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Che Central Law Journal. new chamber is an immaterial issue, for there

are plenty of such persons outside of that

charmed circle. ST. LOUIS, OCTOBER 29, 1886.

Any reform, any change worthy of the

name, carried into effect in the spirit of Lord CURRENT EVENTS.

Coleridge's suggestions, must needs include

three fundamental conditions: First, that THE HOUSE OF LORDS.-On another page

the new legislators shall be "chosen and sent'' of this number will be found an interesting by a body or bodies of persons who represpeech of Lord Coleridge on the House of sent the interests of the whole kingdom. Lords. It is remarkable if read judiciously Second, that the choosing and sending bodies between the lines, as well as upon the face of

shall have full and free choice of the memthe paper, as indicating the present, and pre

bers from all classes of society, untrammelled saging the future tendency of enlightened by any relics of feudalism. Third, that the public opinion regarding the venerable fossil

members so sent shall act under a proper of which it treats. He advocates a reformed

sense of responsibility to their constituency, House of Lords, composed of men who shall holding office for a definite, or at least, a tersit there, because they are "sent there by

minable period, and amenable to all the imsome system of choice.” This, notwith-pulses of ah enlightened public opinion. standing his careful hedging, "speaking

The existing House of Lords is manifestly roughly and off-hand, and I pray you re

an excrescence; for more than half a century member, after dinner," means, when inter

its only political function has been, alternatepreted and read between the lines, and sub- ly to obstruct and succumb, and for that perjected to due judicial construction, that Lord iod England has had really but one legislatColeridge thinks that the House of Lords as ive body. If it is expedient to have two, as House of Lords has outlived its usefulness,

is the received modern opinion, the new but that a second legislative chamber is es

must be created, but before that can be done sential to good government. He thinks that a graver problem than is generally supposed the members of such a chamber should not

will confront the innovators. The House of be born, and “swathed and dandled into leg

Lords must be abolished before the new islators.” but should be "chosen,” and

chamber can be created, and if the great should be responsible for the due perfor- statesman to whom Lord Coleridge alludes, mance of their duties to the authority by after having thought three times about abolwhich they are “chosen."

Ye does not say

ishing the House of Lords, shall have finally so, certainly, but choice implies responsibil- resolved to do it, he will find before him an ity of the chosen to the chooser, and

respon

herculean undertaking. sibility implies a fixed and definite term of As the House of Lords is an integral part service. His allusion to the American Senate of Parliament, its extinction can only be efis, in this point of view. very significant. fected by revolution and re-construction, or Such a chamber as Lord Coleridge indicates by an act of Parliament, in assenting to would be a very good senate, provided its mem- which, that historic body would commit pobers shall be chosen by the proper authority litical suicide, decree its own dissolution and and in such a manner as to secure adequate admit in the most solemn manner, that it is representation of the interests of the whole no longer worthy to bear more than a nominal kingdom. It would, however, be in no proper part in the legislation of a great empire. sense a House of Lords.

It is of the very

That English peers could voluntarily do essence of that body that its hereditary legis- this is incredible ; that they could be lators represent nobody but themselves, and bribed or bullied into an act which to all the no interest except their own, are responsible world would seem to be one of personal disto no constituency, and are amenable to no' honor is equally impossible. What then reauthority.

mains except by the royal prerogative to fill Whether there is among the peers a suffi- the house with a sufficient number of new cient number of suitable persons to form the peers, who accept rank for a day only for the

Vol. 23.-No. 18.

purpose of dragging down to their own level whose negligence had caused the disaster, the those whose ancestors and predecessors have court held that the negligence of the driver held that rank for centuries. Before any

of the omnibus must be imputed to the pasStatesman worthy of the name will (unless in senger, plaintiff's intestate, because he "identhe direst emergency) resort to such a meas

tified himself” with the driver by voluntarily ure for such

a purpose, he will think, not becoming a passenger. In a later English three times, but three hundred times. The case, the court, Pollock, B., following ThorHouse of Lords may be undermined in the oughgood v. Bryan, comments on the lancourse of time by the steady growth of public guage used in that case thus: “If it is to be opinion of which Lord Coleridge's speech is taken that by the word 'identified' is meant one of the most notable indicia, but most that the plaintiff, by some conduct of his own, probably it will endure as long as any of the as by selecting the omnibus in which he was present elements of the English constitution. traveling, has acted so as to make the driver

his agent, that would sound like a strange proposition, which could not be entirely sus

tained. But what I understand it to mean is NOTES OF RECENT DECISIONS.,

that the plaintiff, for the purpose of the ac

tion, must be taken to be in the same position NEGLIGENCE CONTRIBUTORY AND IMPUTED

as the owner of the omnibus, or his driver.” NEGLIGENCE-MASTER AND SERVANT-PASSENGER IN PRIVATE CARRIAGE.—On the 1st of

