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Vol. 44

CENTRAL LAW JOURNAL.

173

manner

as

111. TAX TITLE- Recovery of Land - Home

ough a tax deed is vold, yet the couri, na lient for the owner for the recovery of the jake provisions for the payment to the pare us taxes paid tbereon by him.-CRISKAST, AT 010., 47 Pac. Rep.29. 112. TITLE INSURASCE POLICY-ConstrutoLat the phrase, "Tenancy of the present care Wted in a title insurance policy as a deteta *ption to the title against which the ident asure, must be construed as meaning th: 23 dich arises through the occupation & Dagension of the premises by those went it popular sense in wbieb the word "team, be porase does not include the clain de serting ownership in fee as against rin actual adverse possession at the ice ! Issued.-PLACE 6.ST. PAUL TITLE BCST CO., Minn., 69 N. W. Rep. 205. 113. TRUSTS - Continuance of Forure lur rustee.-A trust deed which gutborize the intinue the former business of the giati bject the trust property to the casualties. ereto by which it may be lost or wasted ott"! charges superior to those of the credite void, as containing provisions adequaten: at of the object of the deed.-CATTF, 51 0. MANCFG. CO., Va., 26 S. E. Rep. 246. 114. Tersts – Following Trust Fuod.-A sy be pursued by the beneficiaries, as kart ime can be identified, into any land or cober Ivestment made by the trustee, as the loan plied trust as to such property is it ARSHALL'S Exe. V. Hall, W. 12., 365. E. 115. TRUSTS--Parol Proof.-Wbere a Fenda le land to her son by warranty desd, the

ortgage it for the purpose of raising 0 3373 le purchase price, but afterwards obtained to 7 other means, the son became a traster, he gal title solely for the benefit of the reader NS V. WILLARD, Tex., 38 S. W. Bep. . 116. VENDOR AND PURCHASES. - Where to r the price of land reserve a vendors ia, ount title to the land is in the reddee, m and third persons.-MINTER 5. BTESITE?

W. Rep. 350. 117. VENDOR AND PURCHASER - Paradise in le fact that the title to an irrigatiog dieser th land, failed, is not a defeose to parceir use money, where it is shown that the ne of the purchase was of no obstantial t land.-BLANKS 6. RIPLEY, Tel., 8 %. Til 18. WATERS-Irrigation Damages – Signe le doctrine of contributory negligenes de

in case of injury to land from the estar om a ditch, the owner of the ditch knoris is therein, and belog able to prevent to

any State or territory, remaining therein for Central Law Journal.

use, consumption, sale or storage therein, should, upon arrival in such State or terri

tory, be subject to the operation and effect ST. LOUIS, MO., FEBRUARY 26, 1897.

of the laws of such State or territory enacted

in the exercise of its police powers, to the The South Carolina Dispensary Law has same extent and in the same recently come before the Supreme Court of though such liquids or liquors had been prothe United States, with a result unfavorable to duced in such State or territory, and should that enactment. In Scott v. Donald, 17 S. not be exempt therefrom by reason of beC. Rep. 265, that court holds, among other ing introduced therein in original packthings incident to the act in question, that ages or otherwise,' evidently equality or the provisions of that law, forbidding the im- uniformity of treatment under State laws portation of intoxicating liquors by any one was intended. The question whether a given except certain State officers appointed under State law is a lawful exercise of the police the act, are invalid, as being a restriction on power is still open, and must remain open, to interstate commerce. In the view of the this court. Such a law may forbid entirely court the act was not intended to prohibit the manufacture and sale of intoxicating the manufacture, sale and use of intoxicating liquors, and be valid ; or it may provide equal liquors. On the contrary, liquors and wines regulations for the inspection and sale of all are recognized as commodities whica may be domestic and imported liquors, and be valid. lawfully made, bought and sold, and must But the State cannot, under the congrestherefore be deemed to be the subject of for- sional legislation referred to, establish a syseign and interstate commerce. It was sought tem which, in effect, discriminates between to defend the act as an inspection act within interstate and domestic commerce in comthe meaning of that provision of the consti- modities to make and use which are admitted tution of the United States wbich permits the

to be lawful.” States to impose excise duties as far as they At the time of the enactment of the South may be absolutely necessary for executing Corolina statute, and since, many of the lbeir inspection laws. The act does, indeed, leading authorities upon questions of law contain provisions looking to the ascertain- contended for its unconstitutionality princiment of the purity of liquors, and to that ex.

pally upon the ground that intoxicating liqtent may be said to be in the nature of an in

uors being assumed under the terms and spection law. But those provisions, such as

spirit of the act to be a lawful subject of they are, do not, in the view of the court, redeem the act from the charge

commerce, it was an unwarrantable invasion

of individual liberty to prohibit citizens of being an obstruction and interference

from engaging in such commerce. Indeed with foreign and interstate commerce. In

the Supreme Court of South Carolina the language of Mr. Justice Shiras, who

so held when the question was first predelivered the opinion of the court, “it is not

sented to them but this decision was aftera law.purporting to forbid the importation,

wards overruled, the personnel of the court manufacture, sale and use of intoxicating having changed in the meantime. See 39 liquors as articles detrimental to the welfare

