New Britain Herald Newspaper, August 25, 1916, Page 13

PRk i ~ CASES OF INTEREST IN LEGAL SPHERES = Decisions Given on Peculiar (ues- tions in Many Jurisdictions Clatm in bankruptcy for damages for breach of marriage promise. A broken-hearted damsel poured out her sad story of unrequited love before twelve just men and true and was awarded as a salve to her wounded feelings the sum of $25,000. Presumably, the prescribed was regarded by the defendant as somewhat too costly for his modest purse; for he sought the higher court, and was given another chance to plead his defense before a jury. Pending appeal defendant filed a petition in bankruptcy, and f filed her claim for $25,000. After re- versal of judgment by the state ap- pellate court, defendant asked that the clatm in bankruptey be ‘reviewed, discharged, and expunged In his opinion for the circuit court or appeals, second circuit, in re Mar- tin, 228 Federal Reporter, 184, Judge Coxe says: “The question here is whether the claim for damage for the breach of contract is one that can sent to the state court for dctermina- tion. The bankrupt insists that, the judgment of the state court having been reversed, there is now no legal claim agaeinst him, the law relating be salve | aid of a | ntiff | : due only to claims which are admitted or | conclusively proved, and not to claims | which are which may never be established at all. It seems to us that the referee was right in holding that section 63b cov- ers the present controversy, and that under this seotion he was justified in regavding the claim as unliquidated, and properly found that it should be liquidated {n such manner as the court may direct, and then proved against the estate for the amount allowed. An action such as this is generally sup- posed to be one within the province of a jury, and it is thought that the referee did not exceed his powers in ordertng that the claim be determined in the supreme court of the state Store Closes at Noon Fridays During August. DINING ROOM TABLES At Cost of Ma- terials During This August Sale $12.50 solid oak 6-foot Extension Dining Table, August Sale Price $8.98 . $17.50 axlz;;ered oak Dining Table, Sale Price $12.98 $23.50 colonial, plat- form pedestal Dining . Table, Sale Price $14.98 $27.50 massive Dining Table, either fumed or golden oak finish, Sale Price | $32.50 Table, colonial design, beautifully fin- ished, heavy plank top, ¢- August Sale Price $21.50 Agents for Colum Grafonclas. 1 & " F!‘ Lovis Herrup Hom -furnisher 1052-58 MAIN STREET FAK MORGAN FORD. bia unliquidated, denied, and | | that, unles: | stone’ | rignt | covery. 25, 1916. 0 where the actlon was commenced and where it is now pending. The argu- ment that a breach of promise to 1 marry is not a claim until the question whether or not there was a contract of marriage is finally settled is in- ! genifous but not convincing It too | refined for evervday application. . xox Labor on highways not involuntary servitude. Jake Butler of Columbia | county, Fla., was an able-bodied man | over twenty-one years of age and un- der forty-five. Chapter 6537, Laws of Florida (Acts of 1913, pp. 469, 474, |4 requires all such resident males ! to work for six days in each year on | roads or bridges, or in lieu thereof to furnish a substitute or a cash pay- | ment of three dollars. | But Jake, when duly notified, ‘ wouldn't work, provide a substitute, or pay. So he was haled into court, and sentenced to jail for thirty da: The state circuit and supreme courts | upheld his conviction. The higher | court’s opinion is published in 66 | scuthern Reporter, 150. The case was | arried to the United States supreme ‘ court on writ of error. Jake claimedq that the road law im- posed involuntary servitude not as unishment for erime, contrary to the thirteenth amendment to the United States capstitution. Moreover, the | enforcement of the law was a depri- vation of liberty and property without process of law and prohibited by the fourteenth amendment. Justice McReynolds delivered the opinion for the United States supreme court (Jake Rutler v. J. W. Perry, 36 Supreme Court Reporter. 