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personal relations, she so influenced and con- | apprehension that the jury might fail to trolled the testator that he lived apart from understand their full application further amhis wife and daughter, and through her plification or explanation was desired, counascendancy over him procured the making sel for the appellant should have pointed of the will giving her a large portion of his out the necessity and asked for further and property, which disposition the testator would more specific instructions. Cooney v. Comnot have made if such influence had not been monwealth Avenue St. Ry., 196 Mass. 11, 81 exerted, also was for the jury under suitable N. E. 905; Baldwin v. American Writing Painstructions. Emery v. Emery, 222 Mass. per Co., 196 Mass. 402, 82 N. E. 1; Wright 439, 111 N. E. 287. The appellant's fourth, v. Wright, 139 Mass. 177, 29 N. E. 380. We tenth, twelfth, thirteenth and sixteenth re- pass to the remaining exceptions. The judge quests were directed to this issue. The tenth is not shown to have limited the time withrequest if "from all the evidence you find in which the evidence should be confined, and that Helen B. Lochlan by fraud or undue the parties accordingly offered proof of the influence procured, or partly procured, the acts of the testator, and of his relations to execution of this will it cannot be sustained" his wife and daughter, and to Miss Lochlan, could not have been given. The third is- ranging over a period of approximately thirsue transmitted from this court to the trial ty-four years. court was framed to present only the ques- [11] The copy of the letter written by him tion whether the whole will had been pro- to his daughter, with his comments thereon cured by undue influence. If the appellant wished to have the jury determine whether if the will in its entirety had not been thus procured, and part of the will was "procured to be executed" through undue influence as assumed in the request, she should have moved in this court to have the issue so recast and enlarged as to include the inquiry. R. L. c. 156, § 5; Id. c. 162, § 25; St. 1905, c. 263, § 1; Old Colony Trust Co. v. Bailey, 202 Mass. 283, 288, 88 N. E. 898.

[9, 10] The thirteenth request was refused properly. It assumed the truth of facts in dispute. Hayes v. Moulton, 194 Mass. 157, 80 N. E. 215. And the remaining requests while not given in exact terms were stated in the instructions in which fraud and undue influence were defined, and their application to the evidence and circumstances of the case sufficiently explained. If the jury found the facts to be as assumed, or referred to in the requests, they were told they could find that undue influence had been exerted, and beyond this the judge was not required to go. Maxwell v. Massachusetts Title Ins. Co., 206 Mass. 197, 92 N. E. 42; Emery v. Emery, 222 Mass. 439, 441, 442, 111 N. E. 287; Hayes v. Moulton, 194 Mass. 157, 80 N. E. 215. It furthermore may be said generally, that correct statements of the rules of law applicable to the aspect of the evidence on which the appellant relied, were given. If because of

in writing, and the typewritten copy of another letter to her, the original not having been produced on notice were admissible, not only on the issue of mental capacity to which it was limited by the judge, but on the issue of undue influence as showing the testator's state of mind or feelings concerning her. Woodward v. Sullivan, 152 Mass. 470, 25 N. E. 837; McConnell v. Wildes, 133 Mass. 487, 489, 490, 26 N. E. 1114; Hall v. Reinherz, 192 Mass. 52, 77 N. E. 880; Randall v. Peerless Motor Co., 212 Mass. 352, 99 N. E. 221; R. L. c. 175, § 66. The statements and letters also tended to contradict the evidence of the appellant. Randall v. Claflin, 194 Mass. 560, 80 N. E. 594.

[12] The evidence introduced by the executors that chairs, rugs and other household articles were arranged by one Bartlett as directed by Miss Lochlan because of the testator's insistence that such arrangements should be made, would seem to be so immaterial and colorless as to have been harmless. Its admissibility, however, was within the discretion of the judge, which is not shown to have been arbitrarily or prejudicially exercised. Aldrich v. Aldrich, 215 Mass. 164, 168, 102 N. E. 487, Ann. Cas. 1914C, 906. We have considered all the exceptions which have been argued, and finding no material error of law they should be overruled. So ordered.

