The Central Law Journal

In King et al. v. King, 168 Pac. 730, decided by Wyoming Supreme Court, the question was of the right of sender and addressee to restrain, by injunction, the publication of letters, which defendant clandestinely had obtained and used in a divorce suit.

In this case it appears that personal and private letters had been written by one of the plaintiffs to the other and defendant had used them as evidence in her divorce suit against such other plaintiff and at the conclusion of the case by agreement they were sealed up and placed in the custody of the clerk of the court. Afterwards dedendant in the proceeding at bar by her application to the court sought an order for the unsealing of said letters so as to use them in a proceeding before a lodge of a secret order. Temporary injunction was denied against granting of the order and this ruling was reversed by the Supreme Court of Wyoming.

In an early opinion by Judge Story it was ruled that the author of letters written and sent to another had exclusive copyright therein and could prevent publication thereof by addressee for his own benefit. It was said: "In short, the person to whom letters are addressed has but a limited right in special property (if I may so call it) in such letters, as a trustee or bailee, for particular purposes, either of information or of protection, or of support of his own rights and character."

This theory often has been ruled in later cases, a notable case on this line being

that of Baker v. Libbie, 210 Mass. 599, 37 L. R. A. (N. S.) 944, in which the question of the publication of the private letters of Mrs. Eddy, the founder of Christian Science, was involved.

It was claimed that the use intended to be made of the letters came under a recognized exception justifying the use of the letters and was for the purpose of public justice. But the court said: "By no concep

tion can it be claimed that the tribunals or rules adopted within the precincts of a secret organization could be considered for the purposes of public justice publicly administered according to the established institutions of the country."

While this view is sound, yet we greatly doubt that the exception would cover a case of a party seeking to use in a suit for vindication of his private rights in a court. of justice such letters.

But

It might be that in a criminal prosecution they might be available as evidence. where a civil action is tried, public justice should not override a third party's vested rights in seeking one's own rights.

The exception above stated admittedly. is limited to cases where letters do not tend to criminate any person required by law to produce them for use as evidence. But this is on the theory that outside rights are in no wise to be jeopardized by one using judicial tribunal to secure justice for himself. His claim for this is a private or personal matter. It is not a matter of public justice that it be granted to him. It is matter of public justice only. as the setting of a precedent in law, that procedure therefore be in due and regular course. Above all things a court of justice goes upon the principle that no vested right shall be taken away from another without his having his day in court. And it is said in the case considered that a sender of a letter does not relinquish his property therein. He only makes the addressee a bailee for a particular purpose.

NOTES OF IMPORTANT DECISIONS.

INDEMNITY INSURANCE INTEREST AND COSTS IN APPEAL ADDED TO MAXIMUM INDEMNITY.--Ravenswood Hospital v. Maryland Casualty Co., 117 N. E. 485, decided by Supreme Court of Illinois, was a suit by an indemnitee to recover from indemnitor a sum exceeding the limit expressed in the policy, where the judgment was in excess of that limit and also the costs paid in taking an appeal and interest accumulated while it was pending.

In this case the defense had been taken in charge by indemnitor and after verdict, it insisted upon appeal being taken. Recovery was denied as to the excess as such, but was allowed as to the costs on appeal and the interest accruing until the case was affirmed by the Supreme Court.

As to the claim for the excess in recovery above the amount expressed in the policy, the policy is referred to as conclusive on this question. As to the other contention it was said: "In this case the obligation of appellant was to indemnify appellee against loss from liability imposed by law for damages on account of injury or death sustained by a patient," etc. Appellant further agreed that it would "at its own cost defend such suit" unless it should elect to pay appellee the amount of the policy. "What was meant by the phrase, 'at its own cost defend such suit?' Clearly that appellant would bear all the expenses incident to the defense of such action, no matter what their kind or nature. This was to be in addition to the $5,000 specified in the policy. * * * The perfecting of the appeal did not relieve appellee of liability for the loss as ascertained and fixed by the judgment, but only suspended its collection until such further time as the judgment of the lower court could be reviewed on the appeal. Pending the appeal and by reason thereof, costs and interest accrued. * * * Had appellant chosen to pay appellee the amount of its policy of $5,000, when that judgment was rendered, it would thereby have relieved itself from the expense incident to the appeal, and the appellee would have had the privilege of either using said amount to satisfy the judgment or in prosecuting its appeal. In either event, appellant would not have been liable for the interest on the $5,000 judgment pending the appeal. * But appellant did not choose to do this, but on the contrary insisted on the case being appealed to the Appellate Court. Under the terms of the policy, appellee was compelled to participate in the

* *

appeal or forfeit its rights under the policy." It is then stated that: "Interest on a judgment is as much an incident to expense in carrying a case to the Appelate Court as are the court costs."

