not mean to imply, however, that we should have come to a different conclusion, had the plaintiff been a tree passenger instead of a passenger for hire. We are aware that respectable tribunals have asserted the right to stipulate for exemption in such a case; and it is often asked, with apparent confidence, 'May not men make their own contracts, or in other words, may not a man do what he likes with his own?' The question at first sight seems a simple one. But there is a question lying behind that: 'Can a man call that absolutely his own, which he holds as a great public trust, by the public grant, and for the public use as well as his own profit?' The business of a common carrier, in this country at least, is emphatically a branch of the public service." In a very elaborate opinion in the case of The Pennsylvania Railroad Co. v. Henderson (1865), 51 Pa. 315, which was also a case of a drover's conditional pass, Mr. Justice READ reviewed the previous decisions upon the question, and commented upon the New York and New Jersey decisions treating the dissenting opinions in the former as the better law, although delivered by the minority. Speaking of the condition attached to the pass in the case then before him he remarks: "This endorsement relieves the company from all responsibility from any cause whatever, for any loss or injury to the person or property, however it may have been occasioned; and our doctrine settled by the above decisions, made upon grave deliberation, declares that such a release is no excuse for negligence." The decision in Bissell v. The New York Central RR. Co. (1862), 25 N. Y. 442, another case of this class, supported the contract as valid. The opinion, however, was not that of an unanimous Court, for Chief Justice DENIO, and Justices WRIGHT and SUTHERLAND dissented therefrom. Other cases of the drover's class might be mentioned, but as they would not throw further light upon the question of public policy, and as the Courts have drawn a distinction between such passes, and those issued to a purely gratuitous passenger, it is not proposed to examine them in this annotation, which has, as far as possible, been confined to cases of contracts with gratuitous passengers, as originally intended. If, however, the line has, in any way been departed from, it has only been for the purpose of elucidating the subject as fully as possible. The Constitution of the State of Pennsylvania provides (Art. XVII, Section 8): "No railroad, railway, or other transportation company shall grant free passes, or passes at a discount, to any person, except officers or employes of the company." A similar clause is not to be found however in any of the other State Constitutions. The remarks of Justice WRIGHT in Smith Adm'r v. The New York Central RR. Co.(supra, page 396), must not be lost sight of. He contends that such contracts are against public policy; that the State is interested not only in the welfare, but in the safety, of its citizens; that the question affects the public and not merely the party who is being carried. He insists that the passenger has no right to absolve a railroad company to whom he commits his person, from the discharge of these duties imposed upon it for the safety of man; that such contracts encourage negligence and fraud; take away the motive of self-interest on the part of such carrier, which is perhaps the only one adequate to secure the highest degree of caution and vigilance; and holds that a contract which has these tendencies is contrary to public policy even when no fare is paid. The penal side of the question must not be forgotten, for where the defendant's acts are made penal by statute none of the conditions printed upon the back of the ticket can have the effect to relieve it from its liability for gross negligence and carelessness. The case of Commonwealth v. Vermont and Massachusetts RR. Co. (1871), 108 Mass. 7, illustrates this principle. It was an action brought against the company, under a penal statute, to recover a fine for the use of the widow and children of the deceased, killed while a passenger on the defendant's road, through the negligence of the company, its servants or agents. The deceased was in the habit of traveling upon defendant's road, selling corn to the passengers in the trains, under a contract with the company. He had a ticket upon which was endorsed a condition exempting the company from liability for personal injuries received by the passenger while traveling on such ticket. season Court held that none of the conditions had the effect to relieve the defendants from liability. In conclusion, the reader's attention is called to the remarks of Justice SWAYNE in The Indianapolis and St. Louis RR. Co. v. Horst (1876), 93 U. S. 291, a case in which a drover was injured while obeying the conductor's instruction in getting from a caboose, in which he had been traveling, to the top of an adjoining car. He says, "The pas senger has no authority upon either, [i.e. upon either a passenger or a freight train] except as to the personal care of himself. The conductor is the animating and controlling spirit of the mechanism employed. The public have no choice but to use it. The standard of duty should be according to the consequences that may ensue from carelessness. The rule of law has its foundation in public policy. It is approved by experience, and sanctioned by the plainest principles of reason and justice. It is of great importance that courts of justice should not relax it." The question of Statutory Liability for causing death will be found fully treated upon in THE AMERICAN LAW REGISTER, vol. xxviii, pages 385, 513, 577, to which the learned reader is referred. The Philadelphia. ERNEST WATTS. 