Imágenes de páginas


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.

Iowa, 1; Hetfield v. Baum, 35 N. C. (13 “(6) That said count fails to allege or Ired. L.) 394, 57 Am. Dec. 563; 1 Farnham, show that the house of the defendant de- Waters, 657; 2 Farnham, Waters, 1570; scribed as a pavilion and bath house was 29 Cyc. 476; 1 Thomp. Neg. $ 977; Phillips in the Atlantic ocean or immediately next v. Orr, 152 N. C. 583, 67 S. E. 1064. to the waters of the Atlantic ocean, but There is no liability for doing a lawful alleges that same extended up and down act in a lawful manner and without negli. the beach, and not in the waters of the gence.

Cooley, Const. Lim. pp. 744, 745; Moore v. "As to fourth count:

Gadsden, 93 N. Y. 12; Rochester v. Camp"As to the fourth count defendant re- bell, 123 N. Y. 405, 10 L.R.A. 393, 20 Am. peats each of the grounds herein before men- St. Rep. 760, 25 N. E. 937; Zimmerman tioned, and in addition the following: v. Baur, 11 Ind. App. 607, 39 N. E. 299.

“(1) That there was no legal duty of or obligation on the defendant to provide a Whitfield, J., delivered the opinion of person or persons, and to have such person the court: or persons present on behalf of the defend- This action is brought under $$ 3145 and ant, to search for and recover patrons of 3146 of the General Statutes of 1906, to said bath house in said waters mentioned recover "such damages as the party in said count.

entitled to sue may have sustained by rea"(2) That the waters of the Atlantic son of the death of the party killed.” When ocean were in no sense the premises of or the decedent could have recovered for her propert; of the defendant, and were not un injury if her "death had not ensued,” then der his control, and were not, as a matter her administrator has a right of action unof law, facilities which the defendant did der the statute, the decedent leaving no or could provide to the deceased for bathing husband or minor child, nor any person purposes.

dependent on her for a support. The ques“(3) That said count fails to allege ortion here is the right to recover, not the show that the house of the defendant de- amount of the “damages

sustained seribed as a pavilion and bath house was by reason of the death.” Jacksonville Elecin the Atlantic ocean or immediately next tric Co. v. Bowden, 54 Fla. 461, 15 L.R.A. to the waters of the Atlantic ocean, but (N.S.) 451, 45 So. 755. alleges that same extended up and down the When this alleged cause of action accrued beach, and not in the waters of the ocean.” | the following statute had been enacted: The demurrer was sustained; and, the

“Chapter 6189— (No. 70). plaintiff declining to plead further, final "An Act to Require Persons, Firms and Corjudgment on the demurrer was rendered porations Maintaining and Operating for the defendant, and the plaintiff took Public Bath Houses, Bathing Pavilions, writ of error.

and Other Similar Places at Seaside Re.

sorts, to Maintain Life Lines and Life Messrs. Bryan & Carson and J. M, Car- Rafts for Protection of Bathers and Pro. son for plaintiff in error.

viding a Penalty for Failure to Do So. Messrs. John C. Cooper & Son, for de- "Be it enacted by the legislature of the fendant in error:

state of Florida: To uphold the declaration there must be "Section 1. Any person, persons, firm or some allegation of ownership or control of corporation operating or maintaining public the premises alleged to be offered to the bath houses, bathing pavilions, or other public as bathing facilities.

