of osteopathy, consisting en tirely of the kneading and manipulation of the body, is held not to be the practice of medicine within the meaning of statutes regulating such practice. (Ky.) 383. The exemption of army and navy physicians, consulting physicians from other states, and persons temporarily practising under a medical preceptor, is held not to make a statute requiring licenses for physicians unconstitutional. (Md.) 411. Counties. Possession of law reports distributed by the state to county judges is held to belong, except possibly as against the state, to the county judges, and not to the counties, so that the county, as such, cannot maintain replevin for such books against a former judge who retains the books after his term of office is ended. (Neb.) 733. A county is held not to be liable for a nuisance caused by the disposition of sewage on a poor farm owned by it, although it is held that the county officers might be enjoined from continuing the nuisance. (N. Y.) 206. Municipal corporations. The wrongful arrest of an innocent person and a brutal assault upon him made by a notoriously incompetent policeman are held insufficient to make the city liable. (N. C.) 470. An ordinance making it unlawful for the proprietor of a saloon, or any of his employees, to enter the place on Sunday with. out a written permit from the mayor or recorder of the town, stating the length of time he may remain, is held void for unreasonableness and because it vests an arbitrary discretion in the officer. (Tenn.) 476. The delegation by the legislature to city authorities of the power to fix prices for water, when the city is itself a consumer either in its municipal capacity or through its inhabitants, is denied unless there is a provision for judicial investigation of the reasonableness of the rates fixed. (N. M.) 224. An ordinance making it a penal offense for any passenger to sell or give away a streetrailway transfer is held to be within a grant of power to make regulations of street railways, and is upheld against the claim that it interferes with constitutional rights, since the passenger's contract does not involve any right to assign the transfer. (Cal.) 55. An ultra vires loan of the money of a city A bicycle is held not to be a carriage within the meaning of a statute requiring highways to be kept reasonably safe and convenient for carriages at all seasons of the year. (Mass.) 127. An exclusive grant of the use of streets by an electric-light company is held to be beyond the power of a municipal council. Va.) 142. (W. A contract by which a city compromises with a railroad company on the matter of a bridge in a street over railway tracks, joining in the expense of constructing it and agreeing to maintain it thereafter, is held ultra vires and ineffectual to relieve the rail. road company from its common-law duty to maintain the bridge, although the city may have acted under the contract for a certain time. (Minn.) 656. A general city ordinance, not connected with the grant of the franchise to a street railway company or assented to by it, is held not to create any right of action against, or affect, the liability of the company in favor of a person injured by a street car, since such liability must be determined entirely by the common law or statutes. (Mo.) 850. Damage to property of an abutting owner by noises, smells, and disturbances caused by operation of a street railway and turntable in the street are held to be within a constitutional provision as to property "injured" only so far as they are not reasonably incidental to the operation of such a street railway, and borne by the public generally. (Ky.) 813. A bridge approach which raises the surface of a street is held not to constitute an additional servitude, where it raises the surface only to the grade that has been established by the statute. (Or.) 389. Courts. Inherent power of courts to punish for contempt is held to be one which the legis lature cannot limit by restricting the acts which may be thus punished. (Ga.) 691. Attorneys. A statute attempting to override rules of courts with respect to the admission to the prior to a certain date is held unconstitu bar of persons who began the study of law tional as an interference by the legislature with judicial power. (Ill.) 519. A single wrongful act of an attorney in the appropriation of money is held insufficient ground for his disbarment, where he had no actual intent to defraud, but has actually made full restitution and has for eight years thereafter maintained a good charac ter. (N. J.) 415. ing Political parties. The decision of a dispute between contestcandidates of a party for Congress, (CONTRACTUAL AND COMMERCIAL RELATIONS.) when made by the governing authority of the party in the state, is held to be conclusive on the courts. (Ky.) 810. Schools. of boards of health so long as the emergency exists. (Ind.) 64. Officers. A resort by a public officer to a house of The exclusion of unvaccinated pupils from ill fame for immoral purposes is held to be school during danger of an epidemic of small-ground for his removal from office. (W. pox is held to be within the general powers Va.) 279. II. CONTRACTUAL AND COMMERCIAL RELATIONS. For Specific Performance, see infra, 8. A telephone agent's agreement to deliver a message at destination in consideration of an extra charge for sending it is held binding on the company, although his instructions prohibited his making such contracts, but these were habitually disregarded. (Tenn.) 277. Public policy; illegality. A contract to pay an attorney one third of all money recovered in a divorce suit is held to be against public policy. (Cal.) 548. The invalidity of contracts in restraint of trade and to create a monopoly is held to exist in the case of a contract by the owner of an ice machine to abandon the manufacture of ice for the term of five years in a certain town in which there is demand enough for the ice of both factories, and where the other party to the contract thereby acquires a monopoly of the business in that town. (Ala.) 175. Real estate agents doing business without a license in violation of an ordinance are denied the right to recover commissions, although the ordinance is repealed pending the suit. (Kan.) 103. for nonperformance of the contract by the board of education. (Utah) 371. As to schools, see also supra, I. Hiring. A contract by which a clerk is hired for a year is held not to be terminated by the burning of the business house and stock of goods, and by the dissolution