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by that act. It is not disputed that the [ like all sovereign powers, has power to deny Director General, under the Railroad Admin- the right to institute a suit against it. This istration, and the Director General, as Agent, being true, the government had power to preunder the Transportation Act, together paid scribe the terms and conditions under which defendant in error the sum hereinabove set actions might be brought on claims arising forth. out of federal control of railroads, and when so prescribed the same must be strictly complied with. In the absence of such permission the government is immune from suit, and such immunity would constitute a complete defense. Aside from the grant of permission to bring actions for injuries against the United States, neither the state nor federal courts had jurisdiction to entertain such actions. Tempel v. United States, 248 U. S. 121, 39 S. Ct. 56, 63 L. Ed. 162; United States v. Nederlantsch, 254 U. S. 148, 41 S. Ct. 72, 65 L. Ed. 193; Hill v. United States, 149 U. S. 593, 13 S. Ct. 1011, 37 L. Ed. 862; Missouri

Paragraph (a) of section 206 of the Transportation Act is as follows: Actions at law, suits in equity and proceedings in admiralty based on causes of action arising out of the possession, use or operation by the President of the railroad or system of transportation of any carrier under the provisions of the Federal Control Act, or of the Act of August 29, 1916, of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against the agent designated by the President for such purpose, which agent shall be designated by the Presi- | Pacific Railroad Co. v. Ault, 256 U. S. 554, dent within thirty days after the passage of this act. Such actions, suits, or proceedings may, within the periods of limitation now prescribed by state or federal statutes, but not later than two years from the date of the passage of this act, be brought in any court which, but for federal control, could have had jurisdiction of the causes of action from time to time arising against such carrier.

41 S. Ct. 593, 65 L. Ed. 1087; Western Union Tel. Co. v. Poston, 256 U. S. 662, 41 S. Ct. 598, 65 L. Ed. 1157; Dahn v. Davis, 258 U. S. 421, 42 S. Ct. 320, 66 L. Ed. 696; Hans v. State of Louisiana, 134 U. S. 1, 10 S. Ct. 504, 33 L. Ed. 842.

[2] When the cause of action arose in this case, the railroad and the train causing the injury were in the exclusive possession, control, and management of the United States government under an act of Congress. The federal government was subject to liability. Its designated agent was the only proper party defendant to an action against the government. Missouri Pacific Railroad Co. v. Ault, supra. When this railroad was returned to the Southern Railway Company by the federal government under the Trans

The order of the arbitrator substituting the plaintiff in error for the Southern Railway Company was entered on March 8, 1922, more than two years after the passage of section 206 of the Transportation Act, but defendant in error contends that the original petition against the Southern Railway Company was, in effect, a petition filed against the Director General of Railroads under the United States Railroad Administration, pred-portation Act, it was provided by that act ecessor of plaintiff in error, and that under paragraph (d) of section 206 of the Transportation Act the substitution of the plaintiff in error was proper. The language of that paragraph is as follows:

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The principal question in the case therefore is whether or not the petition for compensation filed on October 13, 1919, against the Southern Railway Company, constituted an action, suit, or proceeding pending at the termination of federal control, within the contemplation of section 206 of the Transportation Act.

[1] Cases arising out of the federal control of railroads are in reality claims against the United States. No one has a right to bring an action or suit against the federal government, unless that right be given by the gov

that the President designate an agent who should represent the government for purposes of suit in all causes of action which had arisen during federal control of railroads. Plaintiff in error was so designated. The petition filed in this case was not such as would affect liability of the government for the injury complained of, but was filed against the railroad company. It follows that at the time of the passage of section 206 of the Transportation Act no suit or action of which the government was bound to take cognizance had been filed, and the fact that the Director General voluntarily paid compensation to defendant in error under the latter's petition filed against the Southern Railway Company does not, as is argued by counsel for defendant in error, constitute an estoppel against the government, for the sufficient reason that there can be no such thing here as estoppel against the government. Consent to sue was given by act of Congress, and the conditions imposed must be literally complied with. Hans v. State of Louisiana, supra. Those conditions were not met by filing a petition for compensation against the railway company, and such petition con

(146 N.E.)

