Lapas attēli
PDF
ePub

was given on false assurance that payee had check for maker.-Phillips v. Starr, Ga., 88 S. E. 195.

20. Breach of Marriage Promise-Excuse for Non-Performance.-To repudiate marriage contract on ground that consummation will endanger life and health of party fatally sick requires reasonable certainty of such result; possible contingency not being enough.-In re Olaneld's Estate, Iowa, 156 N. W. 977.

21. Validity of Promise.-While no action can be maintained on promise of marriage made while the promisor was yet married to another, evidence of the acts, conversations, and conduct of the parties after defendant promised to marry plaintiff, but before he secured his divorce, is admissible in an action on a subsequent promise.-Morgan v. Muench, Iowa, 156 N. W. 819.

22. Brokers-Scope of Authority.-Ordinarily a real estate agent has merely authority to find a purchaser ready, able, and willing to buy on the owner's terms, or such as are acceptable to him, and he has no authority to sell, except by inference from unequivocal expression to such effect.-Dodd v. Groos, Iowa, 156 N. W. 845.

23. Carriers of Goods-Bill of Lading.-Commission merchants, receiving and selling hogs shipped on straight bill of lading without notice of assignment of the bill of lading, held not liable in trover to assignee.-C. E. White & Co. v. Century Savings Bank of Des Moines, lowa, U. S. C. C. A., 229 Fed. 975.

24. Delivery.-Proof of delivery to the carrier of baggage carried for nothing by it on a different train from the passenger's and of the carrier's failure to deliver, is evidence sufficient to take the case to the jury and support a verdict, though the carrier is not liable unless the jury finds that it did not exercise the care of an ordinary person of prudence under the circumstances.-Perry v. Seaboard Air Line R. Co., N. C., 88 S. E. 156.

25. Carriers of Passengers-Duty to Passenger. Carrier, which did not know that insane passenger jumping or falling from window was seriously hurt or injured, which allowed his relative to leave train to go back to his assistance, and which could not have prevented passenger's death or relieved his suffering by going back to take him up, was under no duty to do so.-Boyd v. Alabama & V. Ry. Co., Miss., 71 So. 164.

26. Stations.-Where a railroad company furnished a safe walk to a shed for passengers at a flag station, it is not liable for defects in the way leading to a signal tower, not designed for the accommodation of passengers.-Mitchell v. Southern Ry. Co., Va., 88 S. E. 56. 27. Chattel Mortgages Description. Description of cattle covered by a chattel mortgage as "147 head of cattle," held too general and to invalidate the mortgages.-State v. Hurt,, Mo., 183 S. W. 333.

[ocr errors]

28. Emancipation of Minor.-One who had mortgaged a crop to be raised by himself or family could not, as against the mortgagee, emancipate his minor son, at the same time retaining him in the family, and rent to him part of the premises, so as to give the son a title superior to that of the mortgagee to crop raised by the son.-Hughes & Tidwell Supply Co. v. Bussey, Ala. App., 70 So. 997.

29. Collision-Damages.-Where a tug and her tow were jointly in fault for a collision in which the tow was injured, the tug is liable for one-half the damages sustained by the tow. The Teaser, U. S. D. C., 229 Fed. 476.

30. Evidence.-In the absence of evidence that it was customary, an anchored steamship cannot be charged with fault for a collision because she did not keep up steam, so as to be prepared to move instantly.-The Charles Hubbard, U. S. C. C. A., 229 Fed. 352.

[blocks in formation]

32. Commerce-Employe.—A switchman is employed by defendant company in interstate commerce, within the federal Employers' Liability Act, though at the time making up an interstate train belonging to another company using defendant's yards.-Ruppell v. New York Cent. R. Co., N. Y. Sup. Ct., 157; N. Y. S. 1095.

33. Repairing Instrumentalities.-The repairing of an interstate car, engine, or tender essential to its interstate progress is as much interstate commerce as its subsequent progress. -Bolch v. Chicago, M. & St. P. Ry. Co., Was., 1055 Pac. 422.