similar places, where bathing suits are fur. Boyce v. Union P. R. Co. 18 L.R.A, 509, i nished for hire or rent, at the seaside renote; Brotherton v. Manhattan Beach Im- sorts in the state of Florida, are hereby reprov. Co. 50 Neb. 214, 69 N. W. 757, 1 Am. quired to maintain at all times proper and Neg. Rep. 115, 48 Neb. 563, 33 L.R.A. 598, safe life lines and life rafts for the protec58 Am. St. Rep. 709, 67 N. W. 479; Dinni- tion of the bathers at such seaside resorts. han v. Lake Ontario Beach Improv. Co. 8 “Section 2. Any person or persons, and App. Div. 509, 40 N. Y. Supp. 764; Bass v. the officers of any corporation violating the Reitilorf, 25 Ind. App. 650, 58 N. E. 95; provisions of g 1 of this act shall be subDecatur Amusement Park Co. v. Porter, ject to a fine of not more than $500 or by 137 Ill. App. 448; Wickersham v. DuBois, imprisonment in the county jail of not more 34 App. D. C. 146; Turlington v. Tampa than six months, or by both such fine and Electric Co. 62 Fla. 398, 38 L.R.A.(N.S.) | imprisonment at the discretion of the court. 72, 56 So. 696, Ann. Cas. 1913D, 1213, 1 “Approved May 23, 1911.” N. C. C. A. 490; State v. Morse, 84 Vt. 387, The effectiveness of this statute as de.

[ocr errors]

'fining a crime and prescribing a penalty for, one who assumes to so offer the use of the
the offense cannot be considered here, but waters also assumes the legal duties and
the policy of the statute has its influence liabilities that are commensurate with such
upon the general principles of law applica-offer of the use. The nature of the use fixes
ble to the duties and correlative liabilities the duties and correlative liabilities. An
of persons engaged in business, as is alleged invitation may be implied from a continued
in this case, even though the particular and general custom in using the premises by
things required to be done may not have the patrons of the business. The nature
been required at common law. The statute of the use and the extent of the premises
recognizes the use of the public waters of covered by an implied invitation to use may
the state, “by persons, firms, and corpora- be determined by the continued and general
tions who are” "operating or maintaining custom of the patrons of the place.
public bath houses, bathing pavilions, or It may not be presumed from an injury
other similar places, where bathing suits that the keeper of the place failed to do his
are furnished for hire or rent, at the sea- legal duty and consequently was negligent;
side resorts in the state of Florida,” and but negligence of the keeper that proximate.
defines specific duties ired of those who ly caused the injury must be duly alleged
so use the public waters of the state, which and proven, and any applicable contributory
specific duties are designed to protect the negligence on the part of the person injured
patrons of the particular business, and are will bar a recovery for a merely negligent
not inconsistent with duties that may be injury. In determining whether the injured
imposed by implication of law upon those person is guilty of contributory negligence,
engaged in such business.

the practical capabilities of such person for
Where one assumes to offer the use of self-protection under the particular circum.
public waters for purposes of profit by es- stances should be considered, together with
tablishing bath houses or dressing rooms facts, if any, that should charge the kecper
on the shore and furnishing bathing suits of the place or his employees with notice
for hire to persons who are expressly or or knowledge of the same, when the injured
impliedly invited to use the bathing suits person was invited to use the premises.
by bathing or swimming in the public wa- If a negligent failure to perform a statu-
ters, and a patron uses the waters in the tory or a common-law duty with reference
usual and ordinary way consistent with the to the safe condition of the premises cus-
express or implied invitation, and without tomarily used by the patrons of a partic-
his fault is injured because of the unsafe ular business enterprise is a proximate
condition of the premises on which patrons cause of an injury to a patron who is not
are invited to bathe or swim, or because guilty of contributory negligence, the pro-
of the negligence of the proprietor in per- prietor of the business may be liable in
forming his duties to patrons, the one so damages for such negligent injury.
offering the use of the waters for profit may It is alleged that the defendant "was
be liable in damages for such injury. 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 perment 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 i 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 point directly in front of said bath house same in a reasonably safe condition or to and pavilion, were the facilities for bathing give due warning as to and protection which the defendant offered to the patrons against dangers. Though the waters are of his bath house and bathing pavilion; public, and no governmental authority be that said defendant, by renting said bathexpressly given to so offer them for use, ing suits, invited such members of the pub

