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a man who "believes" he has acted unfairly or arbitrarily in some named transaction, however honest the judge may "believe" himself to have been. His obstinacy is too great an imposition on patriotism.

But the "Berger" decision will prove helpful in combatting the unreasoning effort to defeat life tenure for federal judges, which is often thought to place the judge beyond the reach of the ordinary citizen, or even the lawyer. The knowledge that a prejudiced judge or one biased in favor of a party can be removed from the case by the simple filing of an affidavit based upon "definite incident and its time and place," will go far towards popularizing and establishing confidence in life tenure for, whatever may be said of it, life tenure has the countervailing advantages of helping to establish independence that most essential element upon the bench.

And these things that we have been considering are not so much legal, as human elements. That is why they so often engender passion instead of reason. That also supplies the reason for the timely intervention of third parties or for enjoining the judge "from proceeding further." Any prediction of results that does not take humanity into consideration is worthless. Therefore there is no rule by which human conduct may be certainly gauged. We conclude that one finds the greatest safety in the negative. That is the king pin of Section 23 of the Judicial Code. The litigant is not. left to the mercy of the conjecture of what a human being believes he can do, or may do, but to the certainty of what the man has done. Past conduct is a measurably safe index to future performance; all else is promise-mere words. If one maltreat me, I shall in my heart continue to suspect him whatever his reformation, or solemn protestation. The "belief" that he has done so will work the same result.

So, it is gratifying that the opinion of the Supreme Court interpreted some basic common sense into Section 23 of the Judicial Code and incidentally made of it a new

argument for life tenure. And this is necessary. Contrary to the recommendations of the Bar, some purely political judges will occasionally ascend the bench. Sometimes their bias is notorious to the extent of establishing what Mr. Taft designated "judicial families." Sometimes their prejudice against individuals is apparent to the Bar if not to the community. Sometimes they are more adroit. But the people are never deceived. It is these rare exceptions for which the rule was provided. Judges are always on trial before the bar of public opinion. Their origin, antecedents and manner of election are never forgotten and are freely discussed. It is strange, but it is true, that the best measure of a judicial reputation for proper deportment, impartiality and justness may be had at the corner grocery or the club, just as the judge's real fitness and preparation to be a judge may be had only from the bar.

The judicial ermine is the greatest of honors. It is one of the most sacred. The judge and the preacher rank close together in the hearts of men. God sent judges to govern the people at one time on the world's history. In most instances they occupy first place in the hearts of the people, today. Always in such instances the man, as well as the officer, measures up to the high honor. Sometimes he does not do so in origin, deportment or judicial calibre or in the manner of his selection. Then arises a feeling that there may be personal obligations to be met, a social position to be acquired or political demands to be paid. There is no escape from it in life nor in death, for justice is the greatest interest of man on earth. and the Judge's record follows his person and his memory as persistently as a shadow. In such cases a patriotic people respect the office, but not the man, and feel that they should watch the man. For such possible isolated instances was Section 23 provided by Congress. But these isolated cases may do a great deal of harm to faith, submission and respect. In such cases therefore the section should be freely used, that an

unfortunate public may not despair or rebel and criticize the whole of jurisprudence on account of the exception to the rule.

We sympathize with the virtuous judges who must submit to possible misconstruction of the "uncontrovertible" facts alleged in such affidavits, but until Congress sees fit to correct this injustice, the judge must submit with sacrificial resignation in order that the full merit of the law may be administered and public confidence in the judiciary promoted.

T. W. SHELTON.

NOTES OF IMPORTANT DECISIONS

THE "ENDEAVOR" TO COMMIT A CRIME IS NOT AN "ATTEMPT" TO COMMIT A CRIME.-Words by long continued usage in the law become loaded down with such fine distinctions that it is often dangerous to use them in the colloquial sense. Legislators, therefore, should be encouraged to emulate Congress in choosing new and legally undefined words to describe a new offense. This point is well illustrated in the recent case of United States v. Russell, 41 Sup. Ct., 260, where the Court held that the use of the word "endeavor" in Criminal Code § 135, making it punishable to "endeavor" to influence a petit juror, avoids the technical difficulties which would have been involved in the use of the word "attempt," and that defendant, who visited the wife of a juror that the and conveyed to her an intimation juror would be paid for returning a verdict favorable to one accused of an offense, was guilty of the endeavor, though his acts had not progressed far enough to amount to an attempt to influence the juror, since, under the section, it is the endeavor that is punished, and not its success.