(275 Ill. 30)

Chicago & Northwestern Railway Company, CITY OF CHICAGO v. CHICAGO & N. W. for violation of a city ordinance. Judgment RY. CO. (No. 10229.)

(Supreme Court of Illinois. Oct. 24, 1916.)

OF MILK SUPPLY.

1. FOOD 1-POLICE POWER-REGULATION A city can regulate the kind of milk sold within its limits, and adopt rules and regulations indirectly affecting the production of milk outside the city limits, by requiring the milk to be cooled immediately and kept cool during transportation.

[Ed. Note.-For other cases, see Food, Cent. Dig. §§ 1, 2; Dec. Dig. 1.]

for the plaintiff, and defendant brings error. Reversed and remanded.

Charles A. Vilas, of Chicago (William G. Wheeler, Carl S. Jefferson, and William D. Barge, all of Chicago, of counsel), for plaintiff in error. Richard S. Folsom, Corp. Counsel, and Harry B. Miller, both of Chicago (Daniel Webster, of Chicago, of counsel), for defendant in error.

CARTER, J. The city of Chicago brought 2. FOOD 5- ORDINANCES-CONSTRUCTION. suit in the municipal court of that city The provisions of the Chicago milk ordi- against plaintiff in error for the violation of nance, prohibiting any person, firm, or corporation from transporting into, or transporting a city ordinance regulating the production, from point to point, within the city, milk which transportation, and sale of milk. Jury was is of a temperature higher than 55 degrees, ap- waived and a trial had before the court, the plies to common carriers in the transportation material issues of the case being submitted of milk from the country to the city. [Ed. Note.-For other cases, see Food, Cent. Dig. § 1; Dec. Dig. 5.]

3. CARRIERS 39-DUTY TO ACCEPT FREIGHT -VIOLATION OF ORDINANCE.

A common carrier is not required to accept for transportation milk which it can ascertain is so warm that its transportation into the city of its destination would violate the ordinances of that city.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 98; Dec. Dig. 39.]

by a stipulation of facts, and a judgment was entered imposing a fine of $100 upon the plaintiff in error. The trial judge certified that the validity of a municipal ordinance was involved and that in his opinion the public interest required that the case should be taken directly to this court, and it has been. brought here by writ of error.

The ordinance here in question is a long one, of about 12 printed pages, covering in 4. FOOD 1-POLICE POWERS-VALIDITY OF detail practically all matters regarding the ORDINANCE-TRANSPORTATION OF MILK. In the Chicago ordinance regulating the milk supervision of the production, handling, and supply, which requires the milk to be transport- delivery of milk to be sold within the city of ed in sealed cans which are not to be opened en Chicago-not only its treatment in the city, route, a provision penalizing a carrier for trans- but on the farm from whence it is shipped, porting milk which is a temperature of more than 55 degrees is impracticable, it appearing including the straining and cooling of the that much of the milk is collected at stations milk immediately after the cows are milked where there is no other business for the railroad, and that it is left there some time before the arrival of the milk trains, and such provision is therefore unreasonable and invalid. [Ed. Note.-For other cases, see Food, Cent. Dig. §§ 1, 2; Dec. Dig. 1.]

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The question of regulation of milk supply rests in the first instance with municipal authorities; but whether the exercise of its power in a particular case is reasonable is a judicial question.

and the temperature at which it shall be kept from that time until delivered to the consumers in Chicago. The particular section of the ordinance here in question reads: "It shall be unlawful for any person, firm or

5. MUNICIPAL CORPORATIONS 63(2) Po- corporation to transport into the city of ChiLICE POWERS DETERMINATION OF QUES-cago, or to transport or deliver from point to TIONS. point within the city, milk, cream, skim milk or buttermilk for human consumption which is of a higher temperature than 60 degrees Fahrenheit, provided that after June 1, 1914, it shall be unlawful for any person, firm or corporation to transport into the city of Chicago, or to transport from point to point within the city, or to deliver, any milk, cream, skim milk or buttermilk for human consumption which is enheit." of a temperature higher than 55 degrees Fahr

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 155, 1378; Dec. Dig. 63(2).]

