RECENT CASES

CARRIERS ELEVATORS CARE REQUIRED — "Common CARRIER”. PER RAULT V. EMPORIUM DEPARTMENT STORE Co., 128 PAC. (Wash.), 1049.— Held, that an elevator used to carry passengers is a common carrier, and one operating it, like other common carriers, must exercise the highest degree of care compatible with its practical operation.

It is a well established rule that from a common carrier of passengers the highest degree of care is required. Derwort v. Loomer, 21 Conn., 253. The important question, therefore, decided in the principal case, is whether a passenger elevator is a common carrier. The majority of the States which have decided this question, hold that a person operating an elevator in a store or office building is a common carrier of passengers. Morgan v. Saks, 38 So. (Ala.), 848; Beidler v. Branshaw, 200 Ill., 425; Hensler v. Stix, 113 Mo. App., 162; Fox v. Philadelphia, 208 Pa., 127. On the other hand recent decisions in New York, Rhode Island, and Michigan hold that a passenger elevator is not a common carrier, and the owner is only bound to use reasonable care in operating it. Griffin v. Manice, 166 N. Y., 197; Burgess v. Stowe, 134 Mich., 204; Edwards v. Manufacturers' Bldg. Co., 27 R. I., 248. This decision of the minority of the States, as opposed to the holding in the principal case, and to the holding of the majority of the States, is more consistent with the accepted definition of a common carrier, namely, that a common carrier is one who holds himself ready to carry for all persons indifferently, who choose to hire him. U. S. Express Co. v. Backman, 28 Ohio St., 150. A person operating an elevator in his store or office building does not carry passengers for hire; nor does he hold himself out to carry for all; he carries only for his tenants or for those who enter upon his implied invitation for the purpose of transacting business with him.

CONDITIONS RESTRAINT OF MARRIAGE-PUBLIC POLICY.-RUGGLES V. JEWETT, 99 N. E. (Mass.), 1092.—Held, that a will giving the home place to two daughters as long as they remain single, the main purpose not being to promote celibacy, is not against public policy as being in restraint of marriage.

A condition in a devise which effects a general restraint of marriage is void. Smythe v. Smythe, 96 Va., 638. If the effect is only partially to restrain marriage, it is generally valid. Collier v. Slaughter, 20 Ala., 263; Reuff v. Coleman, 30 W. Va., 171; Hogan v. Curtin, 88 N. Y., 163. A condition annexed to a devise to a widow that defeats her estate and gives the land to another, in case she marries again, is, in most jurisdictions, valid. Cornell v. Lovett's Ex., 35 Pa. St., 100; Martin v. Seigler, 32 S. C., 267; Herd v. Catron, 97 Tenn., 505. It was held, however, in Indiana, that such a provision in a devise to a widow was in restraint of marriage and void.

Stilwell v. Knapper, 69 Ind., 558. And this veiw is also held in the earlier Massachusetts decisions. Parsons v. Winslow, 6 Mass., 169. Later decisions, however, construe such a provision as a conditional limitation and not as a condition subsequent, and valid. Knight v. Mahoney, 152 Mass., 523. The way the Courts insist on the distinction between a conditional limitation, as where the grant is to a daughter until she marries, and a condition subsequent, as where the grant is to a daughter, if she remain single, generally upholding the former but declaring the latter void, is well illustrated in Coppage v. Alexander's Heirs, 41 Ky. (2 B. Mon.), 313. Upon facts like those in the principal case the provision was held to be in restraint of marriage and void. Kennedy v. Alexander, 21 App. D. C., 424. In other jurisdictions the opposite conclusion was reached. Mann v. Jackson, 84 Me., 400; In re Holbrook's Estate, 213 Pa., 93; Trenton Trust & Safe Deposit Co. v. Armstrong, 70 N. J. Eq., 272. The holding in the principal case is in harmony with the weight of authority. But it would seem that in giving effect to such provisions, it should be considered whether the condition or limitation will, in fact, operate to restrain marriage, as public policy is equally violated by a condition or limitation the natural effect of which is to promote celibacy.

CRIMINAL LAW-EVIDENCE CF OTHER OFFENSES-ADMISSIBILITY.STATE V. DAVIDSON, 148 S. W. (Mo.), 79.—Held, on trial for obtaining money by false pretenses based on accused's representations, inducing the purchase of corporate stock by prosecutor and the delivery of a note to the accused for the price, evidence that the accused made similar representations in selling and attempting to sell stock in the same corporation to a third person after the sale to the prosecutor, was admissible to show criminal intent to defraud.

