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which a large section of the population,

whose occupation is out-of-doors, is ordiST. LOUIS, MO., JANUARY 23, 1920. narily exposed.

If this reasoning is to be accepted by the CONSTRUCTION OF PHRASE "ARISING OUT OF THE EMPLOYMENT” IN COM

courts in this country, then, indeed, will the PENSATION ACT CASES, WHERE THE great and beneficent purposes of the WorkACTION IS SUPER-INDUCED BY NAT

men's Compensation Acts be defeated. For URAL CAUSES.

the great underlying sociological idea in

such legislation is to require the master Probably no set of words in the compen directly and society indirectly to compensation acts, or in any other statute for that

sate such servants who, by reason of their matter, is likely to give rise and has already

employment, are subjected to unusual hazgiven rise to more litigation than the phrase

ards and who while thus serving their masarising out of the course of employment.”

ters and society suffer an injury which it is The refinements possible in construing these words are almost infinite and the field of

not fair nor just that they should bear alone. discussion is attracting the metaphysicians

Surely it is not a proper argument against and other word twisters until the ordinarily

a servant's claim for compensation that clear thinker is almost prepared to admit the other servants in other employments are exneed of a strait jacket and a padded cell. posed to the same hazards, at least not if To begin with let us consider an early

such hazard is increased by reason of the case often cited and likely to be regarded as

peculiar nature of the employments. a leading case; to-wit, the case of Warner v. Couchman, L. R. (1911), 1 K. B. 351, 1 The dissenting opinion of Lord Justice Negligence and Compensation Cases Anno Fletcher Moulton, in the Warner case, is so tated 51.

clear and convincing that we venture the The facts in this case were exceedingly

following quotation, which is worthy of besimple. A driver of a bakery wagon, while

on, while ing carefully considered by the courts when delivering bakery goods to retail customers confronted with a question of this character. on a very cold day, suffered severe and per- Justice Moulton said: manent injury to his right arm by reason

“The judgment of the learned judge of of having it frostbitten. It appeared that

the County Court shows that he thought this particular arm suffered the injury by himself permitted, and even bound to comreason of the driver being compelled to pull | pare the man's employment with other emoff his glove at frequent intervals to make ployments in order to ascertain whether the change for the customers.

accident arose out of the applicant's employ

ment. To my mind this is falsa demonThe main question over which much gray

stratio. The law does not say ‘arising out matter was expended was whether this ac

of his employment and out of that employcident arose "out of and in the course of the

ment only.' Other employments have nothemployment.” There was, of course, no

ing whatever to do with the question. A doubt that the accident arose “in the course”

shepherd who has to bring in his sheep in a of the employment, but after much labored

snowstorm, and suffers frostbite and loses reasoning, as it appears to us, the Court his life thereby, is the victim of an accident of Appeals finds that the particular accident arising out of his employment none the less did not arise "out of” the employment, sim- | because a railway guard or a night watchply because the injury suffered was one tal man or a postillion might be equally exposed

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to the weather. The comparison of one

to compensation for injury resulting from employment with another is to my mind

being struck by lightning. wholly illegitimate. But when we deal with the effect of natural causes affecting a con | The law in these cases, as all other cases, siderable area, such as severe weather, we

follows in the wake of science and where are entitled and bound to consider whether

science discovers that dangers from the the accident arose out of the employment or was merely a consequence of the severity operation of natural forces are increased of the weather to which persons in the local by certain occupations, or by reason of a ity as such and, whether so employed or person being in certain positions, the law not, were equally liable. If it is the latter,

will, and should, give effect to such disit does not arise 'out of the employment,'

tinctions. Thus, woodmen, workers on because the man is not specially affected by the severity of the weather by reason of his

electrical lines, or steeplejacks, may very employment."

