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 em ployee," in Words and Phrases, for the answer

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Central Law Journal.

ST. LOUIS, MO., APRIL 24, 1914.

SUGGESTION OF RESORT TO ARBITRATION STATUTES FOR SETTLEMENT OF LEGAL CONTROVERSIES.

It is a far cry for the reform of a judicial system which offers so much in the way of delay and of chance to selfishness and greed to abolish it by the mutual agreements of litigants. And this is what the St. Louis Bar Association proposes in a resolution it has lately adopted.

Speaking of this purpose, the Association said in the second of its resolutions on this subject: "Resolved that the president be, and he is hereby requested, to appoint a committee of five to report on a plan for popularizing this method of the trial of civil cases among members of the bar and among our citizens generally, to the end that the expense, inconvenience, delays and technicalities of procedure in the state courts be avoided, that the courts of our state relieved of the mass of litigation now almost overwhelming them, and that a more friendly and fundamentally democratic method for the adjustment of differences between citizens be promoted." The altruism that breathes through this resolution seems too rare for any other use than to thrill hearers at a banquet, but as persuading contending parties in a contest before the courts to relinquish any supposed advantages they may have or think they have it would fall on unsympathetic

ears.

We are moving constantly in another direction with every facility that the law provides in the way of postponing the end of a controversy in the courts. Now it has reached the point that there is little of any thing that a defendant able to fight may not do, so as to discount the present worth of any claim against him from fifty to seventyfive per cent of its face value.

The injustice of this situation is manifest, but how futile it seems to propose to

those who reap benefit there from that they shall meet honest claimants against them half way in its riddance. On the contrary the evidence is abundant everywhere that it is capitalized and the most prolific source of dividends.

Recently we noticed through the public press, that in a New York fire occurring. some two years ago, in which many lives were. lost, an indemnity company made a settlement at the rate of $75 for each victim. Place a record of this kind against altruism and which will survive?

Our St. Louis brethren may be able to formulate some plan for popularizing the submission of controversies to arbitration, but they should start out with the idea that a lawsuit is a fight and one adversary will yield nothing to the other, unless it, is to his advantage so to do. If one side wishes expedition, the other most probably wishes delay, and if one side wishes to avoid inconvenience and expense, these are utilized by the other as a basis for a ruinous compromise. The lawsuit may not come to the lawyer until the parties have failed to reach an agreement. Then the plaintiff, whether he recovers early or recovers late, or may not recover at all, is in a hurry. Then, too, the defendant, whether he is to win or lose finally, is inclined to put off the decision. There is no argument for an early decision that strikes both sides alike.

How few are the cases in which merely honest differences of opinion cause a lawsuit? These are arranged between the parties and our brothers are mistaken in supposing that the public need enlightenment on their right to do this.

But there is an evil and we are not left to appeal to dispositions which take advantage of it to rid ourselves of it. We need expedition and certainty in getting litigated questions to an end. If one knows that a case brought against him is going to be brought to a conclusion in three months, he will find it to his interest to inquire seriously whether he is in the right or the wrong before he allows it to be brought.

Where the first trial may not be for six months or a year or two years and then makes but a step on the road to final liability, he does not have to ask himself whether he is right or wrong in the first instance. There is abundant time for such an inquiry.

A decision upon a question of fact settles. nothing intrinsically. It is a mere result pounded out often by superior generalship, but whatever it is when you get it you should abide by it. There is nothing in business or in sport like it. In business to decide is to act and then the event is history. In sport there is one trial and that is an end of the matter. But in a lawsuit there must be an appeal and possibly a new trial and another appeal. Take away all appeals, and thus apply to lawsuits the principle we apply in ordinary business. Two or more trials settle nothing but a controversy between two parties who are consuming the public's time. When they are allowed to consume an inordinate amount, the public merely gives to the litigious a weapon whereby he drives hard bargains. with those who have claims against him.

How often do we not see opinions rendered by appellate courts that on questions of fact the jury are the judges, but they send a case back for a new trial on an error of law. These errors of law do not grow fewer in number by multiplied rulings in appellate courts. Therefore we get to no end of things. We are working in a circle. and it seems to us that when we resort to or are brought into a court the only way to equalize matters between the parties is to allow one trial to settle the controversy finally. If a lawsuit is for justice sake, the sooner it is ended the less burden it places on parties by whom it is brought or defended, and if brought or defended for other purposes a true sportsmanship requires it to be ended speedily.

This being an essentially practical age, it should see to it that a claim by one merchant against another should, if possible, be a business liability, which it is not if it can

be staved off by litigation indefinitely. And it is the same as to any claim for any personal injury caused by a business. The old theory of a tort in business should disappear. A claim of this nature against a business should be like an open account for supplies, that is to say, something in the way of an expected liability in business.