Where the quo animo constitutes a necessary part of the crime charged and proof of the intention is indispensable to establish the guilt of the party, evidence of similar acts or conduct toward the same or different persons at or about the same time and place, is, by weight of authority. admissible as showing the necessary intent. State v. Gibson, 132 Iowa, 53; Houst v. People, 24 Col., 262. Evidence of previous acts of the same kind whether done to the same or a different person is, by the weight of authority, admissible to show the specific intent. People v. Seaman, 107 Mich., 348; People v. Everhardt, 104 N. Y., 591. As to the length of time allowed between the alleged act and the previous act, Courts have not laid down any rule. Evidence of subsequent acts has also been held admissible as showing the intent of the accused. For instance, on an indictment for having counterfeit bank bills with intent to pass them, evidence that eight days afterward accused had in his possession other and different bank bills was held admissible to show the necessary intent. Comm. v. Price, 76 Mass., 472. Also on a charge of using an instrument on the body of a woman with intent to procure a miscarriage, evidence that the accused administered the same treatment ten days later was held admissible as show

ing the specific intent. Comm. v. Corkin, 136 Mass., 429. No rule defining the length of time between the alleged and the subsequent act, proof of which is offered in evidence, has been laid down by the Courts. While the rule of the principal case has been followed in only a small number of jurisdictions, there seems to be a tendency to follow this rule in a large number of other States. Reg. v. Richardson, 2 F. & F., 343; Johnson v. State, 75 Ark., 427. In furtherance of justice and on the ground of public policy this is, without doubt, a wise rule to adopt, but care should be exercised to limit it to this particular class of cases.

NEGLIGENCE.

ELECTRICITY-LIABILITY OF TELEPHONE COMPANY PENINSULAR TELEPHONE Co. v. MCCASKILL, 60 So. (Fla.), 338.—Held, that a telephone company may be liable in damages for a fire caused by its wires transmitting electricity from lightning, it being shown that none of the usual safeguards were used.

That lightning is frequently discharged from the clouds to earth and is likely to pass along metal wires is a matter of common knowledge. Starr v. Southern Bell T. & T. Co., 156 N. C., 435. Hence it is the duty of a telephone company to select and maintain such approved devices for arresting and diverting atmospheric electricity as is reasonably necessary to guard against accident from such a current carried over its wires. Griffith v. New England T. & T. Co., 72 Vt., 441. While the telephone companies, inviting the public to use their instruments are not insurers, Brucker v. Gainesboro Tel. Co., 125 Ky., 92, and are not obliged to guarantee the safety of their system, under all possible conditions, Wells v. North Eastern Tel. Co., 101 Me., 371, they must exercise a high degree of care to protect their patrons from a dangerous electric current over their wires from any source. Delahunt et al. v. United T. & T. Co., 215 Pa., 241. Although lightning is an act of God, its transmission into a house over the disconnected wires is considered as the act of the company, Evans v. Eastern Ky. T. & T. Co., 124 Ky., 620; and it is no defense in an action for damages that the tortious act of a third party, or an inevitable accident or inanimate thing, contributed to cause the injury if the negligence of the company was the efficient cause. Byron Tel. Co. v. Sheets, 122 Ill. App, 6. Nor is it a defense that the wires were left in the building with the consent of the owner. Southern Bell T. & T. Co. v. McTyer, 137 Ala., 601. where no negligence can be shown on part of the company the rule "res ipsa loquitur" will not be applied even if the person is injured by a shock during an electric storm. Rocap v. Bell Tel. Co. of Phila., 230 Pa., 597 The only case seeming to take the contrary view is that of Phoenix Light & Fuel Co. v. Bennett, 8 Ariz., 314, which holds that it is not within the duty of an electric company to provide insulation sufficient to ward off lightning from its wires, for the law justly ascribes such consequences to inevitable misfortune or to "act of God" and leaves the result to be borne by him upon whom it falls.

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HUSBAND AND WIFE--ALIENATION OF AFFECTIONS-JUSTIFICATION.MILLER V. PEARCE, 85 ATL. REP., 620.-Held, an action by a wife for the alienation of the affections of her husband, is not defeated by the fact that the wife was entirely estranged from her husband before his acquaintance with defendant, but that fact was admissible only in mitigation of damages.

At common law the wife was not allowed to sue for the alienation of her husband's affections, Van Arnam v. Ayres, 67 Barb., 544; Duffles . Duffles, 76 Wis., 374; contra, Bennett v. Bennett, 116 N. Y., 584; though some cases held she had the right to sue but the right was in abeyance because of coverture. Smith v. Smith, 98 Tenn., 101. Under present State statutes, however, one sex is not accorded relief denied reciprocally to another. Schouler, Husband and Wife, Chap. 3, page 532; Sims v. Sims. 76 Atl., 1063; Keen v. Keen, 49 Ore., 362. The only States now holding the contrary are Maine and Wisconsin. Morgan v. Martin, 92 Me.. 190; Duffles v. Duffles, 76 Wis., 374. This right to sue accrues even if the marriage has not been physically consummated, Cochran v. Cochran, 111 N. Y. S., 588; and in an alienation suit the husband's conjugal affection is presumed. Gregg v. Gregg, 37 Ind. App., 210. Even lack of affection, though, is no bar to the action, Morris v. Warwick, 42 Wash., 480; nor need the defendant's acts be the sole cause of the alienation of affections. Rath e. Rath, 2 Neb., 600. Furthermore, the plaintiff need not show that the alienation of affections was committed before the husband's desertion of his wife. Humphrey v. Pope, 122 Cal., 253. The wife's right, then, to sue for the alienation of her husband's affections, just as he always might sue for the alienation of hers, seems thoroughly established. Of the three States that held the contrary, Maine and Wisconsin have not passed on the point recently, and New Jersey, in Sims v. Sims, cited supra, in July, 1910, overruled its decision in Hodge v. Wetzler, 69 N. J. L., and is now in accord with the majority opinion.

