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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

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EDITORIALS.

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49

DISTRICT OF COLUMBIA

HUMOR OF THE LAW
WEEKLY DIGEST OF CURRENT OPINIONS 50

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,

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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., JANUARY, 23, 1914.

THE ANCIENT RULE THAT BAGGAGE IS NOT SUCH UNLESS IT ACCOMPANIES A PASSENGER.

The Supreme Court of Alabama held. that, where one purchases a passenger ticket and by it procures the checking of his baggage to the destination named in the ticket, it is not necessary that he go upon the same train or go upon the ticket at all for the baggage to be deemed baggage in the same sense as had he gone. Alabama G. S. R. Co. v. Knox, 63 So. 538.

In this case the baggage was lost and the railroad claimed that, as to a gratuitous bailee the evidence showed no liability, verdict should have been for defendant, because baggage is carried only in performance of a contract to carry the passenger to whom it belongs, or who is its bailee.

The court speaks of the persistent clinging by text writers to the ancient rule that, in order to fix liability upon a carrier for the loss or destruction of baggage, as a carrier of baggage, as distinguished from a carrier of freight, the owner must be a passenger and accompany his baggage.

It was said the old rule was upon the theory of the owner of baggage being able to keep his eye on it and point it out along the journey and when the check system and separate cars were not used, as in steamboat and stage-coach travel. It is said that now, the reason of the rule having ceased, the rule itself should cease--the passenger having really no opportunity to see his baggage at all and it not being a mere matter of grace now, as was probably the case formerly, for a passenger to have his baggage carried. Now it is said the purchase of a ticket gives a double right-one to have passenger carriage, and the other to have the baggage carried. Also it is said there is no possible way of the carrier being prejudiced by the ticket purchaser Lot accompanying his baggage.

It is admitted, however, that there is conflict even among modern cases on this subject and to our mind there are many reasons for the old rule surviving, and we believe there was as much of double right in the old contracts as in the new.

In the first place, we doubt whether the old rule originated in the thought of passengers on a journey watching their baggage. That might be fairly possible in stage coach travel, but in steamboat travel it would be as greatly out of the question as in railroad travel. In either case it would have been a singular plea for the carrier to make, that the passenger should have watched his baggage and notified the carrier that it was not on board. By the carrier's contract he engaged to put it on. board, and carry it as it should be carried. The court's theory of the old rule seems founded more on fancy than on fact.

But there is another consideration the court overlooks. Rates for passenger travel presumes baggage as baggage. One cannot contract for its carriage by paying passenger rates, he and the carrier knowing that there is to be no carriage of the passenger, because it would be illegal to charge any other rate than that prescribed for freight. And even were it the same rate, one might not have the right to demand the fast service, which goes with passenger transportation, for the transportation of freight. This might constitute discrimination. May the purchaser of a ticket obtain by concealment what he would have no right to obtain openly?

Furthermore all regulation of common carriers goes upon the absolute necessity of both the carrier and the customer entering understandingly into their contracts of transportation. There is more the idea of a relation by the carrier to the public than ever before in the history of transportation. The least departure from this idea is condemned with more emphasis now than ever before. And the least infraction is presumptively a serious offense.

It would seem, therefore, that this rigid. idea excludes what regulation does not pro

tion is for a penalty which a foreign court will not enforce, at least when this militates against the public policy of its state. Chris

vide for, especially if the thing attempted to be done may seem to be covered by a particular regulation. Is not the carrying tilly v. Warner, 88 Atl. 711. To this holding

of baggage provided for by a particular regulation? And is it not carefully differentiated from freight?

This being true, is it any answer to say, that the carrier has no heavier burden on him when he does not really carry a passenger to whom the baggage belongs, than when he only carries his baggage? A customer is allowed to enter into a certain contract with a public agency. If he enters into one not prescribed, then he knows that he and the carrier are violating law. Does not the carrier therefore become, at most, but a gratuitous bailee?

We look at this under the view of what is public policy as to carriers, and this policy says, in effect, that baggage must be hauled as baggage and freight must be hauled as freight. When one tries to pay a passenger rate for something pretending to be baggage when it is not baggage, he pays and the carrier unlawfully receives a rate he is not allowed to charge. In other words it violates the statute, and the payee is conusant of the violation. It is easily to be seen, that allowing one to send articles in this way opens up a means of sending things not to be classed as baggage at all, and certainly it has been decided, that a railroad is not liable for what is not baggage, when properly it cannot be so classed, even where the passenger accompanies it. This may greatly proceed on the idea that thus he is avoiding paying freight, but under rate laws it is as bad to pay too much or too little freight as it is to pay no freight at all.

NOTES OF IMPORTANT DECISIONS.

