Central Law Journal. ST. LOUIS, MO., MAY 3, 1918. property for the use and sale of intoxicants, or knowingly permits its use for that purpose. The statute has the effect of making the tenant the agent of the landlord for its purposes, and through this agency, voluntarily assumed, the landlord becomes a JUDG- participant in the sales of intoxicants and is responsible for the consequences resulting from them." CONSTITUTIONALITY OF STATUTE PRED- In Eiger v. Garrity, 38 Sup. Ct. 298, it was held by U. S. Supreme Court that a statute providing for a lien on premises leased for the purpose of, or used by consent of owner for, conducting a saloon, arising out of a judgment recovered against the saloon keeper for injury or damage suffered by any one from the sale of intoxicants, did not amount to a taking of property without due process of law. The facts in this case show that a wife sued a saloon keeper for damage resulting to her by reason of selling liquor to her husband. There was default by defendant and, in a trial, judgment was rendered in plaintiff's favor for damages. On this judgment she sued the owners of the property to impress the lien on the premises leased to the judgment defendant. There was demurrer to the petition, which, being overruled and owners standing thereon, there was judgment rendered establishing the lien. It is to be noticed that the owners had no day in court so as to contest the right of suit or in fixing the amount of the damages. The Supreme Court said: "The stress of the argument for plaintiff in error is laid upon the want of notice to the landlord and the lack of opportunity to be heard. as to the right of recovery and the amount❘ thereof before his property can be subjected to the lien of such judgment. But the effect of this statute is to make the landlord responsible only when he rents his The court from this proceeds to declare the statute valid under state police power and upholds the judgment establishing the lien provided by statute. Is the reasoning of the court in regard to agency in the tenant and the participation. by the landlord as a principal in the sales an answer to the contention of lack of opportunity in the landlord to be heard in defense of the claim for recovery and as to amount thereof? It seems to us that it is not. Let it be conceded, that the statute does create the relation of principal and agent, yet it is not specifically provided, that the principal shall be bound in a suit against the agent. If not, does not the general rule obtain, that for the default or tort of the agent the principal must be sued? It is not in the creation of the relation of principal and agent that the latter may be sued so as to bind the principal. It is only in the way of evidence of such creation and of acts done within the scope of the agency, that the principal may be held at all. He has the right to contest these points. Their establishment binds theprincipal and releases the agent, unless in a transaction the latter acts for an undisclosed principal. It may be, that in a suit against a principal or against an agent, his interest may be adverse to his principal. If liability is fixed upon the one sued, it may operate to release the other. Therefore he must be heard before he may be bound. But the court says also the "landlord becomes a participant in the sales of intoxicants and is responsible for the consequences resulting from them." But how does this conclusion, as matter of Taw, make him bound by a judgment against another? If he is in effect charged as a joint tortfeasor, judgment against him as such should be sought in a suit against him. NOTES OF IMPORTANT DECISIONS. DESCENT AND DISTRIBUTION-WAIVER BY WIDOW OF PORTION OF ESTATE VESTED IN HER BY STATUTE.-In Fischer v. Dolwig, 166 N. W. 793, decided by Supreme Court of North Dakota, it was held by a majority of three, that the widow was barred by acquiescence or laches in failing to claim a year's support. The facts are somewhat involved. There it appears that before the marriage of plaintiff to decedent, there was an oral agreement between her and her intended husband for a consideration paid to waive all rights to his estate; that when he died she consented to the appointment of an adminis It is to be admitted that there are statutes in which sureties, as in the case of statutory bonds, "submit themselves to the acts of the principal and to the judgment as itself a legal consequence." By this "they trator; that she waived service of all citations are represented in the proceedings by their principal and are bound by his acts. They thus have their day in court," Evans v. Kloeppel, Fla., 73 So. 180. But the court in the instant case argues that, purely as principal and agent or because the statute makes the lessor a joint tortfeasor, the judgment against the agent or the other joint tortfeasor becomes conclusive against the lessor. We believe this to be sound in principle and dangerous in analogy. of notice that otherwise might be required and consented to rendition of final decree in the administration. This final decree was rendered and she was