Central Law Journal.

ST. LOUIS, MO., APRIL 7, 1916.

WORKMEN'S COMPENSATION ACT AS APPLICABLE TO SUITS AGAINST VESSELS PLYING IN NAVIGABLE WATERS.

In 81 Cent. L. J., 236, there was considered the question whether remedy under a state workmen's compensation act applied to an injury suffered on a ship plying in navigable waters of the United States. We there considered the ruling in Walker, 215 N. Y. 529, 109 N. E. 604, that it did.

In Lindstrom v. Mutual S. S. Co., 156 N. W. 669, decided by Minnesota Supreme Court, this question is quite elaborately treated, the same conclusion as that arrived at in the Walker case being reached. See also Kennerson v. Thames Towboat Co. (Conn.), 94 Atl. 372; Stoll v. Pacific Coast S. S. Co., 205 Fed. (D. C.) 169. As contra see Schnede v. Zenith S. S. Co., 216 Fed. (D. C.) 566.

This question differs from that in Winfield v. N. Y., E. & H. R. R. Co., 216 N. Y. 284, 110 N. E. 614, 82 Cent. L. J. 43; Nelson v. I. C. R. Co., 155 N. W. (Iowa) 169, 82 Cent. L. J. 63; Winfield v. Erie R. Co., 96 Atl. (N. J.) 171, 82 Cent. L. J. 171, these cases holding that State Workmen's Compensation Acts were not superseded by Federal Employers' Liability Act, except in negligence cases, but not in so far as the State Acts provided for recovery where the master was not at fault. We expressed our dissent from this view.

In Steamboat Co. v. Chace, 16 Wall. 522, 534, 21 L. ed. 369, it was held that the saving clause in admiralty law allowed an aggrieved party (1) to proceed in admiralty if a maritime lien arises, (2) sue in per

sonam in an admiralty jurisdiction, (3) resort to his remedy at law in a state court, or (4) in a federal court if there are requisite parties to give jurisdiction.

In the Lindstrom case it was contended it was permitted to suitors to enforce common law remedies and this is according to the same rules of liability as were they proceeding in the admiralty jurisdiction vested in federal courts. This is conceded to be a federal question and the Minnesota court thinks it has been decided that rules of decision may be different in state and federal courts. Atlee v. Packet Co., 21 Wall 389, 395, 22 L. ed. 619. See also the Max Morris, 137 U. S. 1, 10, 34 I. ed. 586, 11 Sup. Ct. 29; Belden v. Chase, 150 U. S. 674, 691, 37 L. ed. 1218, 14 Sup. Ct. 264.

The fact, that if suit is in rem it only can be brought in a federal court and that if it is in personam there is an election to bring it in a state court, carries the strongest of implications that the rules of liability ought to be the same in whatsoever court the action is brought. Suppose one goes into a federal court because his action is in rem and therefore he must go there, surely a state law does not control as to liability. But giving a right in rem as auxiliary to a claim in personam should no more change. the rule of liability as to one suing in personam, than that one proceeding by attachment should have any more rights on the merits than if he sought no mesne process in his suit.

The cases to which we allude above may have language therein which upon their face give a basis for the deduction that the Minnesota case draws. As for example, it was held in the Atlee case that different courts have their own rules for determining questions of contributory negligence. It is greatly extending such a principle to say that a shipowner who would not be held at all in a federal court according to federal law, because in no wise at fault, yet might

be held on a trial in a state court irrespective of the question of fault.

Indeed, it seems to us it is going further than the cases above cited as to interstate carriers went, in applying the Workmen's Compensation Act, as this case seems to engraft upon federal law the provisions of a state statute.

The admiralty act permits the state courts to judge of liability in maritime law only when the action is in personam; the Federal Employers' Liability Act does not provide for an action in rem at all, but merely gives jurisdiction to state courts to entertain cases thereunder. Does not the admiralty act more certainly point to the fact that the permissive jurisdiction must enforce claims according to a federal rule and no other?