Cent. L. J. 355. of the State and to the health of the inbab

The reasoning of the United States Supreme Court, in this latest

decision on the subject will afford considergust, 1890. That law was not intended to

able consolation to those who believe in the confer upon any State the power to discrim

law's unconstitutionality. Attention has been called to the cases of Re Jacobs, 96 N. Y. 98 and Rippe v. Becker, (Minn.), 57 N. W. Rep. 331, in the former of which the constitu

tional right of one to use his faculties in all When

lawful ways, to live and work where he will, to earn his livelihood in any lawful calling and to pursue any lawful trade or vocation, was up

IELDS V. ORR EXTENSION DITCH CO., T.

p. 194.

Percolatin

19. WATERS – Irrigation

itants, and hence it is not within the scope
and operation of the act of congress of Au-

Tere the water of a spring flows thround innel, or by percolation, into & FUBLIC ich it is the chief source of supplr, , at the sult of a prior appropriator & its in such stream, to restrain de ter of the spring by the owner of the land s situated.-BRUENING V. DORE, Colon

Commitment

30. WITNESS

tidance of witnesses, the attendances aning of the provisions prescribing to be

Court while in session, and where are or to appear at the next term of court default of a recognizance, he is entitled days only on which the court is los

the whole time of his detention UNTY V. TIDMORE, Miss., 21 South Beach

inate injuriously against the products of other
States in articles whose manufacture and use
are not forbidden, and which are, therefore,
the subjects of legitimate commerce.
that law provided that all fermented, dis-
tilled or intoxicating liquors transported into

RATION

*

held. In the Minnesota case it was held of error the remedy should be by a proceed-
that the police power of a State to regulate a ing to correct the record itself, rather than
business does not include the power in the by parol evidence in collateral suits, which
State to engage in carrying it on; that the would be liable to different results." The
right of a State to erect elevators and itself court, therefore, disallowed parol evidence to
go into the grain elevator business cannot be show that a dividend was voted.
predicated on the police power.

INSURANCE WAIVER OF DEFENSE. – In

Early v. Hummelstoun Mut. Fire Ios. Co., NOTES OF RECENT DECISIONS.

36 Atl. Rep. 195, decided by the Supreme

Court of Pennsylvania, it was held, two of the EVIDENCE-PROOF OF DIVIDEND OF CORPO

members of the court dissenting, that where, BY Parol.–The Supreme Court of

pursuant to conditions in a fire policy that Rhode Island, discussing the question of

insured sustaining loss should give notice to proof of the voting of a dividend by parol point a committee from the managers to ap,

the company's president, and he should apin contradiction of the records of the com

praise it, the committee was appointed, and pany, say, in Dennis v. Joslyn Mfg. Co., 36 Atl. Rep. 129, that, as a general rule, the best

the company wrote insured: "Our com

mittee * evidence of the votes of a corporation is the

* made you an award of $800. recorded action of its stockholders or officers,

This is now ready, and will be paid you

whenever you call for it. If this award is although they are not conclusive evidence against a stranger, or against the stock

not satisfactory to you, you will come and holder in an individual transaction between

sign an agreement to an adjustment by dishim and the corporation. The court, in try-policy;" and thereafter they negotiated,

interested persons, as provided by the * ing to prove the unfitness of the rule allowing parol evidence to show the declaration of

without anything being said as to & defense a dividend, stated that it is no hardship to a

on the merits till after the action, brought stockholder to refuse such evidence, for he

nearly six months after the fire,-it is a queshas a simple and ample remedy by taking of material conditions of the policy, existing

tion for the jury whether a defense of breach steps to correct the record. First. In the corporation itself, by calling attention to the

at the time of the fire, and known by the error that it may be corrected, or where this

company when its committee examined the will not avail, by mandamus to compel the

property, was not waived; the company's secretary to do his duty as the recorder, or

letter to insured not being an offer of comby & bill to correct the record.

promise. The court says:

The court expressed its surprise that no authority for

We think, in this state of the testimony, either of these remedies can be found ; that

clear duty of the court below to submit the question

of waiver to the jury. This is in accordance with no reason can be seen why mandamus should

several of our recent decisions. In Fritz v. Insurance not apply to a case like this, as well as to the

Co., 154 Pa. St. 384, 26 Ati. Rep. 7, we held that the numerous cases of failure to perform min

fact that a fire insurance company appointed an adisterial duties in which it has been so fre

juster to adjust a loss, and that, when an adjustment

was made, it was received by the company without quently allowed. Cases of errors in records

objection, is sufficient evidence to submit to the jury must often have arisen, and probably the rea

on the question whether the company had waived a son why no report of such cases can be found,

provision in the policy requiring proof of loss to be
furnished within 15 days. In McCormick v. Insur-
ance Co., 163 Pa. St. 184, 29 Atl. Rep. 747, we held that
the refusal of an insurance company to pay a 1088 on
a specified ground estops it from asserting other
knowledge where the insured has incurred expense,
and brought suit, in the belief that the only objection
was that stated. Mr. Chief Justice Sterrett, deliver-
ing the opinion, and adopting the language of Mr.
Chief Justice Church, of the New York Court of Ap.
peals, in the case of Brink v. Insurance Co., 80 N. Y.
108, said: "Every consideration of public policy de.
mands that insurance companies should be required
to deal with their customers with entire franknesi
and fairness. They may refuse to pay without speci.