It is urged by defendant in error that he | fendant the agent designated by the Presitook the earliest opportunity to make the mo- dent under the provisions of the Transportion to substitute plaintiff in error for the tation Act. This right was denied, and the Southern Railway Company, and that there- New York Court of Appeals sustained the fore it cannot be said that the limitation order of the lower court. A writ of certiorari of the Transportation Act had run against was denied by the Supreme Court of the him. Since, as we have seen, there was no United States in that case. 263 U. S. 706, cause of action against the government, and 44 S. Ct. 34, 68 L. Ed. 516. To the same efthe Director General was in no wise a party fect are Dubied v. Pennsylvania Railway Co., to the original petition for compensation, 235 N. Y. 572, 139 N. E. 739, and Weil v. there was no one for whom the Director New York Central Railroad Co., 235 N. Y. General, as Agent, under the Transportation 570, 139 N. E. 738. Act, could be substituted. Defendant in er- Defendant in error cites Payne v. Hayes, ror had ample opportunity, after the pay- 25 Ga. App. 730, 104 S. E. 917, and Lanier ment of compensation was stopped, to file v. Pullman Co., 180 N. C. 406, 105 S. E. 21, a proceeding against the proper agent or rep-as sustaining his contention that he has resentative of the federal government. This here a right of substitution. The former of was not done, and he cannot now complain because the limitation of the Transportation Act prevents further opportunity.

In Fahey v. Davis, 224 Mich. 371, 195 N. W. 46, it was held that the Transportation Act of 1920, terminating federal control of railroads on March 1, 1920, and authorizing suits arising out of federal control to be brought thereafter against an agent designated by the President within the time limited therein, and authorizing the substitution of such agent for the Director General in suits pending at the time of the termination of federal control, did not apply to actions brought against a railroad prior to termination of federal control. It was held that such cases could not be said to be pending at the time of such termination within the meaning of that statute, and the substitution of the agent designated by the President for the railroad was not authorized.

In the case of Davis v. Chrisp, 159 Ark. 335, 252 S. W. 606, suit was brought against the Missouri Pacific Railroad Company on account of injuries sustained while the railroad was under federal control. The suit was brought within two years after the injury. After the two years had expired, plaintiff secured an order substituting James C. Davis, Agent under the Transportation Act, as defendant. Defendant pleaded the limitation of the Transportation Act. The lower court held the statute of limitations inapplicable, and a judgment was entered against Davis as Agent. This judgment was reversed by the Supreme Court of Arkansas on the ground that the statute of limitations had run, and the Supreme Court of the United States denied a petition for certiorari. 263 U. S. 710, 44 S. Ct. 36, 68 L. Ed. 518.

In Fischer v. Wabash Railway Co., 235 N. Y. 568, 139 N. E. 738, suit was brought against the railroad company while it was under federal control. After March 1, 1922, plaintiff sought to substitute as a party de

these cases holds that the Director General under Railroad Administration or Agent under the Transportation Act may be made a party defendant by amendment, but it is not authority for the proposition that suit against the railroad is suit against the Director General. The effect of the limitation of section 206 of the Transportation Act was not discussed. In the latter case it was held that the question of misjoinder or nonjoinder of proper parties was not properly raised in the case and was not decided. The statute of limitations was likewise not involved. It holds that a railroad may be sued under the Act of Congress of March 21, 1918 (40 U. S. Stat. p. 456 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 31154a-31154p]), just as it could be sued prior to federal control, and that when it was sued it was incumbent upon the Director General to defend the suit and to pay any judgment against the railroad out of income from that railroad which may have come into his hands, but that holding does not constitute authority for the position of defendant in error that a suit against the railroad is a suit against the government.

[3] We are of the opinion that for the reasons herein before given the petition for compensation filed against the Southern Railway Company on October 13, 1919, did not constitute a cause of action against the government, and therefore no right of substitution of plaintiff in error as party defendant existed, and defendant in error not having filed a claim against the Director General or the Agent designated by the President in accordance with the limitation provided by acts of Congress, the Industrial Commission was without jurisdiction to enter the award, and the circuit court erred in confirming the same.

The judgment of the circuit court is therefore reversed.

Judgment reversed

(315 III. 352)

SOLAR-STURGES MFG. CO. v. INDUSTRI-
AL COMMISSION et al. (No. 16464.)

(Supreme Court of Illinois.

Feb. 17, 1925.) 1. Master and servant 375(1)—Injury to salesman returning from buying cigars for customer held compensable as "arising out of and in course of employment."

