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Central Law Journal.

But while the right of action is different in each case, both actions are founded on the

same tort. This, we think, is made clear ST. LOUIS, MO., MARCH 12, 1920.

by the amendment of 1910, which provides


“Any right of action given by this act TO PERSONAL REPRESENTATIVE'S to a person suffering injury shall survive to ACTION.

his or her personal representative, for the benefit of the surviving widow or husband and children of such employe, and, if none,

then of such employe's parents; and, if The decision of the Circuit Court of Ap

none, then of the next of kin dependent peals (5th Cir) in reversing the judgment

upon such employe, but in such cases there of the Court in favor of the plaintiff in the į shall be only one recovery for the same incase of Oliver v. Seaboard Air Line Ry. jury." Co., 250 Fed. 652, clears up a much debated | This amendment merely provides for the question concerning the rights of action cre

survival of the employe's right of action, if ated by the Federal Employers' Liability

not barred or destroyed at the time of his Act. Seaboard Air Line Ry. Co. v. Oliver,

death, and gives the personal representative 261 Fed. 1.

the option to sue on either of the two rights In this case the defendant in error, of action, where before the amendment he Oliver, sued to recover for the death of his had only one right of action. It does not decedent, Bud Hall. The defense was that mean that he can sue on each right of action. Bud Hall, himself, brought suit for dam

This distinction, we think, is made quite ages sustained by him in consequence of the clear by the following quotation from the injury to which his death was attributed, in decision of the Court of Appeals. The the suit by the personal representative. The trial court held the former recovery by de

"The language used indicates the absence ceased was not a defense to the cause of |

of an intention to allow recoveries for the action given to the personal representative. same wrong by both the injured employe 'The Employers' Liability Act (1908, 3.5 and, in case of his death, by his personal

representative; only one recovery being alStat. 65, c. 149) makes a common carrier hy

lowed when the injured employe dies withrailroad, while engaging in interstate com

out having enforced the right of action merce, "liable in damages to any person given to him. It seems to be a fair infersuffering injury while he is employed by erence from that language that the right of such carrier in such commerce, or, in case

action given to the injured employe's per

sonal representative was intended to be unof the death of such employe, to his or her

enforceable after the enforcement and atpersonal representative, for the benefit of”

isfaction of the one given to the employe designated relatives.

himself. From the fact that one wrong

gives rise to two or more rights of action, There can be no doubt that two distinct

it does not follow that there can be more rights of actions are created by this Act : than one recovery based on that wrong. An one in the person injured, for his personal

intention to permit more than one recovery loss and suffering; and the other in his

for an injury to an employe for which a

statute gives a right of action to the empersonal representative for the loss sustain

ploye, or, in case of his death, to his pered by designated relatives. These causes sonal representative, is not to be inferred, of action are not dependent one on the other in the absence of language evidencing such and the damages recovered are not the same

intention, where the wrong upon which the

rights of action given are based is a tort, in each case. Michigan Central R. R. v.

the inception and continued existence of Vreeland, 227 U. S. 59, 33 Sup. Ct. 192. 1 which is dependent

which is dependent upon conduct of the em

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“Without quoting the assignment of error in full, it will suffice to state that the Court charged the jury that the plaintiff could recover if they found that defendant had unreasonably failed to furnish cars or had, in fact, unjustly discriminated against the plaintiff, and entirely eliminated from the consideration of the jury the question of whether the discrimination, if any, was due to the enforcement or the violation of a rule adopted by the shipper in case of car shortage; and the liability for failure to furnish and the liability for discrimination were interwoven in the portion of the charge upon which error is assigned. Without going over the ground again we may say that we have laid down the rule of law applicable to the case; we have pointed out that, where the discrimination arose by reason of the enforcement of a rule, the shipper cannot in any action at law, recover for such damages without first having proceeded before the Interstate Commerce Commission. In the portion of the charge now being considered, the trial judge instructed the jury that he could recover if there was discrimination in fact and took no account of the question of the adoption of a rule. In this the Court was in error. This question not only went to the right to recover, but it also went to the jurisdiction of the Court, as we have pointed out.'

fendant $1,004.50, which was two-thirds of his estimated loss. Defendant then sued the railroad company and secured a judgment of $1,000, interest and costs. After deducting attorneys' fees and paying costs, this judgment netted defendant $523.17. Altogether, defendant recov

ered $1,527,67. His actual loss, according to | the finding of the trial court, was $1,682. Since defendant has received, altogether, $154.50 less than the amount he actually lost by the fire, the Supreme Court of Michigan held that the plaintiff insurance company was not entitled to subrogation to any part of the judgment against the railroad company. The Court said:

"There is no question that, under the authorities, the plaintiff, as insurer, would have a right to be subrogated as to any excess over the loss sustained by the insured; but inasmuch as nothing more than sufficient has come to the hands of defendant, by both the amount paid by the insurance company and the amount recovered from the railroad company, to cover his loss, there is nothing which the plaintiff can take.”