The defendant was indicted for an endeavor case of to bribe a juror selected to try the William D. Haywood. The Government charged that defendant approached the juror's wife for the purpose of seeing whether he was favorable to Haywood or susceptible to a bribe. He made the statement to the juror's wife that he did "not want to pay money to any of the petit jurors sitting at the trial of said case unless they knew such petit jurors would favor their acquittal." Defendant's counsel contended that this did not constitute an "attempt but a mere

To this argu

'preparation'" for an attempt. ment the Supreme Court replied: "We think, however, that neither the conthe tention nor the cases are pertinent to upon which the section under review and indictment was based. The word of the section is "endeavor," and by using it the section got rid of the technicalities which might be urged and it as besetting the word "attempt," describes any effort or essay to do or accomplish the evil purpose that the section was enacted to prevent. Criminality does not get rid of its evil quality by the precautions it takes against consequences, personal or pecuniary. It is a somewhat novel excuse to urge that Russell's action was not criminal, because he was cautious enough to consider its cost and The section, however, be sure of its success. is not directed at success in corrupting a juror, but at the "endeavor" to do so. Experimental approaches to the corruption of a juror are the Guilt is incurred "endeavor" of the section. by the trial-success may aggravate; it is not a condition of it."

HAS A SOLDIER INJURED WHILE BEING TRANSPORTED OVER A RAILWAY OPER

ATED UNDER

FEDERAL

CONTROL, A AGAINST THE DIa few soldiers

RIGHT OF ACTION RECTOR GENERAL?-Not were injured in this country while being transported over railways under federal control from one encampment to another, or to some port of embarkation. For the injuries so received suits have been filed, some of which are still pending, to secure from the Director General a judgment for damages for the negTo atligence which caused their injuries. torneys who have such cases, the recent decision of Justice Thomas of the Supreme Court of Alabama, in the case of Moon v. Hines, 87 So. 603, will be interesting.

as

at the In this case plaintiff, a student Alabama Polytechnic Institute, enrolled and order Act provided by of Congress of the President, was a soldier and, as such soldier in the army of the United States and in compliance with the order of the appropriate department, made a trip from Auburn, Ala., to Tulsa, Okla.; and on his return therefrom, pursuant to such order of superior military authority, received his injuries in question while being transported over the Central of Georgia Railway. Under the uncontroverted facts, the primary question raised (and urged by counsel for appellant) by the giving of the general affirmative charge as to count 2, at written request of defendant, is: Whether a soldier in the United States army, who was injured while being transported by the United States as such soldier, over a line of railway then being operated by the government, had a right of action (in tort) against the United States,

operating the transportation system at the time and place of the injury, and causing such injury.

The court answered the propounded inquiry in the negative, holding that so far as members of the army are concerned, the War Risk Insurance Act, providing compensation for injuries to a soldier, was exclusive of all other remedies, so that no right of action against the Director General, who represented the United States, could be maintained by such soldier for injuries sustained on a government controlled railroad under Acts of Congress, June 29, 1906; August 29, 1916; March 21, 1918, or February 28, 1920; such a suit would, on account of his status as a soldier, be a suit against the government.

The court laid down two general propositions as controlling in this case. First, that unless a plaintiff shows some Act of Congress authorizing him, he cannot maintain a suit against the United States. Second, that the United States cannot be sued except by its consent. The court then proceeds to show that prior to the war with Germany, Congress had never permitted itself or its officers to be sued for torts. In the Act defining the jurisdiction of the Court of Claims, the court shows, Congress specifically excepted cases "sounding in tort." The court then shows that the "Federal Controlled Transportation Act" does not give plaintiff a right to sue, since the Director General, under this Act, was not liable to any greater extent than any other agency of the federal government in respect to actions of tort except in those cases where the carriers themselves would have been liable under statute or at common law before the Act.

The court shows that this was an action by a federal employee and that "no act of Congress on the day of the instant trial (March 23, 1920) expressly authorized an action ex delicto against the United States government by a soldier in its armies for personal injury sustained while in the service of the government, though that injury was inflicted in or during his transportation as a soldier."

The Court then concludes that the only remedy that a United States soldier in the service has for injuries due to the negligence of agencies of the federal government is the insurance provided for under the War Risk Insurance Act. On this point the court said:

"By the War Risk Insurance Act (38 Stat. 711), compensation is provided by the gov ernment to a soldier for death or injuries sustained by him while a soldier, if he avails himself of the terms of the act. The amount of compensation and the remedy therein prescribed is exclusive of other measures of and

for liability and remedies provided for the protection of the civilian population of the general public. U. S. Comp. St. 1916 Ann. §§ 514qqq, 514tttt, 1919 Suppl. vol. 1, 43, 49; or 40 Stat. (U. S.) pp. 405, 611; or Act. Cong. Sept. 2, 1914 (38 U. S. Stat. 711) c. 293, §§ 300-313, as added by Act October 6, 1917, c. 105, § 2, and as amended by Act June 25, 1918, c. 104, §§ 10, 18. A slight analogy is also found in the denial of double recovery under the Employes' Compensation Act. Comp. St. §§ 8932a, 8932aa. Hines, Dir. Gen., v. Dahn (C. C. A.) 267 Fcd. 105; Webb v. White Eng. Corp., 85 South. 729.