258), sav- ing, in part: “In view of ancient age and the unanimity of judicic opinion , it must be taken as seftled strained by some con tutional limitation, a state has inher- ent power to reqiire every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compen- sation. This is a part of the duty | which he owes to the public. The law ' of England is thus declared in Black- Commentaries, bk. 1, p. 357: ‘Every parish is bound of common ! to keep the highroads that go through it in good and sufficient re- pair; unless by reason of the tenure | of lands, or otherwise, | sed this care is | consigned to some particular private | person. From this burthen no man was exempt by our anclent laws, | whatever other immunities he might | enloy. . . " | The court held that the Thirteenth | amendment applied only to such invol- | untary servitude as was akin to Afri- | can slavery, and was not intended to | affect enforcement of duties owed by | ciizens, such as services in the army and on the jury. There was no tak- i ing of property (labor) without due process of law, the fourteenth amend- ment being intended to preserve such rights as had long been recognized under the common-law system. It has never been regarded as a depriva- tion of liberty or property to requir work on highways. Another Swindle.—A swindler, pre- tending to be the representative of a Fansas firm, entered the offices of the Picard Importing Ca.,, defendant in Wechsler v. Picard Tmporting Co.. | 157 New York Supplement, 803, and placed an order for a considerahle amount of merchandise, which thoy | held up pending investigation '-c.‘.‘ Swindler,” thereafter huvir from Wechsler, the x other | goods plaintiff to the offices of the defendant, to be | rlaced there being filled. This was done, the | came being recipted for at the de- fendant's offices by the agent of an- cther firm which shared the offices, | the defendant not being in at the time, Later in the afterncon the swindier returned, and under some pretext ob- tained the plaintiif’s goods left in de- fendant's care, and vanished. This| suit was brought to hold defendant ble as bailee for the goods carried Plain obtained judgment in | lower court, and the defendant appeal. Judge Delehanty, savs, In part: “I am of the opinion that, upon the facts presented by the record in this case, the judgment should be reversed. The defendant never voluntarily agreed to accept the goods ar for ward them, and the plaintiffs are row attempting to thrust such an ob- ligation upon him. The defendant is sought to be held liable on the theory that he was a gratuitous bailee of the in question. A bailment must he predicated upon some contractual relation, exnress or implied, upon the delivery of the goods, between the bailar and the bailee. There Is evi- dence that the tenants occupying the room with the Picard concern per- formed a number of acts for the mutual accommodation of one an- other, but T do not find that they were of such character as to constitute an asency for the receipt or delivery of the goods in question Tt was also held that, assuming the Feilment, no such gross negligence of defendant was shown to warrant re- the I resses this in his opinion, goods e % 3 | of sheep f el Larceny Not Within Scope of Em- ployment.—The case of Bruton v. Sakariason, 155 Pacific Reporter, 725, nvolves the question of liability of the master for the servant’s larceny which he mingled with his emplover's flork The principals each owned, on ad- joining ranges, some 5,000 head of theep. Defendant’s sheep were in e of his two Plaintiff | missed a number of his flock, and | traced them to his neighbor's range, where they were found mingled with defendant’s flock. The larceny by the | | ms to have been conclusively ed sons b | ““The onl- question | any difficulty.” s Roberts, speaking for court, New Mexico, “is as to the con- nection of the father with the tran tion No dir evidence was “a to the extent of their (the )y du and pow but, assum- thes were keep, tend, carn in the usual ) the people ot that presents Chief Justice the Supreme | offe ST es to safely sheep, lnown generally. in the range country, did the larceny of of others oceur in the ‘conrse of employment'? O would he a dan- Lo1a that larce range, znd W for said sheep { iy a herder on the open of | lcattle, sheep, or horses, came \nth&nl | he . the Washington Supreme | killed through the alleged negligence | the workmen’s compensation act gave | | Circuit Court of appeals, | of a state statute deliberately adopted | preme court in the Peet case, supr: | pensation act af 1911 | enly the remedies under and to should reaching every any workman while emploved in any ' brakeman, whom he alleges very rude- such industry of the v hich To ea berein, asked him to send these goods | of the in and chippcd with his order | act | tallized into law i« scope of the servant's employment and rendered the master liable for the tort € neh