Central Law Journal.

ST. LOUIS, MO., NOVEMBER 16, 1900.

The increasing use of the automobile will undoubtedly give rise to cases involving the rights and liabilities of their owners and operatives, but as yet precedents on the subject are rare. A decision by Judge Sunderland, of Rochester, New York, has recently been rendered in which the sensible conclusion is reached that all such methods of conveyance must stand upon the same footing as carriages of the older fashioned type, and that it is not to be expected that damages may be obtained every time that horses may take fright. If one should find it desirable, as the court very properly remarks, to go back to primitive methods, and tread along a city. street with a four ox team and wagon of the prairie schooner variety, it would possibly cause some uneasiness in horses unused to such sights. Yet it could not be actionable if a runaway should result provided due care were shown not unnecessarily to interfere with the use of the highway. Horses may take fright at conveyances that have become obsolete as well as at those which are novel, but this is one of the dangers incidental to the driving of horses, and the fact cannot be interposed as a barrier to retrogression or progress in the method of locomotion. Bicycles used to frighten horses, but no right of action accrued. Electric street cars have caused many runaways. Automobiles operated without steam by storage batteries or by gasoline explosion engines, running at a moderate speed, may cause fright to horses unused to them, yet the horse must get used to them or the driver takes his chances. If the horse is to keep up with the procession, he must get accustomed to the automobile, and not "shy" when it appears on the public highway.

A somewhat contrary view was taken by Mr. Justice Dixon of New Jersey, in the case of Guyre v. Vroom. There the plaintiff sued for damages for the loss of his wife. Witnesses testified that defendant's automobile being beyond his control, backed nearly into

the horse driven by plaintiff's wife, causing the animal to run away and throw her out. Defendant's testimony was that the horse was frightened and turned when two hundred and seventy-five feet away from the automobile, which he stopped upon seeing that the animal was afraid. He said that he had the machine under perfect control and gave an exhibition in front of the court house to show the court and jury his ability to handle it. Justice Dixon said to the jury: "The first question to which you come for the pur. pose of deciding the defendant's responsibility is whether this machine was a nuisance. You have seen how it was operated. You have heard the witness describe the mode of operation, and the question rests with your sound judgment as to whether the machine, driving along country roads without a horse in front and discharging steam behind, is likely to frighten a horse on the highway and thus endanger the road so as to constitute the machine a nuisance. It is agreed that it is an improved method of locomotion, but it does not follow from that that it is to be tolerated. The right to drive horses along the highway is an established right, a common right, and if a modern method of locomotion is used of such a nature that it commonly brings discomfort and danger to those exercising the common right, the established right of travel on the highway, then it is a nuisance and cannot be tolerated. If it occasionally or exceptionally frightens horses that would not make it a nuisance. In order to make it a nuisance its common effect must substantially interfere with the people who drive horses along the highway." After being out a few minutes the jury returned for further instructions on one point, at the same time informing the court that it had agreed that the automobile was not a nuisance. The jury were out all night, disagreed and were discharged.

In a recent criminal case before the Supreme Court of Ohio-Davis v. State-it appeared that the trial court was requested to charge the jury that each juror must be convinced beyond a reasonable doubt of the guilt of the defendants before uniting in a verdict of guilty. This the court refused, but did charge that the jury must be convinced beyond a reasonable doubt before

finding the defendants guilty. The supreme court held that this request was properly refused and indorsed the instruction as given. The request, as asked, says the court would seem to invite an acquittal, or at least a disagreement, and was therefore misleading. It' is true that each juror must be convinced of the guilt of the defendant before uniting in a verdict against him, and this is generally understood; but it is equally true that each should confer with his fellows and listen to what they have to urge in weighing the evidence, whether it be for or against an acquittal, and not obstinately stand upon his own opinion in the matter. The request asked and refused by the court would tend to such a result, and was therefore properly refused. State v. Hamilton, 57 Iowa, 596, 11 N. W. Rep. 5; State v. Robinson, 12 Wash. 491, 41 Pac. Rap. 884; State v. Yoing, 105 Mo. 634, 640, 16 S. W. Rep. 408. verdict should be the intelligent concensus of the whole jury, arrived at upon the evidence beyond reasonable doubt. It should be addressed as an entity, and not as separate individuals. If the accused is in doubt as to whether the verdict is that of each juror, his remedy is to have it polled before it separates, which is an adequate protection against the probability that some one of them or more has not united in the rendition of the verdict.