[ocr errors]


lic as rented bathing suits from him to avail, and negligence of the defendant, the said themselves of the facilities aforementioned Mary E. Proctor then and there for bathing, and to bathe in the waters of drowned in the waters of the Atlantic ocean the Atlantic ocean in front of and adjacent near the bath house and bathing pavilion to the said pavilion as aforesaid ; that said of the defendant, and while within the wawaters aforesaid were the waters customar- | ters of the Atlantic ocean in which the deily used by the patrons of said bathhouse, fendant invited its patrons to bathe; that which the defendant well knew; that on, to the said Mary E. Proctor died leaving wit, July 7, A, D. 1912, one Mary E. Proctor neither husband nor minor child or children, did rent from the said defendant a bathing i nor any person or persons dependent upon suit for a valuable consideration in that her, the said Mary E. Proctor, for support; behalf; that it was the intention of the that the said Louise McKinney, plaintiff, was said Mary E. Proctor, which the defendant heretofore, on, to wit, the 17th day of July, then and there well knew, then and there 1912, duly appointed as administratrix of to bathe in the waters of the Atlantic ocean the estate of Mary E. Proctor." adjacent to which the defendant's said bath The facts alleged as to the relation of house and bathing pavilion was located, patron and operator of a public bath house and which waters constituted the facilities and bathing pavilion at a seaside resort, for bathing offered to defendant's patrons where bathing suits are furnished for hire, as aforesaid; that thereupon the said Mary make it under the quoted statute a breach E. Proctor did bathe in said Atlantic ocean of duty for the defendant operator of a pubadjacent to said bath house and bathing lic bathing place to "negligently and carepavilion; that while so bathing the said lessly fail to provide and maintain proper Mary E. Proctor remained within the limit and safe life lines and life rafts for the proof the waters of said Atlantic ocean which tection of” his patrons. For this alleged constituted defendant's facilities for bath breach of duty the defendant may be liable ing as aforesaid; that the defendant neglio in damages, even if he is not liable for neg. gently and carelessly failed to provide and ligently and carelessly failing to provide maintain proper and safe life lines and life proper supervision and proper persons and rafts for the protection of its patrons, appliances to rescue his patrons in said wabathers at the said seaside resort, contrary ters customarily used by patrons, when such to the statutes of the state of Florida in patrons are without their fault in danger such cases made and provided;” and also of drowning. All of these precautions may (2) that the defendant negligently and be duties of the operator of the place who carelessly failed to provide suitable and offers its use to the public, if the circumproper persons to superintend and watch stances make such precautions reasonably over bathing in the waters customarily used necessary or expedient for the safety to by the patrons of said bath house, and in those who use the waters in the customary which waters deceased was bathing, and way. See Larkin v. Saltair Beach Co. 30 to watch over and superintend its (defend. Utah, 86, 3 L.R.A. (N.S.) 982, 116 Am. St. ant's) patrons who were bathing in such Rep. 818, 83 Pac. 686, 8 Ann. Cas. 977; waters; and also (3) "that the defendant Boyce v. Union P. R. Co. 8 Utah, 353, 18 negligently and carelessly failed to provide L.R.A. 509, 31 Pac. 450; Bass v. Reitdorf, proper persons or appliances to rescue his 25 Ind. App. 650, 58 N. E. 95; Decatur patrons in the said waters customarily used Amusement Park Co. v. Porter, 137 Il. by his said patrons, which constituted the App. 448; Turlington v. Tampa Electric Co. facilities for bathing offered to such pa- | 62 Fla. 398, 38 L.R.A.(N.S.) 72, 56 So. 696, trons by the defendant, and in which wa- Ann. Cas. 1913D, 1213, 1 N. C. C. A. 490; ters deceased was bathing, when such pa- Brotherton v. Manhattan Beach Improv. Co. trons were or might have been in danger of 50 Neb. 214, 69 N. W. 757, 1 Am. Neg. Rep. drowning;” and also (4) “that the defend- 115; Id., 48 Neb. 563, 33 L.R.A. 598, 58 ant negligently and carelessly failed to pro- Am. St. Rep. 709, 67 N. W. 479; Dinnihan vide a proper person or persons, and to v. Lake Ontario Beach Improv. Co. 8 App. have such person or persons present on be- Div. 500, 40 N. Y. Supp. 764. half of said defendant to search for and re- The defense of contributory negligence cover any of the patrons of said bath house, should be shown by the defendant. 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

[ocr errors]

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 domi

ciled. the injury.