well be regarded as being exposed to greater

dangers from lightning, by reason of their Accidents occurring by reason of natural

employment, than other persons, even if conditions, as rain, cold, heat, lightning,

such increased hazard is impossible to wind, water, fire, etc., are usually those that

estimatr. give the greatest difficulty. But the problem is not solved by referring to the universal If such distinctions can be drawn as to a ity of the general natural conditions that natural force so indiscriminate in its action bring about the injury, but solely by the as lightning, they are surely warranted in consideration whether the particular em cases where the accident is occasioned by ployment rendered the injury from natural natural forces, whose operation is better causes greater than if one had not been understood and danger from which is more engaged in such employment.

easily avoided. Thus, the most uncertain active force in Thus, heat and cold are common and nature is probably the lightning. Nobody complementary forces of nature, whose within the area of the storm is exempt. laws are well understood. Thus, a man Yet even in the face of a force so indis who is compelled by his employment to criminate in its action the courts of Eng

paint the side of a ship on a hot day in the land · have already announced distinctions

tropics is not to be denied compenstion simwhich they seem to have ignored in the

ply because other men in other occupations

were similarly exposed. It was so held in Warner case.

Morgan v. The “Zenaida,” 25 Law T. Rep.

446 (1909). So, also, it would seem to Thus, in Kelly v. Kerry County Council,

follow if one is compelled by his occupation 42 Ir. L. T. 23, the Irish Court of Appeals

to work out-of-doors when the weather is held that a man, working on the roads, who

severely cold is not to be denied compensawas struck by lightning was not injured by

tion simply because certain others may be reason of an accident arising "out of” his

exposed to the same hazard. employment. On the other hand, the English Court of Appeals, in Andrew v. Fails The sole question in all these cases would worth Industrial Society, 2 K. B. 32 (1904), seem to be, does the servant's employment held that a bricklayer, working on a high expose him to a greater hazard by reason scaffold, is subjected to greater danger from of the operation of natural forces than the lightning, by reason of his position, than community in general? If so, the accident one on the road and was, therefore, entitled | clearly arises “out of” the employment.

NOTES OF IMPORTANT DECISIONS. ever, disagred with the lower court's view of

the law and reversed and remanded the case for

a new trial. In reaching this conclusion the RIGHT OF HUSBAND TO ACQUIRE PROP

Court discusses the case wholly from the view. ERTY BY ADVERSE POSSESSION AS point of the common law and, of course, could AGAINST HIS WIFE.-It is difficult to change find no justification for the trial court's ruling. established rules of law even where the reason The Court said, in part: for the rule has failed. This is particularly

"It seems to be well settled that, owing to true in respect to the rules of the common law

the unity of husband and wife, adverse possesrespecting the disabilities of married women.

sion cannot exist between them so long as the The common law regarded the husband and coverture continues. But where the marital wife as one person and from this fact of unity

relations have been terminated by divorce or

abandonment, it seems that one may acquire logically were derived certain familiar rules

title from the other by adverse possession. I. A. which not only deprived the feme covert of her

& E. Ency., p. 820, $ 11. In First National Bank freedom of contract but also restricted the hus. v. Guerra, 61 Cal, 109, it is held that a wife can. band in contracting with his wife or acquiring

not claim adversely to her husband or those

claiming under him so long as he remains the any adverse rights against her or her property.

head of the family. It is held further in Hen. The fact, however, that the Married Women's dricks v. Rasson, 53 Mich. 575, 19 N. W. 192,

that the husband cannot hold, adversely to his Acts in most states have repudiated the com

wife, premises belonging to her. Joint possesmon law idea of the unity of the marriage rela

sion by husband and wife held under the wife's tion and have substituted therefor the civil law claim of title inures to her benefit. Templeton idea of the duality of such relation has not v. Twitty, 88 Tenn. 595, 14 S. W. 435. In Vanbeen fully appreciated by the courts, who still

dervoort v. Gould, 36 N. Y. 639, it is held that

the possession of premises by husband belong. hesitate to recognize the logic of the situation

ing to his wife can in no sense be deemed adand frankly declare the wife a feme sole for all verse. In the note to A. & E. Ency., supra, a purposes except in respect of the duties and large number of cases is cited sustaining the obligations which she, as well as her husband,

text. See, also, Union Oil Co. v. Stewart, 158

Cal. 149, 110 Pac. 313, Ann. Cas. 1912A, 570 have voluntarily assumed by virtue of the

and notes.” marriage relation.