were true, in almost case w 4 man was working while so employed | 1 ‘rom another, the master would be required to respond in dam- zes for the fort, however forelgn to his master's business such wrong may have been. * * * 1If appellee had traced the proceeds of the sale into the hands of Oleson M. Sakariason, wauld have brought him within the rule, and could have sustained a recovery against him. This he failed to do; henes the judgment against Gleson M. Sakariason cannot be sus- tained.” in street grading work negligently al- lowed it to collide with a street car. The conductor sustained a slight injury which later caused lockjaw, resulting in his death. The trial court directed a verdict for defendant on the ground that the act of the city employe was a governmental function. The Virginia Supreme Court of Ap- peals, in reversing the judgment of the lower court, Judge Harrison, deliver- ing the opinion, held: “The welght of authority sustains the view that the work which the city was doing in the instant case was not of such a char- acter as to exempt it from liability for the negligent acts of its servants and emploves. In grading and improving MecDonough strect the city was not dis- charging a governmentai function, but was merely performing a ministerial duty, which afforded It no Immunity from liability for its negligence.” . cvery r anotlc nd e Workmen's Compensation Act Deprivation of Remedy Against Third Person.—Accarding to the decisfon of court, 1n Peet v. Mills, 136 Pacific Reporter, 85, the workmen’s compensation act of that state superseded all former statutes relative to a recovery by a servant for injuries occurring in the course of his employment, and no cxisting law zives the employe a right | of action for such injuries against any Person other than his employer. | The same questlon arose in | Northern Pacific Rallway Company v, | Mary A. Meese and the same statute was construed. The case was insti- | tuted in the United States District | Court of Washington, W. D. (206 | Tederal Reporter, Benjamin Meese, while engaged in his duties as an employe of a brewing concern, was | a . . Turn-about is fair play—dog own- er sued for injury to auto. We often hear of cases where some unfortunate car owner is called upon to pay dam- ages for running over a dog which chanced to cross his path, so why a suit again the owner of a dog for any damages caused to automobile owner by it? In the Supremec Judicial Court of Maine, the case of Tasker v. Arey, 96 Atlantic Reporter. 737 ra this point. Basing his claim on a statu- provision allowing recovery fur age done by dogs to a person or his property, he asks recovery for in- ries to his automobile, which vas rown from the road by contact With the defendant’s dog Upon a verdict in favor of the plain. tiff, the defendant moves fdr a new trial. Tn considering this question *he curiam opinion in part reads: ‘The plaintiff testified that, as he was driving his automobile along the hiehway on the evening of August 20, 1913, in exercise of reasonable care, the defendant’s dog suddenly ‘jumped directly in front of my machine, and quick T didn't have time to apply the brakes before it struck him. The left-hand wheel struck him and jackad the machine around across the ditch, blown out of the solid ledge, and tipped it over.’ The motion for a new trial { overruled, it being held that there w auoted at length. An excerpt there- | ¢\ micient evidence to support plain- fom folioma; | tiff's contention “By this appeal, we are again called | upon to review the workmen’s com- (Laws 1911, c. 74, p. 345 Rem. & Bal. code, §§ 6604—1 ot seq.), under appellant’s c~ontention that the act is applicable | where recovery is sought upon the ground of negligence of the em- ployer. * * * The conclusion is evi- dent that, in the enactment of this new law, the legislature declared it to be the policy of this state that every harzardous industry within the ' removed to cause trouble. rurview of the act should bear tHe| It appears in this case (Fags V. burden arising out of infuries to Its| Minneapolis & St. L. R. Co, 157 employes: and that it was the further | Northwestern Reporter, 148) that cne policy of the state to do away with | Fagg, somewhat “fagged” from an recognized evils attaching to the | overload of aleoholic stimulants, existing forms of law | boarded an M. & St. L. train at Mar- substitute a new remedy that|shalltown on his homeward journey. be ample. full, and complete, | Fn route some difficulty arose, and irlury sustalned by | he got into an argument with tha tory da of the railroad company. Demurrer to the complaint on the ground that | a right of action against the master | only was sustained. This judgment | was reversed by the United States | 211 Federal Reparter, 254, ! The United States Supreme court in 36 supreme court reporter, 223, re- verses the holding of the latter court, | and upholds the ruling of the district ; court, Justice McReynolds stating: | “Tt is settled doctrine that federal| courts must accept the construction pe: by its highest court.” The opinion of the Washingtan su- we * Brakemen must control tempers and seems to . * 3 fists. A recent Towa case uphold the remark an elderly woman is presumed to have made to the ef would better ourselves to train our yvoung men to be ‘“civil brakemen” rather than civil eng eers, since we have to deal more with the former, the latter being too far fect that we Iy pushed corner his cssing him imed fist. Upon he attorney of his he brought a regardless of the canse the neelis to 0 attributeq, * that the intent ntiff’s) in nose head into identally ca with a informed (pis the or "nee car, the injnry it might - with appellant act is limited to the abolish- an ment of negligence as a greund of tion ion against an employer only is to and recovered $300, from which ver- cverlook and read out of the act and dict the defendant here appeals. ite declaration of principles the After considering the appellant’s ar- cconomic thought sought to be crys-| guments that the brakeman acted on that the industry it- | his own behalf and not as a servant cause of the|of the company, and that his actions should be made | were outside the scope of his author- | ity. Judge Deemer, in speaking of the | modern and better ruling in sach | cases, says In part: “An all-suffictent | he . well ine by precarions condi suit for dama €lf was the primal infury, and, as suct to bear its burdens Liability of City for Negligence of Tmployve—The case of Jones, admin- istrator, vs city of Richmond, 88 Southeastern Reporter, 82, affords an interesting example of the application of the rule whereby municipal cor- porations are made liable for the min- v jsterial as distinguished from the pure- | strangers or others: and it s no an- ly governmental acts of their em- |swer to say that the assault was com- ploves. The driver of a wagon used | mitted by one without authority reason for the modern rule is that a railway company as a carrier of pas- sengers Is bound to the exercise of care to protect those who take car riage from assaults wheth not | if that one be ployes.” The firmed. one of its judgment own was em- af- PR Actlons for malpractice as effected by Workmen's Compensation Acts. Whether or not an injured employ who has received an award under a Workmen’s Compensation Act may bring a civil action in damages for malpractice of physiclans In treating the injury is a mooted question. Two very recent opinions shed light on the proposition. Plaintiff in Ross v. Brickson Con- struction Co., 155 Pacific Reporter, 153, was injured in the course of employment, and after hospital tre ment made claim and recefved an award under the Industrial Insurance Law. Tater he brought actlon for malpractice of the surgeon supplied by the defendant. The Washington Su- preme Court holds that plaintiff while in the hospital was in contemplatisn of law still In the employ of defendant, and that the injuries from malprac- tice could be properly compensated under the Industrial Insurance Law as Stammering‘ and Stutteri Specialists J. Alfred Lacourciere and Albert R. Bellorose, the Stammering and Stuttering Specialists, will give their consultation and diagnosts of the impediment absolutely free of charge to those who call on them. If it is tmpossible *or you to call on them during thefr short stay Britan, line or call at the main of Meriden, Conn drop a Park Street Specialists Lacourciers and Bellerose be at the Hotel Beloin, Church Strest, | city, Saturday, August 26th. (nne day. in New Hours 12:30 p. m. to § p. m. father.