The

NOTES OF IMPORTANT DECISIONS.

CONTRACT RESTRAINT OF TRADE.-While the law, to a certain extent, tolerates contracts in restraint of trade or business when made between vendor and purchaser, and will uphold them, it does not treat them with any special indulgence. They are intended to secure the purchaser of the good will of a trade or business a guaranty against the competition of the former proprietor. When this object is accomplished, it will not be presumed that more was intended." 2 Beach, Cont. sec. 1575. And to the same effect is the declaration of the Supreme Court of Illinois in More v. Bennett, 140 Ill. 69, 80, 29 N. E. Rep. 891, 15 L. R. A. 364: "Contracts in partial restraint of trade which the law sustains are those which are entered into by a vendor of a business and its good will with his vendee, by which the vendor agrees not to engage in the same business within a limited territory, and the restraint to be valid, must be no more extensive than is reason. ably necessary for the protection of the vendee in the enjoyment of the business purchased;" and

this language is quoted approvingly by the Supreme Court of Pennsylvania. Nester v. Brewing Co., 161 Pa. St. 473, 481, 29 Atl. Rep. 104, 24 L. R. A. 250. The Supreme Court of Iowa adopts the same view. Chapin v. Brown (Iowa), 48 N. W. Rep. 1074, 12 L. R. A. 428, and so have other courts, where this phase of the general question has been discussed. Oliver v. Gilmore, C. C., 52 Fed. Rep. 562.

The Supreme Court of Alabama in the recent case of Tuscaloosa Ice Mfg. Co. v. Williams, 28 South. Rep. 669, applies the same doctrine holding that where plaintiff and defendant, each of whom owned an ice plant in a city of 7,000 inhabitants, in which there were no other ice factories, entered into a contract whereby plaintiff, in consideration that defendant should pay him a certain sum annually, agreed not to run his ice plant nor suffer it to be run for five years, unless he should sell it, in which event he released the defendant from all subsequent payments, the contract was void as contrary to public policy, since it stifled competition and promoted a monopoly.

RIGHT OF PRIVACY ADVERTISING PHOTOGRAPH.-The Supreme Court of New York has recently held in the case of Roberson v. Rochester Folding Box Co., 65 N. Y. Supp. 1109, that a private person is entitled to have the likeness of her face concealed from the observation of the public, and that the display of the same by means of lithographs for advertising purposes and without her consent, is an invasion of her right of privacy, and also her right of property in the same. It was held that an injunction would lie to restrain the defendants from making use in any mauner of the likeness of the plaintiff, and further, that damages could be recovered for injury to her reputation, and for mental and physical suffering caused thereby.

The right of property by a private person in his portraiture has been recognized for some time by the courts, which hold that the right is exclusive so long as the individual does not become a public character. Mayall v. Higbey, 1 Hurl. & C. 148; Corliss v. Walker Co., 57 Fed. Rep. 434. In the latter case Holt, J., says: "Independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right; that it belongs to the same class of rights, which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class." Every one has a natural right to, and dominion over, his own ideas and the product of his intellectual labor for the reason that they emanated from him, so it would not be illogical to hold that a private individual should have the right to say whether a thing so peculiarly his own as his face, should be publicly exploited or not. Although it would seem that an individual had a right not to be dragged before the public

and that the right of privacy ought to be recognized as a legal right, yet the stronger position is also stated by the court, that "if her lithographic likeness, owing to its beauty, is of great value as an advertising medium, it is a property right which belongs to her and cannot be taken from her without her consent."