6. FOOD 1-POLICE POWERS-VALIDITY OF ORDINANCE.

There must be some logical connection between the object sought by an ordinance regulating the milk supply and the means to accomplish the end.

[Ed. Note.-For other cases, see Food, Cent. Dig. §§ 1, 2; Dec. Dig. 1.] 7. MUNICIPAL CORPORATIONS DINANCES-VALIDITY-CERTAINTY.

The record shows that plaintiff in error is a common carrier, and in the course of its business transports milk from various parts of the state into the city of Chicago; that on August 21, 1914, it received at Cary and 111(3)-OR- Hartland, stations on its road, various cans which it carried over its line and delivered of milk for transportation into Chicago, [Ed. Note.-For other cases, see Municipal at certain platforms in that city, and that Corporations, Cent. Dig. § 247; Dec. Dig. upon delivery thereof the temperature of the 111(3).] milk was from 67 to 76 degrees Fahrenheit; Error to Municipal Court of Chicago; that the milk was brought to the city in bagSamuel H. Trude, Judge. gage cars having no refrigerating facilities, Suit by the City of Chicago against the the trip taking in the neighborhood of two

A city ordinance, to be reasonable, must be

certain.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

hours; that milk trains started as early as, object sought to be obtained would be ab6:40 in the morning, making various stops, solutely defeated if common carriers, in the and the milk being taken on from platforms transportation of milk from the country to at various stations along the road, at some the city, were not required to keep it cool in of which places there were no agents or em- transit. Very little, if any, proof is found ployés of plaintiff in error when the trains in the record with reference to the reasons arrived; that the milk thus transported for keeping milk cool while it is being shipwent into the homes of various families in ped; it being evidently assumed that the Chicago for baking, drinking, and cooking. court would take judicial notice of the fact [1] Counsel for plaintiff in error admit that that the requirement of keeping milk cool a municipality has the power to regulate from the time it is taken from the cows on what kind of milk shall be sold within its the farm until sold to the consumer is a realimits, and that such rules and regulations sonable health regulation. The authorities may indirectly affect the production of the submitted in the briefs do not show with milk on the farms outside the city limits, certainty whether the greatest advantage and that it may thus apply regulations that from keeping the milk cool is to assist in will, in effect, require milk to be cooled im- the salable quality of the milk or whether mediately after it is taken from the cow and it tends most strongly for the promotion of to be kept cool until transported to the city health. The authorities cited, however, infor delivery. This is undoubtedly the law. dicate that milk which is allowed to become Municipal corporations are usually invested heated above a certain temperature develops, with express power to preserve the safety by multiplication, harmful bacteria, and that and health of the inhabitants. In determin- no subsequent refrigeration or cooling of ing the validity of such ordinances it has long been the established rule that municipal corporations, under legislative sanction, may prescribe such regulations as may be reasonably necessary to secure the general health and prosperity of the people. 2 Dillon on Mun. Corp. (5th Ed.) § 677; 3 McQuillin on Mun. Corp. § 969. This court, in construing certain provisions of this same ordinance with reference to the regulations for pasteurizing milk, in Koy v. City of Chicago, 263 Ill. 122, 104 N. E. 1104, Ann. Cas. 1915C, 67, upheld the validity of the ordinance in that respect, reviewing at some length the authorities on the question of the power of municipalities to enact ordinances of this character, and, in effect, holding regulations such as are before us in this case valid, provided they are reasonable and are adapted to the objects sought to be attained. See, also, City of Chicago v. Bowman Dairy Co., 234 Ill. 294, 84 N. E. 913, 123 Am. St. Rep. 100, 14 Ann. Cas. 700; People v. Department of Health, 189 N. Y. 187, 82 N. E. 187, 13 L. R. A. (N. S.) 894; State v. Broadbelt, 89 Md. 565, 43 Atl. 771, 45 L. R. A. 433, 73 Am. St. Rep. 201; State v. Schlenker, 112 Iowa, 642, 84 N. W. 698, 51 L. R. A. 347, 84 Am. St. Rep. 360; Adams v. Milwaukee, 144 Wis. 371, 129 N. W. 518, 43 L. R. A. (N. S.) 1066.