"It would follow, on account of his status as a soldier when sustaining his injury and his relationship to the government inflicting that injury, that a suit by him for said injury sustained in his transportation by the government as a soldier would be against the government, not permitted by an act of Congress, and is denied by public policy. In re Grimley, 137 U. S. 147, 11 Sup. Ct. 54, 34 L. Ed. 636; 18 R. C. L. 1045, § 37. The reason for this rule is that plaintiff's enlistment as a soldier in the army of the United States was a contract with the government which changed his status as an individual and his relation to the state and public (In re Grimley, supra; In re Morrissey, 137 U. S. 157, 11 Sup. Ct. 57, 34 L. Ed. 644; Acker v. Bell, 62 Fla. 108, 57 South. 356, 39 L. R. A. [N. S.] 454, Ann. Cas. 1913C, 1269; U. S. v. Cottingham, 1 Rob. [Va.] 615, 40 Am. Dec. 710), creating a new status with correlative rights and duties."

A PASSIVE SITUATION AS A PROXIMATE CAUSE.

In a previous issue of the Central Law Journal I had occasion to discuss the broad principles underlying proximate cause and legal liability. In this article I wish to deal in a more specific and analytical manner with some cases where the creation, or the failure to abolish, a passive situation was held to be the proximate cause of injuries sustained because of the existence of such a passive situation.

By a passive situation I mean a physical condition which has no inherent power of motion. Before it can contribute to the injury of a person that person must come, or be brought, sent or induced, into contact with the situation. Examples of passive situations are these: a hole in the ground, an obstruction on a public highway, un

(1) 90 Central Law Journal 188.

guarded areaway, spread rails of a railway track, a tank filled with explosive vapors, a mine without sufficient ventilation, and such like things. All of these situations have not the power of moving toward or falling upon the injured party. It is true that some of them, as for example, a box of dynamite sticks, have forces within them, which can be released, and if released will impinge upon the injured person to his hurt, but some agency external to the physical surroundings must set these forces in motion, before they can cause any injury. The situation itself does not move. Active factors must concur with the existence of the situation in the bringing about of the injury. We are concerned here with three of these active factors; (1) the acts of the party injured, (2) the acts of a third party, and (3) the operation of a force of nature, and with several types of combinations of active forces and passive situations."

At the very outset of our discussion we must recall that the creation of, or failure to eliminate, a passive situation must, like every act or omission which is held to be a proximate cause of an injury, be forbidden and also be a cause of the injury sustained and for which suit is brought. The prohibition may appear in that there is express legislative fiat to that effect, such as the existence of a statute or municipal ordinance that such situations shall not be created or allowed to exist, or it may appear in the legal doctrine of negligence, as applied to

(2) No attempt will be made in this article I to present a collection of all the cases dealing with the subject matter of the article. The reader is referred to the following:

Beale; Cases on Legal Liability, 1st Ed. 1914, 2nd Ed. 1920. The first edition contains more cases than the second.

Beale; The Proximate Consequences of an Act; 33 Harvard Law Rev. 633.

Levitt; Proximate Cause and Legal Liability, 90 Central Law Journal 188.

Throckmorton; Damages for Fright, 34 Harvard Law Rev. 260.

Smith; Legal Cause in Actions of Tort, 25 Harvard Law Rev. 103, 223, 303.

(3) Beale; Proximate Consequences of an Act, cited supra. Levitt; Proximate Cause and Legal Liability, cited note supra.

this particular situation. In the latter case. the starting point for proximate cause is the negligence in allowing the existence or creation of the situation. By negligence is meant the doing of that which a reasonably prudent man would not do. It is here that the doctrine of forseeableness is properly employed. It determines whether or not a given act or omission is a negligent act or omission. It determines whether an injury was likely to occur, whether the situation was the "natural and probable" cause of the injury. But the courts err, it is submitted, when they say that if the injury was the "natural and probably consequence of the act" that therefore the act was the proximate cause of the injury." Negligence

(4) (5)

Pollock Torts, 7th Ed., page 425 et seq.

In Cole v. German Savings Loan Society, 124 Fed. 116, the Court says:

"A natural consequence of an act is the consequence which ordinarily follows it-the result which may reasonably be anticipated from it. A probable consequence is the one that is more likely to follow its supposed cause than it is to fail to follow it."