In a Wisconsin case, the English rule is fol.

lowed. In that case the vehicle was hired and October, 1886, the Supreme Court of Minne

driven by one

person, and another, the sota took a new departure on the subject of contributory negligence, or, more properly plaintiff rode in it and was injured by the

negligence of the defendant, that of the drispeaking, made a distinction which has not heretofore been generally recognized. And

ver contributing to the injury. The court in doing so, it cuts loose from a line of deci

held that the negligence of the driver must sions founded upon a legal fiction which is

be imputed to the plaintiff on the ground of not only absurd upon its face, but exceed

agency. ingly unjust in its operation. In Follman v.

“When the agency of a person in control City of Mankato,' the court held that a pas

of a private conveyance is express, there is senger in a private carriage, riding in it upon

no difficulty in the rule. The contributory the invitation of the owner thereof, who was

negligence of the servant will defeat the himself driving it, is not affected by his neg

master's action for negligence against a third ligence contributing to the disaster by which person; and it seems that there ought to be she was injured. That negligence is not im

as little difficulty in the rule when the agency puted to her, and the city by whose negli- is implied only. One voluntarily in a private gence the disaster was primarily caused, was

conveyance, voluntarily trusts his personal responsible in damages to her. A distinction

safety in the conveyance to the person in is taken between public and private carriages,

control of it. Voluntary entrance into a priwhich, in our judgment, is unnecessary and

vate conveyance adopts the conveyance, for misleading. The ruling in many cases has

the time being, as one's own, and assumes been that a passenger in a public carriage,

the risk of the skill and care of the person may be deprived of his remedy for injuries guiding it. Pro hac vice, the master of a inflicted by third persons, by proof of the

private yacht, or the driver of a private carcontributory negligence of the driver of the riage, is accepted as agent by every person vehicle. In a leading English case, a pag

voluntarily committing himself to it. senger in an omnibus was killed by an acci

There is a personal trust in such cases, which dent to which the negligence of the driver of implies an agency.” the omnibus contributed. In an action by

The same rule has been followed in other his administrator against the other party,

3 Armstrong v. Lancashire, etc. Co., L. R. 10 Exch. 1 29 N. W. Rep., 317.

47. 9 Thoroughgood v. Bryan, 8 C. B. 115.

4 Prideaux v. City of Mineral Point, 43 Wis. 513.

It says:

was a case

ever.

11

Wisconsin cases. And in Michigan there is her servant” or “agent” in any sense whata like ruling. And this it seems

The employment of such words in similar to that in Minnesota in that it was a such a connection, and for such a purpose is private carriage.

not only an abuse of legal language, but a In a Pennsylvania case? the court follows perversion of legal principles. In this conthe English rule as to its conclusion, yet re nection the learned editors of Smith's Leading pudiates the identity" doctrine and bases Cases say:8 “It is inconceivable that each its decision upon considerations of public set of passengers should by a fiction be idenpolicy.

tified with the coachman who drives them, so The Supreme Court of Minnesota declines

as to be restricted for remedy to one against to follow these rulings, and puts its dissent

their own driver or employee." upon what strikes us

as a very sensible

The Minnesota court is not without support ground, that the whole theory of "identity"

in the stand which it has taken on this subof a passenger with the driver of a vehicle, ject. In New York, in a case similar to that or that the driver is in any fair sense the

under consideration, a like conclusion was servant or agent of the passenger, is, in plain

reached.9 And in a later case in the same language, a mere folly. "We do not refer to State, 10 the court explicitly denied the existcases recognized as being exceptional, where ence of a relation of agency under such cirparties stand in peculiar relations to each cumstances, and in this was followed by a other; such as that of parent and child,