LIBEL CRIMINAL RESPONSIBILITY-PLACE OF PUBLICATION. PEOPLE V. BIHLER, 139 N. Y. S., 819.-A libelous letter is published both in the place where it is posted in the mail and in the place to which it is addressed, the postmark being prima facie evidence that the letter was in the postoffice on the date of the postmark; so that the publication of a libelous letter addressed to one in Switzerland was complete when deposited in the postoffice in New York city with postage prepaid for its transmission to Switzerland.

In libel there must be a publication, Prescott v. Tousey, 50 N. Y. S., 12, but the term “publication" is ambiguous. Townshend, (Libel and Slander), page 83. It has been held not to have the same meaning in criminal and civil prosecutions. Watrous v. Chalker, 7 Conn., 266, held it was criminal libel to send the libel to the one defamed; contra, Lyle v. Clason, 1 Caines, 581; Wilcox v. Moon, 64 Vt., 450; McCarlie v. Atkinson, 77 Miss., 594; State v. Syphrett, 2 S. E. Rep., 624, holding there must be, in criminal libel, as in civil libel, publication to a third person. Clark, Criminal Law, page 241, sustains the Connecticut doctrine on the ground that the

gist of criminal libel is the tendency to breach of peace. Mere writing is not publication, Weir v. Hoss, 6 Ala., 881; printing a book is not publication, Jewelers' Agency v. Publishing Co., 32 N. Y. S., 41; nor is posting a writing and taking it down before it is read, publication. 1 Stark. Rep., 471. However, it has been held that mailing a letter is publication. Smith v. State, 32 Tex., 594; Mankins v. State, 41 Tex. Cr. Rep., 662; Watrous v. Chalker, supra. The leading case, Rex v. Burdett, 3 B. & A., 717, held that mailing was a publication because there was no locus poenitentiae. On the other hand, it has been held that there was no publication till the letter was received and read, McCarlie v. Atkinson, supra; Fonville v. McNease, 1 Dudd. (S. C.), 303, semble; and that there is no publication until there is a communication to a person who understands it. Prescott v. Tousey, supra. Chapter 245 of the Penal Code of New York, 1903, based on Rex v. Burdette, supra, reads, "to sustain charge of publishing libel *** it is enough that defendant part with immediate custody". The principal case is in accord with the statute and with the weight of authority at common law, which favors the doctrine that mailing is publication. Academically at least, this seems a doubtful doctrine, as frequently a letter may be withdrawn after mailing; or through accident, negligence, or design may never reach its destination.

MASTER AND SERVANT--UNLAWFUL EMPLOYMENT OF CHILD-MISSTATEMENT AS TO AGE OF CHILD.-DESOTO COAL, MINING & DEVELOPMENT Co. v. HILL, 60 So. (ALA.), 583.-Held, that where a mining company employs a boy under fourteen years of age in its mine in violation of Code 1907, Sec. 1035, it is liable for injuries resulting to him from the employment, and incident to any risks of the master's business, though not the proximate result of any act or omission of the boy in the discharge of the duty assigned to him, and though he or his parent may have misstated his age and led the master to believe him to be over the prohibited age; the mining company being in effect an insurer of the boy's age when it employs him.

The doctrine is well established that the violation of a statute forbidding the employment in a factory of a child under a certain age is negligence per se. Starnes v. Albion Mfg. Co., 147 N. C., 556; Brower v. Locke, 31 Ind. App., 353; Cooke v. Lalance Grosjean Mfg. Co., 33 Hun. (N. Y.), 351. The majority of the decisions lay down the same rule as in the principal case that misstatement of the age of the child, by the child or his parents, does not affect the liability of his employer. Beghold v. Auto Body Co., 149 Mich., 14; Norman v. Virginia-Pocahontas Coal Co., 69 S. E., 857 (W. Va.); Glucina v. F. H. Goss Brick Co., 115 Pac., 843 (Wash.). The New York Courts, on the other hand, hold that an employer is not guilty of negligence per se for injury to a child employed contrary to the statute unless the employer knew that the child was under the probited age, or unless his appearance was such as to put him upon inquiry with respect thereto; Stenson v. Flick Construction Co., 146 App. Div., 66; so that if the plaintiff falsely stated his age and the defendant was justified in believing him, the employment of the child would not be