34.- -Safety Appliances.-When cars or locomotives which are required to be equipped with safety appliances under the Federal Safety Appliance Act are used upon or pass over a railroad which is used for interstate commerce, the federal act applies and is supreme.-State v. Beaumont & G. N R. R., Tex. Civ. App., 183 S. W. 120.

35. Common Carriers-Jitney Busses..-Jitney busses are common carriers which may be regulated and controlled.-Huston v. City of Des Moines, Iowa, 156 N. W. 883.

36. Contracts-Guaranty.-The mere use of the word "guarantee" in an agreement does not change the plain character of the agreement.— Simpson V. Van Lanningham, Mo., 183 S. W. 324.

[blocks in formation]

44. occupied a separate room in the same house with his wife during the pendency of his divorce action will not preclude a divorce on the theory that he had led her assume that the action would not be prosecuted.-Faulkner v. Faulkner, Wash., 155 Pac. 404.

that

45. False Representation.-The fact the marriage was induced by false representations of pregnancy and threats of prosecution and violence is not ground for divorce.-Bryant v. Bryant, N. C., 88 S. E. 147.

46. Drains Special Benefits.-Special benefits to the property to be taxed from the basis

of the right to impose the cost of drainage upon such property, and there can be no imposition of a tax in excess of the value of benefits. Oliver v. Whittaker, Ark., 183 S. W. 201. 47. Easements-Continuing.-Where a deed gave grantee the privilege of putting windows in the north side of each dwelling house which may be built on the premises, the lot being approximately 20 by 29 feet, the easement isted for each successive dwelling house built on the premises.-Kesseler v. Bowditch, Mass., 111 N. E. 887.

ex

48. Ejectment-Encroachment.-In an action in ejectment and to recover damages for an encroachment, even if the evidence as to the fence between the parties was insufficient to locate the boundary line as contended for by defendants, the mere occupancy of the disputed strip of land by defendants was a species of title, prevailing over plaintiff's entire lack of title.-Perich v. Maurer, Cal. App., 155 Pac. 471.

49. Elections-Ballot.-Where voter made an X in dark space at left of open white space above party designation, the justices being evenly divided in opinion, the ballot will not be counted.-Howard v. Harrington, Me., 96 Atl. 769.

50. Election of Remedies-Waiver.-Where the assignee of a mortgage providing that failure to pay interest or taxes should mature the debt sued after default, asking foreclosure for the amount of the note, with interest, or with interest and taxes paid by it, the fact that it commenced its suit originally to recover an unpaid interest installment, and afterwards amended to add taxes subsequently paid by it, was not election to rely upon a money judgment, waiving foreclosure.-Center Land & Investment Co. v. Swigart, Iowa, 156 N. W. 701. 51.

an

Electricity-Injunction.-Where, in suits to enjoin the erection and maintenance of an electric transmission line, it appeared that the defendant company was duly authorized to construct such line and it did not appear that it had refused to furnish electricity to applicants within the borough, held that the bills should be dismissed though defendant had agreed with the borough not to furnish electric current within its limits.-Curry v. Harmony Electric Co., Pa., 96 Atl., 822.

Damages

32. Eminent Domain-Damages. for the taking of property for the construction of a spur switch cannot include loss of rentals to abutting property, where the evidence does not show whether general business depression or the construction work decreased rental value. Kurtz v. Southern Pac. Co., Ore., 155 Pac. 367.

53. -Valuation.-The value of lots fronting upon a public street can have no conclusive bearing upon the value of lots having no such frontage, or which are the rear portions of plots whose frontage untaken leaves ample depth for lot development.-In re Public Park at Coney Island in City of New York, N. Y. Sup. Ct., 157 N. Y. S. 1015.

54. Evidence Fraud.-Where purchasers of automobile truck were deceived into believing it was new when it was secondhand, the fact that the contract of sale contained a written guaranty only of workmanship and materials would not, under the parol evidence rule, preclude them from recovering for the fraud.Avery Co. of Texas v. Staples Mercantile Co., Tex. Civ. App., 183 S. W. 43.