But we see no very substantial distinction in this case and those we have referred to where recovery under Workmen's Compensation Acts was sustained against an interstate carrier. In both cases Congress took over from the states the rule of liability. As to vessels plying on navigable streams, the rule was to be the same in all courts, we think, and thus also do we think as to interstate carriers. But it seems more manifest to us that this is so in maritime cases, because the admiralty act said what the rule of recovery should be, where its jurisdiction was exclusive, and it would be a strange thing for a law to provide that if one should sue in a certain court the rule of law should be different than where he sues in another court.

NOTES OF IMPORTANT DECISIONS.

CRIMINAL LAW-STATEMENT BY VICTIM OF HOMICIDE AS RES GESTAE.-In State v. McLaughlin, 70 So. 925, decided by Supreme Court of Louisiana, there was question of admissibility of evidence of a statement made by the victim of an alleged homi

cide, where it was not shown how long a time lapses after an alleged attack was made.

The facts show, that on the trial of the husband of deceased for her murder it was proven that the two were living apart; that the wife and a woman living with her in another room of a house went to their home at about one o'clock at night; that the other woman, at about half-past two, was awakened by the deceased coming into her room and calling to her and telling her to "scream;" that deceased was covered with blood which was spurting from her neck; that she replied to questioning by saying: "George-George," "George did it." The woman said: "What George?" and decedent answered: "George McLaughlin-he cut my throat."

The court, quoting extensively from 2 Wigmore on Evidence, and the criticism there made of the declaration of Lord Cockburn that statements to be res gestae should be made "at the time the act was being done,” and also by Wharton that: "If we are to receive declarations made 10 minutes after a transaction, we must receive declarations made 10 years afterwards," concludes that: "After all, the question is not whether the exclamation or statement is made contemporaneously with the act, or 'immediately' before or after it (which is much the same thing, since 'immediately' means 'without interval of time'), but, whether it was a spontaneous or unreasoned expression superinduced by a state of mind created by the act and continued from the moment of such creation to that of the utterance of the expression."

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A dissent by one member of the court says: "When we attempt to extend the exception to the rule excluding hearsay evidence, so as to admit proof of declarations made soon after the transaction in question, rule becomes so stretched and flexible that it seems of little or no purpose. The rule that evidence of declarations forming a part of the res gestae is not to be excluded as hearsay evidence is sound in principle. But in its application to declarations made after the completion of the transaction in question, the determination of what declarations are and what are not part of the res gestae is so uncertain as to be almost if not quite arbitrary."

But the exception bringing in declarations as res gestae recognizes, that they are made in a spontaneous way and without any deliberation. It depends upon something of which the court takes judicial notice. If there is the briefest interval between an act and a declaration, the court may say it was insufficient to presume deliberation. If, for example, one is

struck so as to render him unconscious for hours, reasonable proof of unconsciousness ought to preclude the inference of deliberation, so as to make a declaration made immediately after return to consciousness admissible. And so, if there is great agitation of mind, not amounting to unconsciousness, but presumptively absorbing the mind's attention, that time ought not necessarily to count as an interval, especially if there be no person to whom a declaration might be made.

The hearsay rule has been called an English made rule and Mr. Chamberlayne in his work on Modern Law of Evidence argues that it is hedged about with so very many exceptions that another, such as is declared by the Louisiana court, cannot greatly weigh. It seems to us to have been very wisely extended in such a case as was before the court.

DIVORCE-ACTS

COMMITTED DURING SEPARATION AS GROUNDS FOR.-In Rose v. Rose, 156 N. W. 664, decided by Minnesota Supreme Court, the ground for divorce was that defendant caused, while the couple were and had been living apart for several years, a gang of men to assault and severely beat up her husband, this assault and beating occurring in another state, where both parties then lived. Afterwards plaintiff moved to Minnesota, but where defendant continued to live does not appear.

It was urged that the acts did not constitute ground for divorce in the State of California, where committed, but no stress is laid upon the fact that they took place some years after the parties had ceased to live together.

