that they were relied upon for living expenses. -Atwood v. Connecticut Light & Power Co., Conn. 112 Atl. 269. 50. Employee's Forgery. Where an instrument, complete in all particulars except those which an agent or employee is authorized to complete, is intrusted to that employee or left where he has access to it, the owner will be held liable for the acts of such employee in issuing the same; but where the instrument is not complete, and can only be made so by a criminal act of the employee, the owner will not be liable, as the criminal act, and not the act of the owner, is the proximate cause of the injury.-Ehrich v. Guaranty Trust Co., N. Y. 186 N. Y. S. 103. 51. Employees of State.-Employees of the state and of its governmental agencies, when not engaged in an enterprise carried on for pecuniary gain or profit, are not within the operation of the workmen's compensation law.-Ray v. School Dist. of Lincoln, Neb. 181 N. W. 140. 52. Hours of Service Act.-In Hours of Service Act, § 2 (Comp. St. § 8678), the language of the proviso, that no operator or train dispatcher shall be required or permitted to remain on duty for a longer period than 9 hours in any 24 hour period in offices or stations "continuously operated night and day does not continuously operating mean stations Waived.-A 53.- -Loss of Compensation finding by the Industrial Accident Board that employer voluntarily paid the employe compensation for the full period of his refusal to accept the services of the employer's physician shows that the refusal lasted only until the payment ceased, so that the employer waived his right under Workmen's Compensation Act, § 25, to refuse compensation while such refusal continued by making the payments, and he cannot refuse thereafter to pay compensation for partial permanent disability because of the past refusal to accept the physician's services.-American Coal Mining Co. v. Decourcey, Ind. 129 N. E. 635. 54. -Right of Action.-Where an employer against whom a claim for compensation was made under the Workmen's Compensation Act of California has contested the claim and persistently denied that it had any interest in the claimant's right of action against a third party and has attempted to transfer any interest it may have to the claimant, it cannot bring another action against such third party and recover a judgment for damages.-Rorvik V. North Pacific Lumber Co., Ore. 195 Pac. 163. 55. Mines and Minerals Termination of Lease. Where lessor under oil lease was under obligation to give possession to lessee, who could not obtain it and begin operations solely by reason of an injunction in favor of other persons having an interest in the land, and the time within which lessee was to begin operations elapsed pending the injunction, the lease was not thereby terminated, in view of Civ. Code, art. 2040.-Gulf Refining Co. of Louisiana v. Hayne, La. 86 So. 891. into its streets is damnum absque injuria, which such adjoining borough cannot restrain.-Borough of Bridgewater v. Borough of Beaver, Pa. 112 Atl. 232. 58. Incurring Debt Without Levy of Tax Void.-A warrant evidencing an attempt by a city to incur a debt without at the same time complying with the constitutional provision requiring the levy of a tax to meet interest and sinking fund is absolutely void.-City of Aransas Pass v. Eureka Fire Hose Mfg. Co., Tex. 227 S. W. 330. Care.-All per. Ac 59. Negligence-Reasonable sons having occasion to enter an office building on legitimate business have an implied invitation from the owner of the building for that purpose, and such owner owes a duty to all such persons to exercise reasonable care to provide a reasonably safe entrance, and such entrance, or the approach thereto, must be so constructed and maintained that visitors will not be liable to step into dangerous pitfalls by reason of misleading doors or deceptive landings. Johnson v. Smith, Wash. 194 Pac. 997. 60. Officers-Failure to File Expense count. Although sections 8b (6) and 8b (8). chapter 5. Code 1918 (Code Supp. 1918, §§ 1881. 188h), exact promptness in the preparation and delivery of the expense account of every candidate for public office, the statute, when read and considered in its entirety, manifests no express or implied determination to disqualify permanently one who is tardy in that respect from discharging the functions and receiving the emoluments of the office to which he has been elected, but only until he has filed the required statements.-State V. Gilmer County Court, W. Va. 105 S. E. 693. 61. Railroads—Income Tax.-A lessee railroad which agrees to pay all "taxes, duties, and assessments" of every name and nature that may accrue or be assessed upon the demised railroad property and any receipts for transportation of persons and property on the demised railroad, and upon its business, by the state or national government, and to pay all taxes assessed or charged to the lessor by state or national authorities upon its bonds or capital stock, is not required to pay the income tax levied under Act Cong. Oct. 3, 1917.-Sharon Ry Co. v. Erie R. Co., Pa. 112 Atl. 242. 62.- Presumption of Negligence.-It being shown that the fire which destroyed plaintiff's barn was caused by sparks from defendant railroad's locomotive, the presumption is that the spark arrester on the locomotive was either not in repair or not efficient.