55. Executor and Administrators-Gift. Where the property of deceased remaining in his possession was more than sufficient to provide for existing debts, gifts to his wife would be sustained against creditors.-Dixon v. Dixon, Md., 96 Atl. 1027.

56. Factors Special Property. One who takes charge of an animal for sale on commission has such a special property therein as that he may sue a railroad for the killing of the animal, where before suit he paid the owner its value.-Smith v. Maine Cent. R. Co., Me., 96 Atl. 778.

57. False Imprisonment-Respondeat Superior. Where a detective of a railroad company procured arrest of plaintiff, an employe, on a charge of larceny, the railroad company was lia

ble for all damages resulting; the arrest being unlawful, because without a warrant, and the detective acting within the scope of his authority. Missouri, K. & T. Ry. Co. of Texas v. Thompson, Tex. Civ. App., 183 S. W. 8.

58. Fixtures Defined. - Where a mining lease authorized the lessee to remove, within a reasonable time after termination of the lease, property placed on the demised premises, such property, though affixed to the soil, did not become a fixture.-Cowgill v. Little Persimmon Mining Co., Mo. App., 183 S. W. 346.

59. Frauds, Statute of-Original Promise.Where defendant himself purchased goods, plaintiff refusing to sell to a corporation of which defendant was principal stockholder, defendant's promise to pay for goods, though he delivered them to the corporation, is not within the statute of frauds.-Kanter v. M. Hofheimer & Co., Va., 88 S. E. 60.

60. Gas-Safe Premises.-The duty of a gas company to keep premises safe during repair work continues after the work ceases until the premises are restored to their former condition. -City Gas Co. of Norfolk v. Lawrence, Va., 88 S. E. 73.

[blocks in formation]

63. Highways Discontinuance. When a highway is laid out it cannot be discontinued or put to another use, except by some public and notorious act of a duly authorized public board or officer, and such change in the use cannot be left indefinite surmise.-Eklon v. City of Chelsea, Mass., 111 N. E. 866.

64.- Prescription.-While title to a road may be acquired by the public by prescription, the right rests on usage, so the public acquires title only to land used for road purposes for the prescriptive period.-Board of Sup'rs of Prince William County v. Manuel, Va., $8 S. E.

54.

65. Homestead-Mortgage.-A wife is entitled to have mortgaged property outside the homestead applied first to the mortgage covering the homestead as against a mortgage not valid as to it.-Hunt v. Davis, Vt., 96 Atl. 814.

66. Husband and Wife-Alienation of Affections. A mother sued by her son's wife for alienation of his affections, though denying giving advice, is entitled to the presumption that advice given by her to him was in good faith, SO that plaintiff has the burden of proving malice. Knapp v. Knapp, Mo., 183 S. W. 576. Where a

67. Indemnity-Recovery Over. property owner maintains a coalhole, in the sidewalk, and he instructed one delivering coal to replace the cover, failure of the latter to do so renders him liable to the property owner for the amount recovered from the owner by one injured thereby.-Young Men's Christian Ass'n v. Jasse, Tex. Civ. App., 183 S. W. 867.

68. Insurance-Burden of Proof.-Where Insurer admits original debt, it has burden of establishing that the debt was paid or that part was accepted with understanding that it was in full payment.-American Workmen v. James, Ala. App., 70 So. 976.

69.- -Proof of Loss.-Suit by insured on a fire insurance policy within 60 days after he furnished an additional proof of loss to the insurer was prematurely brought; the policy providing that the sum for which the insurer was liable should be payable within 60 days after satisfactory proof of loss. St. Paul Fire & Marine Ins. Co. v. Womack, Ark., 183 S. W. 203.

70. Proof of Loss.-That the insurer sent an adjuster to view the loss, and insured was informed by the agent that the loss would be adjusted, does not excuse insured's failure to furnish proofs of loss which by the policy was

made a condition precedent to recovery.-Kuck v. Citizens' Ins. Co. of Missouri, Wash., 155 Pac. 406.

