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Central Law Journal. or a person on trial, that meant a jury of

voters. «Peers' might mean voters, yet the ST. LOUIS, MO., MARCH 19, 1920.

claim would be met by having none but vot

ers as jurors. But this would not require ARE WOMEN BY REASON OF BEING

the inclusion of women, even if they be votVOTERS ENTITLED TO SIT ON THE

ers. But the word 'peers' in this country

really means a citizen and nothing more. JURY.

I can see absolutely no connection whatever

between the right to vote and jury service The suffrage laws and amendments to justify relator's claim. Were this the which have emancipated women from the only consideration on this application, there political domination of men in much the

would be no difficulty whatsoever in con

cluding that women citizens are not entitled same way as the Married Women's Acts of

to serve as jurors in light of the statute.” a former generation released her and her

In Wyoming the same principle was anproperty from the domination of her hus

nounced in the case of McKinney v. State, band, are raising new questions as to the

3 Wyo. 719, 723, 30 Pac. 293, 295, 16 L. implications that arise out of the new rights R. A. 710, 712, where the Court declared thus granted.

that they “had not much doubt that women Thus, the question has arisen in New were not eligible as jurors under the terYork whether the right of jury service is ritorial statutes, as the right to vote and not incidental to and implied in the grant to hold office does not include the right, if of suffrage. A decision of the special term right it may be termed, to serve as a juror.” of the Supreme Court (Kings County)

It has been suggested that the case of has decided that the right to serve as jurors Strauder v. West Virginia, 100 U. S. 303, was not conferred by the suffrage amend establishes a different rule. In this case ment to the New York Constitution. In re it was held that a county judge of Virginia, Grilli, 179 N. Y. Supp. 795. In this case

charged by the law of that state with the the Court denied a peremptory writ of

selection of jurors, was properly indicted mandamus directing the Commissioner of

under an act of Congress, passed for the Jurors to include in the jury list every enforcement of the Fourteenth Amendqualified woman of Kings County. The

ment, for excluding and failing to select Court said:

as grand jurors and petit jurors certain "The petitioner insists that the word citizens of his county of African race and jury' has always meant twelve voters, but | black color, who possessed all other qualithere is not a single expression in any of

fications prescribed by law. the acts with reference thereto which warrants any such conclusion. For instance,

It has been argued that the declaration she asserts that because the act of the Co- | by the majority of the Court in the Straulonial Legislature of November 27, 1741 (3 der case that “the state may confine the seColonial Laws, c. 720), provided that jur lection of jurors to males” is obiter and ors were to be selected from the freehold

that logically the Fourteenth Amendment ers, and freeholders were voters, therefore the duty to sit as a juror showed the right

prohibits discrimination in the selection of to vote. It is true that law limited the right

jurors or account of sex. It is also conto freeholders to sit upon a jury, but that tended that the suffrage amendments deis far from meaning that, because a free

claring that the rights of citizens of the holder was a voter, he was a juror because

state to vote and hold office shall not be he was such voter. It will be observed that in this very law freeholders over the

denied or abridged on account of sex also age of seventy were excluded from jury secures to women the privilege to serve as service.

jurors. "It is also argued that the word 'peers'

Both these contentions, it seems to us, nieant those of equal political rights, that is, a right to vote, and that since a jury is