la est upot any available wus impuni

ment of the Fruit themselres upons data tbe swored, they abould tradicted 19 "" enter the latter has acted may be di

deceased w sanced, aod incurred (I.

ture state ! Irels in Freedman v. 19801. Rep. 39, we said: "Tde 45 lon, the

Witto to bold insurance State, lor. on tanto is not conceal State, 64 M. and bus milesding the It is true

* They may remain silent, foundation's 2009 speak, aod the failure statements 't

an estoppel; but, baving such statrii '1'>22, very sligbt eridence testimony cas establish a waiver us to trial was :

uae effeet are frouid v. Io. witnes 1). 213","9 Atl. Rep. 148; McFar. not dispue 114

h. Nt. 590, 19 Atl. Rep. 3: 1'... Loe kPa. St. 504, 14 Atl. Rep. was put up! TP10., 122 Ps. St. 51, 16 Atl. been exam. Insurance Co., 168 Pa trial. Wear

a dying drea

portunits his -DEG DECLARATIONS.

of mental o kates, 17 8. C. Rep.

ity felt tona!

mistakes. *** CVT decided an interest | bad existed

declarations. hoking for a punti encuents by the deceased

each other, an

tendant was Esdring declaration are shooting mas is inpeach the declara intent to take

dy holds that the / ing the third alur the impeachment tion bas arium

evenioc. In pelo contradictory state. deceased insi Elaid by asking him

been receive 13 a statements, does not State v. Blan

an opinion by * brua declarations. The 9 Yerg. 279; } ont minion of Mr. Justice

State, 74 (18.1
S. W. Rep. 14

Our attent en being to permit the deo | the contrary,

cited with api tbink, as appi

to the weight Minyong mga statements were admin. tbink the de!

As these di By kurable as tending to impeach tunity for p

advantage bi to assed, which bad already | Lewin, Crow:

was the

13:23 witnesses that the de.
a lot te statements to them in

hear her dring deelaration, and
fuerant did not shoot ber to.

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RAILROAD

EVIDENCE "han it miod, made declarations | O. R. Co.,

* bring declaration by no means sent. The bistory of criminal a rakes where witnesses, even Chenbare through palice, misapbet tid the actual facts; and it Supreme 2 utslip to the defendant, who is mag if à cross-examination, to

lies in the fact that ordinarily a majority which has the power to pass a vote also has the power to correct the record, when there is error,

"Without intending” (said the court) “to lay down a rule beyond the case before us, we decide, that where, as in the matter of a dividend, members of a corporation have a common interest," and right by virtue of the action taken, the record should show what the corporation did, and in case

30 dnissible, and are received

plaintiff : kurpain them. Dying declara defendant's superion to the general rule that there is a it, and to prevent an en.

negligent, proving the

frequently bappens that 10 se si aieide are present

. They tions for co

souble by reason of the ex:

2 pant (Rex v. Pike, 3 Car. &

proving Be main other fact which would 8 S. E. Re Es so ordinary witness. They

The defend as wortis satisfied that the

on the plaint alle fact that bis recovery' sparks or cin

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[graphic]

error the remedy should be by a price g to correct the record itself

, rather ta

fying any ground, and insist upon any available was impossible, and in this particular the require

ground; but when they plant themselves upon a ment of the law is very stringent. They may be con. parol evidence in collateral raita, eli

specific defense, and so notify the assured, they should tradicted in the same manner as other testimony, and puld be liable to different results." 1

not be permitted to retract after the latter has acted may be discredited by proof that the character of the purt, therefore, disallowed parol eridan

upon their position as announced, and incurred ex. deceased was bad, or that he did not believe in a fu

pense in consequence of it." In Freedman v. Asso- ture state of rewards or punishment. State v. Elliott, ow that a dividend was voted.

ciation, 168 Pa. St. 249, 32 Atl. Rep. 39, we said: "The 45 Towa, 486; Com. v. Cooper, 5 Allen, 495; Goodall v.

trend of our decisions has been to hold insurance State, 1 Or. 333; Tracy v. People, 97 III. 101; Hill v. INSURANCE - WAIVER OF DEFEKI

companies to good faith and frankness in not conceal- State, 64 Miss. 431, 1 South. Rep. 494. arly v. Hummelstoun Mut. Fire la (.