The policies in this case being "valued” poli

cies, the really difficult question would seem to RIGHT OF INSURANCE COMPANY TO

be whether defendant was not estopped, as to SUBROGATION WHERE INSURED'S LOSS

plaintiff, to deny that the "value" of the propEXCEEDS HIS RECOVERY,- It is a well set

erty insured was greater than the amount fixed tled rule that the insurer can recover from the in the policy. On this question the authorities insured the amount which he recovers from the

in England and America are not in agreement. wrongdoer where it has paid the loss in full.

In the case of North of England Iron Assn. V. But where, as in most fire insurance policies,

Armstrong, L. R. 5 Q. B. 244, the Court said: the property is not insured for its full value, a settlement for the full amount of the policy

“We are satisfied that our judgment must be gives the insurer a right only to the excess of

in favor of the plaintiffs and I ground my judg

ment upon the general proposition that where the net recovery and the insurance paid over

the value of the thing insured is stated in the the amount necessary to fully compensate the policy in a manner to be conclusive between insured for the loss suffered.

the two parties, the insurer and the insured, as

regards the value, then in respect of all rights This rule is clearly brougt out in the recent and obligations which arise upon the policy of case of Washtenaw Mutual Fire Insurance Co.

insurance, the parties are estopped between

one another from disputing the value of the v. Budd, 175 N. W. Rep. 231, where it was held,

thing insured as stated in the policy." that insurer has no right of subrogation against insured, where insured's loss exceeds his recov.

The leading case in this country opposed to eries from insurer and the one causing the fire,

the English rule is that of The Livingstone, after deducting attorney's fees and costs, and

130 Fed. Rep. 746, which specifically disapproves this, though insured was not invited to take

the English rule. In that case it was held, that part in the action against the third person, and

an insured who had been paid for a total loss, though the policy was a valued policy the in

according to the valuation in a valued policy, surance being for only two-thirds of the value.

could recover the real value of the property In this case the defendant insured his house, from the wrongdoer who caused the loss, and two barns, a granary and personal property could retain everything recovered in excess of therein for an amount equal to two-thirds of the valuation in the policy paid by the insurer. its estimated value. The barns and granary and | In other words, the Court held that a valued some personal property were destroyed by fire policy did not prevent the insured from recovcaused by sparks from the Ann Arbor R. R. Co. ering and retaining more than the valuation The plaintiff insurance company paid the de- | named.

PROXIMATE CAUSE AND LEGAL | said that there is a respectable school of LIABILITY.

psychologists, led by Professor William

James and Professor John Dewey, which A. Starting Point for Legal Liability,

holds that will is not indispensable to activThe starting point for the placing of legal

ity and that many acts are automatic and liability is an act, that is, something which

| reflexive. Yet the courts may have to take is done that ought not to have been done,

cognizance of these automatic acts, because or an omission; that is, the non-doing of

they have resulted in injuries to others, and something that should have been done. This

they cannot go into psycho-physiological act, or omission, is of interest to the law,

speculations as to whether a given “manimainly because of its consequences; that is,

festation in the external world” is reflexive the results which flow from it, or to which

or volitional. And even if one is willing to it may in a greater or less degree contribute.

accept the idea that will is the starting point Some of these consequences are injurious

of an act, how is one to recognize the result to members of society and it is the desire

of this exertion of the will when one sees to give reparation for these injuries that

it? The will is an unknown quantity to the makes the act of material interest, as it helps

ordinary bodily senses, yet these senses to find the person upon whom the liability

have to be relied upon for information. Not should be fastened ; that is, the person from

even the most sensitive judge will rely merewhom compensation should be demanded,

I ly upon his intuitions when he is deciding or to whom punishment should be meted

that there was or was not an act. The out. In a discussion of legal liability, then,

will may manifest itself never so much, but the first question is this: "What is an act?

unless some method of recognition is adoptThat is, what is an act considered generally,

ed, the manifestation will pass unheeded not specifically? What is there that is a

and the existence of the act will never be common ingredient of all activity which the

known. A usable definition should set up law may have to consider?