decreed to have no interest in the estate and of the intent to claim by the next of kin she was fully apprized. There was decree adjudging all of the estate to such next of kin. Some time later, the estate being wound up and the administrator discharged, the widow asked that the decree be set aside and there be set apart to her the exemption provided by statute. The Supreme Court affirmed judgment of the trial court in defendant's favor. The majority held, that the oral agreement was void under the statute of frauds under North Dakota statute, but her waiver and knowledge of what would be claimed as to the widow having no interest in the estate and her failure to appeal from the decree barred her rights in the estate. The decision in the principal case no doubt could more properly be sustained on the theory that knowingly leasing property for dramshop purposes was an act which, under the police power, might be punished by the imposition of a penalty. This penalty could be either an arbitrarily fixed amount or an amount varying in each case according to the damages resulting to those injured by the wrongful act. In such a view of the case it would be unimportant that the amount, thus regarded as a penalty, is determined in an action to which the offending landlord is not a party. He knows, when he leases his property for purposes regarded as injurious to society, of the probate court. that he may have to pay a penalty (not damages), the amount of which, it is true, is undetermined, but which is to be fixed in the manner provided by law. One of the judges, specially concurring, speaks of the duty of the probate judge to set apart to the widow the exemption allowed by the law, and of its being not "thwarted or defeated even by the previous private contract of the immediate beneficiary," but in this case she was fully advised of the contention of those adversely interested in the estate about the effect of the oral antenuptial contract and of her right to appeal and no fraud appeared in any way. Therefore, she was held to have slept upon her rights, all this enuring to the advantage of those claiming under the decree Dissentients said that the exemption was not under the statute any part of the estate except for the purpose of ascertaining the amount to be set apart to the widow, and that it could only be subject to charges of last illness and funeral expenses, as to which there was no claim. This setting apart is mandatory and requires no application therefor by a beneficiary. It is also recited that generally it is for the benefit of the family of decedent and for no particular member thereof. It is the policy of North Dakota law that it be set apart. Quaere: Do the distributees take the estate, when no setting apart of the exemption has been made, subject to an implied trust? Or does a general order of the probate court dis-· tributing it, without regard to the absolute right of the widow or family in the exempted part, operate as res judicata, in favor of the distributees? It seems to us, that the inclusion in the estate of property that really is no part thereof does not vest that property in the distributees of the estate and that the mandatory terms of the North Dakota statute did not oblige the widow, in this case, and the members of a decedent's family, in another case were not bound by the decree any more, than had it included property, that never had belonged to the estate of decedent. If the statute segregated the property from the estate, this was the same as if it had never been a part thereof. Furthermore, if the position of distributees had never been changed by the alleged waiver, they tak ing with notice of the absolute right of the widow, how were they prejudiced thereby? What had they paid in consideration of her surrender of that absolute right? In the view that they are trustees, there was merely question of statute of limitations barring her right to sue, or it may be, of laches, so far as time is concerned, or of third persons being prejudiced. ATTORNEY AND CLIENT-LIEN IN EXCESS OF SUM FOR WHICH CLIENT SETTLES SUIT.-Levy V. Public Service Ry. Co., 103 Atl. 171, decided by New Jersey Court of Errors and Appeals, shows a suit by an attorney against a company with which his client had settled a claim in disregard of notice of attorney's lien. It appears that the client settled for $30.00 and the attorney sued the company to enforce his lien under a contract providing for a 50 per cent compensation and the trial court awarded him judgment for $100.00, or more than three times the amount for which settlement was made. The Supreme Court of New Jersey reversed the judgment upon the theory that the written contract confined the recovery to 50 per cent of the amount, and this reversal the Court of Errors and Appeals affirms, but rejects the rea soning employed on the attorney's contention that the 50 per cent applied only to "all moneys received by him by way of settlement," and was wholly silent as to a settlement made by the client. The Court of Errors and Appeals rules, therefore, that this being true, there either is no lien at