of the firm and its retirement from business. (La.) 827. Banks. An honest mistake of a banker as to the law governing holidays and days of grace is held not to make him liable for failure to protest a note until a day after it should have been done, where lawyers and judges were at the time unable to agree as to the law. (S. D.) 182. Bills, notes, and checks. See also infra, III. The doctrine that a purchaser of a draft breach of warranty of the goods, which was with bill of lading attached is liable on declared in Finch v. Gregg (N. C.) 49 L. R. Civ. App. 246, 46 S. W. 48, but denied by the other authorities cited in a note to the Finch Case, has been repudiated by a recent lowa case. (Iowa) 777. A. 679, and Landa v. Lattin Bros. 19 Tex. The delivery to an impostor of a check drawn by the drawee on itself for money to be loaned to the payee named therein on a mortgage is held to give the drawee, after payment on a forged indorsement of the payee's name, no right to recover back the proceeds on the theory that the collecting bank had guaranteed the indorsement. (Pa.) 75. (CORPORATIONS AND ASSOCIATIONS.) rier cannot contract against liability for injuries to a passenger caused by negligence in running such train. (Ga.) 673. The rule that a railroad employee riding for his own purposes, though on a pass, is to be deemed a passenger, as shown by the note in 31 L. R. A. 321, is followed in a recent case, which holds that, where the pass is given by reason of a provision in his contract of employment, conditions indorsed thereon, by which he assumes the risk of the carrier's negligence, are invalid. (C. C. A. 1st C.) 615. A railroad station agent riding on a train without paying fare several hours after his day's work has ended is held to be entitled to the rights of a passenger with respect to the care for his safety, although the conductor may have violated a rule of the company in carrying him free. (Ky.) 381. Insurance. See also infra, VII. The destruction of an insurer's right of subrogation to a claim against the party causing a loss by a stipulation between the insured and such other party in an action for damages, which was made for the advantage of the insured in respect to other claims, is held to cut off his right against the insurer under a policy providing for such subrogation. (Md.) 828. A provision for the appraisal of a loss on a policy is held not to require such appraisal unless the insurer makes a demand therefor. (Ohio) 555. A deed of insured property reserving a life estate to the grantor is held not to constitute a forfeiture of the insurance on such life estate under clauses as to alteration of circum stances increasing the risk, or as to sale of the property. (Mass.) 833. The conversion of a life policy into a nonforfeitable paid-up policy for a fixed term of years, made on request of the insured after default in payment of a premium, is held to dispense with the necessity of giving the notice required by statute for forfeiture of the original policy by nonpayment of premium. (Iowa) 99. A woman's right to insurance on her husband's life, when the policy is made to her, is held to be unaffected by a divorce obtained by her before his death. (Ohio) 552. The incontestability of a life insurance policy for any cause except misstatement of age is held not to preclude the insurer from relying on warranties contained in the application and constituting the basis of the policy. (Iowa) 774. The failure of a lodge to send an assessment to the grand lodge is held not to work a forfeiture of the rights of a member who had paid the assessment to the lodge, although the by-laws provide that the grand lodge shall not be held for neglect of duty of subordinate lodges. (Miss.) 111. A compromise agreement between a benefit society and a beneficiary in settlement of a suit on a certificate upon the life of a person who had been for years unheard of, whereby a sum is agreed to be paid at once and the remainder put in trust to be paid at a certain time if the assured does not prove to be alive, is held to entitle the beneficiary to the first payment, although before it is actually made the insured proves to be alive. (N. Y.) 204. III. CORPORATIONS AND ASSOCIATIONS. The right of the state to demand information from an express company of another state is sustained as to its business within the state, though the company is not a corporation but a partnership, but denied as to interstate business or business outside the state, except so far as that may be necessary to enable the authorities to regulate the business in the state. (Minn.) 667. An abuse of the franchise of a street railway company by running cable cars under a charter which allowed the use of animal power only is held to create no liability, in the absence of negligence, for a collision with the cars of another company. (Ill.) 734. Persons who attempt to incorporate by filing the original articles instead of copies, as the statute requires, are held to have all the rights of a corporation as to all persons with whom their dealings are mutually understood to be in that capacity. (Wis.) 324. A statute prohibiting undue preferences by carriers is held, in accordance with the construction of the English statute from which it was adopted, to apply only to preferences by carriers in respect to their services as carriers, and not to preclude a special privilege to a baggage transfer company to enter a railroad depot for the solicitation of business. (Va.) 722. The signing of an appeal bond by a brewing company as surety for one of its customers is held to be ultra vires and void, though some incidental benefit may have been received by the corporation from the appeal. (I.) 765. The right of directors of a corporation, who are also its creditors, to enforce the personal liability of stockholders to pay their debts, and also to purchase the property of the corporation at public sale by an assignee or receiver under order of court, is sustained, notwithstanding their fiduciary character. (Minn.) 273. Partnership. A note given by one partner to another for a loan of the latter's personal funds is held not to be unenforceable merely because the money may have been used to pay partnership obligations,-especially when there were sufficient partnership assets for that purpose. (Md.) 498. Churches. A consolidation of several churches of the Methodist Episcopal denomination by the action of the bishop in appointing one pastor for the united societies is held to be binding on the courts. (Conn.) 636. |