-Luikart v. Yazoo & M. V. R. Co., La. 86 So. 894. 63.- -Speed Not Negligence. In the absence of statutory regulations or special circumstances, a railroad company may run its trains at any speed without being chargeable with negligence.-Panhandle & S. F. Ry. Co. v. Hay wood, Tex. 227 S. W. 347. 64. Sales-Implied Warranty.-Where, in de fense to a suit against the maker of a purchasemoney note which does not purport to contain the terms of sale, a plea of total failure of consideration is entered, in which a breach of contemporaneous express representations and warranties governing the transaction are set up. and the defendant introduces evidence in support of the plea, it is not improper for the trial judge to charge the law governing the breach of express warranties, since an express warranty excludes implied warranties.-Thompson v. Cordele Motor Car Co., Ga. 105 S. E. 620. a con less a 65. Instructions to Jury.-Where tract for the sale of lumber fixed the place of delivery on a public highway and the evidence of the plaintiff shows it was delivered on said highway at the place agreed on, and the evidence of the defendant shows that amount was received at its yard where it was checked and measured, it was error for the court to instruct the jury orally that the sale question was whether the lumber was received at the yard of defendant, or actually received by its hauler and not delivered to the defendant.-Gilmore Puckett Co. v. Glenn, Miss. 86 So. 864. Central Law Journal. ST. LOUIS, MO., APRIL 22, 1921. THE DANGER OF THE INCREASED BUR- from the voluntary submission of a highly It is respectfully submitted that faith in The conservative Harvard Law Review, (Vol. 32 p. 538 No. 3) the guide and inspiration of thousands of America's greatest jurists and lawyers, gives expression to the statement that "the Supreme Court (sic. of the United States) has made a number of loose and inconsistent statements, some of which must necessarily be repudiated." It is worthy of note that the particular issue in which the above observation appeared was dedicated to Honorable Oliver Wendell Holmes "on the happy occasion of his eightieth birthday." Consciousness of the high authoritative source of the remark drives the mind of thoughtful men to measuring the possible effect of such a condition and sets one in search of the cause, rather than the verity thereof. It is not necessary to go into the latter, since the very suggestion from any respectable source of carelessness or any other inefficiency, or a lack of conservatism or well considered language in America's great Tribunal, is sufficiently alarming. The Executive and Legislative Departments might suspend for a stated period without other result than inconvenience but, should the Supreme Courtily met the kaleidoscopic developments and cease to function at all one dares not predict the result. As a governmental agency that great Tribunal, said Thomas Jefferson, "has the weight of all manner of conflict on its hands because it is the last appeal of reason." It alone applies the "legal checks" that makes possible the perpetuation of the American Republicdemocracy administered through a strong republican form of government. Now it is of first importance to be mindful that its great power is not derived from a Constitution or statutes or duress, but changes in interstate political and economic Thus the Supreme Court nurtured the 3 trines into beneficial evolutions. The violence of anarchy and the persuasiveness of the demagogue have fitted themselves into the Constitutional mold. The oppression of concentrated power and the chicanery of corrupt organizations have ceased to trouble and alarm at its simple word. It is the final arbiter between man and his brother, the State and the Church, the citizen and the soldier and even between Congress and the Chief Executive himself. Who may measure the debt of the country to its Highest Court? And, it is well to add, that there abides in the hearts of the people of this Country a sublime faith in their Highest Tribunal that makes of submission the noblest attribute of national character. That faith is the corner-stone upon which rests the very existence of the Republic. It is as beautiful as filial bondage and stronger than the duress of arms. Believing these things, is there a more patriotic duty in the noble profession of the law than the sacred obligation to encourage, foster and make justifiable that faith in the highest court of the Country that is the very breath of its life? The Supreme Court of the United States is necessarily the most deliberate body within the conception of the mind of man and requires time for mature thought. Haste in its affairs is not conceivable. But it must not be overlooked that it has its economic side as well as commerce and its humanity may gradually and unconsciously respond to a public demand for dispatch at the cost of the wisdom and careful expression that made its reputation. It is just that possibility, but not probability, that presents the greatest menace to the strength of the Court and through it the destruction or weakening of respect and confidence. The public must continue under the conviction that the Supreme Court weighs its words as if each measured life and death and has plenty of time in which to select the most appropriate. Let