ter of law, facilities which the defendant | 34 L.R.A. (N.S.) 190, 80 Atl. 189, Ann. Cas. did or could provide to the deceased for 1913B, 223; McManus v. Carmichael, 3 bathing purposes.

'fining a crime and prescribing a penalty for the offense cannot be considered here, but the policy of the statute has its influence upon the general principles of law applicable to the duties and correlative liabilities of persons engaged in business, as is alleged in this case, even though the particular things required to be done may not have been required at common law. The statute recognizes the use of the public waters of the state, "by persons, firms, and corporations who are" "operating or maintaining public bath houses, bathing pavilions, or other similar places, where bathing suits are furnished for hire or rent, at the seaside resorts in the state of Florida," and defines specific duties required of those who so use the public waters of the state, which specific duties are designed to protect the patrons of the particular business, and are not inconsistent with duties that may be imposed by implication of law upon those engaged in such business.

Where one assumes to offer the use of public waters for purposes of profit by establishing bath houses or dressing rooms on the shore and furnishing bathing suits for hire to persons who are expressly or impliedly invited to use the bathing suits by bathing or swimming in the public waters, and a patron uses the waters in the usual and ordinary way consistent with the express or implied invitation, and without his fault is injured because of the unsafe condition of the premises on which patrons are invited to bathe or swim, or because of the negligence of the proprietor in performing his duties to patrons, the one so offering the use of the waters for profit may be liable in damages for such injury.

An

one who assumes to so offer the use of the waters also assumes the legal duties and liabilities that are commensurate with such offer of the use. The nature of the use fixes the duties and correlative liabilities. invitation may be implied from a continued and general custom in using the premises by the patrons of the business. The nature of the use and the extent of the premises covered by an implied invitation to use may be determined by the continued and general custom of the patrons of the place.

It may not be presumed from an injury that the keeper of the place failed to do his legal duty and consequently was negligent; but negligence of the keeper that proximately caused the injury must be duly alleged and proven, and any applicable contributory negligence on the part of the person injured will bar a recovery for a merely negligent injury. In determining whether the injured person is guilty of contributory negligence, the practical capabilities of such person for self-protection under the particular circumstances should be considered, together with facts, if any, that should charge the keeper of the place or his employees with notice or knowledge of the same, when the injured person was invited to use the premises.

If a negligent failure to perform a statutory or a common-law duty with reference to the safe condition of the premises customarily used by the patrons of a particular business enterprise is a proximate cause of an injury to a patron who is not guilty of contributory negligence, the proprietor of the business may be liable in damages for such negligent injury.

It is alleged that the defendant "was operating and maintaining a certain public The liability proceeds from the duty im- bath house and bathing pavilion where posed by law upon one who thus assumes bathing suits were furnished for hire or to offer the use of public waters for profit, rent at Pablo Beach, a seaside resort in to exercise due care to prevent injury to the state of Florida; .. that the depatrons who without fault use the waters fendant had exclusive control and managein the customary way. One will not be per- ment of said bath house and bathing pavilmitted to establish for profit a business of ion; that said bath house and bathing pafurnishing facilities and inviting persons vilion was situated at or near the waters to use public waters for bathing or swim- of the Atlantic ocean at said Pablo Beach; ming, and to escape liability for injuries that said defendant extended an invitation caused by the unsafe condition of the prem- to the public to rent from him bathing ises so used, of which unsafe condition the suits, and to avail themselves of the dresspatron may not know or have due appre- ing room and kindred facilities of the deciation, but of which the proprietor of the fendant at said pavilion; that the waters of business should know. The patron has a the Atlantic ocean situated directly in front right to rely upon the due performance of of said pavilion and bath house, and extendthe implied legal duty of the one furnishing up and down the beach for a space of ing the facilities and extending the implied a few hundred feet on either side of said invitation to use the premises, to keep the same in a reasonably safe condition or to give due warning as to and protection against dangers. Though the waters are public, and no governmental authority be expressly given to so offer them for use,

point directly in front of said bath house and pavilion, were the facilities for bathing which the defendant offered to the patrons of his bath house and bathing pavilion; that said defendant, by renting said bath. ing suits, invited such members of the pub

drowned in the waters of the Atlantic ocean near the bath house and bathing pavilion of the defendant, and while within the wa

fendant invited its patrons to bathe; that the said Mary E. Proctor died leaving neither husband nor minor child or children, nor any person or persons dependent upon her, the said Mary E. Proctor, for support; that the said Louise McKinney, plaintiff, was heretofore, on, to wit, the 17th day of July, 1912, duly appointed as administratrix of the estate of Mary E. Proctor."