If at any time peculiar conditions at the Statute adoption construction. usual place for bathing and swimming

2. The adoption of a statute from another make the customary use patently or ob- which has been given it by the courts of the

state is presumed to carry the construction viously dangerous, it may be contributory state of origin. negligence to encounter the dangers. When

Judgment full faith and credit the negligence of a plaintiff or those whom

closing estate - claims in other state. he represents contributes appreciably in 3. A decree in one state distributing the producing the injury complained of, the law estate of the decedent who died domiciled affords no right of recovery in the absence in another state, and discharging the adof a statute covering the case. If a patron ministrator after finding that all claims who is injured is not free from fault both which had been presented against the estate of omission and commission while using the had been paid, is not conclusive that all bathing facilities, there can be no recovery under the full faith and credit clause of the

existing claims were presented so that, of damages from the party who provides Federal Constitution, claims for inheritance the facilities for hire and invites or offers taxes upon the estate so distributed cannot the use of the waters, even though such be allowed against the executor by the party is negligent in performing his duty to courts of testator’s domicil, where, under the patron.

the law of the former state, inheritance The declaration in this case is sufficient as 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 the administrator is permitted to retain

sufficient funds to pay the local inheritance ance of legal duties due to a patron from

tax. one who furnishes facilities and offers the

Tax inheritance legacies distribuse of public waters for bathing purposes.

uted in foreign state. If negligence within the scope of the allega- 4. An executor or trustee may be required tions is shown to have proximately caused to pay the inheritance tax only on the funds the death of the plaintiff's decedent, and sent to him by the courts of a sister state such decedent was free from fault, there for distribution, and not upon those dismay be a recovery of damages in a proper tributed by the local administrator by dia mount as contemplated by the statute. rection of such courts, where the statute of See Florida East Coast R. Co. v. Hayes, 67 trustee resides, provides that he shall de

testator's domicil, where such executor or Fla. 101, L.R.A. -, 64 So. 504..

duct the tax from legacies or property in The judgment is reversed.

his hands for distribution, which is con

strued to apply only to the beneficial inShackleford, Ch. J., and Taylor and terests of legatees. Cockrell, JJ., concur.



5. The inheritance tax against a widow Hocker, J., dissenting:

who is entitled to a certain sum under an I dissent from the opinion in this case antenuptial agreement and an additional because I do not think the administratrix sum under the will will be assessed against has shown any right to sue, and for a thor the contract and will are not set aside, al

the aggregate to which she is so entitled if ough discussion of my views, see dissent, though, because of her contest, a comproing opinion in the case of Jacksonville Elec- mise is effected by which she receives a tric Co. v. Bowden, 54 Fla. 461, text, 477, | much larger share of the estate. 15 L.R.A. (N.S.) 451, 45 So. 755.

(June 21, 1912.) Note. Physical presence or absence of

personal property or evidence thereof, as afILLINOIS SUPREME COURT.

fecting 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 PEOPLE OF THE STATE OF ILLINOIS

note covers both the liability to pay a suc

cession tax at the decedent's domicil in reUNION TRUST COMPANY, Admr., etc., of spect of personal property in another state, James C. King, Deceased, et al. and the liability to pay such a tax in re

spect of personal property found in the state (255 Ill. 168, 99 N. E. 377.)

belonging to the estate of a nonresident.

See also later cases, State ex rel. Smith v. Tax - succession in state of situs and Probate Ct. 50 L.R.A. (N.S.) 262; Security domicil.

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.


[ocr errors]


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 The facts are stated in the opinion. L. J. Ch. N. S. 408, 50 Week. Rep. 681,

Messrs. Charles R. Holden, William S. 86 L. T. N. S. 346, 18 Times L. R. 454; Miller, and A. B. Melville, with Messrs. Johnston v. Spicer, 107 N. Y. 185, 13 N. E. Kraus, Alschuler, & Holden, for appel- | 753; American Loan & T. Co. v. Grand lants:

Rivers Co. 159 Fed. 775; Com. v. North Neither the administrator c. t. a. nor the American Land Co. 57 Pa. 102; 18 Cyc. residuary estate in Illinois is chargeable 1227; 13 Am. & Eng. Enc. Law, 2d ed. 931; with inheritance taxes assessed with re- Murphy v. Crouse, 135 Cal. 14, 87 Am. St. spect to California assets, finally adminis- Rep. 90, 66 Pac. 971; Walker v. Welker, tered upon and distributed in California. 55 Ill. App. 118; New York L. Ins. Co.