us give this sentiment a thought. John Marshall handed down but 519 opinions during the entire tenure upon the bench of thirty four years and five months or substantially 12,390 days, from February 4, 1801 to July 6, 1835. (Carson's Hist. Sup. Crt. p. 286). Deducting approximately 1788 Sundays and a thirty day annual vacation, aggregating 1020 days, we have left 9582 working days. Therefore he averaged an opinion every eighteen working days! The Supreme Court at its October, 1919, term, ending in June 1920, "actually considered 501 cases, of which, 210 were argued orally and 291 submitted on printed arguments" (Atty. Genl's. Rept. 1920, p. 10). There were 1019 cases actually pending, 609 of which were disposed of during the term. (id. p. 10). Dividing the opinions equally amongst the nine members they each wrote approximately fifty-six opinions in 291 actual working days, which is ascertained by deducting a thirty day vacation and forty-four Sundays. Every five days an opinion had to be produced by each member of the Court, assuming that no member was absent from duty-a most improbable premise. This is substantially three times the speed required of John Marshall. But since these results are predicated on full work time they do not fairly reflect the actual conditions. Time must be taken out for hearing argument of 210 cases at the bar of the Court. More than half of its term the Court sits from noon to 4 o'clock. We shall put to one side the considerable time consumed in the consideration of motions, petitions for certiorari and other incidental duties, rapidly multiplying, that call for the most laborious and conscientious thought and research. No effort has been made to set out other than the most obvious duties performed. It is manifest that the Supreme Court is one of the hardest worked organizations in America with daily increasing duties as will now appear from a comparison of its dockets of yesteryears. At the beginning of the October Term, 1904, there were 282 cases brought over from the past term and 400 new cases added, totalling 682 cases. Of these 402 were disposed of during the term, leaving untouched 280 or just 2 cases less than in the beginning. Passing the eight intervening years it found awaiting it in October 1913, a docket of 604 cases carried over from 1912 (an increase of about 250%) to which were added 524 new cases, making a total of 1128 cases. By the hardest exertion and application 593 were disposed of, leaving 535 to be carried over to the October 1914 docket. It will now be observed that a degree of haste had been. forced upon the Court. The number of cases disposed of in 1913 was nearly double the entire docket of 1904. A big increase in business is reflected and evidences the necessity for relief, for two reasons. The first is in the interest of prompt hearings and the second is the subject of this discussion. But there is another element. No thoughtful person will be unmindful that nearly all of this work is epoch-making and calls for the supreme genius, learning, patience, research, deliberation and physical power possessed by these great and able jurists. They not only should not be hurried or harried but they must be permitted to proceed under the conditions that made possible the masterful work of John Marshall and under the inspirations that guided his great mind and spirit. It is pertinent to enquire of the effect upon him of crowding and haste and impatience. As a question of psychology, the people must continue to visualize the Supreme Court as the most deliberate and painstaking and most nearly perfect of human organizations. They love to think so but they also know that it is the final earthly resort for justice. The solution of the trouble, without additions to the present membership, is not so difficult if Congress can be induced to act. And it is believed it will. Without going into details the practical mind naturally turns to the administration of justice as a whole including the Circuit Courts of Appeals, by an uncompensated group of lawyers and judges who would, after a careful study, consultation and inquiry formulate a program that would form an intelligent and scientific basis for final action by Congress. This is the English way, and it is a sound one. The expansion of the country and the growth of business has been phenomenal and problems of administering justice have increased in proportion. If relief is to be given it must be in a way commensurate with the expansion of the Nation. No statutory patchwork will suffice. Congress would thus convince the people of its good intention and would share a great responsibility with the lawyers, where it belongs. THOMAS W. SHELTON. NOTES OF IMPORTANT DECISIONS. LIFE INSURANCE PAYABLE TO THE WIFE BELONGS TO HUSBAND'S TRUSTEE IN BANKRUPTCY.