ing the ground of defense, and thus misleading the It is true that, in respect to other witnesses, a

insured to his disadvantage. They may remain silent, foundation must be laid for evidenceof contradictory Atl. Rep. 195, decided by the Supra except when it is their duty to speak, and the failure statements by asking the witness whether he has made purt of Pennsylvania, it was held, two da

to do so would operate as an estoppel; but, having such statements; and we have held that, where the

specified a grouod of defense, very slight evidence embers of the court dissenting, that the

testimony of a deceased witness given upon a former has been held sufficient to establish a waiver as to trial was put in evidence, proof of the death of such prsuant to conditions in a fire polier i other grounds." To the same effect are Gould v. In- witness subsequent to his former examination will sured sustaining loss should give notes

surance Co., 134 Pa. St. 570, 19 Atl. Rep. 793; McFar. not dispense with this necessity. Mattox v. U. S., 156

land v. Insurance Co., 134 Pa. St. 590, 19 Atl. Rep. 796; U.S. 237, 15 Sup. Ct. Rep. 337. That case, however, e company's president, and be sholle

Insurance Co. v. Miller, 120 Pa. St. 504, 14 Atl. Rep. was put upon the ground that the witness had once int a committee from the managers as

380; Snowden v. Insurance Co., 122 Pa. St. 502, 16 Atl. been examined and cross-examined upon a former

Rep. 22; and McGonigle v. Insurance Co., 168 Pa. aise it, the committee was appointed, St. 1, 31 Atl. Rep.868, 875.

trial. We are not inclined to extend it to the case of

a dying declaration, where the defendant has no ope company wrote insured: "Our w

portunity by cross-examination to show that by reason ttee made you an award of

CRIMINAL LAW-DYING DECLARATIONS.— of mental or physical weakness, or actual hostil. his is now ready, and will be paid In Carver v. United States, 17 S. C. Rep.

ity felt towards him, the deceased may have been 228, the Supreme Court decided an interest

mistaken. Considering the friendly relations which henever you call for it. If this spell

had existed between the defendant and the deceased t satisfactory to you, you will com

ing question of dying declarations, holding for a number of years, their apparent attachment for n an agreement to an adjustment byd that contradictory statements by the deceased

each other, and the alcoholic frenzy under which deat the time of making a dying declaration are

fendant was apparently laboring at the time, the erested persons, as provided by the

shooting may possibly not have been with deliberate "

intent to take the life of the deceased, notwithstandtion. The court expressly holds that the thout anything being said as to a dels

ing the threats made by the defendant earlier in the general rule, requiring for the impeachment

evening. In nearly all the cases in wbich the questhe merits till after the action, Ines

tion has arisen, evidence of other statements by the arly six months after the fire, it is a free of a witness by proof of contradictory state- deceased inconsistent with his dying declarations has ments a foundation to be laid by asking him

been received. People v. Lawrence, 21 Cal. 368, whether he made such statements, does not

an opinion by Chief Justice Field, now of this court; extend to cases of dying declarations. The

State v. Blackburn, 80 N. C. 474; McPherson v. State, following is from the opinion of Mr. Justice

9 Yerg. 279; Hurd v. People, 25 Mich. 405; Battle v.

State, 74 Ga. 101; Felder v. State, 23 Tex. App. 447, 5
Brown:

S. W. Rep. 145; Moore v. State, 12 Ala. 764.
There was also error in refusing to permit the de-

Our attention has been called to but one case to fenilant to prove by certain witnesses that the de.

the contrary, viz: Wroe v. State, 20 Ohio St. 460, mise. The court says: ceased, Anna Maledon, made statements to them in

cited with apparent approval in Mattox Case. But we apparent contradiction to her dying declaration, and

think, as applied to dying declarations, it is contrary tending to show that defendant did not shoot her in.

to the weight of authority. tentionally. Whether these statements were admis

As these declarations are necessarily ex parte, we sible as dying declarations or not is immaterial, since

think the defendant is entitled to the benefit of any we think they were admissible as tending to impeach

advantage he may have lost by the want of an oppor. the declaration of the deceased, which had already

tunity for cross examination. Rex v. Ashton, 2 that a fire insurance company appointed as been admitted. A dying declaration by no means

Lewin, Crown Cas. 147.
Imports absolute verity. The history of criminal
trials is replete with instances where witnesses, even

RAILROAD COMPANY-FIRES—NEGLIGENCE prehension or weakness of mind, made declarations

-EVIDENCE.-In Patterson v. Chesapeake & ision in the policy requiring prool de la de tot nere inconsistent with the actual facts; and it Supreme Court of Appeals of Virginia,

0. R. Co., 26 S. E. Rep. 393, decided by the Co., 163 Pa. St. 184, 29 Atl. Rep. 747, na ballo

plaintiff having shown that a fire was set by refusal of an insurance company to papild pecified ground estops it from serta

defendant's locomotive, the court held that nd relieving it from liability, of which it belle

there is a presumption that defendant was

negligent, placing on it the burden of brought suit, in the belief that the only as that stated. Mr. Chief Justice Sterretti

proving that it had used the proper precauthe opinion, and adopting the languag all

tions for confining sparks and cinders, disap1 Justice Church, of the New York Ciert de

proving Bernard v. Railroad Co., 85 Va. 792, s, in the case of Briuk v. Insurance Coll