lic as rented bathing suits from him to avail and negligence of the defendant, the said themselves of the facilities aforementioned Mary E. Proctor was then and there for bathing, and to bathe in the waters of the Atlantic ocean in front of and adjacent to the said pavilion as aforesaid; that said waters aforesaid were the waters customar-ters of the Atlantic ocean in which the deily used by the patrons of said bathhouse, which the defendant well knew; that on, to wit, July 7, A. D. 1912, one Mary E. Proctor did rent from the said defendant a bathing suit for a valuable consideration in that behalf; that it was the intention of the said Mary E. Proctor, which the defendant then and there well knew, then and there to bathe in the waters of the Atlantic ocean adjacent to which the defendant's said bath house and bathing pavilion was located, and which waters constituted the facilities for bathing offered to defendant's patrons as aforesaid; that thereupon the said Mary E. Proctor did bathe in said Atlantic ocean adjacent to said bath house and bathing pavilion; that while so bathing the said Mary E. Proctor remained within the limit of the waters of said Atlantic ocean which constituted defendant's facilities for bathing as aforesaid; that the defendant negligently and carelessly failed to provide and maintain proper and safe life lines and life raits for the protection of its patrons, bathers at the said seaside resort, contrary to the statutes of the state of Florida in such cases made and provided;" and also (2) that the defendant negligently and carelessly failed to provide suitable and proper persons to superintend and watch over bathing in the waters customarily used by the patrons of said bath house, and in which waters deceased was bathing, and to watch over and superintend its (defendant's) patrons who were bathing in such waters; and also (3) "that the defendant negligently and carelessly failed to provide proper persons or appliances to rescue his patrons in the said waters customarily used by his said patrons, which constituted the facilities for bathing offered to such patrons by the defendant, and in which waters deceased was bathing, when such patrons were or might have been in danger of drowning;" and also (4) "that the defendant negligently and carelessly failed to provide a proper person or persons, and to have such person or persons present on behalf of said defendant to search for and recover any of the patrons of said bath house, when such patrons were bathing in the Ownership of premises is not essential waters customarily used by said patrons, to liability for injuries proximately caused and which constituted the facilities for by the dangerous condition of premises the bathing offered said patrons by the defend- use of which is expressly or impliedly ofant, in which waters deceased was bathing, fered to others. Liability may be imposed when such persons were or might have been upon those who offer the use of premises in danger of drowning; that by reason under such circumstances as raise a legal thereof, and by reason of the carelessness duty to those who accept the offer, and are

The facts alleged as to the relation of patron and operator of a public bath house and bathing pavilion at a seaside resort, where bathing suits are furnished for hire, make it under the quoted statute a breach of duty for the defendant operator of a public bathing place to "negligently and carelessly fail to provide and maintain proper and safe life lines and life rafts for the protection of" his patrons. For this alleged breach of duty the defendant may be liable in damages, even if he is not liable for negligently and carelessly failing to provide proper supervision and proper persons and appliances to rescue his patrons in said waters customarily used by patrons, when such patrons are without their fault in danger of drowning. All of these precautions may be duties of the operator of the place who offers its use to the public, if the circumstances make such precautions reasonably necessary or expedient for the safety to those who use the waters in the customary way. See Larkin v. Saltair Beach Co. 30 Utah, 86, 3 L.R.A. (N.S.) 982, 116 Am. St. Rep. 818, 83 Pac. 686, 8 Ann. Cas. 977; Boyce v. Union P. R. Co. 8 Utah, 353, 18 L.R.A. 509, 31 Pac. 450; Bass v. Reitdorf, 25 Ind. App. 650, 58 N. E. 95; Decatur Amusement Park Co. v. Porter, 137 Ill. App. 448; Turlington v. Tampa Electric Co. 62 Fla. 398, 38 L.R.A.(N.S.) 72, 56 So. 696, Ann. Cas. 1913D, 1213, 1 N. C. C. A. 490; Brotherton v. Manhattan Beach Improv. Co. 50 Neb. 214, 69 N. W. 757, 1 Am. Neg. Rep. 115; Id., 48 Neb. 563, 33 L.R.A. 598, 58 Am. St. Rep. 709, 67 N. W. 479; Dinnihan v. Lake Ontario Beach Improv. Co. 8 App. Div. 509, 40 N. Y. Supp. 764.

The defense of contributory negligence should be shown by the defendant.

injured because of the dangerous condition | a state in which personal property is found of the premises, where the negligence of will not prevent the imposition of another the injured party does not contribute to by the state in which the testator was domiciled. the injury.