fail to take into account that the duty to to be selected from the peers of the litigants I serve as a juror is not a "right" of the citizen protected by either state or federal ties of motherhood and the care of large constitutions; nor is it implied in the right families should be carefully studied. We to vote or hold office. Jury service is an deplore the contemptuous attitude of some obligation imposed on citizens of recog- women (most of them unmarried or childnized qualifications. Some laws provide less) toward the duty of women toward that citizens above a certain age shall be childhood. When it comes to the relative excluded from jury service. Some states importance of the duties to be imposed on provide property, others educational quali citizens the task of training and caring for fications. Citizens thus excluded from jury the children is by far more important than duty have not been denied any of their the duty to serve as jurors. Jury service rights as citizens any more than young being in the category of duties and not of men who were excluded from military serv- | rights, the legislature may very properly ice in the recent war because of physical, declare that it would be against public polmoral or educational reasons were deprived icy to require any woman to perform duty of any of their rights as citizens. The Strau of this kind, if it would interrfere in the der case merely holds that the only dis slightest degree with the performance of crimination a state is prohibited from mak- | those higher and most sacred of all obligaing in any of its laws is one based on race tions--the care of the home and the famor color. Aside from this distinction it ily. may, in imposing duties and obligations on 1 But if, after taking all these things into its citizens, discriminate between males and consideration, it should be found that there females, between rich and poor, between are many women who, because of their ineducated and uneducated—this for the rea tellectual qualifications and freedom from son that when the state desires service it

the restraints of motherhood are able to has a right to say who shall render that

serve and whose service in this respect on service and what qualifications they must the jury would facilitate and improve the have before they can enter upon such serv

administration of justice in the Court, then, ice.

under such circumstances and with proper Whether the legislature should make any safeguards and exemptions, we believe a distinction as to sex in respect to the duty legislature would be justified in removing of citizens to serve as jurors is not a ques the broad arbitrary restriction against tion of right but of expediency. The ap women serving as jurors. peal made by the Women's Bar Associa We believe, however, that, in such event, tion to the New York legislature to remove | instead of providing for exemptions from the restrictions against women as jurors jury service on the ground of maternity, (January 12, 1920) is a strong appeal for motherhood, large family, etc., and thus extending the obligations not the rights of attempting to anticipate the cases when it women. It is an appeal by the women to would not be public policy to impose this be allowed to share more largely in the additional burden upon women, it would be burdens of citizenship, having secured, as better to let the women themselves deterwe believe they were entitled to have, all mine when they think it would be unwise the rights of citizenship. But we suggest for them to assume the duty of jury servthat the women do not put their case on the ice. This is the law in five of the six states ground that jury service is one of their which now impose the duty of jury service rights but to consider carefully whether | upon women, to-wit: Kansas, California, women are fitted by reason of physical and | Utah, Nevada and Colorado. Only in Idadomestic disabilities from properly per- ho is jury service by women mandatory. forming the onerous duties imposed on jur- In the other states there is some provision ors. The temporary disabilities of maternity permitting women to be exempted if they and those arising out of the important du- 'so plead.

Our principal purpose, however, in this any, otherwise to B's brothers and sisters or

their "families.” At the date when the will editorial is to take the question of extend

took effect B had three brothers and sisters. ing the duty of jury service to women, out

One brother, Alexander McElroy, had died, of the realm of political discussion about leaving Fannie McElroy, his widow, but no the rights of women. We understand that children. Fannie McElroy claimed one-fourth in some Western states this ridiculous and | of the estate as the “family” of her husband. wholly unfounded consideration swayed

The Court held she was not included in the

term "family” and could not take under the some legislators into voting for a measure

will. The Court declared that while the term which they thought was intended further

“family” has a varying signification and is to enfranchise women and confer on them sometimes used to include not only the wife additional rights. In all states where, by but sometimes the servants of the household, the Married Women's Acts, all the disabil- its primary signification is "children.” As the ities of coverture have been removed and

term enlarges it includes all those who are

"closely related by blood.” It is only for spewhere the right to vote and hold office is

cial purposes as in the homestead acts that it secured to her, all the so-called rights of

is further enlarged to include the wife and its citizenship are already hers. Now the | furthest reach, popularly, but not often legally, question will recur not infrequently-How takes in all the members of a man's household. much of the burdens of citizenship is she