-The clause in a life policy which permits the insured to change the beneficiary destroys the vested character of the beneficiary's interest to which reference is made in many of the older life insurance cases. The effect of such a clause takes away apparently every protection of the wife which the insured desired her to have as against his own improvidence. This fact is ilustrated by the recent case, in the Matter of Greenberg (Circuit Court of Appeals, 2d Cir., January 14, 1921, not yet reported), where the court held that where the bankrupt held a policy of life insurance, wherein his wife was designated as beneficiary, the policy giving to the insured the right to change the beneficiary "from time to time, with the consent of the company, by written notice to said company," the claim of the trustee of the insured in bankruptcy that the company pay over to him the surrender value of the policy could not be defeated by the company's refusal to consent to any change of beneficiary. The Court speaking of the right of a beneficiary under such a policy, said: "The beneficiary of a life insurance policy who may at any time be removed from the benefited position by the insured and against the beneficiary's will cannot have a vested interest. In Grems v. Traver (148 N. Y. Supp., 200, aff'd 164 App. Div., 968) there was one policy considered much like the one at bar, but the court held as a fact that such policy "was taken out for the special benefit of the wife under agreement that it should be held for her protection." No such agreement is here shown, and it may be noted that the cases from United States courts cited and relied on in the Grems case are from lower courts, and for the most part wholly inconsistent with the subsequent decision in Cohen v. Samuels (245 U. S., 53)." But this suit was not between the trustee and the insurer, who simply refused to consent to a change of beneficiary or to pay the value of the policy to the trustee. In this case the insurance company declared that they were resisting payment to the trustee in order to protect the wife for whose benefit the policy had been taken out. In answer to this contention the Court said: "No similar proceeding on the part of an insurer can, we think, be discovered in the books, but on principle the matter is covered by the decision of Justice Brown, then District Judge, in Supreme, etc., v. Capella (41 Fed., 1) and Lahey v. Lahey (174 N. Y., 146), to the effect that where the insured is physically unable to comply with the formalities or where the insurer itself is so physically unable, equity will deem that to be done which ought to have been done and proceed accordingly. In the present instance there is no physical inability; there is a flat refusal to perform on the part of the insurer for reasons having no relation to its own security, or indeed to its own business. It is avowed at bar that the company prefers to pay the bankrupt's wife the whole of the policy rather than pay the trustees the surrender value thereof. Bankruptcy is equity, and just as it will presume on occasion that that has been done which ought to be done, so on other occasions it will compel that to be done which ought to be done. This is one of those occasions." Under policies providing for a change of beneficiary, if it is desired to protect the wife's interest from the husband's insolvency, it is better to permit the wife to take out the policy on the husband's life and to pay the premiums. THE DOMICILE OF AN INFANTII AFTER THE INFANT'S FATHER DIES.* 43 On the death of the father of an infant the domicile of the infant is that which the father had at the time of his death.41 It is the mother of the infant, in such a situation, who can change the domicile of the infant. There is no question in the cases as to this power so long as the mother remains a widow, but the cases are not unanimous as to the effect upon a minor's domicile of a second marriage on the part of the infant's mother. Two things have contributed to this divergence of opinion. The first is that the matter has been complicated because in some of the cases the mother has been appointed a guardian and the courts have had to consider the matter of whether or not a guardian can change the domicile of his ward, and have confused that question with the question of the right of a mother who has married again to change the domicile of her child by a first *Part I of this article appeared in last week's issue (92 Cent. L. J. 264) entitled Domicile of An Infant-While the Infant's Father is Alive. (41) Lamar v. Micou, 112 U. S. 452; Bjornquist v. Boston R. R., 250 Fed. 929, 932; Marks v. Marks, 75 Fed. 321; Sprague v. Litherbury, 22 Fed. Cas. No. 13,251; Johnson v. Copeland, 35 Ala. 521; Carlisle v. Tuttle, 30 Ala. 613; Nunn v. Robertson, 97 S. W. 293; Modern Woodmen of America v. Hester, 71 P. 279; Garth v. City Savings Banks, 86 S. W. 520; Winn's Suc., 3 Rob. (La.) 303; Suddler v. Suddler, 88 A. 26; DeJarnett v. Harper, 45 Mo. A. 415; Lewis v. Costello, 17 Mo. A. 593; In re Russell, 64 N. J. Eq. 313; Kennedy v. Ryall, 67 N. Y. 379; Brown v. Lynch, 2 Brad. Surr. (N. Y.) 214; Eaves Costume Co. v. Pratt, 22 N. Y. S. 74; West Chester v. James, 2 Watts & S. 568; Mears v. Sinclair, 1 West Va. 185; Miller v. Sovereign Camp W. W., 122 N. W. 1126; In re Beaumont (1893), 3 Ch. 490; Sharp v. Chrispin, L. R. 1 P. & D. 611; Johnstone v. Beattie, 10 Cl. & F. 42, 8 Reprint 657; Potinger v. Wightman, 3 Meriv. 67, 36 Reprint 26. (42) Cases cited in preceding note. (43) Lamar v. Micou, 112 U. S. 452; Marks v. Marks, 75 Fed. 321; Johnson v. Copeland, 35 Ala. 521; Harkins v. Arnold, 46 Ga. 656; Kennedy v. Ryall, 67 N. Y. 379; Brown v. Lynch, 2 Bradf. Surr. (N. Y.) 214; West Chester v. James, 2 Watts & S. (Pa.) 568; Allen v. Thomason, 11 Humph. (Tenn.) 536; Meare v. Sinclair, 1 W. Va. 185; In re Beaumont (1893), 3 Ch. 490. |