still later case. The Supreme Court of the guardian and ward. The theory of 'identity' United States in a recent case, 12 held that the which may be taken as the ground of the de

driver of a hired hack was not the servant of cision in Thorogood v. Bryan, and other the passenger who had hired the vehicle, nor English cases, is so vague and undefined, as wås his negligence imputable to the latter. applied to circumstances such as are here pre In New Jersey, there have heen two cases sented, where no relation like that of master sustaining the same view. One of these was and servant, or principal and agent actually the case of a passenger on a horse car who exists, and where the plaintiff is not only was injured by the concurrent negligence of without fault, so far as appears, but without the driver, and of the defendant;

13 in the authority, respecting the conduct of the other case the plaintiff was a passenger in a driver, that it is difficult to understand what hired hack. 14 In both cases the doctrines of is meant by it; and the explanatory remarks identity and agency were held inapplicable to of Baron Pollock, supra, do not solve the dif cases in which a man merely pays a nickel or ficulty of reconciling such a theory with the a quarter for a ride in a street car or a hack. principle of law which affords à remedy to In Ohio,15 and in Illinois, 16 the courts have one who, being himself without fault, is in- repudiated the doctrine of Thorogood v. jured by the wrongful act of another. It is Bryan,17 and refused to sanction the docenough to say, that this theory of identity has trines of identity or agency. little or no support in this country; that the Upon the whole, we think that the Supreme decision in Thorogood v. Bryan has not Court of Minnesota has done wisely and escaped criticism in the English courts, and well, in refusing to recognize the authority of has been generally repudiated in America." a line of decisions founded upon a modern

It certainly seems ridiculous to say, that a fiction of law, dependant upon a glaring and gentleman entering an omnibus and paying his fare is identified” with the driver in any

81 Smith's Leading Cases, 366.

9 Robinson v. New York Central, etc. Co., 66 N. Y. other sense than that of a common humanity, 11. or that a lady, (as in the case under consider 10 Dyer v. Erie, etc. Co., 71 N. Y. 228.

1) Masterson v. New York Central, etc. Co., 84 N. Y. ation,) by accepting a gentleman's invitation

247. to ride with him in his carriage, makes him 12 Little v. Hackett, 6 Sup. Ct. Rep. 391.

13 Bennett v. New Jersey, etc. Co., 36 N. J. Law, 225.

14 New York, etc. Co. v. Sternberger, 20 Rep. 518 5 Honfe v. Fulton, 29 Wis. 296; Otis v. Janesville, 47

(1885). Wis. 4:22.

15 Transfer Co. v. Kelly, 36 Ohio St. 86. 6 Lake Shore, etc. Co. v. Miller, 25 Mich. 274.

16 Wabash, etc. Co. v. Shacklett, 105 III. 364. 7 Lockhart v. Lictenthaler, 46 Pa. St. 151.

toli

17 Supra.

3

fanciful perversion of a well defined legal the action. The two essentials are notice and relation, and usually operating to the hin- opportunity to be heard. Given these, he drance of justice. The rule conflicts as well stands in no better position than any defenwith common sense as with legal principle. dant who neglects to interpose a meritorious To say that one who pays twenty-five cents to defence; as to him the matter becomes res ride in an omnibus from a depot to a hotel is adjudicata. in any sense the “master” of the man who To apply these principles to a particular indrives the vehicle, is simply and emphatically stance: where one who has conveyed land to folly. A master is one who has the right to another, with warranty of title, is vouched in command; a servant is one whose duty is to by the latter, upon due and proper notice, to obey, and neither command nor obedience is

defend an action of ejectment brought by a predicable of the relation between the par- third person against the warrantee for the reties. If the passenger orders the driver to covery of the same land, the judgment in go up A. street instead of B. street, he would

ejectment, if given for the stranger, is conprobably be profanely snubbed for his imper

clusive evidence, in a subsequent action by tenance, and to hold him responsible for the the covenantee against his grantor on the misdeeds of a man whom he cannot control,

warranty of title, of the fact that the former even in minor matters, is absurd as well as

has been evicted from his possession by a unjust.

