Central Law Journal.

A LEGAL WEEKLY NEWSPAPER

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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.

The Abolishment of Private Corporations as

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

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WEEKLY DIGEST OF CURRENT OPINIONS 411

AMASA M. EATON, A.M., LL. B.,
Providence, R. I.

Specialist on the Uniform Negotiable Instruments Law and Adviser in Cases thereunder Sec Central Law Journal, Oct. 17, 1913; Michigan Law Review, Dec., 1913; Yale Law Journal, Feb., 1914; Central Law Journal. Feb. 20, 1914; University of Pennsylvania Law Review. April, 1914.

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Central Law Journal.

ST. LOUIS, MO., JUNE 12, 1914.

THE RULE OF DAMAGES IN MARITIME DISASTER WHERE A SINGLE VESSEL

IS INVOLVED.

The ruling by our Supreme Court that the owners of the Titanic could file a petition for limitation of liability under our statute, notwithstanding there was no other vessel of a different nation involved, appears to us to carry into maritime law a principle having no counterpart or similitude in other law. And we wonder it was decided in so brief an opinion. Ocean Steamship Navigation Co. v. Mellor et al. 31 sup. Ct., McKenna, A. J., dissent, ing.

The opinion by Justice Holmes states that the general proposition that a foreign ship may resort to the courts of the United States for a limitation of liability under our statutes is established by The Scotland and La Bourgogne cases. It was admitted, however, that these and other cases concerned collisions between vessels of different countries and in The Scotland case, the elder case of all of them, Mr. Justice Bradley said in effect that if a collision occurred on the high seas between vessels of the same tionality the law of their flag would gov

ern.

Justice

na

Holmes says: "It is true that the act of Congress does not control or profess to control the conduct of a British ship on the high seas. It is true that the foundation for a recovery for a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy or may decline to enforce it except within such limits as it may impose. It is competent, therefore, for Congress to

enact that in certain matters belonging to admiralty jurisdiction, parties resorting to our courts shall recover only to such extent or in such way as it may mark it. The question is not whether the owner of the Titanic by this proceeding can require all claimants to come in and can cut down rights vested under English law. It is only whether those who do see fit to sue in this country are limited in their recovery irrespective of the English law."

We could better understand this rule of comity were claimants seeking to enforce against property in this country a right of action based on British lawthough even then the point would not be without difficulty. But we do not see how British law may be rejected and American law applied to "the conduct of a British ship on the high seas," when the opinion says Congress had no such intention. Either the British law should have been enforced or claimants sent to the British court, because their law is contrary to our policy.

How, however, may it be said that British law is contrary to our policy, when the only policy we have on this subject is as concerns a collision between vessels of different nationalities?

This sort of legislation has a legitimate. field, because the United States may prescribe as to this as well as may another nation, and it would not be strange that it would be different in different countries. It does not seem that such legislation has any sort of inference in it against what a particular nation may prescribe in regard to torts by its own registered vessels.

If the British act does, as we understand it does, make the owner of the vessel liable for a tort, how can that be supposed contrary to our policy, when we have such abundance of legislation of this very kind in our law.

But, then, there seems another reason why the British law should be enforced not as "in a maritime case," but under a right given by British statute. It is all right to call recovery under the act of Congress a maritime right, but when a country is legislating as to liablity of its own craft, it thus may be legislating as to them whether on the high seas or in inland bays. The law simply calls their acts torts and affixes responsibility therefor.

When suit is brought in this country upon a British statute, it is not of the natural jurisdiction of a Federal court, but it ought to be there only for diversity of citizenship, and for this reason the federal statute as to limitation of liability would seem not to apply.

Congress it is true might prescribe the rule it has made as to acts of its own registered vessels upon the high seas, that is to say, making the salvage liable for acts of a vessel, but when another nation does the same as to its vessels, it does not seem to be a maritime law at all. It might be such where it attempted to say what should be the liability in collisions between vessels of its own nationality with those of another nationality. The federal courts entertaining or not suits by way of comity is a new sort of thing in this country, unless they are acting pro hac vice the state courts.

NOTES OF IMPORTANT DECISIONS.

JOINT TORTFEASORS RELEASE BY ONE WITH STIPULATION THAT IT SHALL NOT RELEASE THE OTHERS.-The Florida Supreme Court holds that a stipulation in a release of one joint tort feasor that the others shall remain bound does not prevent it operating their discharge. Louisville & N. R. Co. v. Allen, 65 So. 8.

Decision is in conflict upon this question, the cases holding the other way regarding the stipulation merely as a covenant not to sue.

Whether such a release should operate as a discharge of the other joint tortfeasors it

seems to us should depend upon whether the one specifically released would be liable to contribution by any other who being sued paid the judgment, as the party principally responsible and having himself no right to contribution from any of the others. If the party settled with could not be sued for contribution by the others, it would seem he ought to be allowed to buy his peace from litigation -especially if he could sue the others for the full amount for any judgment rendered against him.