Which of these meanings are to be assigned

to the use of the word in a will is a matter able and qualified to bear without interfer

of construction. In seeking to find the testaing with interests in which the state is

tor's intention in the principal case the Court vitally concerned and which she alone can

said: properly care for? Any duties imposed on

"Studying the general language of the will women which seriously interfere with the | before us, we see that the testator has been obligations of motherhood or which tend

very particular to provide that the bequest in

the first clause of the will should be for the to encourage women to shirk the highest of use of Sarah and her children, should she have all duties she owes to the state—the duty

any children, but in no event could her husband

receive any portion of it, presumably because to have and to care for children will steer he was no blood relationship to the testator; the ship of state upon the rocks of unavoid

in case Sarah had no children, then the bequest

was to her brothers and sisters, or their famable disaster.

ilies. It is hardly to be believed that the testator would be so particular to provide that the bequest should be free from interference

or ownership by one who was not of the same NOTES OF IMPORTANT DECISIONS.

blood while the bequest was in the hands of Sarah and her children, and yet be so indif

ferent upon that point if the bequest should DOES THE TERM "FAMILY” IN A WILL IN

fall into the hands of her brothers or her sis.

ters. This being inconceivable, we must conCLUDE A WIFE.-The law is often compelled

clude that the testator used 'families' in the to make many illogical distinctions in reaching

primary sense, and as interchangeable with and just results, which is evidence, if any is needed, equivalent to children.” that law is not logic. Law is an experimental In spite of the authority which the majority science and follows the experiences and needs of the court adduces in support of its position of men rather than the inexorable demands of we cannot conceive that the court is really logic. This thought is illustrated by the re effecting the intention of the testator by its sult in the recent case of Lemmon v. McElroy, strained and unsual construction of the word 101 S. E. 852, where the Supreme Court of "family.” This word not being a word of South Carolina held that, although the word technical legal meaning, like "heirs" or "next "family" may, under different circumstances, of kin,” should be construed in its popular mean a man's household, consisting of his wife, sense and in this sense the "wife" is a part his children, and servants, or may mean wife of the husband's "family.” Indeed, the word and children, or only children, the last mean family necessarily includes the wife since a ing is the primary meaning, which will be given

family could not exist in the legal or popular to the word when used in a will, unless the sense without a wife. Suppose the widow of context indicates a contrary intention.

Alexander McElroy had had one child living In this case A's will gave property to B for at the time the contingent remainder took eflite, remainder to B's children if she leaves | fect there can be no doubt that she and her

child would have taken equally as constituting “It would seem that every reason for allowthe class named in this devise under the term ing a recovery in assumpsit, upon a count for

money had and received, of the amount for "family." Does a wife lose her membership

which the property was sold, will apply with in the "family” of her husband when her chil equal force, to a case for the recovery of the dren die? Or, is birth of issue necessary be fair value of the property, upon a count for fore a "family" can be said to exist between

goods sold and delivered, where the property

is not sold, but retained or consumed by the those joined in the holy bonds of matrimony.

tortfeasor.' It seems to us that the word "family” was

The rule announced by the Court in this case carefully chosen by the testator with the inten

is abundantly sustained by the authorities of tion of providing for those toward whom the

many states. Keener, Quasi Cont. 192; 2 Page contingent remaindermen sustained a family

on Cont. $ 843; 2 R. C. L. 756, 757; Woodruff relation. If the testator desired to limit the

v. Zaban, 17 Ann., Cas. 975 (note) 977; 1 Cooley devise to blood relations of the remainderman,

on Torts, $8 109, 111; 1 Hilliard on Torts, 47; he could easily have used the term "descend

Putnam v. Wise, 1 Hill (N. Y.) 240 (note); Hill ants.”

v. Parrott, 3 Taunton, 274; Bradfield v. Patter:

son, 106' Ala. 397, 17 South. 536; Roberts v. THE RECOVERY OF THE VALUE OF

Evans, 43 Cal. 380; Fountain v. Sacramento, 1 STOLEN PROPERTY BY ACTION OF AS

Cal. App. 461, 82 Pac. 637; City of Elgin v. SUMPSIT.-In a recent case the Superior Court

Joslyn, 136 Ill. 525, 26 N. E. 1090; Reynolds of Delaware discusses the following interest |

v. N. Y. Trust Co., 188 Fed. 611, 110 C. C. A. ing question of procedure: Can the plaintiff,