The court ruled, that, there being jurisdiction of the marriage status, wheresoever acts against that status are committed, their significance is to be considered under the law of that jurisdiction. Let us suppose this to be true, and in thus conceding according to the weight of authority, we must admit the existence of a curious principle of law, that is to say, acts that had no effect on the marriage relation at the time they were committed come to have an effect by the voluntary removal of one of the parties to another jurisdiction. Laws are said not to operate retrospectively, but do they not in such a case as this? The laws of Minnesota had their beginning so far as the husband in the above case is concerned when he took up his domicile there. For the first time they affected his status of marriage. But this sort of ruling makes them go back of that time.

But we started out to speak of a matter that the court does not discuss at all, that is to say, whether the acts of cruel treatment not done by the wife directly, but caused by her, as alleged, to be done by others, and during a time when the couple were living apart, were really offenses against the marriage relation.

It is more easy to understand that an act, say, like adultery, could be thus considered than that an assault and battery could be. If a husband and wife are living apart and one beats or causes the other to be beaten, what, practically, has the marriage relation-a mere incidental circumstance-to do with the matter? It may cause the beaten party suffering or humiliation, but this interferes in no different way with his status than if he or she were unmarried. It does not even afford a presumption, that, if he were living with his wife, or a wife with a husband, that the beating would take place at all. Does not the one who voluntarily remains separated, estop himself from injecting the marriage relation into the affair at all?

These things are to be looked at in a prac tical as well as a legal way, and practically a decree for divorce does not protect the beaten party against a recurrence of the cruel treatment. But, if they are living together, such a decree is awarded to protect an innocent party, and is supposed to have this very effect, or it could not be justified. Courts do not award decrees merely to give one a right to remarry. They do not play with the marriage relation in any such way.

STREET RAILWAYS MEASURE OF DAMAGES WHERE PASSENGER IS ROBBED. -In Bepp v. Indianapolis C. & S. Traction Co., 111 N. E. 614, there was appeal from the sustaining of a demurrer to a petition for recovery by a passenger on a street car for money taken from him by robbery in the presence of the conductor, the money taken amounting to $290.

The court refers to the rule laid down in 6 Cyc. 661, which speaks of a carrier's duty as to personal effects retained in a passenger's possession, being to exercise reasonable care to protect them from loss or injury, but saying this rule does not extend to large sums of money or other property of exceptional value retained by the passenger without the knowledge of the carrier. It declares this statement is to be qualified by making the carrier liable for a reasonable amount of personal effects, including a reasonable amount of money for traveling and other incidental expense, jewelry, watches, clothing and such other articles for

personal convenience, pleasure and comfort as are reasonably suitable to the passenger's station in life, the journey he is taking and possible accidents, sickness and sojournings on the way, for which a reasonably prudent man would provide.

There is no distinction as to street car passengers from others, and the court in reversing the lower court, said it thinks that there are "sound reasons for denying in the case at bar appellant's contention that a recovery in full for his loss of property may be predicated on the failure of appellee's conductor to protect him from personal violence."

If the position taken by the court in its preliminary argumentation is correct, the judgment ought to have been affirmed because on a five cent fare to ride to one's home or downtown, there ought not to be any question of expenses for a journey and very little need for money for contingencies. The judgment sustaining the demurrer ought to have been affirmed, because of the maxim de minimis non curat lex. Had jewelry or an overcoat have been taken the question would be different, and besides these articles might be supposed to be in full view of the carrier.

ducted through collectors and through the mails?

Second-Assuming that the answer to the question is in the negative, is it unprofessional or censurable or champertous for the attorney conducting said agency, to recommend to his clients, friends of his, attorneys, who would institute actions for the recovery of claims in the event said claims cannot be collected by him through his mercantile agency:

(a) If the attorney conducting the mercantile agency should be compensated for his recommendations, whether by a division of the fees or be compensated in some other form and not out of the fees, it being clearly understood that the attorneys who institute actions are to be paid, not by the agency, but by the clients?

(b) If there be no division of fees between them, nor any other compensation given for the recommendation of the actions to be instituted?

