COLUMBIA LAW TIMES. FOUNDED BY PAUL K. AMES AND T. GOLD FROST. PUBLISHED MONTHLY DURING THE COLLEGIATE YEAR Subscription, $2.50 per year. Single Number 35 cents. EDITORS: WILLARD C. HUMPHREYS. JOHN N. POMEROY CORRESPONDENTS: John L. Quackenbush, T. R. Graham, G. H. Renfro, F. A Hopkins, W. T. Cole, C. van V. Veeder, R. A. Russell, F. A. Geiger, R. J. McCarty, Edwin D. Smith' Harvard Law School. Boston University Law School. New York University Law School. University of Penn. Law School. University of Michigan Law School. Vanderbilt University Law School. Illinois Wesleyan Law School. The recent celebration of the Centennial of the Federal Judiciary may very appropriately at this time arrest the attention of the student of Political Economy and Historic Law. Three points are especially noticeable as indicative of the present tendency and the probable future development of one of our chief political institutions. (1.) That the Supreme Court began without any precedents having direct bearing with which to support its opinions or upon which to raise distinctions. (2.) That nearly all the material interests and combinations of circumstances for which they must lay down rules of law were new and vital. The organic law given them to interpret was the offspring of a new sovereign power and untried and unheard-of set of relations arising from a separation of the executive, legislative and judicial functions of the Government. The judiciary were made the final arbiters-not alone of the contested rights of individuals, but the rights and interests of States and the legal status of sovereign political commonwealths when pitted in controversy against each other. It soon became, by the exercise of its full power, the conservator of all the great interests which each colony or State had yielded or came to yield to the Federal Government. (3.) That the Supreme Court was designed as a coördinate department of the Government, but has long since ceased to hold such a relation. It is no longer coördinate. It is superior, for no legislative enactment and few executive proclamations or changes even in the Constitution can escape either a direct or indirect review of this court. The sovereign power of the nation, vested in its people, then, expressing itself in the legislative and executive branches of its Government, may find its purpose at last thwarted by this third branch. Should, however, the high legal attainments and candid judgment of the court which has now passed into the history of the first century of its existence, continue to grace the court in the future, what better final conservator of its rights and sober check of its power could the sovereign people find than this "calm, wise and learned bench." Should it tire of this check one remedy is left-to abolish the court by constitutional amendment. The court now holds a position unique, and is higher than the highest court of any other nation in the world. P. K. A. CURRENT ITEMS. A largely attended and enthusiastic meeting of the Juniors was held on Monday evening, March 3d, at which the following officers were elected for the ensuing term: President, William M. Benham; Vice-President, Charles Esselstyn; Secretary, Clarence C. Ferris ; Treasurer, Walter S. Beadles; Executive Committee (in addition to the above ex officio members), William P. Martin, J. Courvoisier Johnson, James Chambers, Jr., William C. Wilson, Herbert C. Smyth. Arrangements have been made for a class banquet on the evening of the 28th inst. at A. Morello's. Much interest is manifested in the affair, and the commit tee in charge has worked arduously that January, 1890. it may be a great success. The following is printed at the request of Mr. Paul K. Ames: ED. T. TUTSWORTH, Annual Dividend, 10 per cent. MOOT COURT DECISIONS. RUSSELL US. CASE NO. 7. ELECTRIC MANUFACTURING COMPANY. The defendant, a manufacturer of electrical machinery, received an order from an electric lighting company for a dynamo of a specified degree of power, to be delivered in two months. Defendant manufactured a dynamo to fill this order and delivered it at the time appointed. The lighting company made use of it for a week upon one of its currents, but could not make it develop the specified power, This fact nor would it work properly. was then reported to the defendant who was requested to send some one to ascertain and remedy the difficulty. A capable workman, named Adams, was accordingly sent from defendant's manufactory for this purpose. After inspecting for a few minutes the dynamo, which was then in actual operation, Adams told the superintendent of the lighting company that certain wires which he pointed out must be detatched from the dynamo, and certain others attached at specified points. The superintendent thereupon directed the plaintiff, a workman in the employ of the lighting Its de company, to