all as against the company or it depends upon the right of the client to settle. It is said the lien statute "does not take away the rights of parties to settle their litigations." It was thought that any claim for compensation was, so far as lien is concerned, on the "cause of action, suit and claims," and this was limited by what had been satisfied. But it was thought that as between attorney and client this might not be conclusive of the value of services rendered by the attorney to his client. For such there ought to be a suit in which the client was entitled to have his day in court. This was a matter that under the statute in no way affected the company the client had settled with. As the case was reversed without remand it is to be considered, that the way in which it was provided settlement only could be made, the attorney had no lien at all protected by the statute. When the attorney attempted to provide only for settlement by himself, it ought not to have taken away his client's right to settle. AND CHILD PARENT BURDEN OF PROOF ON STRANGER FURNISHING SUPPORT TO CHILD.-In Dyer v. Helson, 103 Atl. 161, decided by Maine Supreme Judicial Court, it is held, that presumptively a child away from the home of his parents may not be supplied support by a stranger without the latter showing there was immediate necessity therefor and such necessity was occasioned by the parent, who is not presumed to have neglected his duty or as being unwilling to perform it. Further, it was said that, if a child leaves his home to seek his fortune or to avoid discipline, he carries no credit. Such a presumption as exists in favor of a parent necessarily is subject to great latitude in its application. If the child is male or female, or is of very tender years, or is in immediate danger as to its life or health, humanity may intervene so far as immediate relief is concerned, no matter what may have been the previous conduct of it or its parents. Necessarily, relief must be temporary. In this case a child was given support by a stranger for more than six years and it was claimed that the parent did not treat him with the kindness ordinarily shown in their circumstances in life, but it was said this was not shown by a preponderance of the evidence. The father was held not liable to plaintiff. It seems to us, that it was unnecessary for the father to have been put upon his defense at all. For one to take up and support a child for such a long period, because a parent may not be doing his duty to the child, is to vest the former with a kind of guardianship over the domestic affairs of another. He is rather a volunteer in a matter where the state as parens patriae has a right to intervene. It is not designed that a jury should be vested with authority to express its opinion in a verdict regarding such a matter as this. The currents of sympathy would thus be allowed to be capitalized in favor of those presuming to act in the name of charity, when real motives might be very different. And then a way would be opened for invading the sanctities of home for one's personal financial advantage. DOES AN ACT OF GOD EXCUSE A CARRIER, WHERE THERE HAS BEEN UNREASONABLE DELAY IN TRANSPORTING? The legal term "Act of God," has been defined as such an act as could not happen by the intervention of man, while Lord Mansfield states that by "Act of God" is meant a natural necessity, which could not have been occasioned by the intervention of man, but proceeds from physical causes alone, such as violence of the winds or seas, lightning, or other natural accident. Another definition is any accident due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected, could have been prevented.3 It has long been the rule that an "Act of God" excuses the failure to discharge a duty, where it was the sole cause or reason for the neglect. This rule is founded upon the maxim, "Lex Neminem cogit ad impossibilia." (The law requires nothing impossible), but when the evidence of the cases show other causes contributing to the loss along with the Act of God, then the great conflict of authority develops. In the law of carriers this question is one of great importance and the purpose of this article is to consider the effect on the defense of Act of God, where there has been a loss caused partially by the delay of the carrier in transporting the goods. According to one line of decisions, negligent delay in transporting, or delivering goods will not render the carrier liable for subsequent loss or injury thereto by an Act of God, where the peril was not reasonably to be anticipated, although had the goods been transported with reasonable diligence they would not have been subject to such loss. This rule has been followed consistently by the federal courts" and in about nineteen of the state courts. The foregoing doctrine is predicated on the view that, if the (4) Southern Pac. Co. v. Schoer, 114 Fed. 466. 