Third-Is it, in the opinion of your Committee, champertous, for an attorney personally to engage solicitors to solicit for collections, claims upon which suit is to be instituted by the attorney, where the solicitor is not paid a part of the fees received by the attor ney, but is paid a weekly salary for general services rendered to the attorney, inclusive of services as a solicitor, and where said salary is paid to the solicitor, irrespective of whether he obtains any claims for the attorney upon which suit is to be instituted or not?

ANSWER No. 81.

In the opinion of the Committee, it is improper for a lawyer to engage in professional employment under an assumed name; the making of collections by a lawyer is professional employment; and the employment of solicitors by a lawyer to procure claims for collection, whether with or without litigation, is improper, regardless of the method of compensating the solicitors; if the objectionable features of solicitation and anonymity be removed, it is not improper for a lawyer to undertake the making of collections, with or without litigation, or to conduct a mercantile agency or to recommend another lawyer for employment by his clients; but all division of compensation between lawyers should be based upon the sharing of professional responsibility or service, and a division of fees merely because of the recommendation of another is not proper. (The Committee directs attention to its previous Answers to Questions No. 42, 47 and 98, and to Canons 27 and 28 of the American Bar Association.)

RIGHTS OF LIFE TENANT AND REMAINDERMAN IN DIVIDENDSTHE ENGLISH RULE.

In a recent editorial we referred to the English rule on this subject and then remarked that, according to it, "the interests life tenants or remaindermen might have in a trust fund would not seem to depend so much on the intent of a trustor as upon the discretion of directors of a corporation." We then also discussed the three lines of opinion prevailing in the American courts on the matter. We now propose to examine more fully the English rule as developed in comparatively recent decisions by the courts of that country; and to give a brief resume of the principles on which accounting as between capital and income should-according to these decisions-be made, in respect of the earnings of invested funds. To begin with, no stereotyped definition of the terms capital and income can be given, for, as the rules set out below themselves sufficiently show they are variously intercepted, according to the nature of the business and the views of the persons interested. Thus, while a company may be prevented from dissipating its capital to the injury of creditors, there is no restraint on the shareholders to observe strict accounting principles with regard to, say, a "wasting" asset. If the requisite majority of the shareholders declare the gross profits as dividend, a conscientious objector who may wish part of them put to capital can only attain his wish by persuading the rest of the shareholders to adopt his policy. "There is nothing in the Companies Acts," said Lord Justice Lindley in Lee (1889) 41 CH. D. 1, "to show what is to go to capital account, or what is to go to revenue account. We know perfectly well that business men often. differ in opinion about such things. Such matters are left to the shareholders. They may or may not have a sinking fund or a deterioration fund, and the articles of association may or may not contain regulations on these matters. It they do the reg

ulations must be observed; if they do not, the shareholders can do as they like, so long as they do not misapply their capital and cheat their creditors."

This contractual force of a company's regulations also materially helps to settle whether receipts from it are to be regarded. as capital or income. When a company has power to apportion its profits by distributing so much as income or dividend. and adding so much to its capital, everyone becoming a member of the company "either originally or by purchase of shares" is bound by his contract to accept as income or dividend so much as the company declares to fall under that denomination. That guiding principle was laid down, and will be found explained at length, in Lord Hatherley's judgment In Re Barton's Trust (1868) 5 Eq. 244. Illustrations of the rule are frequent among the decided cases. Thus, even where a company declaring a bonus has power to add to its capital and pays a bonus out of accumulated profits, such a bonus is to be regarded as income even though the fund from which it has been paid may have been used as floating capital, if the fund has not been formally added to capital. On the other hand, where the company has not power to add to its capital, and a bonus is paid out of a fund formed out of undivided profits and applied to capital purposes the bonus is to be treated as capital. The distinction between the two cases is to be found in the inference to be drawn as to the intention of the company. In the first case, the absence of any reference to the company's power of adding to capital raised a presumption that no addition to it was. intended; whereas, in the latter instance, the application to capital having in fact taken place, that was, in the absence of express powers, deemed equivalent to an indication of the company's intention to thenceforth treat that portion of its accumulated profits as capital.

The results of the foregoing cases may be comprehended in the convenient general statement, that everything is divisible