make the suggested changes. While plaintiff was doing this carefully, he received so severe a shock of electricity from the dynamo, that he was thrown to the floor and has been rendered wholly incapable of work for the rest of his life. This injury would not have happened if the dynamo had been of suitable construction so as to work properly. fects rendered it peculiarly dangerous to attach a wire at one of the points specified by Adams. Plaintiff did not know of this danger, and it was while attaching this wire he was injured. Plaintiff has brought this suit to recover damages for these injuries, and the judge before whom the case was tried without a jury, has decided in his favor, and from the judgment entered on this decision defendant now appeals to this court. DECISION. The first question to suggest itself is, does the doctrine of Winterbottom vs. Wright here apply? The principle of that case has been somewhat qualified; but there are sufficient grounds for a decision apart from that doctrine in the facts stated in the syllabus. Let us suppose that when the dynamo was first furnished Adams had been sent to set it up and see that it was in proper condition; suppose, further, that he had come without any servants of the defendant to assist him, and that, at his request, he had been assisted by servants of the lighting company; in that case it is clear that any negligence on his part would have fallen on the defendant. Are not such facts essentially the same as those here? Adams, with the consent of all parties, assumes charge of the dynamo for the time being, and the interval of time since the dynamo was delivered has been so brief that it is entirely reasonable, according to the usages of business, to call upon the manu facturer to remedy all defects and put the machine into proper condition. The state of affairs is the same as if Adams had just delivered the dynamo and was setting it up and putting it into working order. There is no inconsistency in saying that the servants of the lighting company are for the time being under the control of the defendant, who is thereby made liable for their obedience to its orders. It is reasonable, therefore, that the responsibility should fall upon the defendant. The judgment of the lower court is, therefore, affirmed. HUNT vs. CASE NO. 8. RAILROAD COMPANY. This is an action brought by the plaintiff against defendant to recover damages for an alleged assault and battery in putting plaintiff off one of defendant's trains. Plaintiff had purchased a ticket at station A on defendant's line of the regular ticket agent for station B, which was about twenty-five miles distant. Plaintiff examined the ticket and found that it purported to be issued by the defendant as its regular authorized ticket, and that it stated correctly the name of the destination for which he had purchased it. Noticing, however, that it had been punched, he returned to the ticket office a few minutes after buying it and asked the agent if it was good. The agent assured him that it was, and plaintiff thereupon entered the train, fully believing that the ticket would be received for his passage. After the train had gone about two miles the conductor came to plaintiff for his ticket, and when the latter had presented the one he had bought, the conductor said that it did not entitle him to a passage and demanded the payment of fare. Under the rules of the company, the conductor was not authorized to receive a ticket like this, for the punch-mark signified that it had already been used. Plaintiff told the conductor that he had paid his fare and that the agent had assured him the ticket was good. The conductor, nevertheless, stopped the train and had the plaintiff put off by a brakeman. At the trial the judge charged the jury that if the punch-mark upon the ticket was such as to indicate to the conductor that the ticket was invalid, the plaintiff would have no right to insist upon its being received, notwithstanding his good faith and the precautions he had taken to satisfy himself that the ticket was a good one. Verdict was given for defendant and judgment entered accordingly. Plaintiff, having duly excepted, now appeals to this court. DECISION. There is considerable diversity of doctrine among the courts of different States in regard to the liability of common carriers of passengers for the expulsion of passengers from their trains or vehicles. When, as in the present case, the passenger, upon a demand for his ticket, is unable to show any ticket at all, or, if he has a ticket, has only a defective and invalid one, and refuses to pay his fare again, some courts maintain that the conductor, in the proper discharge of his duty, should put him off the train, and therefore that the carrier is not liable for the expulsion as a wrongful assault and battery. For it is said that a