the milk will destroy those bacteria; that if the milk is cooled at the stable on the farm, as required by the ordinance, and kept cool until it is delivered, while such treatment will not destroy the bacteria already present it will restrain the multiplication thereof and "is a deterrent, especially to harmful bacteria." Counsel for plaintiff in error practically concede that this is true, so that it is unnecessary for us to restate the reasons why the care of milk, it being an article of food in such general use, should be fully regulated by statute or ordinance for the promotion of the health of the public, as was stated at length in Koy v. City of Chicago, supra.

[3] Whether the ordinance, in its requirements as to the temperature of milk transported or delivered by a common carrier, is reasonable in view of its other provisions is of a much more serious character. We do not agree with the argument of counsel for plaintiff in error that as common carriers ordinarily must accept all freight tendered, therefore they would not be justified in refusing to receive cans of milk even though they were not within the limitations of temperature required by this ordinance. Common carriers would surely be justified in refusing to accept such milk at a higher [2] Plaintiff in error, however, contends temperature if impracticable to reduce it to that the ordinance here in question, if in- the proper temperature while it was being tended to apply to common carriers, is inval- transported by them to the city. It is not id, being unreasonable in its method of regu- intended that they shall be required to accept lation, that other provisions of the ordinance all freight delivered to them if by so doing require that cans of milk be sealed before they would violate the provisions of other they are shipped and that the seals shall re- valid statutes or ordinances. Milwaukee main unbroken during transportation by the Malt Extract Co. v. Chicago, Rock Island & carrier, and that the carrier, therefore, can- Pacific Railway Co., 73 Iowa, 98, 34 N. W. not ascertain the temperature of the milk at 761. Under the circumstances here indicated, the time it is shipped. Under any fair con- if the milk could not be cooled to a proper struction we think the ordinance was intend- temperature after it was received, and if ed to apply to common carriers in the trans- there were any practicable way for the comportation of milk from the country to the mon carrier to test the temperature of the city, otherwise it would be ineffective. The milk before accepting it for transportation,

the carrier would be justified in refusing to accept it if it were not at the proper temperature. State v. Goss, 59 Vt. 266, 9 Atl. 829, 59 Am. Rep. 706; 4 R. C. L. 666; 6 Cyc. 372, note; U. S. v. Oregon W. R. & N. Co. (D. C.) 210 Fed. 378; James Clark Distilling Co. v. Western Maryland Ry. (D. C.) 219 Fed. 333, Id., 339.

[4] The record shows that no attempt was made to take the temperature of the milk in question at the time it was taken into plaintiff in error's cars at the stations outside of Chicago, and it is contended by counsel for the railway company that it is not only impracticable, but impossible, under the provisions of this ordinance, to make any test that would relieve the common carrier from responsibility if the milk were not at a proper temperature when taken into its cars. Counsel for the city concede that the milk is required to be carried in sealed cans, which may not be opened from the time they are received by the carrier until delivered in the city, but they argue that the approximate temperature of the milk can be obtained by thermometers applied to the outside of such

cans.