The judgment affirmed shows that, not the interest on the entire judgment was allowed in favor of indemnitee, but only on the amount of $5,000. But it seems a little difficult to distinguish in this way. The compulsion on the indemnitee was to carry the judgment that had been rendered to the Appellate Court for review. If compulsion is to measure obligation of indemnitor, the judgment is not divisible in indemnitor's favor. Indemnitee could not settle partially with the plaintiff, in whose favor the judgment had been rendered. At all events, however, the ruling is quite salutary on the question of interest accruing on appeal. Possibly, the principle ought to be extended in the obtaining a new trial at indemnitor's demand, and a second trial resulting in an increased recovery.

BILLS AND NOTES-NOTE PAYABLE TO MAKER'S OWN ORDER AND NOT INDORSED.-In Moore v. Cary, 197 S. W. 1093, decided by Tennessee Supreme Court, a promissory note was signed by two parties as mákers and made payable to the order of one of them. The names of the signers were Moore and Cary, and it was claimed that as the same person cannot be both maker and payee, the name of Moore must be treated as a nullity, the note being sued on by alleged holder, with no indorsement of Moore thereon.

The court said: "It is true that the same person cannot be both maker and payee, nothing else appearing. However, as pointed out by Mr. Daniel in his valuable work on Negotiable Instruments, the execution of such instruments is very common in England and in this country, the paper being ineffective until indorsed, but on being indorsed becoming a note payable to bearer. The learned writer says: "They are designed to enable the holder to use them without indorsement, and are simply roundabout notes payable to bearer.' The same principle is recognized in the Negotiable Instruments Law, $ 8, wherein it is provided that such an instrument may be drawn payable to the order of the drawer or maker. But in the same law it is provided that such a paper is not complete until it is indorsed by the payee. There is, however, nothing written on the back of any of the papers which Moore appears to have signed, and those must be treated as incomplete in which his name appears as payee and apparently as maker also,

unless it can be determined, that Moore wrote his name on the face, intending thereby to become an indorser. *** Now, we must suppose that E. H. Moore placed his name upon the papers mentioned with the purpose of being bound. The only way he could be bound under the facts stated, was as indorser, and we must conclude that he intended to so bind himself."

The court referred to rulings to the effect, that on the back of the paper an indorser's name generally appeared. Daniel says it is unusual and irregular for it to appear elsewhere, but Lord Campbell said it "was quite immaterial whether this was on the back or on the face of the instrument."

Of course, if indorsement does appear on face, it is not only unusual, but where the position of the name is such that the instru ment appears no instrument at all, unless it is counted as that of maker, the court could not say that at inception, at least, he could not be bound except as indorser. In this case there were two apparently signing as makers and this fact gives some basis for the court saying that only the other might be held as maker, and Moore only as indorser.

EMPLOYES ENGAGED IN INTERSTATE COMMERCE AS DECLARED BY THE UNITED STATES SUPREME COURT.

Introductory.-Numerous cases arising under the Federal Employers' Liability Act present a very close question as to whether or not the plaintiff employe was engaged in interstate commerce at the time he suffered injury. As this question is primarily one of fact, each case must be decided in the light of the particular facts.