There can be no possible criticism of this One rule, to which the courts tenaciously decision if the common law idea of the unity of cling, is the common law rule which prevented the marriage relation has not been changed by a husband or wife from acquiring property ad the Married Women's Acts. The authorities versely as against the other. In the recent case cited by the Court could be multiplied many of Kornegay v. Price, 100 S. E. Rep. 883, this times over by authorities from practically every rule is recognized in a case the facts of which state in the Union adhering to the rule anraise a very clear issue on which we wish to nounced by the Court, although most of these make a few comments. We do not wish to be cases will be found to have been decided understood as criticising the North Carolina before the Married Women's Acts were passed Court which rendered this decision, as we have or without reference to their effect. Where, not had the opportunity to make a careful however, such acts are so far-reaching in study of the North Carolina Married Women's their scope as practically to remove all the Act to determine to what extent the disabil- disabilities of coverture, so that a wife beities of coverture have been removed in that comes practically a feme sole even in respect state.

to her dealings with her husband, there is no In the Price case Margaret Price conveyed

possible ground for holding that a husband and

wife cannot acquire title from each other by certain property to her husband, the defendant

adverse possession. (See Trammel) v. Cradin this case, by a deed which is admitted to

dock. 93 Ala. 452; Lide v. Park, 135 Ala. 131, have been void for failing to comply with cer

33 So. Rep. 175, 93 Am. St. Rep. 17.) In Warr tain statutory requirements as to securing the

V. Honeck, 8 Utah 61, 29 Pac. Rep. 1,117, it was approval of a probating officer, etc. After the

held that where a void decree of divorce transdeath of the wife the plaintiff, as the only heir

ferred certain property to the wife, and she at law of the wife, sued to recover the title and possession of the land. The husband's defense

lived on it apart from her husband, although

still his wife, her possession was adverse to was that his wife's deed, admitting it to be void,

her husband so as to vest title in her. was color of title which his adverse possession had ripened into a good title. The trial We do not wish to contend, however, that court sustained the defendant's contention and under certain circumstances, as where the propdirected the jury that the plaintiff was not erty is held as a common home, the right of entitled to recover. The Supreme Court, how. | the husband or wife to hold such property ad

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versely to the other might not be denied. We in the name of the personal representative of wish merely to contend that under the Married the deceased for the benefit of the latter's Women's Acts some other reason than that of estate. For in such cases the defendant who the unity of marital relation must be discovered rightfully owes money under a contract with which prevents acquisition of title by adverse deceased should not be excused from paying it possession under such circumstances. Thus in because of the inability of the beneficiary to Berry v. Wiedman, 40 W. Va. 36, 20 S. E. 817, take. It properly belongs to the estate. it was held that where land is bought in the husband's name with the wife's money his pos

But suppose the murderer is also the sole dissession of it as their common home without

tributee of the estate. Will the law permit the claim of owenrship expressed to her or to any. personal representative to acquire the fund and one likely to inform her is not adverse to her

thus indirectly confer on the murderer that right to a resulting trust.

which he could not have acquired directly? This

was the interesting question discussed by the The West Virginia case last cited does not

Supreme Court of West Virginia in the recent arbitrarily adhere to the rule as to the impossi

case of Johnston v. Metropolitan Life Ins. Co., bility of husband and wife to hold adversely to

100 S. E. 864. In this case the defendant issued the other, but discusses the circumstances un.

a policy to one Frank Pickens, whose life was der which such holding would not be adverse.