8 S. E. Rep. 785. The court says in part: said: "Every consideration of publie paligid ds that insurance companies should to

The defendant insists that the burden was not only al with their customers with entire baie

on the plaintiff to prove that the tire originated from fairness. They may refuse to pay wiibus

sparks or cinders thrown out by the engine, but that

n for the jury whetber a defense of los material conditions of the policy, erit,

the time of the fire, and known by ppany when its committee examinds perty, was not waived; the company jer to insured not being an offer d' w

Ce think, in this state of the testimons, it is r duty of the court below to submit the case vaiver to the jury. This is in scoordane eral of our recent decisions. In Fritz r. lag

154 Pa. St. 384, 26 Atl. Rep. 7, we held the

er to adjust a loss, and that, when an bil

made, it was received by the compats i ction, is sufficient evidence to submit to the the question whether the company bed me ished within 15 days. In McCormick t.be

vledge where the insured has incurred to

176

CENTRAL LAW JOURNAL.

No. 9

og being so and from being who mas being merely cumulative, and intended to show a

wilst moments, in ac- benefi iar such sparks or cinders were emitted by the engine

negligent habit. because of defects in its construction or condition,

The rule laid down by the authorities cited, that,

bode ting request. By reason party in and by reason of the fact that it was not equipped

the origin of the fire being fixed upon the railroad de elaimed to have suf- whether be with the best appliances for arresting sparks and precompany, it is presumptively chargeable with negli

1991 prestion. This state of company venting the emission of burning cinders. In support

gence, and must assume the burden of proving that it of tbis proposition the case of Bernard v. Railroad

ata dess of cases in otber tract or in :

had used the best precautions known for confining Co., 85 Va. 792, 8 S. E. Rep. 785, is cited and relied on.

An E. sparks or cinders, is a wise and just one. The law is It is true, as a general rule, that where no negligence is proved on the part of the railroad company or any liberal in holding that the railroad is exempt from

1-That this is a close of Actiua. - liability when, operated in a lawful manner, and in of its agents or employees, and negligence is the

29. iy tbe able opposition of stood that the exercise of reasonable care and skill, it burns the gravamen of the action, the law does not impute it. It lies on the party alleging it to prove it. It is, how. property of the citizen along its route. To hold that es and the frequent dissenting element of ever, equally true that where the subject matter of the plaintiff, in addition to proving that the railroad

cu i sides of the case. The confusion the allegation lies peculiarly within the knowledge of is justly chargeable with the origin of the fire, must

Iepi Texas, in 1880, and deal of unone of the parties, the party must prove it, whether also.prove affirmatively that its machinery was out of

brid with by only about a

on the pari it be of an affirmative or negative character. The order, would practically defeat a recovery in most law on tbis subject is well stated in 2 Shear. & R. cases. The statement of the law as it seems to be

D equal division of au. is an elei Neg. $ 676. It is there said: laid down in Bernard v. Railroad Co., 85 Va. 792, 88.

25 nero federal courts op- not true. E “The decided weight of authority and of reason is E. Rep. 785, is not in accord with the view herein ex

uge The United States an elenes in favor of holding that, the origin of the fire being pressed, and is, therefore, not approved. fixed upon the railroad company, it is presumptively

Las Ist yet passed upon it. not sustain chargeable with negligence, and must assume the

de Vissouri. Mississippi, suffering. burden of proving that it bad used all those precauMENTAL ANGUISH IN TELEGRAPH

na und Ohio, besides Wis. violable ru tions for confining sparks or cinders (as the case may

CASES.

Te Tith the federal au.

alope, it is be) which have been already mentioned as necessary. This is the common law of England, and the same

is Indiana, Kentucky, upon. Bit rule has been followed in New York, Maryland, North In an action against a telegraph company

la Sera Carolina, Aladama, settled, the Carolina, South Carolina, Tennessee, Illinois, Wisfor negligence in the transmission and deliv

La Together with some of proximale ! consin, Missouri, Nebraska, and Texas; and it is es. tablished by statute in Vermont, Illinois, Iowa, New

ery of a message, is mental suffering alone.

Feries, are atrayed against element of Jersey, Minnesota, Kansas, Mississippi, and Utah.

though resulting naturally and proximately

* sa le ao controrersy as to cause of 4. But it has been sometimes held that the plaint.

from the neglect, if unaccompanied by any iff is bound to prove affirmatively some precaution substantial, pecuniary loss or physical injury,

11. 30% damages for mental so

880: Tel.lu which the defendant ought to have taken, and that it

id for Cases for: So Relle v. did not take it. This ruling is contrary to the a proper element of damage, provided the

Rep. 148, 7 ay

1 1 # Am. Rep. 84: The G., Fed. Rep. }* plain principle that a party is not required to message was intended for the benefit of the

laty, 59 Tex. 563; stuart

(Iowa), 62 prove a fact which is necessarily much better suitor and the company had knowledge of the