In cases in which there is room for doubt, the test is, was the act of the employe so directly and immediately connected with the

business of interstate commerce as substantially to form a part or a necessary incident thereof ?1

Or, as stated by the Court, in cases decided by it, "Was the employe, at the time

(1) New York Cent. & H. R. R. Co. v. Carr, 238 U. S. 260, 9 N. C. C. A. 1, aff'g 158 App. Div. (N. Y.) 891.

of the injury, engaged in interstate transportation or in work so closely related to it as to be practically part of it?”2

Most railroad tracks are used in both interstate and intrastate commerce, but when so used they are none the less instrumentalities of the former. Nor does such double use prevent the employment of those who are engaged in keeping such tracks in suitable condition for use from being an employment in interstate commerce.3

Decisions of the United States Supreme Court, and especially recent decisions of that Court, tend greatly to clarify the vexing question of employment in interstate commerce. We learn from them that the solution of the question depends upon the circumstances at the very time in question, not upon those theretofore existing, except in so far as what has gone before sheds light upon the status of affairs at that time, nor upon contingencies of the future. In this respect, however, there is a marked difference between depending upon mere expectation or the contingency that acts will follow which will serve to fix the character of acts presently done, and doing an act for the purpose of furthering a movement which will be in interstate commerce. In the latter event the whole course of conduct is in interstate commerce.

We learn, too, the distinction between work of repair on an instrumentality which has been entirely withdrawn from all commerce for the purpose of being repaired, and work on one which has momentarily been halted in its course to receive needed repairs, after which it continues on its journey, the character of which is not altered by the slight interruption.

(2)

Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 558, 60 L. ed. 436; New York Cent. R. Co. v. White, 243 U. S. 188, 37 Sup. Ct. 247, 13 N. C. C. A. 943.

(3) Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 3 N. C. C. A. 779, 57 L. ed. 1125, Ann, Cas. 1914C 153, rev'g 197 Fed. 537, 117 C. C.-A. 33.

Some of these decisions overrule many decisions of the state courts, and are thereby rendered doubly important.

Repairing Engine Temporarily Withdrawn from Service.-A distinction is drawn between work on an engine which has been temporarily withdrawn from service, and one which is stopped temporarily in interstate commerce to receive repairs, after which it continues on its way. So, too, a difference is noted between the status of the engine first mentioned and a roadbed which is permanently devoted to interstate traffic, although it may also be engaged in carrying intrastate traffic.

The plaintiff was injured while engaged in repairing an engine. The engine "had been used in the hauling of freight trains over defendant's line, which freight trains hauled both intrastate and interstate commerce, and it was so used after the plaintiff's injury." Three days before the accident the engine was used to pull a train, and it was likewise used on the day of the accident, after the happening thereof. It was held that the plaintiff was not engaged in interstate commerce.

In this case the Court said: "This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine as such is not permanently devoted to any kind of traffic and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time not upon remote probabilities or upon accidental later. events."4

Car Stopped Temporarily for Repairs.A car containing an interstate shipment, stopped for repairs before it reaches its destination, its cargo not being ready to deliver to the consignees, is held to be still engaged in interstate commerce. “The plaintiff in error claims that it was not, and was laid by for repairs. But we are inclined to think otherwise. Its cargo had not yet reached its destination and was not then ready for the delivery to the consignee, wherewith the commerce would have ended. Its stoppage in the yard was an incident to the transportation. The injury to the coupler was one easily repaired without being taken to a repair shop, and was being hauled upon its tracks when the accident occurred."

Switching Intrastate Car from Train Carrying Interstate Freight.-Plaintiff, a brakeman, was injured while setting out an intrastate car from a train which also carried interstate goods; the car being still attached to the engine when the injury occurred. Held, that he was engaged in interstate commerce. In part, the Court said:

"The plaintiff was a brakeman on an interstate train. As such, it was a part of his duty to assist in the switching, backing and uncoupling of the two cars so that they might be left on a siding in order that the interstate train might proceed on its journey. In performing this duty it was necessary to set the brake of the car still attached to the interstate engine, so that, when uncoupled, the latter might return to the interstate trains and proceed with it, with plaintiff and the other interstate employes, on its interstate journey."

Switching Interstate Car in Breaking Up Train in Yards.-The plaintiff was a switch foreman and was breaking up a train that had come into his state from another state. At the moment when he was hurt he had

580.

(5) Delk v. St. Louis & S. F. R. Co., 220 U. S.

(6) New York Cent. & H. R. R. Co. v. Carr, 238 U. S. 260, 9 N. C. C. A. 1, aff'g 158 App. Div. (N. Y.) 891.

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The Central Law Journal, Volumen86