If at any time peculiar conditions at the usual place for bathing and swimming make the customary use patently or obviously dangerous, it may be contributory negligence to encounter the dangers. When the negligence of a plaintiff or those whom he represents contributes appreciably in producing the injury complained of, the law affords no right of recovery in the absence of a statute covering the case. If a patron who is injured is not free from fault both of omission and commission while using the bathing facilities, there can be no recovery of damages from the party who provides the facilities for hire and invites or offers the use of the waters, even though such party is negligent in performing his duty to the patron.

Statute

adoption

construction.

2. The adoption of a statute from another which has been given it by the courts of the state is presumed to carry the construction state of origin.

Judgment full faith and credit closing estate claims in other state. 3. A decree in one state distributing the estate of the decedent who died domiciled in another state, and discharging the administrator after finding that all claims which had been presented against the estate had been paid, is not conclusive that all under the full faith and credit clause of the existing claims were presented so that, Federal Constitution, claims for inheritance taxes upon the estate so distributed cannot be allowed against the executor by the courts of testator's domicil, where, under the law of the former state, inheritance taxes are not expenses of administration or a lawful basis for proofs consistent with charges upon the general estate, although the allegation of negligence in the perform-sufficient funds to pay the local inheritance the administrator is permitted to retain ance of legal duties due to a patron from one who furnishes facilities and offers the use of public waters for bathing purposes. If negligence within the scope of the allegations is shown to have proximately caused the death of the plaintiff's decedent, and such decedent was free from fault, there may be a recovery of damages in a proper amount as contemplated by the statute. See Florida East Coast R. Co. v. Hayes, 67 Fla. 101, L.R.A. —, 64 So. 504..

The declaration in this case is sufficient as

The judgment is reversed.

tax.

Tax

legacies distrib

inheritance uted in foreign state. 4. An executor or trustee may be required to pay the inheritance tax only on the funds sent to him by the courts of a sister state for distribution, and not upon those distributed by the local administrator by direction of such courts, where the statute of testator's domicil, where such executor or trustee resides, provides that he shall deduct the tax from legacies or property in his hands for distribution, which is construed to apply only to the beneficial in

Shackleford, Ch. J., and Taylor and terests of legatees.
Cockrell, JJ., concur.
Same

Hocker, J., dissenting:

I dissent from the opinion in this case because I do not think the administratrix has shown any right to sue, and for a thorough discussion of my views, see dissenting opinion in the case of Jacksonville Electric Co. v. Bowden, 54 Fla. 461, text, 477, 15 L.R.A. (N.S.) 451, 45 So. 755.

ILLINOIS SUPREME COURT.

PEOPLE OF THE STATE OF ILLINOIS

v.

Note. Physical presence or absence of personal property or evidence thereof, as affecting liability to the payment of a succession tax, is treated at length in the note to Re Helena, 46 L.R.A. (N.S.) 1167. That note covers both the liability to pay a succession tax at the decedent's domicil in reof spect of personal property in another state, and the liability to pay such a tax in respect of personal property found in the state belonging to the estate of a nonresident. See also later cases, State ex rel. Smith v. in state of situs and Probate Ct. 50 L.R.A. (N.S.) 262; Security Trust Co. v. Com. 51 L.R.A. (N.S.) 232; and

1. The imposition of a succession tax by Re Adams, L.R.A.1915C, 95.

A

The facts are stated in the opinion.

Messrs. Charles R. Holden, William S. Miller, and A. B. Melville, with Messrs. Kraus, Alschuler, & Holden, for appellants:

Neither the administrator c. t. a. nor the residuary estate in Illinois is chargeable with inheritance taxes assessed with respect to California assets, finally administered upon and distributed in California.

People ex rel. George v. Nelms, 241 Ill. 571, 89 N. E. 683; Connell v. Crosby, 210 Ill. 380, 71 N. E. 350; People v. Griffith, 245 Ill. 537, 92 N. E. 313; People v. Cameron, 140 App. Div. 76, 124 N. Y. Supp. 949; Tilt v. Kelsey, 207 U. S. 43, 52 L. ed. 95, 28 Sup. Ct. Rep. 1.