472, 52 C. C. A. 268, 57 L. R. A. 707. (5) Insurance Co. v. Tweed, 7 Wall. 44, 19 L. Ed. 65; St. Louis, etc., R. Co. v. Comm. Union Ins. Co., 139 U. S. 223, 11 S. Ct. 554, 35 L. Ed. 154; Scheffer v. Washington City Midland, etc., R. Co., 105 U. S. 249, 26 L. Ed. 1070; Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909; Empire State Cattle Co. v. Atchison, etc., R. Co., 135 Fed. 135, same case in 210 v. S 1, 28 S. Ct. 607, 52 L. Ed. 931, 15 Ann. Cas. 70; Kennedy v. The R. D. Bibber, 50 Fed. 841, 2 C. C. A. 50. Am. etc., (6) Hutchinson v. U. S. Express Co., 63 W. Va. 128, 14 L. R. A. (N. S.) 393; Herring v. Chesapeake, etc., R. Co., 101 Va. 778, 45 S. E. 322; International, etc., R. Co. v. Bergman (Tex. Civ. App.), 64 S. W. 999; Lamont v. Nashville, etc., R. Co. (Tenn.), 9 Heisk. 58; Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695; Armstrong v. Ill. Cent. R. Co., 26 Okla. 352, 29 L. R. A. (N. S.) 671; Daniels v. Ballantine, 23 Ohio St. 532, 13 Rep. 264; Gen. Fire Ext. Co. v. Carolina, R. Co., 137 N. C. 278, 49 S. E. 208; McClary v. Sioux City, etc., R. Co., 3 Neb. 44, 19 Am. Rep. 631 (but see Wabash R. Co. v. Sharpe, 76 Neb. 424, 107 N. W. 758); Ballentine v. North Missouri R. Co., 40 Mo. 491, 93 Am. Dec. 315 (but see also Armentrout v. St. Louis, etc., R. Co., 1 Mo. App. 158); Yazoo, etc., R. Co. v. Millsaps, 76 Miss. 855, 25 So. 672; Michigan Cent. R. Co. V. Burrows, 33 Mich. 6; Denny v. New York Cent. R. Co., 13 Gray 481, 74 Am. Dec. 645; O'Brien v. McGlinchy, 68 Me. 552; Dalzell v. The Saxon, carrier could not reasonably have forseen A federal court in discussing the basis. of this doctrine says: "Causa proxima Non remota spectatur.' An injury that is the natural and probable consequence of an act of negligence is actionable. But an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable, nor is an injury that is not the natural consequence of the negligence complained of, and would not have resulted from it, but for the interposition of some new, independent cause that could not have been anticipated."a An eminent text book writer in considering the point cites an early Pennsylvania case and discusses it as follows: "In that gument would be unanswerable, but, as this is impossible, and an accident of the sort is as likely to overwhelm a boat that has been moved with due diligence as one that has been unreasonably delayed, it is obvious that the antecedent probabilities are equal, that the delay will save the boat instead of exposing it to destruction. As is said by the court in the case referred to: 'A black smith pricks a horse by careless shoeing. Ordinary foresight might anticipate lameness, and some days or weeks of unfitness for use, but it could not anticipate that, by reason of the lameness, the horse would be delayed in passing through a forest until a tree fell and killed him or injured his rider; and such injury would be no proper measure of the blacksmith's liability."" Another writer in discussing leading cases upon this subject says: "In the following cases the admitted or established negligence of the defendant was held not to he the effective legal cause or proximate cause of the damage, or injury for which recovery was sought. It is obvious that in these cases the damage could not be said to be the natural result of the negligence declared on. It was simply due to some other factor. And the conclusion reached in these cases must be the same whether liability is supposed to extend to all natural consequences or only to such as may be foreseen."s case common carrier undertook to transport goods from Philadelphia to Pittsburg by canal. While on their way the goods were destroyed by an extraordinary flood. There was evidence that the goods would not have been at the place of injury but for their having been delayed by the lameness of a horse attached to the boat; and the complaint was that the culpability of the defendants in allowing the boat to be delayed by the lameness of the horse, having exposed the boat to the flood, was the prox-ject: "It may be true that, had there been imate cause of the loss. Now, if human foresight could forsee the exact time when such a flood might be anticipated, the ar 10 La. Ann. 280; Rodgers v. Missouri P. R. Co., 75 Kan. 222, 88 Pac. 885, 10 L. R. A. (N. S.) 658, 12 Ann. Cas. 441; Seaboard, etc., R. Co. v. Mullin, 70 Fla. 450, 70 So. 467; Gleeson v. Virginia Midland R. Co., 16 D. C. 356; Chicago and E. Ry. Co. V. Schaff Bros. (Ind. App.), 117 N. E. 869; but see Railroad Co. v. Mitchell, 175 Ind. 196, and Evansville, etc., R. Co. v. Scott (Ind. App.), 114 N. E. 649; and Parrill v. Cleveland, etc., R. Co., 23 Ind. App. 654. (6a) Chicago, etc., R. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 Am. Dec. 695. In a Michigan case Justice Marston speaking for the court says upon this sub no delay whatever on the part of the defendant, the loss would not have happened. The law, however, cannot enter upon an examination of, or inquiry into, all the concurring circumstances which may have as (7) Cooley-Torbe, 72, discussing Morrison v. Davis, 20 Pa. 171. 57 Am. Dec. 695. (8) 1 Street, Foundations of Legal Liability, 118, discussing Morrison v. Davis, 20 Pa. 171, and Denny v. New York C. R. Co., 13 Gray 481, 74 Am. Dec. 645. (9) Michigan C. R. Co. v. Burrows, 33 Mich. 6, 14. |