Injury to salesman struck by car as he was returning from purchasing cigars to give to prospective customer held to "arise out of and in course of employment," within Workmen's Compensation Act.

[Ed. Note. For other definitions, see Words

of Employment.]

2. Master and servant

[1] The plaintiff in error contends that the accidental injury which was the basis for the award did not arise in the course of the employment. Holmes was a salesman employed by plaintiff in error to sell in the city of Chicago and Lake county, Ind., the products of his employer, consisting of ice cream cans and tubs. His compensation consisted of a salary of $30 a week and certain commissions and allowances based upon the business done by him. His average earnings were $62.73 dent. Holmes worked under the direction of a week during the year preceding the accia sales manager, but he had no fixed work

and Phrases, First and Second Series, Course ing hours. He did not report to his employer's office daily except by telephone, but started from his own home and made calls upon his customers as he saw fit. On the morning of January 10, 1923, he left his home to call on a customer at 1800 Cornelia avenue, took a street car, and got off at the northwest corner of Lincoln and Cornelia avenues, the nearest point reached by the car to 1800

405 (6) Evidence held to justify award of compensation. Evidence as to injury and loss of earning capacity caused thereby held sufficient to justify award for permanent partial disability under Workmen's Compensation Act, § 8.

Error to Circuit Court, Cook County; Har- Cornelia avenue, which was one block west ry M. Fisher, Judge.

Proceeding under Workmen's Compensation Act by Charles E. Holmes, claimant, opposed by the Solar-Sturges Manufacturing Company, employer. From judgment modifying Industrial Commission's decision confirming award of arbitrator, the employer brings error. Affirmed.

and on the same side of the street, so that he was not required to cross the car track to reach his destination. However, his employer allowed him an expense account, to be used, among other things, in buying cigars for his customers, and he crossed the street and car track to a store and there bought some cigars, some of which he expected to use

Moloney & Postelnek, of Chicago, for plain- with the Certified Ice Cream Company, the tiff in error.

customer at 1800 Cornelia avenue. As he was

Bulkley, More & Tallmadge, of Chicago, coming back over the car tracks after leaving for defendants in error.

the store, he was struck by a street car and received the injury for which the award was made. The injury received under these circumstances "arose out of and in the course of his employment." Illinois Publishing & Printing Co. v. Industrial Com., 299 Ill. 189, 132 N. E. 511; McNaught v. Hines, 300 Ill. 167, 133 N. E. 53; Porter Co. v. Industrial Com., 301 Ill. 76, 133 N. E. 652.

DUNN, J. Charles E. Holmes, a salesman employed by the Solar-Sturges Manufacturing Company, was struck by a street car and injured on January 10, 1923. Claim was made for compensation and was refused on the ground, among others, that the accident did not arise out of and in the course of the employment. An application for adjustment [2] The plaintiff in error contends that the of claim was filed, claiming compensation un- award was based merely upon a prospective der paragraph (e) of section 8 of the Com- loss of earnings and not upon an actual expensation Act (Smith-Hurd Rev. St. 1923, c.isting loss. Holmes was totally disabled for 48, § 145) for 50 per cent. loss of the use of work 4 weeks, and in the 29 weeks followboth legs. The application was referred ing his return to work for the same employer to an arbitrator, who made an award under and at the same work he earned $1,447.99, or paragraph (d) of section 8 of $14 per week approximately $50 a week. His employer, for four weeks of temporary total disability, the plaintiff in error, then changed the basis $14 per week for 263 weeks of permanent of his compensation to a salary of $60 a partial incapacity, and $139.45 for medical, week, plus 10 cents for each call reported. surgical, and hospital services. Upon review This method of compensation had been in the award was confirmed by the Industrial use nearly four months before the hearing by Commission. The circuit court of Cook coun- the Commission, and therefore when that ty on certiorari found that the record was hearing was had Holmes was actually earnfree from error except as to the amount and ing or being paid as much as he was paid period of weekly payments, which were mod- for his services before the injury. However, ified and fixed at $9.50 a week for 388% the 29 weeks in which Holmes earned after weeks. A writ of error was issued on the the accident about $50 a week included the petition of the Solar-Sturges Manufacturing | time from February to August 31-the seaCompany to review this judgment. son during which the evidence shows his