Am. Rep. 03; G., Bulletin, 22. known to his adversary than to himself, since

BC. TIBOD, 69 Tex. 19787 Wis. 1.) the railroad company has unlimited opportunities nature and importance of its contents? This

Dak. 313, 14 for koowing the condition of its own engines, important question was recently answered in

; Tel. Co. v. Cooper, il Ga.763 171. while its prosecutor bas none at all, until he the negative by the Supreme Court of Wis

W. Rep. 58; Tel. Co. v. J. 407; Tel. comes into court. Accordingly such decisions have

2,311. St. Rep. 843, 10S. W.9 Soutb. Rafi been overruled by statute in Iowa and Kansas, leavconsin.' Being a new question in that State

,73 Tex. 492, 11 S. W. St. Rep. ing Pennsylvania and Ohio to stand alone. In every and with the single exception of Dakota, the

des, 15 Tex. 531, 6L. RA | Saunders case it is held that a presumption of negligence is first of its kind in the northwest, we may nat

No. v. Feegles, 75 Tex. 37, 148; Coupeli raised by evidence that engines are, in common prac

a Lage 1. Tel. Co., 73 Tex. 36, S. W. Rép. 84tice, so made as to retain their sparks, and that the

urally expect the added authority of so im

4 m. v. Moore, "6 Tex. 6), 18 | 54 Mo. App. particular engine in question did not. And if the portant a court to be of considerable weight

a bep. 949; Tel. Co. v. Kirk | Rep. 236, 27 particular engine from which the fire proceeded was in the future and a source of gratification to

St. Rep. 37, 13 S. W. Rep. | Tel. (0.66: 80 made, but it appears that, unless it was watched

11. 14. v. Richardson, 79 Tex. 619, 44 Fed. Rep. and kept in order, it would emit sparks, the inference

the telegraph company at least. But is the

4* v, Rosentreter, 80 Tes. | Tel. Co., il may fairly be drawn that the fire was caused by neg. decision well founded upon logic and justice?

Co. v. Jones, 81 Tex, 271, 57 Fed. Rp. ligence in its management. On the other hand, evi

The facts involved were substantially the fol

41... Lydou, 82 Tex. 364, 18 | Tel. Co., 69 ] dence that the engine which emitted the sparks had all the best appliances required by the rules pre. lowing: A telegram, reading, "Mother is

it Hocghton, Tex. 551, 15 Union Tel. (

TA $; Tel.Co.i. Nations, 8? West. I'nion viously stated, and was carefully handled, is sufficient dying. Come immediately,”

4,194,180. W. Rep. 70%; Potts | See also the re to put the burden of proof again upon the plaintiff to

brother to another; but, through the fault show negligence."

SW. Rep.804; Tel. Co. v. Co., 45 X. E. It is well settled that testimony is admissible on the of the telegraph company, was delayed in

W. Rep. 996; Tel. Co.. Court of Appe part of the plaintiff tending to show that the defend

delivery some five days, during which time ant's locomotive on occasions other than that for the mother died and was buried without the

M: Tel. Co. 5. Evans, 1 Tex. ed.), p. 2181): which the action is brought bad emitted sparks and communicated fire to the property along its track and

knowledge of the plaintiff. Plaintiff claimed

2.1.2. 4. Tel. 00. . Piner, 1 | 2 Shearm. & right of way, for the purpose of showing negligence that he would have gone to his mother's bed

I. Bep. 815; Wadsworth v. on the part of the defendant's employees, or defects

side had he received the telegram in time, in the construction of the machinery in question.

and that by reason of the negligence of the Railroad Co. v. Thomas (recently decided by this

Habv. Tel. CO.,193 Ind. 294, Red. on Sena

"hapron F. Tel.Co.,107X.C. | Neg. sec. 11, court), 24 S. E. Rep. 264. If proof of other fires company in delivering the message, he was

LDD. 163; West Colon Tel. Mo. App. N; establishes negligence on the part of the defendant,

1 Summerfield v. W. U.T. Co., 57 N. W. Rep. 978, surely proof that the railroad caused the fire for

L. Rep. 164; Chapman v. 87 Wis. 1. which the action was brought must do so, the former

2 Russell v. Tel. Co., 3 Dak. 315.

et i 04.7. Brown, 71 Tex. 723, 2 L.

was sent by one

heid om. St. Rep. So, 20 s. W.
177,85 Ter. 383, od Am. St. ) from mental

not even reco

lam. St. Bep. 864,8 S. W.

4 Wbo may of 209 3. C. 370, 9 L. R. A. Com. sec. 6

Elec., 8376 ani

*#. L. R. 23, 18 8. W. Rep. ' III. 248; Tel.

Ellis v. Tel.

