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Central Law Journal.

A LEGAL WEEKLY NEWSPAPER

Published by

Central Law Journal Company

420 MARKET STREET, ST. LOUIS, MO. To whom all communications should be addressed.

Subscription price, Five Dollars per annum, in advance. Subscription price, including two binders for holding two volumes, saving the necessity for binding in book form, Six Dollars. Single numbers, Twenty-five Cents.

Copyright, 1914; by Central Law Journal Co. Entered at the Post-Office, St. Louis, Mo., as second-class matter.

NEEDHAM C. COLLIER, EDITOR-IN-CHIEF ALEXANDER H. ROBBINS, MANAGING EDITOR

CONTENTS

EDITORIAL.

Discrimination Between Citizens and Aliens as to Enforcement of a State's Game Laws

Was he Guilty?

J. S. was a clerk who attended his employer on a race track to record in a book his employer's bets on the races. Was he guilty of "occupying a place on the ground for the purpose of recording bets," under a penal statute making that a punishable offense?

See "Occupant-Agent or employee," in Words and Phrases, for the answer

The courts have defined or construed many thousands of words, legal and nonlegal, but all the subject of some legal contest. These definitions can be applied in your practice

Words and Phrases

135,000 definitions. 8 volumes $48.00 delivered

West Publishing Company
St. Paul, Minn.

217

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LEGAL DIRECTORY

219

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University of Michigan

Three years' course leading to the degree of LL.B. The degree of Juris Doctor (J. D.) open to graduates of approved universities and colleges. Regular session October to June, inclusive. Credit towards either degree may be obtained through work in the summer session of ten weeks. Law library of about 33,000 volumes. A fourth year of work leading to the degree of Master of Laws and permitting of specializations has been organized. For announcements, address,

DEAN, DEPARTMENT OF LAW, University of Michigan, Box X, Ann Arbor, Mich.

Washington

PATENTS

Business from non-resident attorneys especially solicited. Highest references; best services. Counsel having clients who wish to patent inventions are invited to write for full particulars and information. WATSON E. COLEMAN

Patent Lawyer

Washington, D. C.

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The New 1912 Pocket Edition of

JONES ON EVIDENCE, Civil Cases

THE PURPOSE:

Of the new 1912 printing of the pocket edition of Jones on Evidence, Civil Cases, is to give the lawyer a better style of book than he has had before-a book that would contain all the original matter, but one that would be lighter to hold, easier to carry, finer to possess than the previous editions.

MAKEUP: To carry out these ideals the publishers have secured a thin, high quality paper that takes a very good printing impression and reduces the thickness of the book to one and one-half inches; and by binding in a flexible Persian-goat cover, a book has been built up that may be conveniently handled, carried in pocket, easily read and quickly referred to.

The convenience of this form of a book has been recognized and accepted by the public within the last year both in books of reference, such as encyclopedias, and in hand books. The demand has been so steady and universal as to almost threaten the future existence of the old, heavy, solid bound volume.

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In the new 1912 Printing of JONES on EVIDENCE, Civil Cases You can hold this book open or closed in one hand for fifteen or twenty minutes before feeling muscular fatigue. (Try it with the ordinary five pound law book.) You can take it to court, home or office in your side pocket, almost unconscious of the carrying. You can keep it on your desk for convenient reference, without interfering with other desk matter, so little room does it occupy.

Price, Delivered $6.50

420 Market Street,

Address Central Law Journal Co. ST. LOUIS, MO.

Central Law Journal.

ST. LOUIS, MO., APRIL 3, 1914.

FAILURE OF INDEMNITY COMPANY TO DEAL FAIRLY WITH INDEMNITEE.

We considered in 78 Cent. L. J. 181, the question of liability of an indemnity company to pay interest and costs exceeding maximum sum in its policy, where it had taken charge of a case, in which a verdict and judgment for that sum was rendered and on appeal by the company the case was affirmed by the higher court. Now we find reported by New York Law Journal a case decided by New York Court of Appeals, in which an indemnity company after taking charge of a defense abandoned the fightupon a verdict being rendered for four times the amount in which it indemnified an assured. He prosecuted his appeal to a reversal of this judgment when the suit against him was dismissel. Brassil v. Maryland Casualty Co.

The assured sued the company for its expenditures in prosecuting its appeal, and the Court of Appeals holds it entitled to recover on the theory of good faith on the part of the company compelling it not to leave assured in a situation, where its offer to pay to him the $1,500 it had insured him for, would make him stand loser for three times that sum.