subsequently taken by Susie Pickens, his wife, It is quite clear that proof of the notoriousness,

the beneficiary in the policy. The plaintiff, exclusiveness and hostility of the possession of

Johnston, however, brought suit on the policy husband or wife against the other will often be

for the benefit of the estate of the insured, but a matter difficult of proof, especially where the

the Court held that he could not recover on the property is used as a common home, but this

ground that Susie Pickens was under the law fact does not change the rule that where the

the sole distributee of the estate. disabilities of coverture have been removed and a married woman is regarded as a feme sole it

It was suggested that a recovery would be is possible, under proper conditions, for either

allowed in favor of the administrator and Susie spouse to acquire property from the other by Pickens denied the right of inheritance. The adverse possession as well as by deed.

reasons why this result was not possible are well stated by the Court:

"Under our law there is no longer corruption RIGHT OF ADMINISTRATOR TO RECOV- of blood or forfeiture of estates upon conviction ER INSURANCE FOR DEATH OF DECED-l of crime, and there is no exception in our statENT WHERE DEATH WAS PROCURED BY

utes of descents and distributions precluding

one from inheriting in a case like this. The ONE WHO IS THE DECEDENT'S SOLE DIS

laws governing the devolution of property are TRIBUTEE.—The right of a murderer to sue an expression of the public policy of the state for any benefits secured to him by the death of contained in its Constitution and legislative the one whose life he has feloniously taken is

acts, and the courts are not justified in attach

ing to these acts exceptions or limitations which quite universally denied. Riggs v. Palmer, 115

have not been placed thereon by the lawmaking N. Y. 502, 22 N. E. 188, 5 L. R. A. 340, 12 Am. bodies. It therefore follows that if the personal St. Rep 819 (leading case); New York Mutual representative of the insured in this case is perLife Insurance Co. v. Armstrong, 117 U. S. 591,

mitted to recover this fund, the beneficiary will

accomplish by indirection that which she could 6 Sup. Ct. Rep. 877, 29 L. Ed. 997. See, also, 14

not do directly. That the property of one who R. C. L. 1,228, title Insurance, $ 409, and au has been murdered will devolve upon the mur. thorities there cited. In the Riggs case a lega derer where such is the course of distribution tee was declared to have forfeited a legacy be.

provided by law seems to be well settled in most

of the American states. McAlister v. Fair, 72 queathed to him by the will of the testator,

Kan. 533, 84 Pac, 112, 3 L. R. A. (N. S.) 726, and whom he murdered. The Armstrong case note, 115 Am. St. Rep. 233, 7 Ann, Cas. 973; applies the same principle to a suit for the pro Shellenberger v. Ransom, 41 Neb. 631, 59 N. W. ceeds of insurance by a beneficiary who mur

935, 25 L. R. A, 564, and note; Kuhn v. Kuhn,

125 Iowa 449, 101 N. W. 151; Carpenter's Apdered the insured. This rule is, of course,

peal, 170 Pac. 203, 32 Atl, 637, 29 L. R. A. 145, founded on public policy, which will not permit

50 Am. St. Rep. 765; Owens v. Owens, 100 N. C. the felon to reap a legal benefit from his own 240, 6 S. E. 794; Ellerson v. Westcott, 148 N. Y. crime.

149, 42 N. E. 540; Deem v. Milliken, 6 Ohio C. C.