COMITY-RECOVERY OF PENALTY IN ACTION FOR DEATH.-Connecticut Supreme Court of Errors holds that, while an action for death may be remedial, yet this is only so when recovery is based upon just compensation. When under statute authorizing action for death recovery is to be according to degree of culpability of defendant, then the ac

there was a dissent by one member of the court.

The action in this case was begun by an administrator claiming under Massachusetts statute, which the Massachusetts court heid to be "remedial for the reason that a remedy is provided where before its enactment none existed. But the damages assessed are distinctly grounded upon the defendant's culpable misconduct, and are diminished or enhanced according to the degree of his delinquency.” A prior Massachusetts case said: "These acts gave a civil remedy for the recovery of a penalty imposed by way of punishment."

The Connecticut court said: "We have never allowed a recovery in a case of a negligent death upon any theory save that of just compensation. We have never penalized for such a wrong. To permit this to be done would be against our public policy, and comity does not require that we enforce the statute of a foreign jurisdiction which is so manifestly contrary to the public policy of our law."

The dissent claimed that the statute was not penal in the international sense, this only in cluding penalties for public wrongs as dis tinguished from private wrongs, the view taken in Huntington v. Attrill, 146 U. S. 657, a leading case on this subject, decision among the states, however, being in conflict on the subject.

The dissent also claims that Connecticut policy is not entirely adverse to imposition of penalties in civil suits for a tort. Thus it says smart money is in addition to compensation and it is measured by circumstances of aggravation.

It would seem that the more intimate grows the intercourse of states the more ought such a refinement as the majority of the Connecticut court approves to disappear. It is certain that a Massachusetts judgment upon such a cause of action could be sued upon in Connecticut and by the faith and credit clause of our constitution all of our original states impliedly have said that state policy giving rights of action at home should have recognition abroad. There may remain a good reason for non-enforcement of criminal penalties abroad, because sister states have no such interrelations as that one should assist another in the enforcement of criminal law. Were that question, however, res integra, much might be said as to the no-applicability of international law between our states.

WHEN AN ACCIDENT ARISES "OUT OF AND IN THE COURSE OF THE EMPLOYMENT,” WITHIN THE WORKMEN'S COMPENSATION LAWS.

By the terms of the Workmen's Compensation statutes of England, and most of the states of this country which have adopted such laws, it is not only necessary, to entitle a workman to compensation, that his injury be due to an accident, but the accident must be one "arising out of and in the course of" his employment. This accords with the general theory of these laws, viz.: that an industry should stand the cost of its own operation. It makes no difference according to this theory whether the cost is due to an injury to a workman or the breaking or wearing out of a machine. It is all fairly and properly charged to expenses incurred in the conduct of the enterprise. Further than this, however, no theory can be justified which puts liability on an industry. A theory justifying the imposition of liability on an industry because the injury is caused by that industry, impliedly excludes liability for all other injuries. Therefore, this clause was written into the statutes limiting the right of workmen to recover for injuries to those which arise out of and in the course of the employment.

In the "Course of" the Employment.An accident is said to arise in the course of a man's employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time.1

A workman employed to stack sacks in a mill attempted to do his work of hoisting the bundles to the top of the stack by throwing a rope over a revolving shaft near the ceiling, making one end fast to a bundle,

(1) Bryant v. Fissell, (N. J. L., March 24, 1913), 86 Atl. 458; Clover, etc. Co. v. Hughes, 102 L. T. Rep. 340, (1910), A. C. 242, 26 T. L. Rep. 359, 79 L. J. K. B. 470, 3 Butterworth's W. C. Cas. 275.

pulling the rope taut, and when the shaft had hauled the bundle to the top of the stack, removing it. On the second day that he was using this means to do the work, his arm was caught and injured by the shaft. This man was employed to stack the sacks by manual labor, and not to use machinery for the purpose, and the manner he adopted was unknown to his employers. It was held that the method he adopted of doing his work was altogether outside the scope of his employment.2

The master of the Rolls (Cozens-Hardy) thought that this case raised a very close question, and he preferred to decide the case, not so much on the ground of the unreasonableness of the man's actions, as on the ground that what he did was outside the scope of his employment. He said that the man was not employed to pile sacks by any method he thought fit, and that there was no justification for using a method which would substantially enlarge the scope of his employment.

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The Lord President, in the Scotch case of Conway v. Pumpherston Oil Co.,3 stated two ways in which a workman may be outside the course of his employment. The one is where he exceeds the limits imposed by the nature of the work, as, for instance, where the footman takes the reins from the coachman and drives the horses. He is not within the scope of his employment, as he is not employed for that purpose. other is where a workman goes into a territory with which he has nothing to do, as, for instance, where a man employed to work in quarry A, or in the top seam, goes into quarry B, or in the lower seam. He is not then in the course of his employment.

The

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