paramount title. But still—on the principle that a judgment is conclusive only of the matters necessarily determined by it—there

are certain defences open to the grantor, even JUDGMENTS AS EVIDENCE AGAINST

in this case, when sued on his warranty of THIRD PERSONS WHO ARE RESPON

title; such, namely, as could not have been SIBLE OVER.

involved in the controversy between the ten

ant and the evictor, and such as are not necIt is a general rule that a person who is re

essarily inconsistent with that judgment. sponsible over to the defendant in an action

Thus he may show that his covenant was speat law for any loss or damage suffered by the

cial, or that he made no covenant, or that the latter in respect to the subject matter of the

recovery was upon a title derived from the suit, is concluded by a judgment recovered warrantee himself or in consequence of some against the defendant without fraud or collu

fact occurring after the date of the covenant.5 sion, as to all the points necessarily deter

The same rule applies where the warrantee mined by it, provided he had notice of the is plaintiff in a suit for the recovery of the pendency of the suit and an opportunity to come in and make a defence. Nor is this any 3 Love v. Gibson, 2 Fla. 598; Veazie v. Railroad, 49 relax ation of the rule that a judgment estop

Me. 119.

4 Knapp v. Marlboro, 34 Vt. 235; Swenk v. Stout, 2 pel is binding only upon parties and privies.

Yeates, 470; Collingwood v. Irwin, 3 Watts, 310; Tur. For the person so responsible, by being ap- ner v. Goodrich, 26 Vt. 708; Ives v. Niles, 5 Watts, 323; prised of the action and by being granted an

Miner v. Clark, 15 Wend. 425; Pitkin v. Leavitt, 13

Vt. 379; Wilson v. McElwee, 1 Strobh. 65; Hinds v. opportunity to interpose any defences which Allen, 34 Conn. 195; Hamilton v. Cutts, 4 Mass. 349; are available to him, and generally to contro

Kelly v. Church, 2 Hill, 105; Chapman v. Holmes, 5

Halst. 20; Morris v. Rowan, 2 Harr. (Del.) 307; King vert the adverse claim, is in effect made a

v. Kerr, 5 Ohio, 158; Jones v. Waggoner, 7 J. J. Mar. party to the litigation, and can no longer be 144; Cox v. Strode, 4 Bibb. 4; Middleton v. Thompregarded in the light of a mere stranger.?

son, 1 Spears, 67; Wimberly v. Collier, 32 Ga. 13; St.

Louis v. Bissell, 46 Mo. 157; Graham v. Tankersley, And it is perfectly immaterial whether or not 15 Ala. 634; Boyd v. Whitfield, 19 Ark. 469; Wendel he does in fact participate in the defence of

v. North, 24 Wis. 223; Chicago, etc. R. R. v. Northern Line Packet Co. 70 III. 221; Davenport v. Muir, 3 J.J.

Mar. 310; Williams v. Leblanc, 14 La. An. 757; Hardi Littleton v. Richardson, 34 N. H. 179; Salle v. ing v. Larkin, 41 III. 413; Chamberlain v. Preble, 11 Light, 4 Ala. 700; Mahaffy v. Lytle, 1 Watts, 314; Bos- Allen, 370; Harbin v, Roberts, 33 Ga. 45. A contrary ton v. Worthington, 10 Gray, 496; Clark v. Carrington, rule, however, prevails in North Carolina; Wilder v. 7 Cranch, 322; Hamilton v. Cutts, 4 Mass. 353; Bond

Ireland, 8 Jones, 83; Martin v. Cowles, 2 Dev. & B., v. Ward, 1 N. & McC. 201; Kip v. Brigham, 6 Johns. 101. 158; Walker v. Ferrin, 4 Vt. 523; Tyree v. Magness, 1 5 Chicago, etc. R. R. v. Northern Line Packet Co. 70 Sneed, 276.

Ill. 221; Davenport v. Muir, 3 J. J. Mar. 310; Rawle Light, 4 Ala. 700.

on Cov. for Title, 209.