People ex rel. George v. Nelms, 241 Ill. v. ith, 14 C. C. A. 635, 29 U. S. App 571, 89 N. E. 683; Connell v. Crosby, 210 220, 67 Fed. 694; Grayson v. Robertson, M. 380, 71 N. E. 350; People v. Griffith, 122 Ala. 330, 82 Am. St. Rep. 80, 25 So. 245 III, 537, 92 N. E. 313; People v. Cam- 229; Naylor v. Moffatt, 29 Mo. 126; Holyeron, 140 App. Div. 76, 124 N. Y. Supp. oke v. Union Mut. L. Ins. Co. 22 Hun, 75, 949; Tilt v. Kelsey, 207 U. S. 43, 52 L. ed. 84 N. Y. 648; Merrill v. New England Mut. 95, 28 Sup. Ct. Rep. 1.

L. Ins. Co. 103 Mass. 245, 4 Am. Rep. 548; The state of Illinois has no power to tax Banta v. Moore, 15 N. J. Eq. 97; Shields the transmission of personal property of v. Union Cent. L. Ins. Co. 119 N. C. 380, a decedent, when such property is located 25 S. E. 951; Willing v. Perot, 5 Rawle, in California, and there administered upon 264; Reynolds v. McMullen, 55 Mich. 568, and distributed under a final order of a 54 Am. Rep. 386, 22 N. W. 41; Moore v. court of that state, even though the dece- Jordan, 36 Kan. 271, 59 Am. Rep. 550, 13 dent was a resident Illinois.

Pac. 337; Chamberlain v. Wilson, 45 Iowa, Connell v. Crosby, 210 Ill. 389, 71 N. E. 149; Elting v. First Nat. Bank, 173 III. 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 ' Atl. 1116, 1117; Parker's Appeal, 61 Pa.

The question whether exacting a succes. Supreme Court has practically adopted that sion tax in two or more states amounts to view as regards property taxation, at least double taxation in the constitutional sense so far as concerns tangible chattels. As is discussed in the note to Mann v. Carter, suggested at page 1169 of the note in 46 15 L.R.A.(N.S.) 150. A similar question L.R.A. (N.S.) 1167, the New York legislawith respect to property taxation is dis- ture by the 1911 amendments to the inhercussed in the note to Judy v. Beckwith, 15 itance tax law has gone far toward the L.R.A.(N.S.) 142. It is to be noted how- accomplishment of such a result, by abandon. ever, that the injustice of double taxation ing the plan of laying the tax according to resulting from the imposition of taxes on inconsistent and mutually antagonistic printhe same property for the same period in ciples, and adopting in its place the maxim two or more states has been in a consider- | mobilia sequuntur personam as the excluable degree mitigated by the decision of the sive criterion of liability in respect of inUnited States Supreme Court in Union tangible personalty, and actual situs as the Refrigerator Transit Co. v. Kentucky, 199 criterion in respect of tangible personalty. C. S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. It is obvious, however, that the adoption of 36, 4 Ann. (as. 493, and other cases cited in a uniform and consistent criterion by one or note to Com. v. West India Oil Ref. Co. 36 more states will not avoid the evil of double L.R.A.(N.S.) 295.

taxation; hence, the importance, if possible, It is possible that the courts and legis- of the adoption by the courts as a constitulatures may eventually adopt and act upon tional principle, of a single, exclusive crithe view that the circumstances that will terion, binding in all the states, for the justify the exaction in one state of a suc- determination of the personal property in eession tax in respect of personal property respect of which the tax is payable, so far as will negative the right to exact such a tax that question depends upon the domicil of in another state in respect of the same, the decedent, or the location of the property. property and succession. The United States

G, H, P.

« AnteriorContinuar »