rights necessitated a change in sewers.-City of Chicago v. Sanitary Dist. of Chicago, Ill., 111 N. E. 491.

69. Evidence. In a proceeding to condemn right of way for a grade crossing of another road, exclusion of testimony that the added stop would depreciate the road economically was not error, since damages cannot be assessed on account of a requirement of the statute, and the statute requires the stop at crossings. -Alton & S. R. R. v. Vandalia R. Co., Ill., 111 N. E. 531.

71. False Imprisonment - Defenses.-Where the servants of a railroad company wrongfully excluded plaintiff from a train and had him arrested, the fact that he was arrested on a warrant is no defense to an action for false imprisonment; the charge being unfounded.Davis v. Chicago, R. I. & P. Ry. Co., Mo. App., 182 S. W. 826.

72. Fraud-Proximate Cause.-A fraudulent representation to be treated as the proximate cause of a loss must have been acted on by the party to whom addressed, and he must have exercised the care to be expected from an ordinarily prudent person.-Kelley v. Peeples, Mo. App., 182 S. W. 809.

73. -Reliance on Representation.-Where the buyer of an engine, in purchasing, did not rely upon the seller's fraudulent representations made to induce the purchase, the buyer had no cause of action based upon such fraudulent representations.-Wilson v. Avery Co., of Texas, Tex. Civ. App., 182 S. W. 884.

74. Frauds, Statute of-Contract.-The oral contract, on which complainant was taken into decedent's family, that they would leave to her all their land and other property, cannot be enforced, absent a showing that she was worse off for so being brought up.-Snyder v. French, Ill., 111 N. E. 489.

75. Fraudulent Conveyances-Creditors. Where a purchaser of land pending suit involving title thereto incumbered same without warranty, and the decree in the suit vitiated his title, held that the transaction did not, in the decree to one from whom he secured a good title, held that the transaction did not, in the absence of other evidence, show a fraud upon his creditors.-Linn v. Collins, W. Va., 87 S. E. 934.

76. defendant intended to give a piano to his stepdaughter, and, though there was never any formal delivery of it to her, it was exclusively used by her in their home under claim of ownership, there was a sufficient actual delivery to constitute a valid gift. Wiley B. Allen Co. v Edwards, Cal. App., 154 Pac. 1066.

Gifts-Delivery.-Where

77. Husband and Wife-Joinder in Deed.-A married woman's deed, signed and acknowleged by herself and husband, though he is not named as grantor, shows his joinder in the deed and passes her title to her separate realty.-Linn v. Collins, W. Va., 87 S. E. 934.

78. Infants-Guardian ad Litem.-Failure to appoint a guardian ad litem for an infant defendant duly served with process renders a decree against the infant voidable, but not void. -Linn v. Collins, W. Va., 87 S. E. 934.

of the boiler, is not engaging in or using explosives within the meaning of a life policy.Anchor Life Ins. Co. v. Meyer, Ind. App., 111 N. E. 436.

81.- -Severable Contract.-Principal contract of accident insurance against injury to son in favor of mother, and separate supplemental contract against injury to mother in favor of son, covered by same premium, held not to constitute one contract to be construed as a whole. -State ex rel. Schmohl v. Ellison, Mo., 182 S. W. 740.

82. Internal Revenue-Income Tax.-Labor and agriculture organizations, mutual savings banks, etc., can be excepted from operation of income tax provisions without rendering the tax repugnant to the federal Constitution.Stanton v. Baltic Mining Co., U. S. Sup. Ct., 36 S. Ct. 278.

out

83. Landlord and Tenant- - Negligence. Where plaintiffs impliedly agreed to remain as defendant's tenants if he would thaw frozen sewer pipes, he is liable in damages for injury to or destruction of plaintiffs' property, from negligence in doing the work.-Franco v. Maker, Mass., 111 N. E. 721.

84. Literary Property-Damages.-Where author and publisher made contract for publication under a certain name, agreement between the publisher and another publisher for publication of the work in connection with other volumes under a different name was a breach of the author's contract, entitlng him to damages. De Bekker v. Frederick A. Stokes Co., N. Y. Sup. Ct., 157 N. Y. S. 576.