The fault in these definitions is that the Court uses synonyms of the words to be defined when giving the definition. "Natural" in the sense in which it is here used is the same as "ordinary;" and "likely" is a synonym for "probable." The definitions are like the definitions of proximate cause in Bouviers Dictionary. There it says that "a proximate cause is that which is the most proximate in the order of responsible causation." Repetition of a phrase may impress it upon the mind but it does not illumine or define that phrase. This second rule means nothing or else it means a great deal more that the Courts have yet enunciated concerning it. The phrase "natural and probable" is either tautology or else it includes a method of procedure for the jury to follow in finding the facts as well as a rule of law under which the facts are to be placed. An analysis of the phrase will make this clear.

The use of the word "natural" in this connection is very unfortunate. It has so many meanings and connotes so many different things that it is difficult to keep from slipping from one meaning to the other. "Usual" would be a betIter word to employ. When we say that B is the natural consequence of the act A, we mean that in the experience of society it has been observed that B usually follows A in coming into or vanishing from the world of fact. That is, B so often, if not always, comes into existence after A has become manifest that the two are connected in the minds of the average person, so that with the presence of the one he takes it for granted that the other is also in existence. I press a button, for instance, and a bell rings. I release the pressure and the bell stops

starts or ends, depending on whether we begin with the act or the injury, the series of causes within which we shall find rela

ringing. I do these things so often that the act becomes so closely associated with the other phenomenon that that phenomenon appears as the usual consequent of the act. Or I say that the act is the usual (natural) cause of the phenomenon. The word "natural" applies to both the cause and the effect. Given a particular act we are quite sure that the specific consequence will follow. Given a particular consequence and we feel certain that a specific act must have preceded it. Given the particular act we confidently look for (anticipate, predict, expect, foresee) the consequence that has always previously appeared after such an act.

The word "probable" has the same meaning and connotation as the word "natural" (in the sense of usual); but by reason of the fact that the Courts have focused their attention more upon the act than upon the consequence it has taken on a special flavor of anticipation, of foresight. . The probable consequence is, in reality, that consequence which has so often OCcurred after the performance of an act that we feel quite certain that it will occur again. We really look for it to happen; we anticipate its coming; we can confidently predict its arrival. we can foresee its appearance. The word probable smacks of prophecy. It connotes not the looking at a given fact and putting it into one's past experience, but rather the attempt to imagine a future result which would be like one's past experience. We can determine whether or not a given result is the natural product of a certain cause by comparing it with the existing results of similar causes. But we can only determine a probable result by assuming that the cause under observation will act like other similar causes and so produce an expected result. A natural cause can be determined by inspection and comparison; a probable cause is determined by conjecture. In the one you look at a given fact and in the other you try to guess what the result might be.

Here is, I believe, the germ of the rule of anticipation as a determinant of proximate causation. The Courts lost sight of the fact, that the feeling of prophecy could only arise after acts had been followed by consequences so often that the two have become inseparably connected; and they focused their attention upon the byproduct, the idea of foresight, and made that the important, determining factor.

But before it can be said that a result can be anticipated one must know that a given actor acts practically like it-has occurred with sufficient frequency and with results like the given injury, or like the cause of the given injury, so that the doing of the act would arouse in the mind of the one acting or in the mind of the average person who considers this act, a feeling of certainty that the given consequence would follow. With this in mind it is at once obvious that the first time a consequence follows an act there could have been no possibility of anticipation. The Courts follow this out when they say that an unusual, extraordinary event existing for the first time cannot be a "natural and probable" consequence.

tions and connections which will determine the limits within which the proximate cause will be found, but it is not the sole basis upon which proximate causation will be erected. A situation may be dangerous, risky, likely to produce harm; but it is not necessarily a proximate cause of the injury to which it helped contribute. An unguarded areaway is a danger, a risk, something which may help to produce harm to someone but if A leaves the areaway unguarded, and B throws C into that areaway, A is not the proximate cause of the injury to C. Proximate cause depends upon other reasons than the existence of a negligent, dangerous, risky, act or ommission.

When it has been found that the situation has been prohibited, and that it was a cause of the injury complained of, then the jury under instructions from the court, will determine whether the situation was the proximate cause of the injury. The cases show the following rules for determining proximate cause with these accompanying reasons. As we have said there are several types of cases. 1. The defendant creates, or permits the existence of, a forbidden situation, and the plaintiff through his own activities comes into contact with the situation to his hurt.

The simplest example is this. The defendant, a city street railway company, permited a dangerous obstruction to exist upon a sidewalk. The plaintiff's intestate while walking along the sidewalk is seized with an attack of vertigo, staggers and falls upon the obstruction, and the resulting shock kills him. It was held that the city was the proximate cause of the death of the deceased. A significant sentence in the opinion, to our mind is this. "Because deceased was diseased he was not precluded from walking upon the sidewalk."

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In Page and Bucksports a city maintained a defective bridge. The plaintiff

(6) Milostan v. Chicago, 148 Ill. App. 540. (7) Woodson v. Metropolitan Street Railway Co., 224 Mo. 685.

(8) 64 Maine 51.

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