409, 39 L. R. A. (N. S.) 309; Douns v. Finnegan, where there is a tortious or wrongful taking

58 Minn. 112, 59 N. W. 981, 49 Am. St. Rep. or detention of personal property, which has not

488; Crane v. Murray, 106 Mo. App. 697, 80 S. been sold by the tortfeasor, waive the tort and 'w. 280: Galvin v. Mac Mining & Milling Co.. recover the fair value thereof, in an action of 1 14 Mon't 508 37 Par 366. Ahhott v

reor, in an action of 14 Mont. 508, 37 Pac. 366; Abbott v. Blossom, assumpsit upon a count for goods sold and de

66 Barb. (N. Y.) 353; Terry v. Munger, 121 N. livered?

Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. In the case of Conaway v. Pepper, 108 Atl.

Rep. 803; Braithwaite v. Akin, 3 N. D. 365, 56 Rep. 676, the evidence showed that defendant

N. W. 135; Barker v. Cory, 15 Ohio, 9; Albrook tortiously secured possession of plaintiff's

v. Hathaway, 3 Sneed (Tenn.) 454; Tidewater wagon by misrepresenting to plaintiff's hired

Quarry Co. v. Scott, 105 Va. 160, 52 S. E. 835, man that plaintiff had granted him permission

115 Am. St, Rep. 864, 8 Ann. Cas. 736. to use the wagon. Defendant still retained the

The basis of the rule today of the right to wagon and refused to return it, claiming that

waive the tort and sue on indebitatus assumpplaintiff had agreed to trade his wagon for one

tion for goods sold and delivered is the unjust of defendant's. Plaintiff brought suit in indeb

enrichment of the tortfeasor. There is a itatus assumpsit for goods sold and delivered.

quasi contract, for breach of whch the plaintiff Defendant secured instruction directing a ver

is allowed to recover the amount which it is dict in his favor on the ground that an action

against conscience for the defendant to keep. in assumpsit was an improper count on the

Keener, Quasi Contracts, 159, 160. fact adduced, since it did not appear that defendant had sold the wagon and was retaining

. A CONFESSION NOT AFFECTED BY THE any proceeds thereof belonging to plaintiff.

FACT THAT ACCUSED WAS SUFFERING There can be no doubt that this was the

WITH THE INFLUENZA-The "flu” is not a common law rule, which was due to the fact

disease to be “sneezed at” or made light of, as that for a long while, in the history of the

the writer can well certify to from experience. English law, the count for money had and re

But whether it is a disease serious enough to ceived was the only form of indebitatus as

interfere with the ordinary operations of a rule sumpsit which was used in cases involving the

of evidence might well be left to the circumwaiver of tort. 2 Street, Foundations of Legal

stances of each individual case. In the recent case Liability, 216.

of State v. Babineaux, 83 So. Rep. 558, the "flu" The old rule in Delaware was the common

was interposed as an objection to the introduclaw rule and the trial court was justified in

tion of a confession on the part of the defendits ruling. Hutton v. Wetherald, 5 Harr. 38.

ant who alleged that he was out of his head In reversing the decision of the lower court,

at the time it was made. In overruling the therefore, the appellate court was compelled to

objection the Supreme Court of Louisiana said: overrule its former decision which it proceeded

“The confessions of two of the accused were to do, however, without apparent reluctance. | objected to as having been induced by promises, The Court said:

and that of the other accused as having been

made while sick with the "Flu," and out of his should have, discovered the peril of the deceased head. The accused testify to the promises hav or his position, and it is apparent that he caning been made, but the persons to whom the not escape, or he, for any reason, does not make confessions were made testify positively and un effort to do so, it becomes the duty of the enqualifiedly to the contrary. While the accused, gineer to use all means in his power to avoid who was sick, testifies to his having been out injuring the person." of his head when he made the confession, and