A

sometimes as many as one hundred-and that the stopping time of the milk train must necessarily be very limited. From what is before us we do not think it would be practicable to make such a test by a thermometer placed on the outside of each milk can. reasonable ordinance cannot require what by its very terms it makes impossible. It cannot fix a penalty for failing to do that which it prohibits. This ordinance prohibits the seal being broken on the can while it is being transported by the common carrier. We do not see, on this record, how it is possible for a positive test to be made as to the temperature of the milk within the can-such a test as will assure the carrier that it is safe in accepting the milk.

on trains for a sufficient length of timeeven if received in a warm condition, several degrees above 55F.-to cool it to a proper temperature if the cars were properly refrigerated. But there is no proof in the record on this question, and on what is before us we are not prepared to hold that plaintiff in error could reasonably be required to furnish such cars. It is obvious that for the short hauls from some of the nearby stations, the length of time the milk is carried in the cars would not be sufficient to cool it to the proper temperature, no matter what system of cooling the cars were adopted by plaintiff in ermilk should be as short a time as possible in ror. It seems to be very important that the transit from the country to the city.

A regulation requiring cars carrying milk not to be allowed to become heated above a stated temperature could be enforced without great hardship to the railroad company, and such temperature could be readily ascertained. It appears from the record that at the platforms from which the milk is taken onto the cars there is often no other railroad business being transacted, and the cans are While there is no proof on this ques- often brought and left there in advance of the tion in the record itself, the city offered, as arrival of the milk trains. The conditions a part of its brief, the record of tests that under which milk is shipped are very differhave recently been made by the city author-ent from those under which fruit and vegetaities by the application of thermometers to bles are shipped in refrigerator cars for long the outside of milk cans. These tests show distances. Canned milk might be carried the differences between the temperature of the milk at the center of the can, inside, and the temperature on the outside of the wall of the can, ran as high as 5.1 degrees Fahrenheit; the average difference in 17 tests being 2.58 degrees. The officials of the city health department made these tests, and they gave it as their opinion that for practical purposes a temperature of 57 degrees Fahrenheit on the outside of the milk can would be evidence that the contents had a temperature of 55 degrees Fahrenheit or less, and counsel for the city argue that plaintiff in error could make such tests and thus comply with the ordinance. Of course, these tests are not properly in the record. They have been made since the trial of the case in the municipal court, and plaintiff in error has had no opportunity of investigating as to their correctness, either by cross-examining the city officials who made them, or in any other way. But even if they were properly in the record, would that make the ordinance reasonable? It is apparent from what there is in the briefs with reference to the tests, that [6] There must be some logical connection they cannot be made with any accuracy between the object sought to be accomplished quickly. These tests were doubtless made by such an ordinance and the means prescribunder very favorable conditions, and doubt-ed to accomplish the end. An unreasonable less, also, there was ample time and every ordinance will be held void by the courts. opportunity for cautious and deliberate ac- City of Lake View v. Tate, 130 Ill. 247, 22 N. tion in making them. Is it practicable to E. 791, 6 L. R. A. 268; People v. Ericsson, make such tests under such circumstances as they must be made at the various shipping stations on plaintiff in error's road? It appears from the record and briefs that many

[5] The city council has authority to pass ordinances regulating this question, and the question of regulation, in the first instance, rests with the municipal authorities, but whether its exercise in a particular case is reasonable is a judicial question.

263 Ill. 368, 105 N. E. 315, L. R. A. 1915D, 607, Ann. Cas. 1915C, 183; Koy v. City of Chicago, supra; 3 McQuillin on Mun. Corp. § 893; 2 Dillon on Mun. Corp. (5th Ed.) §§ 589,

should not be permitted to be the one agency | portation, sale, and delivery of milk in order of those handling milk between the time it is to protect and promote the health of the peomilked and the time it reaches the consumer ple-especially the children-of that great to defeat the purposes of a reasonable health ordinance on that subject; neither should the common carrier be burdened with an impracticable regulation which makes it responsible for the possible neglect of another person or agency in not bringing the milk to the station at a temperature required by the ordinance. As the ordinance reads, plaintiff in error could be made liable for the neglect of the dairyman bringing the milk and delivering it at the train. Even if it were practicable to take the test on the outside of the can, it is no answer to say that plaintiff in error could not be held liable if it approximated the temperature within two or three degrees. The ordinance does not so provide. It states in definite terms that it is unlawful to transport milk into the city of Chicago at a temperature higher than 55 degrees Fahrenheit.