Appeal is a creature of the statute and conditions should be placed upon the public granting it to a litigant. In Missouri there is a statute for exceptional cases going up on appeal, if a judge of an appellate court shall find that substantial justice has not been done. Make this the general rule instead of for exceptional cases. The public owes no more than one trial to a litigant and when the absolute right of appeal is abused or held over others in terrorem, it is time it were taken away.

NOTES OF IMPORTANT DECISIONS.

FEDERAL EMPLOYERS' LIABILITY ACT -RIGHT OF ACTION IN PERSONAL REPRESENTATIVE.-In Anderson v. Louisville & N. R. Co., 210 Fed. 689, it was held by Sixth Circuit Court of Appeals, that either a domiciliary or an ancillary administrator could bring suit for death of deceased, this ruling reversing the trial court as to right of ancillary administrator.

The theory of the lower court was that Congress could not have intended that "a concurrent right of action should be vested" in each of a number of personal representatives, "with the multiplicity of actions and endless confusion that would result therefrom."

The Court of Appeals said there was nothing in the act of Congress "which explicity clothes the domiciliary administrator with the exclusive right to maintain such an action, and it is by no means certain that such a restriction might not, simply through inability to obtain service of process upon the negligent employer at the last domicile of the deceased, cause greater inconveniences and hardship than could arise through distinct appointment of another administrator elsewhere and his prosecution of the suit."

This act of Congress meant to give a right of action by a "personal representative" where

ever suit might be brought. An administrator cannot sue outside of his state. To allow an action by a domiciliary administrator only, you must, in order to give, of a certainty, the right to sue, clothe him with some right under the act of Congress which he does not have under a law of his own state not recognized extraterri torially. Congress was not considering the residence of intestates in vesting right of action in their personal representatives and therefore must be thought to have included whomsoever in that description the words would cover. An ancillary administrator is as much a personal representative as is a domiciliary administra

tor.

PUNITIVE

DAMAGES 'RATIFICATION BY REFUSAL TO DISCHARGE AN EMPLOYE. -In Virginia where the rule is that a corporation or any other principal cannot be held liable in punitive damages merely by reason of wanton, oppressive or malicious intent on the part of the agent, the court goes further and holds that mere failure to discharge said agent does not operate as a ratification of his wrongful act. Southern Ry. Co. v. Grubbs, 80 S. E. 749.

It quotes approvingly the following from Toledo R. Co. v. Gordon, 143 Fed. 95, 74 C. C. A. 289: "It would indeed be a harsh rule-harsh in its effect on all employes-that would hold a railroad company to have ratified the employees' act merely because before the trial the employe was not discharged. Such a rule would put their continued employment in jeopardy every time an accident occurred, not because the employe was shown to have been guilty of wanton conduct, but bcause the railway company stood in danger that wantonness might be established." See also Everingham v. Railroad, Iowa, 127 . W. 1009; Grattan v. Snedmeyer, Mo. App., 129 S. W. 1038.

CRIMINAL LAW-RIGHT TO APPEAL FROM PLEA OF NOLO CONTENDERE.-It was said in Sixth Circuit Court of Appeals that the plea of nolo contendere "is, in some respects, in the nature of a compromise between the state and the defendant, and that the latter may not have all the advantage of exception and review that could be saved to him by plea of not guilty or by standing suit; but it does not follow that the defendant, in such case, cannot prosecute error at all. In the instant case, the controlling question is not one of niceties in pleading or refinement in construction or application, it is the broad general question of whether the acts described do or do not constitute an offense against the criminal law." Hocking Valley R. Co. v. U. S., 210 Fed. 735.

The court then goes on to show that even under a plea of guilty a reviewing court will determine whether or not an offense has been charged.

All of this may be true, but we doubt whether review may be had directly from the plea, but rather from ruling on some motion in arrest of judgment. At all events, however, we seem here to discover that this plea may be like a general demurrer and appeal taken on that.

KILLING BY INFLUENCE ON THE MIND ALONE.

It is some two or three decades since the British Parliament appointed a commission to revise and codify the criminal law. The commissioners completed their work and reported to parliament; but for some reason the proposed code was rejected, and it would now be of little practical interest to lawyers were it not that the code rejected by the British Parliament was adopted by the Parliament of Canada. 55, 56 Vic. Ch. 29. What discussion or critical examination it may have received while passing through the Canadian Houses of Parliament, or on what grounds it was rejected by the British Parliament, do not appear. But noxious provisions, like noxious persons, are sometimes overlooked, and the latter, as a great poet has said, creep and intrude and climb into that fatal and perfidious bark, built in the eclipse and rigged with curses dark. Without venturing to hope that the Canadian Parliament will receive its meed of curses, and without implying that its criminal law was built in the eclipse, but on the contrary, as a reminder that no temple of justice, or legal edifice of any kind is ever complete and that the only means by which it can be kept from dilapidation and decay, is to make the process of building and tearing down. continuous, I venture to call attention to the following remarkable provision:

"No one is criminally responsible for the killing of another, by any influence on