—The case of Phair v. Dum a Nebraska Supreme Court opin 156 Northwestern Reporter, 687, cusses the rights of infants, one whom was unborn at the time of | sale, to recover damages, after death of their mother, from a s of intoxicating liquors and his sw for the loss of support resulting £y the sale of such intoxicants to tHf in an acquittal, he being once in jeo- pardy? This exception must be over- ruled. There was no action on the part of the court that in any manner affected L. H. McLeod’ rights. They were not discharged by the court, state's counsel, or any person in au- thority, without lawful cause. If they had been so discharged the defendant might have taken advantage of this, an aggravation of the original Injury. The opinion of the court was deliv- ered by Judge Chadwick, and reads in part: “Tt would seem that, having an original right to recover against the master for the consequence of mal practice, and a present right to sub- mit his condition for appralsement, notwithstanding such malpractice, the respondents fall withdn the statute. Tt does not merely deny a right of action, but abolishes all civil actions and ali civil causes of action to which he might have resorted, as well as the jurisdiction of the courts to entertain such causes.” Tn Pawlak v. Hayes, 156 Northwest ern Reporter, 464, the facts involved are very like these in the case supra. except that in the latter suit the action was brought against the phystrian, The Wisconsin Workmen’s Compens tion Act provides that in making claim under the act the employe as- signs to his employer all rights or claims for his injuries which the for- mer may have against « third party. “But it does not assign a ca ction then not in esse,” says Judge e, speaking for the Wisconsin Su- preme Court. “Tt merely acts upon what in existence at the time the lawful claim is made. When the neg- ligence of a third party to the knowl- edge of the emplove, who exercises or- dinary diligence in respect thereto, in- tervenes, his right ton an election arises—not before then. Tt was there- fore competent for plaintiff, when he fivst learned of the negligence of the defendant, to elect to hold him and release his employer, or to hold his is employer under the provisions of the | Compensation Act.” .. A self discharged jury.—A novel scheme, which, if it were not unlaw- ful, would appeal to juries unable to agree, was adopted after an unsuc- cessful attempt to reach a verdict in A South Carolina case,—a prosecution in the mayor's court in the town of Cheraw of C. L. McLeod and L. McLeod for violation of an ordinance. After the case was submitted to the jury, the mayor, attorneys, and spec- tators left the room, and the jury proceeded to consider the evidence. After a more or less lengthy delibera- tion, of their own accord. dis- allay possible anxiety as of their mysterious di they left in the room a bearing the following legend: “Being unable to agree in the case of C. L. McLeod, we have adjourned.” The mayor accordingly ordered a mis- trial. On the subsequent trial of L. H. Mc- Leod the defendant pleaded former jeopardy, but was convicted. An ap- peal resulted in an afirmance of the conviction. Town of Cheraw v. Me- Leod, 88 Southeastern Reporter, 8. Judge Watts, in his opinion for the su) reme court, says: “The fourth ex- cevtion raises the point: Could L. H. Meiscd be put on trial again after the ~tioa of the jury at former trial, and wne there error in not holding . they. To use ance, persed to the pr paper that tho action of the jury l'l‘su!(ed}\\nhorn at time of sale of liquor to |a H. | father who, while drunk assaulted { mother causing her death and since been sentenced to the pentl tiary for a crime committed wi intoxicated. The evidence shows that the mo was assaulted by her husband wi and relled upon plea of former jeo- pardy, but in this case the jury dls- charged themselves. They were guilty | of misconduct and contempt of court | in escaping as they did, and could have been punished for contempt of court, but the mayor could not have summoned and reassembled them for ' under the influence of liquor bouj the purpose of making them consider | from the principal defendant and again the case and reach a verdict. | a result of her injuries, being pm The law has been well settled in this nant at the time, suffered a mise state, from the time of the case of 'riage, which left her in ill health. H State v. McKee 1 Balley, 651, 21 Am. | condition remained more or less d Dec. 499, down to the present time.” | tical until her death two or three yei later, when, a few months after ing birth to one of the plaintiffs in case, she sank into a coma, and dil as physician testified, from sep poisoning due to pus forming in cavity In her side caused by her hi band's assault upon her The defendants contend that child born subsequent to the attac not entitled to any remedy agai the seller of the intoxicants, the drk ing of which is alleged to have be the cause of the assault and the stai ing of the