(146 N.E.)

earnings in the previous year greatly exceeded his monthly earnings from September 1 to January 1, being nearly twice as much by the week. The sales manager of the plaintiff in error testified on the hearing on review in December, 1923, that the change in the method of fixing Holmes' compensation made on September 1, 1923, was made on a basis then adopted for fixing the compensation of all salesmen on an estimate of what each would be worth to the company; that experience had shown that in comparison with the other salesmen Holmes was not earning the compensation so determined; that he had been with the plaintiff in error for a long time, and if he had been a new or younger man his salary would have been immediately reduced after the experience of the first three months, September, October, and November, and that the sales manager and the president had decided to change Holmes but did not want to tell him so until after the holidays. From the evidence it is apparent that after the accident Holmes' earning capacity was decreased considerably, for in the most productive months he was able to earn an average of only about $50 a week, whereas in the preceding year, which included the least productive months, he had earned more than $62 a week and in the more productive months had earned nearly $78 a week. The result of the new method of compensating him demonstrated that he was not able to earn as much as before the accident or sufficient to justify his employer in paying him as much, and the employer had already determined to make a change with reference to him.

Holmes was 62 years of age. He was struck by the street car at about 9 o'clock in the morning and rendered unconscious. When he regained consciousness he was in the X-ray room at the Ravenswood Hospital and he remained in that hospital 10 days. He was unable to walk when he was taken home. On February 7 he reported to his employer and for a time worked probably an hour a day, being taken around to his customers by his son in an automobile for about 2 weeks. When the case was heard before the arbitrator, May 25, 1923, Holmes testified:

tion I can't move without holding it and fetching it around. If I undertook to put my weight on the leg in that position I couldn't stand on taking hold of something to get hold of. it. I am able to walk up and down stairs by

My condition is not getting any better. During the last two or three weeks I have not been as well as I was before. * * Prior to the accident of January 10, 1923, I did not have any pain along the spine or in the back or body. Now I have a great deal of pain right here in the spine of the back and on each side. I mean each side of the backbone-not in the side of the body. It seems to be up there six weakness there [indicating]. It is just about or eight inches [indicating] and the greater in the center part, and I have pain in that vicinity most of the time since the accident and it is still there. I have never had anything of that kind before the accident."

Dr. Toeller attended Holmes at the hospital, and testified that Holmes was brought into the hospital and when the doctor saw him he was in a semiconscious condition. There was a marked amount of pain in the lower cervical region of the spine as well as in the dorsal, lower dorsal, and lumbar. His right knee was considerably swollen, and he complained of pain in the left knee, which was also somewhat swollen. There was a head injury of some kind but no fracture of the skull or bleeding from eyes or ears. The pupils of the eyes were fixed and did not react to light and accommodation. The doctor testified further:

have him be. *

er doubtful. It will be very hard for me to give "The prognosis in a case of this kind is rathan honest prognosis here. A man of Mr. Holmes' age that receives a blow on the head which causes semiconsciousness, and the injury to his spine and knees, in my opinion will go along indefinitely, and I wouldn't want to say that Mr. Holmes in three or six months or a year from now will be what I would like to ing pain in certain portions of his vertebæ My testimony concernfirst the cervical and then the dorsal and the lumbar region-is based upon the subjective complaints of the patient. There was no external evidence of pain there. The only objective symptom of injury was the swelling of the knee and the fact that his pupils did not react to light and accommodation, and the wound, which I am not positive of to-day, to his head."

Dr. Swift examined Holmes on May 23, 1923, and testified:

"I was able to go up and down the elevated stairs without difficulty. Now I have considerable difficulty in going up and down the elevated stairs and I am mighty careful how I get on the street cars. At the present time I "I found the following objective symptoms: have got a weakness in my limbs here and my A scar an inch and a half long on the back two knees here that were injured at that time of the head, right occipital region; the right -especially this right knee is weak, and leg- knee fourteen and three-fourths inches in cirand that is the reason why I cannot get up cumference, the left fourteen inches. There and down the elevated steps or any other steps, is no disfigurement where the scar is, because and the weakness in the back. I have a numb- it is above the hair line and covered with hair. ness below the knees here-a partial numbness. He had crepitation over the external semilunar The right is the one that is affected the worst. cartilage in the right knee. X-rays show an There is some swelling there. If I am around osteoarthritis of the lumbar spine. Objectivethe city too long, of course it hurts me, and if ly I believe that is all I can testify to. I beI happen to get the right leg in a certain posi-lieve the reason for the difference of the left

trauma.