conductor can only rely upon a valid ticket as the proper evidence of a passenger's right to passage, and that it would be an unsafe and unwise rule to require him to accept the statement of the passenger or of other persons that there had been a mistake to furnish him with the proper ticket, that the default was attributable to some other agent of the company, etc. But while the force of this argument may be conceded, yet when we have such a state of facts as is involved in the present case as where the passenger has exercised all the precautions that a reasonable man could do to satisfy himself of the validity of his ticket, and has been assured by the regular ticket seller, who of all the agents of the company would seem the proper person to consult for such information, that his ticket is perfectly good, it seems a just and proper conclusion that the company should be held liable. It is no answer to this ruling, that the conductor has done nothing more than his duty. That may well be, and yet the company be liable for the actual injury thence resulting to the plaintiff by reason of its being chargeable with the negligence of the ticket seller and for the operation of its own rules and regulations whereby such a result is occasioned. Leading cases in support of this view are Murdock vs. B. & A. R. Co., 137 Mass., Hufford vs. Railroad Co., 64 Mich., 293; 631. ment under seal by which he transferred or assigned the contract back to the defendant. This assignment was for a consideration of $100, expressed in the assignment as being paid by the defendant to Mr. Bailey. By the terms of the instrument, also, the defendant released Mr. Bailey from the contract and Mr. Bailey released the defendant from all claims or demands of any kind up to that date. Upon the trial of this action, the above instrument was given in evidence, and parol testimony was also received that the defendant, besides paying the $100, agreed to pay all bills which Mr. Bailey still owed-materials, etc.-upon the house, and that notice of this agreement was given by Bailey to the plaintiff. The admission of this evidence was objected to by defendant's counsel, but was nevertheless allowed by the judge. This ruling was excepted to on defendant's behalf. The judge, before whom the case was tried without a jury, decided that plaintiff was entitled to recover. Judgment was entered accordingly and defendant now appeals to this court. DECISION. There are two principal questions involved in this case: (1) Whether parol evidence can properly be introduced to show in an action by the plaintiff that the defendant promised Bailey, for a sufficient consideration to pay the plaintiff for all the bills which Bailey owed him (the plaintiff. (2) Is the defendant liable to the plaintiff on such a promise if sufficiently established by the evidence? I. The first question appears to be free from difficulty. The rule that parol evidence is inadmissible to vary a written instrument is only applicable as between the parties to the instrument, in the present case, a contract. I Greenleaf on Evi dence, § 279; Dempsey vs. Kipp, 61 N. Y., 462, 471, and cases cited on the last page. The reason of the rule fails in such a case. It is based on the ground that the parties had it in their power to insert or omit such clauses as they saw fit, and if they have not done so, they have only themselves to blame. This reasoning cannot possibly be applied to the plaintiff in the case at bar, as he had nothing to do with the terms of the instrument. He is not in privity with it in the sense of being a party to it, though he may receive a benefit under it. II. The principal question is, whether the defendant is liable to the plaintiff. This is a point on which there is an irreconcilable difference of view in the decisions. One of the earliest cases is Duttin vs. Poole, 1 Ventris, 318, 332, S. C. T. Jones, 103; 2 Levinz, 210. The substance of that case is, that a father being about to cut down some timber growing on his land in order to provide a portion for a daughter, his son, in order to induce him to refrain from cutting the timber, promised him that he (the son) would pay the sister a specified amount. The father having died, the son refused to pay his sister. The court, however, held that she had a good cause of action. This decision is no longer accepted as law in England. Tweddle vs. Atkinson, 1 Best & Smith, 393. It has, however, gained a firm foothold in a majority of the American States. There is a large number of decisions bearing upon this point in New York. A leading case is Lawrence vs. Fox, 20 N. Y., 268. Reference may also be made to Campbell vs. Smith, 71 Id., 26; Hand vs. Kennedy, 83 Id., 149; Pardee vs. Treat, 82 Id., 385. The old case of Duttin vs. Poole is fully and specifically adopted in Todd vs. Weber, 95 Adolphus & Ellis, 181, 193, 194. |