85. Mandamus-Civil Service Commission.Mandamus lies on the petition of a janitor in the state capitol against the secretary of state and the civil service commission to compel them to certify and approve a pay roll for such janitor's back salary for a period of more than a year from the time of his attempted discharge by the secretary to his legal discharge by the commission, during which he tendered his services.-People v. Stevenson, Ill., 111 N. E. 595.

86. Master and Servant-Course of Employment. Where, despite its rules, a newspaper company allowed compositors to go on the roof for fresh air, an employe who fell. from the roof and was killed, while seeking fresh air, was in the course of his employment.-In re Von Eeete, Mass., 111 N. E. 696.

88. Inspection of Appliances.-If a servant is instructed to inspect an appliance, and he fails therein to another's injury, the master cannot avail himself of the instructions given. -Pette's Adm'r v. Old English Slate Co., Vt., 96 Atl. 596.

89.Nonsuit.-Entry of nonsuit held proper, where it appeared that the injured employe, under his instructions, could easily have performed his duty of filling an oil cup dangerously close to machinery at a time when the machinery was not in motion.-Carl v. Brown, Pa. 96 Atl. 647.

90. -Railroads.-Railroad trains have the right of way over section men, and such men, where the rules require them to look out for trains, are bound to, do so.-Anest v. Columbia & P. S. R. Co., Wash., 154 Pac. 1100.

91.- Respondeat Superior.-That a conductor in charge of a lumber company's train had been approved by the railroad company over whose track the train was operated did not constitute him an employe of the railroad company, where he was paid by and under authority the lumber company.-Central of Georgia Ry. Co. v. Bessinger, Ga. App., 87 S. E. 920.

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92. Respondeat Superior.-The proprietor of a saloon and connected hotel, even though not an innkeeper, as to one in the saloon for drinks, held liable for injury to him from a servant throwing a glass. McKeon v. Manze, N. Y. Sup. Ct., 157 N. Y. S. 623.

93. Mechanic's Liens Materialman.-In an action on a materialman's lien for materials

Central Law Journal.

ST. LOUIS, MO., MAY 12, 1916.

MAJORITY OF COURT SHOULD AGREE ON DECISIVE RULINGS.

In 82 Cent. L. J. 277 we discussed “Unnecessary Judicial Opinions," as "Breeders of Confusion" and we find in Jones Nat. Bank v. Yates, 36 Sup. Ct. 429, decided April 3, 1916, remarks by Justice Hughes which seem to give some point to the views we expressed.

There the Supreme Court of Nebraska was reversed and judgment of trial court reinstated on the merits. In so deciding, the learned justice, among other things, said: "It is apparent that there were no findings of fact by the Supreme Court of the state. The actions being at law and trial by jury being waved, the findings of fact made by the trial court-as we understand the local practice had 'the same force and effect' as the verdict of a jury. *** But apart from these considerations, findings of fact by the Supreme Court would necessarily require the action of a majority of that court, and it is plain that the opinion of the three judges, unaided by the concurrence of the fourth, could not be regarded as embodying such findings. Justice Letton, whose concurrence in the result made the reversal possible, stated specifically the sole ground of his action, and his statement did not purport to be the resolving of questions of fact. After saying that he was inclined to the view that the evidence would support 'judgment upon a cause of action at common law for deceit,' and that 'the findings of the district court were 'to that effect,' he added that he was not satisfied that these findings were 'unsustained by the evidence.' He considered the presumption to be that they were 'so sustained,' but he had 'not examined the evidence so critically as would be necessary to determine this,' for the reason that, in view of the holding of this court 'as to the measure of duty and

of liability of directors' under the Federal Act, he thought 'a case had not been made.' 'For that reason alone' he concurred in the conclusion."

The Justice then says: "It is manifest that this was simply the expression of an opinion with respect to the legal sufficiency of the plaintiff's case. That is, the decisive ruling upon which the reversal restedwas that matter of law, applying the Federal statute, the plaintiffs were not entitled to their recovery. And the judgment as entered upon appeal simply set forth that the court finding 'error apparent in the record of the proceedings and judgment' reversed and dismissed."

As we gather this statement, expressions of opinion by judges not supported by a majority of a court are merely personal, and not judicial, opinions and properly have no place in a judicial opinion at all.