357, affirmed on appeal 53 Ohio St. 668, 44 N. E. In all these cases, however, and many others

1,134.” the courts have merely declared the right of

The Court in the principal case was therefore the plaintiff forfeited in favor of other bene- left with no alternative but to deny the adminficiaries and have permitted suit to be brought I istrator of the deceased the right to recover on

the policy in view of the ultimate inheritance of the entire proceeds by the murderess. On this point the Court said:




“Will the courts then allow themselves to be used for the purpose of bringing into existence Says Mr. Dooley: “So f'r wan reason an estate which will by operation of law devolve on one who because of his conduct is not

or another I've niver made a will, but I'll entitled to it? The administrator has no inter not deny it must be considhrable spoort f'r est in the subject-matter. It is agreed here that

thim that has th’manes an' th' imagination the insured left no debts, and it follows that every dollar of the fund recovered by the ad to enjye it. To be enjyeable a will must be ministrator in his representative capacity must

at wan an' th’ same time a practical joke on go to the murderess. The suit is simply in his name for the benefit of the one who feloniously th' heirs an' an advertisemint iv th’ man caused the insured's death. The case of MC

that made it."'1 Donald v. Mutual Life Ins. Co., 178 Iowa 863, 160 N. W. 289, is very much like this case in its

In looking through the books one is facts. In that case the administrator of the insured brought the suit to recover on the pol forced to admit that this witticism seems to icy of insurance. It appeared that the sole dis

be justified. Of Sir Joseph Jekyll, who by tributees of the insured's estate were her father and mother, and that they had assisted in a will left his large fortune to pay the nacriminal operation which produced her death.

tional debt, Lord Mansfield said: “Sir JoThe court held that the administrator, if such facts were shown, would not be entitled to re seph was a good man and a good lawyer, cover, for it would be for the benefit of those

but his bequest was a very foolish one.” who are by the public policy of the law denied such right."

The heirs contested the will and it was set It seems to us the decision of the Court is

aside on the ground of imbecility. Sergeant eminently sound if restricted to cases where the Meynard in the reign of William III purmurderer is the sole distributee. Where, how posely worded his will in obscure terms, so ever, other distributees would share the fund, it

there might be litigation to settle intricate would hardly be fair to the innocent to deprive

law points which had troubled him in his them of their rights in order to prevent the

practice at the bar. Curiosity of Law and guilty party from securing any benefit from his crime.

Lawyers, page 491. It was the will of Lord

Chancellor Cowper that his son should It is interesting to note that this principle is not confined in its operation to the cases of

never travel, giving as a reason “that there homicide. It applies to all cases where one was little to be hoped and much to be feared seeking a benefit has been guilty of an offense from traveling.” Two centuries later we which brings about the condition on which the

find a similar request in the will of a Mr. benefit is conferred. Thus where the basis of

James of San Francisco, who died May 10, the recovery in a damage suit was the wrongful

1910. Leaving a large estate to be disposed employment of plaintiff's decedents, who were under legal age, the administrator will not be of under a holographic will, he specially adallowed to recover, if the sole distributee is the monished the devisees that there were to father who himself sought and procured the

be no expensive trips to Europe. His ademployment of his child by the defendant. Dick

vice was: "Spend your money in this couninson v. Colliery Co., 71 W. Va. 323, 76 S. E.

try. Buy or build nice residences and live 654, 43 L. R. A. (N. S.) 335; Swope v. Coal Co., 78 W. Va. 517, 89 S. E. 284, L. R. A. 1917A 1,128.

and enjoy yourselves among people you

know.” In a codicil he reiterated that there In all these cases the defendant is not excused from his obligation. In fact, the obligation or

were to be "no trips to Europe.”2 the liability, as the case might be, is sustained, but the plaintiff prevented from recovering be

Thellusen was a shrewd London mercause he himself, or, if the plaintiff is the per chant of Swiss origin, who had accumusonal representative of the deceased, the sole lated a fortune of $3,000,000 when he died, distributee of the estate, would receive the ben | in 1797. Leaving a widow, three sons and efit of a situation created by his own wrongful act. In all such cases the party who has united with a defendant in the commission of the

(1) Dooley on Making a Will and Other Nec

essary Evils, page 4. wrongful act will be prevented from taking

(2) Harris, Ancient, Curious and Famous advantage of his own wrong.

Wills, 225.

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