71.- -Waiver.-A clause prohibiting waiver of any condition of the policy unless in writing, signed by an officer of the company, held not to refer to conduct of the company's general counsel, who by promise of settlement induced claimant to defer suit until expiration of the time limit prescribed by the_policy.-Northwestern Nat. Life Ins. Co. v. Ward, Okla., 155 Pac. 524.

Where one

72. Joint Adventures Fraud. person represents to another with whom he is in a confidential relation that he has a contract entitling him to purchase land at a certain price, and agrees that the other may have a half interest in the land by paying one-half of such price, his misstatement of the price constitutes fraud, entitling the other to rescind their agreement.-Garrison v. Bowman, Tex. Civ. App., 183 S. W. 70.

73. Landlord and Tenant-Lease.-The lessor of an apartment is not required to inspect or repair a dumbwaiter, used exclusively by the tenant, without a provision in the lease for repairs.-Green v. Hammond, Mass., 111 N. E.

875.

74.- Ratification.-Where a landlord allowed his tenant to dispose of cotton raised on the demised premises on condition that his landlord's lien was discharged, the landlord did not ratify the purchaser's refusal to satisfy the lien by cashing a check for the rent only given the tenant by the purchaser.-Casewell v. Lensing & Bennet, Tex. Civ. App., 183 S. W. 75.

75.-Repairs.-Where a roof and drainpipe are in good repair when the building is leased, it is the duty of the landlord so to maintain them during the tenancy, for failure to perform which he is liable.-Hilden v. Naylor, Mass., 111 N. E. 848.

[blocks in formation]

the

77. Licenses Special Business. While right of a person to drive a team or vehicle on a traveled street or haul by ordinary means his own goods thereon is common to all citizens, when he engages in the transportation of passengers or freight for hire, he is pursuing a special business, and the municipality may require the payment of a license fee for such use. -Kurtz v. Southern Pac. Co., Ore., 155 Pac. 367.

78. Limitations of Actions-Counterclaim.Where interposition of a counterclaim by way of defense, arising out of transaction in suit, was allowed on appeal to the superior court, though not urged in justice court, question of limitations must be determined as of date of inception of action.-Norfolk & S. R. R. v. Dill, N. C., 88 S. E. 144.

79. Livery Stable and Garage Keepers-Lien. -Plaintiff was not entitled to possession of an automobile against defendant's claim of a lien for storage, without proof of prior payment or tender and refusal of the property charges. or such other conduct of defendant as estopped him to claim a lien, or that plaintiff had made not sufficient tender.-Doody v. Collins, Mass., 111 N. E. 897.

80. Malicious Prosecution-Advice of Counsel.-In post office foreman's action against the postmaster and an inspector for malicious prosecution, that defendants laid before the United States district attorney all the material facts in their possession, and that the prosecution was instituted upon the attorney's advice given in good faith, was a complete defense.Price v. Morris, Ark., 183 S. W. 180.

[blocks in formation]

82.- Res Judicata.-Where the defendant appealed from a judgment and levy upon his crops, a petition for a writ of mandamus brought to compel the constable making the levy to set off a homestead in the crops was denied, as mandamus will not lie where there is an appeal pending involving the same question.-White v. Barbery, S. C. 88 S. E. 132.

83. Master and Servant-Assumption of Risk. -That a switchman suing under federal Employers' Liability Act rode with his feet in the stirrup of a flat car bending over and holding to a cleat on the floor does not show assumption of risk of defective appliances, but raises a question of contributory negligence.-Bolch v. Chicago, M. & St. P. Ry. Co., Wash,, 155 Pac. 422.

84. Contract of Employment.-An agreement to pay plaintiff a fair share of the employer's profits if he would continue at work until the 1st of January, is so vague as to furnish no basis for an action for damages where the employer breached his agreement by discharging plaintiff before that time.-Varney v. Ditmars, N. Y., 111 N. E. 822, 217 N. Y. 223.