"The italics are ours, and are used to point the person to whom he made it says that the

out the precise error the court fell into. It accused was very sick-said he had pneumonia

is the settled doctrine of this court that, in -the fact remains that he was not so far out of

order to render the employes of a steam railhis head as not to have been able to make the

way company negligent under the doctrine of confession; and there is no pretense that he was

last fair chance, they must have actually seen induced to make it by any promise or prompting the persons injured in such time that, by the from anybody.”

exercise of ordinary care, they could have

avoided injuring them. It is not enough that, LIABILITY FOR COLLISION BETWEEN

by. the exercise of ordinary care, they must have

seen. It must appear from the evidence that RAILROAD AND AUTOMOBILE WHERE

they in fact did see or knew of their perilous VIEW IS UNOBSTRUCTED. - The great position.” number of automobile accidents at railroad We discussed this rule in an annotation to crossings and the many legal questions that the case of Aiken v. Metcalf, 102 Atl. Rep. 330; arise out of such accidents is sufficient to make 86 Cent. L. J., 68. The rule of last clear chance the recent case of Barrett v. Chicago, M. & St. is generally limited to cases of wanton, willful Paul Ry. Co., 175 N. W. Rep. 954 of some in- | injuries inflicted on those whose contributory terest.

negligence has placed them in a position of In this case plaintiff's intestate was riding as peril. A very recent case by the Supreme Court a guest in an automobile being driven through of Connecticut was announced requiring the inthe city of Tama, Iowa, across the tracks of juring party to use every reasonable precaution the defendant railroad. The plaintiff could have to discover one who is in a position of danger seen the train, probably did see it a long way due to his own negligence. Tullock v. Connecoff, but claimed that the train was exceeding ticut Co., 108 Atl. Rep. 556. We believe this the speed allowed by city ordinance. He also rule is open to the objection that one is not claimed that the enginer could have seen the expected to anticipate that another will act automobile in time to have stopped the train carelessly in a given emergency. and that under the last clear chance doctrine

Another interesting question in the case was the defendant was liable. The plaintiff secured

that plaintiff claimed that his decedent, Berger, a judgment, which, however, was reversed on

was a guest in the machine operated by one appeal and the Supreme Court carefully reviews

Reinig and that therefore the latter's negligence the whole case and clearly states the respective

was not to be imputed to him. The defendant rights of automobile and railroad under such

insisted that Berger and Reinig were engaged circumstances.

in a joint enterprise. But the Court, after deOn the question of speed the Court holds that,

claring that the evidence clearly showed that although plaintiff's intestate saw the train ap

Berger was a guest, held that this was unimproaching, he had a right to assume that the

portant since even a guest in a machine is engineer would give the customary warning and

liable for failing to look out for his own protecwould not run at a speed in excess of that al

tion. On this point the Court said: lowed by law.

"Whether or not they were engaged in a The point in the case on which the Court

joint enterprise, however, was not very imporreversed the judgment was the declaration in

tant, for Berger, even though a guest, was rethe instruction that the defendant was liable on quired, in the exercise of ordinary care for his the doctrine of last clear chance if the engineer

own protection, to keep a vigilant lookout for

approaching trains, when about to pass over by the exercise of ordinary care should have dis

the railroad crossing. He was sitting on the covered the peril of the deceased. On this point

front seat with the driver, and enjoyed opporthe Court said:

tunities for seeing and listening equal to those

of the driver. There is no reason for exacting "Nor does the instruction under which this a less degree of care in these respects than issue was submitted correctly state the law. Reinig was required to exercise. Beemer v. In the twenty-fourth paragraph of the charge, Railroad, 181 Iowa, 642, 162 N. W. 43.” the Court said that: “The rule that, where one, through his own

This last holding by the Court should not fault, puts himself in a place of danger on a be understood to change the well-settled rule railroad track, he is precluded from recovering

that the contributory negligence of the driver damages for his resultant injury or death, is subject to the qualification that where the en

of an automobile is not to be imputed to the gineer has, or by the erercise of ordinary care ' guest. The rule stated by the Court and which

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