The situation in this case showed that after assured had been sued, the plaintiffs offered to settle for $1,500 and it referred this offer to the company. It declined because it considered the sum named excessive, and elected to defend. On the trial there was judgment for $6,000. The company then wrote assured that it did not consider an appeal would be advantageous, but would comply with its contract if assured would satisfy the judgment against him. The assured wrote the company that, inasmuch as it had refused the offer of compromise of $1,500 and through its conduct had inflicted a much greater liability upon

him, he would take an appeal and hold the company for whatever it had to pay.

The Court of Appeals says: "The mere statement of this unique situation indicates that the true measure of the rights of the plaintiff on the one hand and of the obligations of the defendant on the other, is not to be found in the letter of the contract of insurance. That contract, by its very terms, was designed to exclude any such liability. But there is a contractural obligation of universal force which underlies all written agreements. It is the obligation of good faith in carrying out what is written. The defendant's failure to observe this requirement of the contract in suit is the thing upon which its liability may safely be predicated."

Also the court says: "Without attempting to further characterize the defendant's position, it is enough to say that it would be a reproach to the law if there were no remedy for so obvious a wrong as was inflicted on this plaintiff. His rights, as we have said, go deeper than the mere surface of the contract written for him by the defendant."

We asked in the editorial supra, why, if election to defend was made in a case, the indemnitor should not be responsible for whatever judgment was rendered in the case and we now repeat that inquiry in view of this New York case. The principle of liability is that the company "having thus effectually tied the plaintiff hand and foot," so that if it realize on its policy at all, it must subordinate its own view to it, then an election to fight should carry with it all the consequences thereof.

In this case the expense of an appeal went beyond the liability the company was under to indemnitee, and it naturally concluded it would not incur further expense on a chance to get rid of its part of the burden resting on plaintiff. But the court said it could not stop at this point. It must carry its fight through whether it was to its interest so to

do or not. It had in its keeping not a part of the case, but the whole case. Though plaintiff had three times as much at stake as the indemnitor, yet it had no voice in the course to be taken in pushing the appeal. The terms of the surrender show that there was to be an indivisible defense and indemnitor entered upon it.

We have always thought that a contract like that presented by these companies of giving to indemnitor sole control of a claim against an assured, where the claim exceeded the maximum of indemnity, was not an easy contract to write so as to operate fairly for both parties, if the indemnitor really assumed charge. The indemnitor in such case could not be supposed to have a greater interest than his own protection, and, if it elected to go to trial, when indemnitee preferred to settle, it ought to stand the hazard of its choice.

Suppose, for example, in the New York case, that the claimant had offered to settle for $2,500 and assured had expressed its willingness to pay the $1,000 excess and the company had refused, ought not the company to be bound for the $6,000 judgment, had it been affirmed, less the $1,000 the assured was willing to pay?

It

These contracts leave the whole matter of negotiation between claimant and the company. But suppose claimant were to say, "I will not deal with the company. owes me nothing and I will not allow it to come into the matter between me and assured," why would not assured have the right, any stipulation in its contract notwithstanding, to take up the negotiations. and settle the matter? He would be looking after his interests over and above the maximum of liability he is insured against, and the stipulations in the policy are based on the idea that the claimant will recognize the indemnitor in the matter. The parties to the policy cannot, if they would, bind claimants against assured and indemnitor acts but as an

agent of indemnitee in in dealing with

claimants.

The trouble with these contracts is that, notwithstanding that they cover only part of a claim, they are drawn to control the whole of it, and indemnitors assume that they bind themselves in attempting to manage the whole claim in no way beyond the part of their written obligation. There is nothing in the contract, by way of intendment, for the court to give to indemnitors any assistance.

NOTES OF IMPORTANT DECISIONS.

DEATH-PRESUMPTION OF CARE FROM INSTINCT OF SELF-PRESERVATION.-We discussed in 77 Cent. L. J. 331, the rule of "Instinct of Self-Preservation as Affording Presumption of Due Care" in cases where there were no eyewitnesses to an accident causing death, finding the rule variant on this subject. In Illinois the rule is that some evidence must be adduced to fortify the presumption of the exercise of due care, though it need not be connected with the occurrence of the accident. Newell v. Cleveland C. C. & St. L. Ry. Co., 104 N. E. 224.

The court said: "A plaintiff is not permitted, in cases where there are no eyewitnesses to merely prove the accident which resulted in death and then rely upon the instinct of selfpreservation common to all men to establish the exercise of due care and caution on the part of deceased. It is incumbent upon the plaintiff in such a case to prove the habits of the deceased as to sobriety, as to prudence and the exercise of care and caution in the ordinary affairs of life, and as to any other particular that would tend to throw light upon the question of whether, at the time of the fatality, he was likely to have been in the exercise of ordinary care. In the absence of any proo whatever which would tend to show that the deceased was in the exercise of ordinary care for his own safety, the defendant in error was not entitled to recover."