85. Contributory Negligence.-An employe on a train who failed to perform his duty of placing signals upon the track when his train stopped, and was killed by a rear-end collision, was guilty of contributory negligence.-Hadley v. Union Pac. R. Co., Neb., 156 N. W. 765.

86. Fellow Servant.-Where plaintiff's fellow servant, who rang the bell to notify the engineer that they desired the elevator to descend, failed to give the proper signal for a loaded cage, and plaintiff was injured by the falling of the cage, there can be no recovery, the negligence being that of a fellow servant. -Wing v. L. A. Bradstreet & Son Co., Me., 96 Atl. 782.

87.- -Minor.-That deceased employe was only 15 years and 7 months old is not ground for recovery for causing his death in a mine accident.-Virginia Iron, Coal & Coke Co. V. Hughes' Adm'r, Va., 88 S. E. 88.

88. Remedial Legislation.-The federal Employers' Liability Act, which its history shows was remedial, should be liberally construed to give effect to its purpose, though in derogation of the common law.-Bolch v. Chicago, M. & St. P. Ry. Co., Wash., 155 Pac. 422.

89. Mortgages-Foreclosure. A mortgagee, whose mortgage gave him power to sell upon nonpayment of taxes, could foreclose when there were past-due taxes unpaid, on which interest was accumulating, while the rents received by him were less than the taxes.-Taylor v. Weingartner, Mass., 111 N. E. 909.

90. Municipal Corporations-City Blocks. Where two adjoining city blocks were separately numbered and platted as separate blocks, the city, in determining the territory assessable to pay the cost of a street improvement, could not consider them as one block, though they were not separated by a street.Flanagan v. City of Tulsa, Okla., 155 Pac. 542.

91. -Governmental Work.-A city was liable for death of the motorman of a street car which, on account of the negligence of the driver of a wagon used in street grading work, collided with the wagon, the city work not being governmental.-Jones' Adm'r v. City of Richmond, Va., 88 S. E. 82.

92.- -Municipal Warrants.-Municipal warrants possess none of the qualities of commercial paper except capacity of being transferred by delivery or assignment.-Logan County Bank v. Farmers' Nat. Bank of Oklahoma City, Okla., 155 Pac. 561.

93. -Negligence.-Where defendant's motor truck was stopped in front of plaintiff's premises, and the driver, while his helper was making a delivery, went to the rear of the car, defendant was not liable for injuries caused by the starting of the truck by the willful wrong of boys.-Frashella v. Taylor, N. Y. Sup. Ct., 157 N. Y. S. 881.

94. Navigable Waters-Erosions and Accretions. Where plaintiff's land was not entirely eroded by shift of a stream bed, although the major portion was thereby shifted to another state, he owned his original land and all ac

cretions thereto when a later shift restored the eroded land and added to it.-Maw v. Bruneau, S. D., 156 N. W. 792.

95. Negligence-Invitee.-The duty of one who invites another to come on his premises to use ordinary care to make the premises reasonably safe includes the duty to have the railing of a balcony in a reasonably safe condition. Sefler v. Vanderbeck & Sons, N. J., 96 Atl. 1009.

96. Negligence per se. The facts which will excuse the technical violation of a statute or ordinance which would otherwise constitute negligence per se must result from causes or things beyond the control of the violator.Conder v. Griffith, Ind. App., 111 N. E. 816. 97. Newspapers Libel and Slander.-The general manager of an unincorporated news association held not the principal in the business, and not liable for libelous articles published and communicated by a reporter employed by the association.-Waldheimer v. Hardenbergh, N. Y., 111 N. E. 826, 217 N. Y. 264.

98. Nuisance Injunction. — That plaintiff's apartment house and dwelling were in a district devoted to commercial enterprises, in which the use of spur switches was essential to successful operation, does not affect his right to enjoin the nuisance of constructing railway tracks in the street in front of his property.-Kurtz v. Southern Pac. Co., Ore., 155 Pac. 367.