PPEAL by defendants from a judgment | U. S. 395, 399, 51 L. ed. 853, 855, 27 Sup. of the Cook County Court approving Ct. Rep. 499; Buck v. Beach, 206 U. S. 392, the report of the appraisers in a proceed- 400, 51 L. ed. 1106, 1111, 27 Sup. Ct. Rep. ing for the collection of inheritance taxes 712, 11 Ann. Cas. 732; Schouler, Exrs. & on the estate of James C. King, deceased. Admrs. § 165; 16 Cyc. 551, note; Re BarReversed. nett [1902] 1 Ch. 847, 3 B. R. C. 198, 71 L. J. Ch. N. S. 408, 50 Week. Rep. 681, 86 L. T. N. S. 346, 18 Times L. R. 454; Johnston v. Spicer, 107 N. Y. 185, 13 N. E. 753; American Loan & T. Co. v. Grand Rivers Co. 159 Fed. 775; Com. v. North American Land Co. 57 Pa. 102; 18 Cyc. 1227; 13 Am. & Eng. Enc. Law, 2d ed. 931; Murphy v. Crouse, 135 Cal. 14, 87 Am. St. Rep. 90, 66 Pac. 971; Walker v. Welker, 55 Ill. App. 118; New York L. Ins. Co. v. Smith, 14 C. C. A. 635, 29 U. S. App 220, 67 Fed. 694; Grayson v. Robertson, 122 Ala. 330, 82 Am. St. Rep. 80, 25 So. 229; Naylor v. Moffatt, 29 Mo. 126; Holyoke v. Union Mut. L. Ins. Co. 22 Hun, 75, 84 N. Y. 648; Merrill v. New England Mut. L. Ins. Co. 103 Mass. 245, 4 Am. Rep. 548: Banta v. Moore, 15 N. J. Eq. 97; Shields v. Union Cent. L. Ins. Co. 119 N. C. 380, 25 S. E. 951; Willing v. Perot, 5 Rawle, 264; Reynolds v. McMullen, 55 Mich. 568, 54 Am. Rep. 386, 22 N. W. 41; Moore v. Jordan, 36 Kan. 271, 59 Am. Rep. 550, 13 Pac. 337; Chamberlain v. Wilson, 45 Iowa, Connell v. Crosby, 210 Ill. 389, 71 N. E. 149; Elting v. First Nat. Bank, 173 Ill. 350; Dewey v. Des Moines, 173 U. S. 193, 388, 50 N. E. 1095; Strauss v. Phillips, 203, 43 L. ed. 665, 668, 19 Sup. Ct. Rep. 189 Ill. 9, 59 N. E. 560; Story, Confl. L. 379; Louisville & J. Ferry Co. v. Kentucky, §§ 514a, 516, 518; Lawrence v. Kitteridge, 188 U. S. 385, 396, 47 L. ed. 513, 518, 23 21 Conn. 577, 56 Am. Dec. 385; Newell v. Sup. Ct. Rep. 463; Delaware, L. & W. R. Peaslee, 151 Mass. 601, 25 N. E. 26; Welch Co. v. Pennsylvania, 198 U. S. 341, 49 v. Adams, 152 Mass. 74, 9 L.R.A. 244, 25 L. ed. 1077, 25 Sup. Ct. Rep. 669; Metro-N. E. 34; Welles's Estate, 161 Pa. 218, 28 politan L. Ins. Co. v. New Orleans, 205

The state of Illinois has no power to tax the transmission of personal property of a decedent, when such property is located in California, and there administered upon and distributed under a final order of a court of that state, even though the decedent was a resident of Illinois.

The question whether exacting a succession tax in two or more states amounts to double taxation in the constitutional sense is discussed in the note to Mann v. Carter, 15 L.R.A. (N.S.) 150. A similar question with respect to property taxation is discussed in the note to Judy v. Beckwith, 15 L.R.A. (N.S.) 142. It is to be noted however, that the injustice of double taxation resulting from the imposition of taxes on the same property for the same period in two or more states has been in a considerable degree mitigated by the decision of the United States Supreme Court in Union Refrigerator Transit Co. v. Kentucky, 199 C. S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36, 4 Ann. Cas. 493, and other cases cited in note to Com. v. West India Oil Ref. Co. 36 L.R..A. (N.S.) 295.

It is possible that the courts and legislatures may eventually adopt and act upon the view that the circumstances that will justify the exaction in one state of a succession tax in respect of personal property will negative the right to exact such a tax in another state in respect of the same property and succession. The United States

Atl. 1116, 1117; Parker's Appeal, 61 Pa. Supreme Court has practically adopted that view as regards property taxation, at least so far as concerns tangible chattels. As suggested at page 1169 of the note in 46 L.R.A. (N.S.) 1167, the New York legislature by the 1911 amendments to the inheritance tax law has gone far toward the accomplishment of such a result, by abandoning the plan of laying the tax according to inconsistent and mutually antagonistic principles, and adopting in its place the maxim mobilia sequuntur personam as the exclusive criterion of liability in respect of intangible personalty, and actual situs as the criterion in respect of tangible personalty. It is obvious, however, that the adoption of a uniform and consistent criterion by one or more states will not avoid the evil of double taxation; hence, the importance, if possible, of the adoption by the courts as a constitutional principle, of a single, exclusive criterion, binding in all the states, for the determination of the personal property in respect of which the tax is payable, so far as that question depends upon the domicil of the decedent, or the location of the property.

G. H. P.