As to the harm done in this case it would seem that this judge concurring in the result, if he was unable to agree in the findings of fact by three judges, should have gone with the other three and have affirmed the judgment. To apply a familiar expression, a judge "should either fish or cut bait." By his not going with the three for affirmance of the district court

he put upon the plaintiffs the onus of prosecuting a writ of error, and, as the result shows, he would have done them serious injury had they not have prosecuted the writ.

We do not care to weary our readers by harping on a single string, but we do feel very strongly, that a great part of the volume of judicial opinions could be reduced, not only to the benefit of all concerned, but that clarity in ruling and the clear boundaries of precedent would the better appear.

There are not many questions that arise, which call for wholly novel principles. The conclusions judges reach are results from their understanding of well-known principles. If one judge is persuaded to the same result as another, but by a wholly dif

ferent line of thought, is it not better not to state academic reasons? If the reasons are not viewed by another as sound, the decisions lack the force a precedent should have. If the reasons vary, a lawyer may follow one or the other judge or he is even not restrained from getting at the matter independently of the reasons given. How, indeed, will he be able to apply the principle to a different state of facts, if by one judge's view this is admissible and by another's it is not?

Furthermore, it seems to us that reasons are greatly like obiter dicta, when there is an announcement which may not work out satisfactorily. The reasons cannot cover every contingency, and they are therefore misleading, if any test shows an exception apparently comprehended. There is often the same difficulty in stating a matter comprehensively as courts find in trying to define, for example, a state's police power.

NOTES OF IMPORTANT DECISIONS.

HIGHWAYS-DOG CAUSING INJURY TO AUTOMOBILE.-The superior right of automobile or dog on street appears to have been involved in Tasker v. Avey, 96 Atl. 737, decided by Maine Supreme Court, and judgment against the owner of the dog for damage to the automobile seems to establish a principle in highway law.

The facts show that plaintiff was driving his automobile along the highway in the exercise of reasonable care, when defendant's dog, as plaintiff testifies, "jumped directly in front of my machine and so quick I didn't have time to apply the brakes before it struck him. The lefthand wheel struck him and jacked the machine around across the ditch, blown out of the solid ledge, and tipped it over."

The Maine statute provides that, "when a dog does damage to a person or one's property, his owner or keeper *** forfeits to the person injured the amount of the damage done," provided it was not occasioned by the fault of the person injured. The court thought there was evidence to justify verdict in plaintiff's favor.

There is here an utter absence of discussion

as to the dog being or not out of bounds, or whether he was where he could have been seen before he "jumped," or whether he might have been expected to jump, or whether plaintiff should have slowed up if he saw him. Should the automobilist have taken into account animal propensities, or should the dog be regarded as having the intelligence of a human being so as to make his owner liable for his pranks or harmful indiscretions? Does the case mean that, so far as dogs are concerned, the "joyrider" must not be interfered with, whatever may be thought as to other animals or persons on the highway? If so, let his "joy be unconfined." Perhaps also a chicken may not "cross the road" in safety.

BANKS AND BANKING-GENERAL MANAGER OF CORPORATION ISSUING CHECKS TO FICTITIOUS PARTIES.-Upon the principle that a bank is not liable where it is misled by the negligence or other fault of the drawer in paying a check to one other than the payee, the Supreme Court of Tennessee holds, that where a corporation's general manager issues checks to payees and, vouching for their identity, collects the checks himself and appropriates their amounts the bank is not liable to the drawer. Litchfield Shuttle Co. v. Cumberland Valley Nat. Bank, 183 S. W. 1006.

The court admits the rule that a bank must judge for itself as to the identity of the payee of a check, but, under circumstances amounting to a direction by the drawer to pay to one as the named payee, it is excused. This exception appears quite evident, but does it cover the case of a corporate officer collecting such a check himself? It seems a well known principle that, if such an officer draws a check to his own order, one receiving it is bound to inquire whether it was lawfully issued or not. How is it different, if the officer draws the check in favor of another and then vouches for the latter's identity?

Or suppose he may do the latter, so far as a named payee collecting the check is concerned, can the officer vouch for that payee's identity so as to collect the check himself? Is not the bank put on inquiry just as much as were the check drawn by the officer to his own order?