father on the downwa road. The court, however, held t any children living at the time of, born after the assault, may recoy for the loss of means of suppd caused by the sale of the intoxica to the husband at the time of the sault. The objections to recovery the unborn child were overruled a the judgment for the plaintiffs firmed PR Invalidity of second marriage as a ~The in in- the State, 87 defense to bigamy charge. genious defense Interposed blgamy case of Allen Southeastern Reporter, 681, that where both parties to a bigamous marriage have former spouses living, no crime is committed, suggests the proposition that where neither party has suffered an injustice neither can be guilty. This theory overlooks the fact that wrong has been done the lawful spouses and that the public— the State—is the aggrieved party in all criminal transactions. The opinion of Judge Wade, for the Georgia Court of Appeals does not however, include the proposition sug gested, but concerns itself merely with defendant’s contentlon that nelther party having ability to contract the | marriage, “there could be no con- tract or consummation according to | law.” | The opinion reads in ‘part: ‘“The | only authorities cited by counsel for plaintiff In error on this point are sec- tions 2930 and 2931 of the Civil Code, the first of which gives the essentials of a ‘valid marriage’ in this state, and the other pointing out those who are legally able to contract marriage. Counsel, it seems to us, loses sight of the fact that these Code sections deal | solely with ‘valid marriages’ and that, if his contention was correct, then there could never be in Georgla a | conviction for bigamy. One cannot i be convicted for entering into a valid | marrfage. A marriage between one ' charged by it to its customers. | already married and one unmarried is | “The diffculty 1s” says Judd not a valid marriage, because one of | Clarke who delivered the opinion 4 the partles labors under the disability | the Supreme Court, Appellate Divisto; of a ‘previous marriage undissolved,’ | First Department, “that in the coul and still such marricd person who en- | proceedings which he Instituted H ters into the contract with one unmar- | did appear as attorney of record fo | ried man be convicted of bigamy. We | the individuals who owned the clatm {are unable to see the distinction be-!and as such attorney- he prosecuted {tween an ‘invalid marriage.’ whether | not the claims of the agency, but © | entered into between one married and | the individuals, and, as such attorney | one unmarried or between two persens | he recovered and collected judgments who are laboring under disabll- including costs. So far as the cous |ity because of previous marriages un- | proceedings were concerned, he wa dissolved. Before there can be big- | the attorney for the plaintiffs in th amy, it is true. that there must have |action which he instituted and prose| |been a prior legal contract of mar- |cuted, and they were his clients | riage. But the crime of bigamy is | Whatever way we look at it, it is cleal ased entirely upon the proposition | that there was a splitting of the feel that the second or bigamous marriage person !is not. and cannot be legal. If it were | oy not an attorney, and nol [a legal marriage, there could no | competent to practice law, for lega | pigamy.” services rendered to a third person | whose attorney of record he was, ani child | with whom the relattion of attorne client legally existed.” v. .. Fee-splitting with collection co! pany unlawful—A New York lawy may not promise or give to a laymi any part of fees received for plach] in his hands demands requiring leg suit—Penal Law sec. 274. A recel declston, in re Newman, 168 New Yo Supplement, 375, includes among prohibited contracts, agreements Collection Agencles to sue on clg* | held by them. Respondents coni. ed that in prosecuting the actions W was in reality acting in the intere| of the Collection company whid | agreed to allow him half of the fe attorney and the PR l Saloonkeeper held liable to Somebody is Always Taking the Joy Out Goop BY DEAR - Don'T WORRY ABOUT ME- WELL Goop BY OLD BoY- nAVE A Good TimE AND DonN'T WORRY OVER BUSINESS .AFFAIRS WE'LL GET ALONG HAVE A Goop REST- of Life By BRIGGS THis 1S THe LIFE AND TheE BEST oOF 1T IS THERE S NOTHING To WORRY ABOUT WHY Don'T Yoo COME BACK — Tue BUSINESS (S GOING To RUIN — RUSH HOT YouR THEY Sav GOSH AWFUL DOWN: L IN TowN = LoTS oF SICKNESS Too 'M LONESOME — WRITE PLEASE COME HOME s ALWAYS TAKING The Joy ouT OF LIFE