405 BANKS AND BANKING. Forged checks on a bank, purporting to be signed by one of its principal depositors, and running through a period of five months before the forgery was discovered, were accepted and paid by the drawee bank to other banks, which had cashed the checks in good faith, after inquiry of the drawee bank as to the state of the depositor's account; under these circumstances the drawee bank must bear the loss and cannot recover from the other banks the amount paid on the forged checks. Deposit Bank of Georgetown v. Fayette Nat. Bank, Ct. App. Ky., March 8, 1890. BILLS AND NOTES. Indorser of a promissory note, payable to the maker's own order, is liable thereon, although the maker does not indorse it until after his indorsement has been made. Central Nat. Bank v. Dreydoppel, S. Ct. Pa., May 5, 1890. CHATTEL MORTGAGES. Accommodation indorser upon a promissory note may be protected in his liability by a chattel mortgage, and such mortgage at the note's maturity will inure to the benefit of the holder of the note. Tompkins v. Crosby, Ct. Ch. N. J., May 8, 1890. COMMON CARRIERS. Delivery to warehouseman by a carrier of goods transported by it, such warehouseman being independent of the carrier and giving notice himself to the consignees of the arrival of the goods, in accordance with a custom well known to the consignees and long acquiesced in by them, terminates the liability of the carrier, and it is not liable if the goods are subsequently destroyed by fire. Black v. Ashley, S. Ct. Mich., April 11, 1890. Stipulation in bill of lading that an agreed valuation shall cover loss or damage from any cause whatever, does not relieve the carrier for liability for the actual value of the goods when their loss is caused by the carrier's negligence. Pennsylvania R. R. Co. v. Weiller, S. Ct. Pa., April 21, 1890. 66 CONSTITUTIONAL LAW. Statute forbidding peddling does not violate the inherent and indefeasible right of acquiring, possessing and protecting property" secured by constitutional provision to the State's citizens, nor is the application of such a statute to citizens of another State, employed by a manufacturing company located in that State, to sell small articles from house to house, an interference with interstate commerce. Commonwealth v. Gardner, S. Ct. Pa., March 17, 1890. CONTRACTS. Public policy does not forbid a contract not to teach the French or German language, nor aid nor advertise to teach them, or either of them, nor to be connected with any person or institution teaching them, within a designated State, for the period of a year after leaving the other party's employment, but where it plainly appears that the restriction is greater than the necessity, such contract is unreasonable and will not be enforced. Herreshoff v. Boutineau, S. Ct. R. I., April 14, 1890. CORPORATIONS. Degree of Doctor of Medicine cannot be conferred by an institution incorporated under a statute which provides that persons may associate together and have the powers of a corporation for the purpose of establishing and maintaining "literary and scientific institutions. Towshend v. Gray, S. Ct. Vt., April 5, 1890. List of stockholders in a corporation cannot be copied by one of the stockholders, who desires to use such list for the purpose of inducing other stockholders to join him in a suit against the corporation and share the expenses, although the State Constitution requires a list of the stockholders to be kept for inspection at the office of the corporation. Empire Passenger Ry. Co's Appeal, S. Ct. Pa., April 21, 1890. EVIDENCE. Alteration of check, which is apparent upon its face and affects the amount of such check, imposes upon the holder the burden of explaining how such alteration was made, though both the drawer and payee of the check are dead. Hess' Appeal, S. Ct. Pa., March 31, 1890. Deed more than thirty years old and coming from the proper custody, under which title has long been asserted, is admissible in evidence without the production of a power of attorney by whose authority, according to its recitals, it was executed. O'Donnell v. Johns, S. Ct. Tex., Feb. 28, 1890. " FIRE INSURANCE. Arbitration clause in a fire policy, which provides that, in case of loss, the amount of loss or damage" shall be ascertained by arbitration, and shall not be payable until so ascertained, and that such arbitration shall be a condition precedent to bringing suit, is reasonable and valid, and applies although there has been a total loss of the property insured. Chippewa Lumber Co. v. Phænix Ins. Co., S. Ct. Mich., April 11, 1890. Condition of policy on a dwelling and its contents provided that such policy should be void if the house became “vacant or unoccupied;" when the tenant occupying the house removed, the agent who issued the policy verbally informed the insured that the insurance would be good for thirty days and that the house would be considered as occupied from the fact that the insured's goods remained in it; within the thirty days the house was burned ; notwithstanding a condition in the policy that the agent could not vary its terms by parol, the insurer was bound by the agent's declarations, which constituted not a waiver of the condition, but merely a construction of the words "vacant or unoccupied." Hotchkiss v. Phoenix Ins. Co. of Brooklyn, S. Ct. Wis., March 18, 1890. JURISDICTION. Suit by stockholder of national bank against its officers and directors, all of whom are residents of the same State with such stockholder, to compel collection of a note due the bank and payment to the bank by the directors of sums lost by reason of their alleged illegal conduct, is not within the jurisdiction of the Federal Courts. Whittemore v. Amoskeag Nat. Bank, S. Ct. U. S., March 31, 1890. LANDLORD AND TENANT. Furniture leased to a tenant and used by him on the demised premises, is subject to the landlord's right of distress for rent. Myers v. Esery, S. Ct. Pa., April 7, 1890. LIFE INSURANCE. Assignment to creditor of a life insurance policy gives him the right to retain from its proceeds only the amount of his debt, his advances to keep the policy in force and the expenses of its collection, with interest on such disbursements. Lewy v. Gillard, S. Ct. Tex., March 4, 1890. Indebtedness of insured to the estate of his ward will not render the proceeds of life insurance, taken out while he was perfectly solvent, for the benefit of his wife and children, applicable to the payment of such debt, where it is provided by statute that life insurance made by a husband for the benefit of his wife and children, whether insolvent or not, is valid as against creditors, unless made with intent to defraud. Hise v. Hartford Life Ins. Co., Ct. App. Ky., April 5, 1890. Limitation in a policy providing that no suit shall be brought thereon after six months from the death of the insured, will not bar an action where the beneficiary and the company's superintendent have agreed on the amount to be paid, and the latter has promised to pay it as soon as the money should be received from the home office. Metropolitan Life Ins. Co. v. Dempsey, Ct. App. Md., April 18, 1890. "Their children," when used in a policy made payable to the insured's wife and in the event of her death in his life-time, then to their children, mean the children common to both the insured and his wife. Evans v. Opperman, S. Ct. Tex., Feb. 25, 1890. |