The instinct of self-preservation appears to us to be a better basis for a presumption of due care than does this kind of testimony. This gets the jury into a field of speculation wider than the instinct left for them to consider, without any such vague testimony to support it. The presumption has some force' in the Illinois court, and how much or how little in the way of supporting testimony will carry a case to a jury must give a court serious pause. The instinct is universal-existing

as well with the heedless as with the careful and the latter may sin against it as well as the former and the former might regard it when the latter might be oblivious..

CORPORATIONS

MUNICIPAL BILL BOARDS AS STRUCTURES WITHIN A FIRE LIMITS ORDINANCE.-The Appellate Division of New York Supreme Court has recently held that a provision of New York City Building code prohibiting the erection of frame or wood structures within the "fire limits" of the city and limiting the height of fences, signs and bill boards and prescribing the materials to be used therein are reasonable and valid exercises of police power. People, ex, rel., Van Buren & N. Y. Bill Posting Co. v. Miller, 50 N. Y. L. Journal 2837.

The court reviews many cases regarding the exercise of the police power in respect of houses within the fire limits of cities and construing the word "structures" as embracing bill boards. The power to impose regulations regarding houses seems too plain to admit of any discussion and so far as the height of bill boards are concerned. When an ordinance goes further and, under guise of fire protection, attempts to prescribe the kind of material of which bill boards, fences and signs shall be composed, it is not altogether clear, that there exists a substantial basis for classification, as against the constitutional right of an owner of property to use same, provided it menaces in no way other property. This ordinance seems to us to be a thinly disguised attempt to prohibit bill boards as unsightly structures and the effort to place them upon the same plane as dangerous buildings to rest upon no merit in fact. There seems very little danger of a conflagration arising out of a bill board or a fence or a sign burning so very improbable a danger as to be esteemed greatly negligible.

GUARDIAN AND WARD-LIMITATION ON APPOINTMENT BY PROBATE COURT.-In Missouri a statute provides that "a minor shall not be committed to the guardianship of a person of religious persuasion different from that of the parents, or of the surviving parent of the minor, if another suitable person can be procured, unless the minor, being of proper age, should so choose." This clause came before the Supreme Court in the case of a minor having been committed to the guardianship of a person of different religion, where both parents were dead, and the court held, that the statute referred to cases only where one or both of the parents were still living. State v. Bird, 162 S. W. 119.

The court reasons that it is difficult to see "how the state could be interested in perpetuating the same religious views from one generation to another," but looks with equal favor on all forms of religious worship and is deeply interested in the education and moral training of its children. Upon being referred to some New York case where a different view had been taken it spoke of "the temerity" of courts in enforcing such a rule.

The court seems to us to have failed to grasp the intent of the statute it construes. The very fact that the state does look with impartial eye on various religions shows that it is willing, that the presumed choice of a parent dying, we will say, intestate, shall be respected, knowing that if that parent were alive it might grieve him sorely were his child induced to ignore the religion it had been taught. The opinion deals with the state's indisposition to "perpetuate the same religious views from generation to generation" as a reason for denying to an orphan child what the statute attempts to secure to it, for it seems to us absurd for the court to construe that statute as not applying to all children for whom a guardian is to be appointed. There is the same presumption of choice by a parent in the one case as in the other and there is the further reason, that a child should be encouraged along the line of religious belief its parents held, if it is to have a genuine love of religion and morality. The state will take notice that a child should be taught to reverence its parents and this may more successfully be inculcated if the code of conduct they followed is praised, rather than depreciated, after they are gone. Furthermore, the probate court should not be allowed to become the arena for proselyting efforts when a child has lost its parents.

BANKRUPTCY-EXCEPTION

FROM DISCHARGE FROM LIABILITY FOR WILLFUL AND MALICIOUS INJURY TO THE PROPERTY OF ANOTHER.-The New York Court of Appeals holds that as the members of a firm are civilly liable for torts committed by any member in the course of business, thus if the tort committed by one member amounts to willful and malicious injury to the property of another, all of the members of a bankrupt partnership, though some do not participate in the tort, are denied exemption from discharge against such liability. Kavanaugh v. McIntyre, 104 N. E. 135.

These exceptions seem aimed at specific acts by a bankrupt and to imply personal participation, not merely legal accountability. In this holding the New York court makes a derivative general liability cover the case. The bank

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