[blocks in formation]

100. Partnership-Test of.-Merely to share profits and bear losses does not always determine the question of partnership.-Morgan v. Child, Cole & Co., Utah, 155 Pac. 451.

101. Party Walls-Easement.-A use for more than 21 years of a party wall located on the land of an adjoining owner held presumably a license which ripened into an easement restricted to the buildings existing when the easement was created.-Brown & Hamilton Co. v. Johnson, Pa., 96 Atl. 823.

102. Principal and Agent-False Representations. An administrator selling his decedent's goods through an agent was liable for the acts of the agent done within the scope of his authority, including false representations made to the buyers as to the condition and kind of the goods.-Harlow v. Perry, Me., 96 Atl. 775.

103. Implied Power.-An agent sent to introduce an unproved automobile in a community has implied power to warrant that it is suitable for the purpose intended.-International Harvester Co. v. Lawyer, Okla., 155 Pac. 617.

108.-- -Warranty.-A statement of the seller that the automobile could be driven over the roads in a certain vicinity satisfactorily held a warranty, and not the expression of a mere opinion, where the buyer knew nothing of the capacity of the automobile and the seller was an expert in handling automobiles.-International Harvester Co. v. Lawyer, Okla., 155 Pac. 617.

109. Specific Performance-Impossibility of Performance.-Specific performance cannot be adjudged where defendant had conveyed the property to one who is free from equities.Beatty v. Wintrode Land Co., Okla., 155 Pac. 574.

110.

Street Railroads-Burden of Proof.-In a suit to enjoin a street railway company from constructing a power transmission line along an alley in front of plaintiff's property, the burden was on defendant to show, not only an ordinance, authorizing it to construct such line, but authority from the commonwealth, designated in its charter or in extensions to its charter route.-Curry v. Pittsburgh, H. B. & N. C. Ry. Co., Pa., 96 Atl. 821.

111. Subrogation - Privity of Contract. Where there is no privity of contract between the parties, but the demand is based on the participation of defendant in a breach of trust by a fiduciary, equity will take jurisdiction at the suit of a beneficiary or cestui que trust, or at suit of a surety of such fiduciary, and by substitution will grant relief against an intermeddler with the trust funds.-United States Fidelity & Guaranty Co. v. Home Bank for Savings, W. Va., 88 S. E. 109.

[ocr errors][merged small][merged small][merged small]

113.

Trusts-Parties to Action. In proceedings affecting a trust estate the trustee and cestui que trust are SO far independent that the latter must be made a party for the decree to be binding on him; this being particularly true where the trustee is merely a naked trustee.-Primitive Methodist Church of Rhode Island v. Homer, R. I., 96 Atl. 818.

114. Waters and Water Courses-Repair of Pipe Line.-Where water was furnished under a contract through a private pipe line, there being nothing in the contract to the contrary, the duty of keeping the pipe line in repair was upon the owner and not the water company. -Josey v. Beaumont Waterworks Co., Tex. Civ. App., 183 S. W. 26. Wills-Antichresis.-Where an chresis of a plantation, carrying with it obligations on the creditor to cultivate, repair, and pay taxes and charges, was bequeathed to impecunious minors, held, that the antichresis canceled was properly ordered by judgment rendered on the recommendation of a family meeting. In re Bennett, La., 70 So. 1011.

115.

anti

116.- Construction.-Where a will gave a "life interest in" a farm "to use and occupy and control," the latter clause refers to the farm and defines the life interest.-Lingo v. Smith,

104. Release-Public Policy.-A release by the injured employe from all liability arising from the accident is not a contract, regulation, or device, the purpose and intent of which is to enable the carrier to exempt itself from the liability created by the federal Employers' Lia-Iowa, 156 N. W. 402. bility Act, so that it is valid if fair and not against public policy.-Anderson V. Oregon Short Line R. Co., Utah, 155 Pac. 446.

on

105. Robbery Trespasser. -The mere fact that the person robbed was a trespasser defendant's private premises would not justify defendant in robbing him.-Hardeman v. State, Ala. App., 70 So. 979.