*

satisfying statute must by own terms or reference express essential elements of agreement.

and right knee is because he had a loosened | 5. Frauds, statute of 113(2)-Memorandum semilunar cartilage. I examined the knee and found objectively the crepitation and the enlargement. By crepitation I mean a grating sound. Mr. Holmes appears to be about 60 years old. That condition might come from * Assuming that there was an injury which produced this result, occurring on January 10, 1923, the prognosis is bad for reThe condition in the knee does frecovery. quently cause pain. The knee becomes locked and may give way on him to go up or down stairs, step upon cars, street cars or any elevation; difficulty in getting over uneven surfaces; tires easily."

No evidence was introduced at the hearing on review as to any improvement or deterioration in Holmes' physical condition since the hearing before the arbitrator, and the record contains no evidence as to his condition later than May 25, 1923, except the testimony of the plaintiff in error's sales manager as to what he was able to earn in September, October, and November, 1923. While the physicians do not express the opinion that the incapacity is permanent, in those words, they do say that the prognosis is bad for recovery, and a consideration of all the evidence justifies the finding and award. Judgment affirmed.

YOUNG v. YOUNG.

(Supreme Judicial Court of Massachusetts. Essex. Feb. 16, 1925.)

1. Husband and wife 36-Contract between married woman and husband is void.

Contract of married woman with her husband, prohibited by G. L. c. 209, § 2, is void and unenforceable in equity.

Even under statute, where note or memorandum of contract may be adequate compliance therewith, memorandum must by its own terms or by reference to some other writing express with reasonable certainty all essential elements and conditions of agreement. 6. Frauds, statute of 103(1)—Husband and wife205 (3)-Wife's refusal to carry out oral agreement to make will held not fraud on husband, cognizable in equity.

Recital in wife's will that it was made in accordance with mutual agreement between husband and her, "my husband this day executing similar will in which he gave all his estate to me," was not written agreement to make will, under G. L. c. 259, § 5, and her subsequent refusal to carry out oral agreement to make will was not fraud on husband, who had voluntarily conveyed land to wife, which equity could relieve.

7. Husband and wife 53-Coverture is not defense to fraud practiced by guilty spouse.

Coverture is not a defense to fraud practiced on husband or wife by guilty spouse.. 8. Husband and wife 47(3)-On wife's refusal to carry out oral agreement for mutual will, consideration for husband's deed to her failed.

Where wife, receiving title to land from husband under a mutual agreement by which she was to execute will in his favor repudiated agreement and claimed to hold estate free of husband's claim therein, consideration wholly failed.

9. Husband and wife 205 (3)-Where wife repudiated oral agreement to make mutual wills, relief granted in equity for failure of consideration.

Where wife, after receiving deed to husband's land, repudiated oral agreement to make mutual wills, husband not being permitted to maintain action at law because of disability of

2. Trusts 17, 18(3)-Express trust estab- coverture, his relief was in equity, because lished only by writing.

Under G. L. c. 203, § 1, an express trust cannot be established in land, unless it is in writing.

3. Trusts 20-Recital in wife's will held insufficient to create express trust.

G. L. c. 203, § 1, requiring writing to establish express trusts in land, was not complied with by mere reference in wife's will to mutual agreement with husband to make wills, and recital that husband by his will gave his estate to his wife, there being no disclosure of fiduciary relation between parties, and no statement of facts charging it.

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consideration of deed had failed.

Appeal from Superior Court, Essex County; Henry T. Lummus, Judge.

Bill in equity by Joseph Young against Carrie C. Young for recovery of real estate conveyed to defendant under agreement to make mutual wills. From decree sustaining demurrer to bill, plaintiff appeals. Reversed, and decree entered.

M. L. Sullivan, of Salem, and W. E. Sisk, of Lynn, for appellant.

H. R. Mayo and G. W. Howe, both of Lynn, for appellee.

CARROLL, J. In this suit in equity the plaintiff and defendant are husband and wife. The plaintiff alleges that he agreed with the defendant to convey to her certain real estate owned by him, and they were to

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