Even where he may have contribution what harm is done, if the amount paid could be taken in reduction of damages. Still it must be admitted that defendant ought to have some other way of claiming the reduction that when the case is on trial, but should be allowed to show it to the court after verdict has been rendered. Statute ought to provide for this.

The Florida court thinks "the numerical weight of authority" is on its side in this question, but this we very greatly doubt and think the opposing cases accord more nearly with the tendency of modern decision.

APPEAL AND ERROR-REMITTITUR IN VERDICTS WHERE EXCESS IS NOT EXACTLY CALCULABLE.-The Supreme Court of Appeals of West Virginia holds that when unwarranted and excessive damages are found by the jury, it is error for the court to suggest and allow a remittitur as to part of the damages, when no data in the evidence afford a basis for same, and thereupon deny a new trial. Hall v. Philadelphia Co., 81 S. E. 727. The facts in this case show that plaintiff was being supplied with natural gas furnished free for domestic use, under an oil and gas lease from a well bored on his land under the lease. In consequence of a dispute as to what came within domestic use, the company cut off plaintiff's supply during zero weather for thirty-six hours. He recovered a verdict for $500 and the court required a remittitur of $250 as a condition to refusal of new trial.

The Supreme Court of Appeals said: "There was absolutely no data on which a remittitur could be made. Under similar circumstances this court held that 'it is error in the court to allow plaintiff to elect to take a less sum suggested by the court, when there are absolutely no data before the court by which said smaller sum could be rightly and definitely ascertained, but which is fixed by the discretion of the court unaided by evidence.'"

Many cases on this subject are considered in a leading article in 70 Cent. L. J. 438, where

it is shown that in unliquidated damages cases, where the verdict is supposed to represent the enlightened conscience of the jury in their experience as practical men, the courts seemed divided on the right to direct a remittitur, and again divided as to prejudice and passion

cases.

This West Virginia case would appear to involve the principle, that a trial judge or an appellate court ought to have the right to order a remittitur and refuse a new trial and not condition its order at all.

But how in any case of unliquidated damages it could touch the verdict at all, unless it was thought to be the outcome of prejudice and passion, we cannot see, and when it is thus, there would seem no course left but to grant a new trial. In this view every case in tort should be set aside where the amount is according to the experience of jurors in life, and in other cases there should be no remittitur nisi at all. In other words, the rule of remittitur nisi, generally speaking, would seem to be wrong.

CRIMINAL LAW-PRESUMPTION OF COERCION BY HUSBAND WHERE CRIME IS COMMITTED BY WIFE IN HIS PRESENCE. -We annotated a case by Supreme Court of New Jersey on the subject of the presumption of coercion over wife as to crime committed by her in his presence. 72 Cent. L. J. 139. There the authorities seemed to show that this presumption was prima facie only. Later we called attention to an Iowa case holding that there was no rule of presumption where the offense charged was the keeping of a bawdy house, id. 262. Now appears a case by North Carolina Supreme Court which declares that this was "but a rule of evidence, established by the courts for the protection of married women at a time when they could not testify for themselves," and it is not suited to modern conditions. State v. Seaton, 81 S. E. 687.

This case bears some resemblance to the Iowa case where there was an exception held to exist at the common law-the offense charged being the selling of intoxicating liquor by a husband and wife, keepers of a house of questionable repute, at the house.

The chief justice, in concurring, speaks of the old presumption not comporting with the twentieth century conditions, but it was "just and proper, when the husband could thrash her at will;" but "the courts have advanced from that barbarism." He also speaks of the

old rule being abolished by statute in several states.

The New Jersey case we speak of supra sustains the old rule and cites a number of cases in its support and many other cases appear against it as a rule prima facie and to the latter class of cases North Carolina belonged prior to this case, a better way of regarding the matter, we think, than to say the old rule should be entirely wiped out. It was a rule at common law and it seems all too easy for a court to get rid of a rule at common law by calling it a rule of evidence. It was a rule of substantial right, and ought not to be wiped out by ratiocination as to changed contions, when the legislature by statute has changed the conditions and remains silent as to the old rule. Courts need not be so swift as to things the legislature fails to notice.

The duty of a lawyer to the court is, first, that which every person owes to the court, a violation of which leads to punishment for contempt, but further and particularly the duty which arises from the fact that he is now and for many centuries past has been regarded as an officer of the court. Originally, in England, parties were required to appear in person before the court, and after their appearance was noted they could, in civil cases be represented by a person styled responsalis, who could speak for them, as an advocate. Subsequently, on account of the inconvenience of attending in person, letters of authority to appear by attorney. who was an agent in fact, were issued by the king; then by royal ordina.ce of 20 Edward I the justices were directed to appoint attorneys in each county, to the number of 140 for all England, with authority

*Mr. Boston's prominence in the field of Legal Ethics by reason of his chairmanship of the New York County Lawyers' Association Committee on Legal Ethics will give added weight to his views in the present series of articles, the first of which appeared in 78 Cent. L. J., p. 400, entitled Legal Ethics-The Source and Formulation of Ethical Precepts.