OURNAL.

ng marely cumulative, and intended a
Tigeot habita
be rule laid down by the autborities
origia of the fire being fixed upon the
spany, it is presumptively chargeste rid
c'es, and must assume the burden of prior
| used the best precautions known tar
rks or cinders, is a wise and just one. Then
ral in holding that the railroad biferite
lity when, operated in a lawful
exercise of reasonable care and skill, i
perty of the citizen along its route. These
plaintiff, in addition to proving that this
uut v cbargeable with the origin of the

prove affirmatively that its machinery and
#r, would practically defeat a recorer
** The statement of the law as it can
| down in Bernard v. Railroad Co., 85231
Rep. 783, is not in accord with the vine
med, and is, therefore, not approved

NTAL ANGUISH IN TELERA

CASES.

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in an action against a telegraph is negligence in the transmissions of a message, is mental suffering : ugh resulting naturally and pas in the neglect, if unaccompanied Istantial, pecuniary loss or physical vroper element of damage, prorie

: age was intended for the benefit of Lor and the company had knowledge ure and importance of its contena 1 ortant question was recently answer:

negative by the Supreme Court sin.' Being a new question in that I with the single exception of Dakota t of its kind in the northwest, we II lly expect the added authority is tant a court to be of considerable to he future and a source of gratis!

telegraph company at least. Bitte ision well founded upon logic and je : facts involved were ing: A telegram, reading. Vi ng. Come immediately," was sent * ther to another; but, through this he telegraph company, was deste

prevented from doing so and from being who may sue, so long as the suitor is the
with his mother in her last moments, in ac- beneficiary of the telegram. If he is the
cordance with her dying request. By reason party injured he is a proper plaintiff,
öl such negligence, he claimed to have suf- whether he had made the contract with the
fered the damages in question. This state of company or not, and whether he sues op con-
facts is typical of this class of cases in other tract or in tort.4
States.

An Element of Damage not always a Cause A Close Question. That this is a close of Action.-At the outset it must be underquestion, is shown by the able opposition of stood that there is a difference between an learned judges and the frequent dissenting element of damage and a cause of action. A opinions on both sides of the case. The confusion of these terms has led to a good question first came up in Texas, in 1880, and deal of unsatisfactory and illogical reasoning has since been grappled with by only about a on the part of courts. Every cause of action dozen States, with an equal division of au- is an element of damage, but the reverse is thority, and the inferior federal courts op- not true. For instance, malice is considered posed to such damages. The United States an element of damage; but malice alone will Supreme Court has not yet passed upon it. not sustain an action. So say we of mental Dakota, Kansas, Missouri, Mississippi, suffering. It is a well established and inGeorgia, Florida, and Ohio, besides Wis- violable rule of law that, when standing consin, have sided with the federal alone, it is insufficient to ground an action thorities, while Texas, Indiana, Kentucky, upon. But in our opinion it is fully as well Tennessee, Iowa, North Carolina, Alabama, settled, that such injuries, if natural and with possibly Illinois, together with some of proximate to the wrong, are allowable as an the ablest text-writers, are arrayed against element of damage, whenever an independent them. There can be no controversy as to

cause of action exists. Whether or not this * Cases for and against damages for mental an. 880; Tel. Co. v. Henderson, 89 Ala, 510, 18 Am. St. guish in telegraph cases: Cases for: So Relle v. Rep. 148, 7 South. Rep. 419; Beasley v. Tel. Co., 39 Tel. Co., 55 Tex. 308, 40 Am. Rep. 805; The G.,

Fed. Rep. 181; Mentzer v. West. Union Tel. Co. C. & S: F. Tel. Co. v. Levy, 59 Tex. 563; Stuart (Iowa), 62 N. W. Rep. 1. See also 24 Weekly Law 1. Tel. Co., 66 Tex. 580, 59 Am. Rep. 623; G.,

Bulletin, 22. Cases against: Summerfield v. Tel. Co., C. & S. F. Ry. Co. v. Wilson, 69 Tex. 739, 7

87 Wis. 1, 57 N. W. Rep. 973; Russell v. Tel. Co., 3 8. W. Rep. 653; Tel. Co. v. Brown, 71 Tex. 723, 2 L. Dak. 315, 19 N. W. Rep. 408; Chapman 8. Tel. Co., 88 R. A. 766, 10 S. W. Rep. 323; Tel. Co. v. Cooper, 71

Ga. 763, 17 L. R. A. 430, 15 S. E. Rep. 901, 35 Cent. L.
Tex. 507, 1 L. R. A. 728, 9 S. W. Rep. 598; Tel. Co. v.
Broesche, 72 Tex. 654, 13 Am. St. Rep. 843, 10 S. W.

J. 407; Tel. Co. v. Rogers, 68 Miss. 748, 13 L. R. A. 859,

9 South. Rep. 823; West v. Tel. Co., 39 Kan. 93, 7 Am. Rep. 734; Tel. Co. y. Simpson, 73 Tex. 422, 11 s. W. Pep. 387; Tel. Co. v. Adams, 75 Tex. 531, 6 L. R. A.