an objective standard of identification

which could easily be recognized in common Mr. Justice Gray answers this question

experience. The following, it is submitted, by saying that "an act is the result of an ex

is such a definition: ercise of the will."? Dean Pound says, “Acts

An act is a changing of an external situare exertions of the will manifested in the external world."? Holland says: “If a move

ation. By "changing" is meant the crea

tion of a difference. This difference may ment is caused by physical compulsion, there

be qualitative or quantitative. It may be is no act, since will is absent."'3

the increase or decrease of a glaring headWith all due deference to the authorities

light, or the substitution of a thousand for cited, it is submitted that these definitions

a hundred volts of electricity. It may be are of no practical value and are not the

any kind of physical or mental exertion, or oretically unimpeachable. In so far as they

the manipulation or modification of any lay emphasis upon the exertion of the will

kind of force or object, so long as the aras the preliminary to the act, it may be

rangement of, or relation between, things, (1) Duncan v. Landis, 106 Fed. 839, 848.

activities, places or persons is made differ(2) Readings on the History and System of

ent from what it was. The test is objective. the Common Law, 453. Cf. also, Pound. Read The comparison is a sense comparison. If ings in Roman Law, p. 22 seq.

things look, taste, smell, feel or sound dif(3) Jurisprudence, 103; Holmes, The Common Law, "An act is always a voluntary mus ferently from what they did previously, cular contraction and nothing else. The chain

then there has been a change in the situaof physical sequences which it sets in motion or directs to the plaintiff's harm is no part of it, and very generally a long train of such sequences (4) The "Squib Case” is a good example of intervene."--P. 91.

'this. Scott v. Shepherd, 2 Com. Bl. 892.


tion and an act has been performed. The | Furthermore, only the human beings in a difference is the hall-mark of the act. The situation or affected by a situation are of act is the making different of the situation. true interest to the law. Things (and in

The next question which arises is: things are included forces of nature, as well "What is an omission?” The answer to this as inanimate objects), and animals are inquestion, it is submitted, is this :

fluenced by situations, but only as these An omission is the failure to change an

things and animals are related to people are external situation. That is, an omission is

they considered. Persons are of interest, the contrary of an act. It is a failure to

because they are injured and can seek react; it is the non-doing of that which should

dress in the courts of law and because they have been done. It is the failure to carry

can be held accountable for injuries to othout a duty which has been imposed by the

ers in proper tribunals. proper authority. Here, too, the standard | Summing up, then, thus far, we may say of judgment is objective. The comparison that the starting point for liability is the is a sense comparison. If the situation af changing of an external situation when a fects the senses in the same way that it did proper authority has forbidden such a before, there has been no change of situa changing, or the failure to change an existtion and there has been no omission. ing external situation when such a changIt is, of course, obvious that, unless the

ing has been imposed by the proper authorsituation remains static after an act or an omission, it will be exceedingly difficult to B. Causes—When an act or omission find out by a simple, primary inspection has been found which may be the one that whether there has been an act or an omis | produced in some way the injury of which sion. For, a change in a situation may be complaint is made, the law raises a third followed by another change which restores question. It asks: Was the indicated act the situation which existed prior to the first or omission a "cause" of the designated inchange, as, for example, turning an electric jury? light off and then on again. Or an omission

In the consideration of this question the may be followed by a change which alters

language of the courts is very misleading. the situation and so the mark of an omission

One would think, from reading the opinmay be gone. But this difficulty is inherent

ions, that the courts felt that they had to in the universe. Things are Auid and not

start from the injury and work back to find static, dynamic and not quiescent. When

a cause for that injury, or that they simply acts and omissions are of importance they

had an alleged act and had to find out by must be proven in the way any other facts

metaphysical speculation whether or not are proven ; that is, by means of competent

that act did produce the injury complained witnesses.

of. One also gathers that the courts are Acts and omissions by themselves are of bothered by the possibility that each act no interest to the law of liability. It is only may have an infinity of results stretching when they are prohibited by an authority forward into eternity and be in itself one that is competent to issue an effective com- of a series of consequences that goes mand, and when this prohibition is violated, "back," to use Prof. Beale's phrase, "to that the law of liability will take cognizance Adam.” As a matter of fact, however, the of them. Likewise, situations are of no in- courts need not consider such matters at all. herent interest to the law of liability, and They need simply look at the injury comonly when human beings are hurt by com- plained of and the act alleged to have ing into relation with a situation does that caused” that injury and see if the two are situation become of importance to the law. 'connected in such a way that the law will

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