FEDERAL COURTS-JURISDICTION-MUNICIPAL CORPORATIONS-CONTRACT WITH WATER COMPANY. In Los Angeles City Water Co. v. City of Los Angeles, decided by the United States Circuit Court, S. D. California, 103 Fed. Rep. 711, it was held that a federal court had jurisdiction of a suit by a water company to enjoin the enforcement of a municipal ordinance fixing rates of charge for water, on the ground that it impairs the obligation of a contract between the city and the company, although the contract, as set out in the bill, expired by its terms prior to the passage of the ordinance, where it is alleged to be still in force.

It appeared that under a contract with a city to reconstruct its waterworks and operate the same for a term of thirty years, a water company during the term practically constructed an entirely new and greatly enlarged plant, increasing the distributing system from one having six miles of wooden pipes to one with 320 miles of iron pipes. The contract required the company to furnish water free for all municipal, fire and school purposes, and to supply the inhabitants of the city with water for domestic purposes at rates not exceeding those therein fixed, and for that purpose to make all reasonable extensions of its system. It further provided that at the end of the term the plant should be returned to the city, which should pay the value of all improvements made therein; the amount to be agreed upon or fixed by arbitrators. At the expiration of the term the city did not pay or tender the value of such improvements, which had not been agreed upon or satisfactorily determined; but it continued to require the company to make extensions, and to furnish water free for public uses, the same as before. It was held that so long as the company complied with such requirements, and until the city terminated the contract by making or tendering the required payment, its provisions for the benefit of the company remained in force, and the city could not, without unconstitutionally impairing its obligation, reduce the rates which the company was thereby authorized to charge for water supplied to private

consumers.

It was further held that a water company is entitled to an injunction to restrain a city from enforcing an ordinance reducing its rates of charge in impairment of a contract, and subjecting the company and its officers and employees to penal actions for its violation, and also to restrain private persons from instituting threatening prosecutions under such ordinance.

SOME ERRORS IN THE LAW OF FIXTURES.

The object of this article is to point out a few, of what seems to the writer, to be erroneous principles in the law of fixtures, if that may be said to be "in the law" which is found in the writings of standard text-writers, and in the dictum of many judicial decisions. We will first notice an erroneous definition of the term "fixture," which is liable to lead to misapprehension and confusion. I do not mean that the words I use in the following definition are the exact words used by any text-writer, but an accurate expression of their idea of the term, as the pages of their works disclose, and should be as follows: A fixture is an article of personal property which has been annexed to land, and thereby became part and parcel thereof, but removable against the will of the owner of the freehold. It seems that the idea intended to be conveyed by these writers is, that the article, in order to be a fixture, must be so annexed to the realty as to become a part and parcel thereof, i. e., must become real estate after annexation.' The right of removal of articles annexed to the realty, is, by the writers who entertain this idea of the nature of fixtures, grounded not on the right of property, as it seems it should be, but on a mere "privilege conferred by the law of fixtures."2 Mr. Ferard (who is one of the oldest, as well as the most classical writer on the law of fixtures, and to whom several other writers on this branch of the law are greatly indebted, but unhappily have incorporated in their own works some of his errors) reviews a number of cases supposed, by him, to support the doctrine that fixtures, i. e., articles removable against the will of the owner of the freehold, are part and parcel of the realty until actually severed and removed, but it is submitted that these cases do not sustain the doctrine that fixtures are a part and parcel of the realty removable against the will of the owner of the freehold. We will now notice these cases with a view of showing that they do not sustain this doctrine, although in some of them, there will be found

1 An examination of Ferard on Fix. 6, 9, and Ewell on Fix. 5, 6, 77, will, I think, show that I have not placed a wrong construction on what these authors have written upon this subject.

2 Ferard on Fix. 7; Ewell on Fix. 77.