city. On this record it is impossible to tell what practicable regulations should be included in an ordinance with reference to the transportation of milk by common carriers from the various shipping points to the city of Chicago. Counsel in their briefs now seem to concede that they did not realize the far-reaching effect of the questions here under discussion until after the case was brought to this court. We regret that the evidence presented on the trial did not fully cover the question of what would be reasonable regulations with reference to any test that could be practicably applied to find the temperature of the milk at the time of taking the cans onto the trains, and also what would be reasonable regulations with reference to the temperature of cars used for transporting milk, and what methods would be practicable for keeping cars at the proper temper[7] An ordinance, to be reasonable, should ature. If, when the case is sent back to the be certain. Cooley's Const. Lim. (7th Ed.) trial court, the city authorities are of the 284. Manifestly, this ordinance is not cer- opinion that proof can be presented that tain if it be construed that the approximate would show that this ordinance is reasonable temperature of the milk in the can is all that on these and all other questions involved is required. On the record and proof before herein, under the rules heretofore laid down, us we do not see how the courts could say they will, no doubt, present such proof. that plaintiff in error had complied with the Plaintiff in error will then have an opporordinance if it made the test on the outside tunity of cross-examining any witnesses that of the cans and it were afterwards found may be offered and of presenting any evidence that the test was not correct, even though it that it desires upon any of the questions that were shown that it was within two degrees have here been touched upon. On such a of being correct. Neither, on this record and record, doubtless, the court could pass much proof, do we think the courts could hold that more satisfactorily upon the reasonableness the ordinance was being complied with if the of this ordinance than it can upon the record proof showed that the cars in which the milk before us. Notwithstanding divers scientific was transported to the city were at a tem- theories, upon subjects of this nature the perature of 55 degrees or less, if when the courts usually defer to the determination and milk reached Chicago it were found to be at decisions of the proper municipal authorities a higher temperature than that provided by as to the basis of police regulations, unless the ordinance. In South Covington Railway such basis is manifestly erroneous. 3 McCo. v. Covington, 235 U. S. 537, 35 Sup. Ct. Quillin on Mun. Corp., § 969. As we have 158, 59 L. Ed. 350, L. R. A. 1915F, 792, it was stated before, however, on the record before held that a regulation providing that the us, this ordinance, so far as it applies to temperature of cars should never be permit-plaintiff in error and common carriers in like ted to be below 50 degrees Fahrenheit was situation, must be held an unreasonable exunreasonable, when the evidence showed that ercise of the police power. it was impossible, in the operation of the cars, to keep them uniformly up to this temperature. By the same line of reasoning, on the record before us, it must be held that the provision here in question of this ordinance, so far as it applies to common carriers, is unreasonable and void.

The judgment of the municipal court must be reversed, and the cause remanded for further proceedings in harmony with the views herein expressed.

Reversed and remanded.

(275 Ill. 98) (No. 10247.) Oct. 24, 1916.) CRUEL AND INHUMAN

KLEKAMP v. KLEKAMP. (Supreme Court of Illinois. 1. DIVORCE 130 TREATMENT-EVIDENCE-SUFFICIENCY. Evidence held to sustain finding of chancel

We realize how important this question is to the health of the people of Chicago and the state at large, and we have no hesitation in reaffirming the rules laid down in Koy v. City of Chicago, supra, and City of Chicago v. Bowman Dairy Co., supra, with reference to the right of the authorities of the city of lor that husband was guilty of cruel and inhuChicago to make all proper and reasonable regulations with reference to the care, trans

man treatment.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 442-445; Dec. Dig. 130.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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