St. Rep. 530, 17 Pac. Rep. 807; Int. 0. Tel. Co. v. 844 , 12 S. W. Rep.857; Tel. Co. v. Feegles, 75 Tex. 537,

Saunders, 32 Fla, 454, 21 L. R. A. 810, 14 South. Rep. 12 S. W. Rep. 860; Rowell v. Tel. Co., 75 Tex. 26,

148; Connell v. Tel. Co., 116 Mo. 34, 20 L. R. A. 172, 22 128. W. Rep. 534; Tel. Co. v. Moore, 76 Tex. 66, 18

S. W. Rep. 345; Newman v. Western Union Tel. Co., Am. St. Rep. 25, 12 S. W. Rep. 949; Tel. Co. v. Kirk.

54 Mo. App. 434; Kester v. Tel. Co., 8 Ohio, C. C. patrick, 76 Tex. 217, 18 Am. St. Rep. 37, 13 S. W. Rep.

Rep. 236, 55 Fed. Rep. 603; Morton v. West. Union *0; G., C. & S. F. Tel. Co. v. Richardson, 79 Tex. 619,

Tel. Co. (Ohio), 41 N. E. Rep. 689; Chase v. Tel. Co., 15 5. W. Rep. 689; Tel. Co. v. Rosentreter, 80 Tex.

44 Fed. Rep. 554, 10 L. R. A. 461 (Ga.), 36; Crawson v. 407, 16 S. W. Rep. 25; Tel. Co. v. Jones, 81 Tex. 271,

Tel. Co., 47 Fed. Rep. 544 (Ark.); Tel. Co. v. Wood, 16 8. W. Rep. 1006; Tel. Co. v. Lydon, 82 Tex. 364, 18

57 Fed. Rep. 471, 21 L. R. A. 706 (Tex.); Gahan v. S. W. Rep. 701; Tel. Co. v. Houghton, 82 Tex. 561, 15

Tel. Co., 59 Fed. Rep. 433 (Minn.); Butner v. West. L. R. A. 129, 17 S. W. Rep. 816; Tel. Co. v. Nations, 82

Union Tel. Co. (Okla.), 37 Pac. Rep. 1087; Francis v. Tex . 539, 27 Am. St. Rep. 914, 18 S. W. Rep. 709; Potts

West. Union Tel. Co. (Minn.), 59 N. W. Rep. 1078. \. Tel. Co..82 Tex. 545, 18 s. w. Rep. 604; Tel. Co. v.

See also the recent case of Mitchell v. Rochester Ry. Beringer, 84 Tex. 38, 19 s. W. Rep. 336; Tel. Co. v.

Co., 45 N. E. Rep. 354, 44 Cent. L. J. 89, wberein the Wisdom, 85 Tex. 261, 34 Am. St. Rep. 805, 20 S. W.

Court of Appeals of New York hold that damages are

not even recoverable for physical injuries resulting Rep. 826, 22 S. W. Rep. 961; Tel. Co. v. Evans, 1 Tex.

from mental sbock. See also 3 Sutb, on Damages (2d
ed.), p. 2180; 1 Sedg. on Damages (8th ed.), § 43-47;
2 Shearm. & Red. on Neg. (4th ed.), $ 756; Thomp. on

Elec., $ 378 and cases cited.
Rep. 574; Young v. Tel. Co., 107 N. C. 370, 9 L. R. A.

4 Who may Sue - Sender or Sendee: Gray, Tel. Com. sec. 65; Wharton on Neg. sec. 758; 2 Thomp, on

Neg. sec. 11, p. 847; 3 Suth. Dam. sec. 972; Shearm, &
L. R. A. 583, 24 N. E. Rep. 163; West. Union Tel.

Red. on Neg. sec. 560 (3d ed.); Markel v. Tel. Co., 19
Mo. App. 80; Wadsworth v. Tel. Cc., 86 Tenn. 695;
Ellis v. Tel. Co., 13 Allen, 227; Tel. Co. v. Dubois, 128
III. 218; Tel, Co. v. Hope, 11 Ill. App. 289; West v.

substantial.ro

very some five days, during which mother died and was buried with wledge of the plaintiff

. Plaintif .

he would have gone to his motherapy

Rep. 56; Tel. Co. v. Carter, 85 Tex. 580, 34 Am. St.
Civ

. App. 297, 21 S. W. Rep. 266; Tel. Co. v. Piner, 1
Tex. Civ. App. 301, 21 S. W. Rep. 315; Wadsworth v.
Tel. Co., 86 Tenn. 695, 6 Am. St, Rep. 864, 8 S. W.

B, 11 S. E. Rep. 1044; Thompson v. Tel. Co., 107 N.C. 49

, 12 9. E. Rep. 427; Reese v. Tel. Co., 123. Ind. 294, Co. v. Cline (Ind.), 35 N. E. Rep. 564; Chapman v. Tel.Co., 90 Ky. 265, 12 Ky. L. R. 263, 13 S. W. Rep.

had he received the telegrib that by reason of the negligentia pany in delivering the message, de

Jammerfield v. W. C. T. Co., 57.1.2

is. 1.
Jussell v. Tel. Co., 3 Dak. 315.

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