2 Salle v.

So a

land. That is, where he brings ejectment of notice, although he is not bound as to the against a person whom he finds in possession title or future right of possession." of the estate deeded to him by the warran- judgment in an action of ejectment cannot tor, and gives the latter proper notice to join affect a person in possession of the premises in the action and make good his title, and when the suit is commenced unless he is made judgment passes against them, such judgment a party to the action.12 But if a tenant of the is conclusive evidence of a want of title in defendant in such action has taken possession the grantor when the warrantee sues him on with actual notice of the pendency of the his covenant. But the grantee of land is suit, he will be bound by the judgment as not bound by a judgment in a suit commenced though a party. 13 And where the terre-tenant after such grant, by his own grantor against has actually appeared and had an opportunhis immediate grantor upon the covenants ity to make a full defence, even though he in his deed.? And where a grantor in a deed may not have availed himself of it, he is has once responded to a suit on his covenant concluded to every intent.14 of warranty, brought by a proper party, he The same rule applies to the case of is not liable to a second suit on the same

a sale of personal property with express covenant; and the judgment obtained against

or implied warranty of title. In a suit him in the first suit is admissible as evidence

for a breach of such warranty of title, the in the second.s Where the warrantor is not

record of a judgment for the value of the notified of the pendency of the suit against property, in favor of a third person and his grantee, or has no opportunity to inter- against the vendee (if it appears that the pose a defence, the judgment against the question of title was directly involved, and warrantee cannot be used as evidence, in a that the recovery was not upon a title derived subsequent action on the covenants of the from the vendee himself), is conclusive evideed, to show the superior title of the party dence against the vendor that the property recovering it, though it is admissible for the

was recovered by title paramount, provided purpose of proving the fact of eviction.'

it be shown that the vendee had given the But this amounts, after all, to no more than vendor legal notice of the pendency of the saying that the judgment is competent evi- action against him.18 On the same principle, dence of its own existence.

where the assignor of a note warranted it When ejectment is brought against a ten- free from set-off, and in a suit by the assignee ant in possession of the land, and he gives against the maker, of which the assignor was due and legal notice to his landlord, and the notified, and in the prosecution of which he landlord has an opportunity to come in and took part, there was a judgment for a set-off, defend, the latter is bound by a judgment it was held that in a subsequent action by the against the tenant. 10

assignee against the assignor for deceit, that And even where the landlord receives no judgment was conclusive evidence of the setnotice whatever of the action, and the stran- off.16 And, in the language of Kent, J.: “It ger recovers judgment against the tenant, it can make no difference that there are interis held, in Wisconsin, that the possession is mediate purchasers, and that the suit is adversely and completely changed by the against the last one, if the question of title judgment, and the landlord is so far bound is the sole matter in controversy. All the inby the judgment, notwithstanding bis want

11 Striddle v. Saroni, 21 Wis. 173.

12 Fogarty v. Sparks, 22 Cal. 142; Bradley v. Mc6 Brown v. Taylor, 13 Vt. 631; Gragg v. Richardson, Daniel, 3 Jones (N. C.), 128. 25 Ga. 566; Pitkin v. Leavitt, 13 Vt. 379; White v. Wil- 13 Fogarty v. Sparks, supra. liams, 13 Tex. 258; Farrell v. Alder, 8 Humph. 44.

14 Himes v. Jacobs, 1 Pen. & W. 152. 7 Winslow v. Grindal, 2 Me. 64.

15 Marlatt v. Clary, 20 Ark. 251; Salle v. Light, 4 Ala. 8 Vancourt v. Moore, 26 Mo. 92; Brady v. Spurck, 700; Thurston v. Spratt, 52 Me. 204; Boyd v. Whit27 III. 478.

field, 19 Ark. 447; Brown v. McMullen, 1 Hill (S. C.), 9 Hardy v. Nelson, 27 Me. 525; Stephens v. Jack, 3 29; Barney v. Dewey, 13 Johns. 225; Pickett v. Ford, Yerg. 403; Tam v. Shaw, 10 Ind. 469.

4 How. (Miss.), 246; Blasdale v. Babcock, 1 Johns. 10 Chambers v. Lapsley, 7 Pa. St. 24; Ryers v. Rip- 517. pey, 25 Wend. 432; Harvie v. Turner, 46 Mo. 444; Val- 16 Walker v. Ferrin, 4 Vt. 523; and see Tyree v. entine v. Mahoney, 37 Cal. 389; Chant v. Reynolds, 49 Magness, 1 Sneed, 276; Morgan v. Simmons, 3 J. J. Cal. 213; Van Alstine v. McCarty, 51 Barb. 326.

Mar. 611.

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