106. Sales-Damages. In an action for damages for defects in a motor car, plaintiff cannot recover the difference in value between the car as warranted and as delivered, and its value with defects, together with sums expended in repairing the car, though repairs were unavailing.-Studebaker Corp. of America v. Miller, Ky., 183 S. W. 256.

107. Sample.-Where silk scarfs were sold by sample, the buyer, regardless of his good faith. cannot be required to accept scarfs materially shorter than the sample.-Hanhart v. Labe Importing Co., N. Y. Sup. Ct., 157 N. Y. S. 897.

117.- Construction.-Where a testator bequeathed to old employes 50 per cent of the net profit of a business in which profits under their contracts they were entitled to share, held, that they could not take the 50 per cent and also the percentage due them under their contract.-Starke v. Berry's Ex'rs, Va., 88 S.

[blocks in formation]

Central Law Journal.

ST. LOUIS, MO., JUNE 2, 1916.

INTRASTATE EMPLOYES UNDER PROTECTION OF FEDERAL SAFETY APPLIANCE ACTS.

In Texas & Pacific Ry. Co. v. Rigsby, 36 Sup. Ct. 482, our Federal Supreme Court holds that an employe of an interstate railway company may recover for injury occasioned by an insecure appliance under federal law, whether such employe be engaged in interstate commerce or not.

Justice Pitney says the scope of federal legislation "is broad enough to include all employes thus injured, irrespective of the character of the commerce in which they are engaged." While the terms of the legislation may be thus broad, it would seem to remain to consider what its purpose is and general terms be limited thereby. This is a fair rule of construction.

The Justice goes on to say that: "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law, expressed in 1 Comyn's Dig., title action upon statute," etc.

Let us concede this to be true as to a lawmaking body, which legislates for the benefit of a class, and the question comes up, whether it applies to legislation by the Federal Congress, which may not be able to legislate except in creating penalties against an instrumentality of commerce.

Rights

of action for the recovery of penalties, it must be conceded, generally may be thought to depend very strictly on compliance with the terms of statutes granting them. We come back again to the purpose of the law granting the right to recover a penalty.

He goes on further to say that it has been decided that "the liability of the carrier for injuries suffered by a member of a crew in the course of its general work was subject

to regulation by Congress, whether the particular service being performed at the time of the injury was in interstate or intrastate commerce." Illinois C. R. Co. v. Behrens, 233 U. S. 473, Ann. Cas. 1914C. 163. Then he says: "The doing of plaintiff's work, and his security while doing it, cannot be said to be wholly unrelated to the safety of the main track as a highway of interstate commerce. **Perhaps upon the mere ground of the relation of his work to the immediate safety of the main track, plaintiff's right of action might be sustained."

*

This seems a reversion to the penalty idea, and while the supposition for maintenance of the action seems feeble, it appears to us better than the other, where the recovery of a penalty created by a merely regulating legislature is held to be in favor of one of a class.

The Justice, seemingly not fully satisfied, further says: "In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper, for the protection of employes and travelers, to require certain safety appliances to be installed upon railroad cars and upon a highway of interstate commerce, irrespective of the use made of any particular car at any particular time."

Let us attempt to recast this sentence so as to more fittingly, in our opinion, represent congressional power. "In the exercise of its plenary power to regulate commerce between the States, Congress has deemed it proper" for keeping in perfect order its instrumentalities "to require," etc. If this is not a more consistent statement so far as regulatory legislation is concerned, we fail to grasp the significance of the words "plenary power to regulate commerce."

It may be true that such plenary power will take notice of "inconsistent laws (by States) giving redress for injuries to workmen or travelers," and inability by States to adequately take care of the matter may result in instrumentalities, Congress has a right to regulate, remaining insufficient, but

« iepriekšējāTurpināt »