The court concluding its opinion says: "Considering the character of complainant's business and the extent of Hooper's authority, the defendant bank may very well have concluded

that the checks here in controversy represented expenses of the mill paid in cash by Hooper and the checks were drawn and indorsed by him as vouchers." But, we think, that the very fact that the bank may have been obliged to argue to some such conclusion as above stated, shows that it ought to have made inquiry into the issuance of such checks.

SUFFERING,

DAMAGES-MENTAL BUT WITHOUT OTHER INJURY.-The Federal Supreme Court holds that there was error in refusing a requested instruction as follows: "As the shipment which is alleged to have been delayed was a shipment in interstate commerce and as the damage claimed by the plaintiff is damage for mental suffering only on account of the delay of the delivery of such shipment, the court instructs the jury that under the evidence in this case, the plaintiff is not entitled to recover any damage." Southern Expr. Co. v. Byers, 36 Sup. Ct. 410.

Justice McReynolds said, Southern Express Co. v. Byers, 36 Sup. Ct. 410: "In such circumstances, the long settled common law rule permitted no recovery; the decisions to this effect 'rest upon the elementary principle that mere mental pain and anxiety are too vague for legal redress where no injury is done to person, property, health or reputation.' The lower federal courts, almost without exception, have adhered to this doctrine and in so doing we think they were clearly right upon principle and also in accord with the great weight of authority. * * * In 1881, the Supreme Court of Texas held the addressee of a message might recover damages of a telegraph company because of mere mental suffering." So Relle v. W. U. Tel. Co., 55 Tex. 308, 40 Am. Rep. 805.

It is then recited that Alabama, Iowa, Kentucky, Nevada, North Carolina and Tennessee approved this ruling, while the Dakotas, Florida, Georgia, Illinois, Indiana, Kansas, Minnesota, Mississippi, Missouri, New York, Ohio, Oklahoma, Virginia and West Virginia "deffnitely rejected the innovation." Justices McKenna and Holmes merely concur in the result. If this doctrine is as is stated, an "innovation" it ought to be rejected and perversity in an apparently hopeless view, should not cause a small minority of the courts to perpetuate a conflict of decision. The question, after all, is more abstract than real.

as Roman Catholic Bishops of certain dioceses, caused to be read by the clergy of Polish Catholic churches, a pastoral letter enjoining the reading, keeping or subscribing for a newspaper published by plaintiff as being "greatly injurious to Catholic faith and discipline: the publication being alleged to be of an antiCatholic spirit," "a matter to be decided by ourselves." Injunction was asked "commanding the defendant bishops to withdraw and rescind the pastoral letter." Conspiracy and malice were alleged.

A per curiam opinion was rendered, one judge dissenting, in which it was said that: "Notwithstanding much prolixity in the complaint, the real gravamen of the action is an attempt to hold the defendants liable for the the pastoral letter. This letter does not require the breach of any contract nor the withholding of any advertising patronage, but warns against the newspaper in question and forbids those who would continue good church members against reading it. This was within the scope of church discipline, and, if incidental pecuniary loss accrues to plaintiff, it is damnum absque injuria. By maintaning their church discipline and declaring the paper improper to be read by church members they have violated no legal right of the plaintiff. It might be otherwise if they attempted to forbid social or business intercourse with the plaintiff in respect to trade or commerce or something which ordinarily could not affect the faith of the members. Recommending to the members what they should read under pain of expulsion from the church communion is within the jurisdiction of every pastor and every prelate of every church which professes to leave such matters to the determination of its clergymen."

Whether or not the averment that "the defendants entered into a conspiracy for the purpose of injuring the plaintiff in its business as publisher of a newspaper and that said pastoral letter was maliciously published and circulated for such purpose," was sufficient to take the letter out of the category of privileged communications was a more serious question than the one suggested in the per curiam opinion. But that was merely cautionary and the court disposed of the averment referred to by saying wherein lay "the real gravamen of the action." At all events, neither a member nor an outsider, should be allowed, in pursuing his liberty in doing business, to shield such from interference by a church or other society in enforcing its own discipline and preserving the means of its continued existence. The intruder takes chances in his prior interference.