tive legislation for the adoption of which the agencies of public opinion may now proceed to agitate. We are led to believe that this recent action of the congress is in subordination to and controlled by a resolution adopted at the session in Washington, D. C., in February, 1906, which is as follows: "6. While the following causes for annulment of the marriage contract, for diforce from the bonds of matrimony, and for legal separation or divorce a mensa seem to be in accordance with the legislation of a large number of American States, this congress, desiring to see the number of causes reduced rather than increased, recommends that no additional causes should be recognized in any State; and in those States where causes are restricted no change is called for." That is to say that in New York, for example, the adoption of any cause for absolute divorce in addition to the single one now existing is discouraged. If we are wrong in the position attributed to the conference we shall be very glad to be corrected. If we are right the congress practically amounted to nothing more than a gathering of excellent gentle do relating to the stockholder's personal business and estate. An action for alienation of affections of a husband is held, in Nolin v. Pearson (Mass.), 4 L. R. A. (N. S.) 643, to be authorized by a statute permitting a wife to sue for injuries as if sole. The probable accretions of wealth to the husband are held, in Muir v. Muir (Ky.), 4 L. R. A. (N. S.) 909, proper to be considered as a basis for alimony. A saloon keeper is held, in Peter Anderson & Co. v. Diaz (Ark.), 4 L. R. A. (N. S.) 649, not to be liable for a personal injury to a patron by the bartender and others, who put alcohol on his feet and set it afire. The liability of directors of a bank for default or negligence of the cashier is held, in Mason v. Moore (Ohio), 4 L. R. A. (N. S.) 597, to be enforceable if they have failed to exercise reasonable supervision. The holder of a note as collateral is held, in Hulett v. Marine Sav. Bank (Mich.), 4 L. R. A. (N. S.) men, who resolved that American divorce is a great 1042, not to be a bona fide holder where the princi evil, of which fact we were well aware beforehand. Our readers may recall that we have had little faith in the feasibility of a scheme for co-operative divorce legislation. We have believed that the differences of opinion on the subject are so great and so zealously held that it will be impossible to procure the adoption of a uniform law by the States acting independently. We have expressed the view that, notwithstanding the great difficulties in the way of procuring an amendment of the Federal Constitution authorizing congressional action, that plan was more practically hopeful than the other Among the Late Decisions. A statute authorizing administration on an absentee's property without his knowledge or consent, and without notice to him, is held, in Grandy v. Kennedy (Va.), 4 L. R. A. (N. S.) 944, to be unconstitutional. Authority to employ a detective to investigate the affairs of a corporation is held, in Thiel Detective Service Co. v. McClure (C. C. A., 6th C.), 4 L. R. A. (N. S.) 843, not to be conferred by power of attorney, given by a stockholder, to do all that he can pal obligation is collectible. A change of the plan of a building association, making a material departure from its original plan, is held, in Burkheimer v. National Mut. B. & L. Asso. (W. Va.), 4 L. R. A. (N. S.) 1047, to justify a dissolution of its contract with a member. The right to stipulate against liability for negligence in consideration of reduced fare is denied in Pittsburgh, C. C. & St. L. R. Co. v. Higgs (Ind.), 4 L. R. A. (N. S.) 1081. The liability of a carrier for the loss of a drummer's baggage is sustained in New Orleans & N. E. R. Co. v. Shackleford (Miss.), 4 L. R. A. (N. S.) 1035, where the carrier knew it contained samples; but a statutory double liability is denied. The insanity of a locomotive engineer, which causes the wreck of a car, is held, in Central of Ga. R. Co. v. Hall (Ga.), 4 L. R. A. (N. S.) 898, not to be an act of God which will excuse the carrier. Failure to procure a clearance of goods which the carrier undertakes to transport in bond and clear at the port of arrival is held, in J. H. Cownie Glove Co. v. Merchants' Dispatch Transp. Co. (Iowa), 4 L. R. A. (N. S.) 1060, to make it liable for injury to the goods because of their detention. The time allowed by local law for redemption from foreclosure is applied, in Dickson v. Loehr (Wis.), 4 L. R. A. (N. S.) 986, by analogy, upon directing conveyance of land in another State. A contract valid where made and to be performed is held, in Bank v. Doherty (Wash.), 4 L. R. A. (N. S.) 1191, not to be usurious in another State, where suit is brought to foreclose a mortgage securing it. Action on a Kansas contract is held, in Doughty v. Funk (Okla.), 4 L. R. A. (N. S.) 1029, not to be barred in Oklahoma merely because it was barred in Nebraska while defendant resided there. Injury to a passenger by a dog on a street car is held, in Westcott v. Seattle, R. & S. R. Co. (Wash.), 4 L. R. A. (N. S.) 947, to make the carrier liable. Striking out depositions in defense of a divorce suit for failure to pay alimony as ordered, and then giving final decree of divorce, are held, in Trough v. Trough (W. Va.), 4 L. R. A. (N. S.) 1185, not to be due process of law. A contract made on Sunday, the formalities of completing which are not finished until another day, is held, in Jacobson v. Bentzler (Wis.), 4 L. R. A. (N. S.) 1151, to be illegal. A municipal contract as to the location of a public building in consideration of a donation is held, in Edwards v. Goldsboro (N. C.), 4 L. R. A. (N. S.) 589, to be void as against public policy. A contract of a foreign corporation is held, in TriState Amuse. Co. v. Forest Park Highlands Amuse. Co. (Mo.), 4 L. R. A. (N. S.) 688, to be void where the steps requisite to a right to do business in the State have not been complied with, although there is a penalty for such failure. : 0: Want of Due Care. The bar was filled with lawyers awaiting the calling of the court calendar, and no one appeared to be ready for trial. Upon the second calling of the list the attorneys for both parties answered "ready" in the case of O'Hara v. Houlihan. The plaintiff outlined his case, and it appeared in evidence that while he was coming from a wake in one of the tenements of the defendant's building he was injured in passing down the steps by a defect negligently suffered by the defendant to be there. There was no evidence that the plaintiff was an acquaintance of the defendant, or that he was expressly invited to the wake, or that he was in any way related to any of the occupants of the house. "This case," began his Honor, "presints several important quistions niver before decided in this State. There is no ividence that the plaintiff was invited to the wake, or that he was in any way related to any of the occupants of the house, or that he was an acquaintance or frind of the defendant. He was not even a bare licencee, but he stands in my opinion on the same legal footing as a peddler, book-agent, thramp or any busybody who goes on primises for his own profit or curiosity. A person holdin a wake over the poor morthal remains iv one iv their own dear kinthred don't invite the whole wurrld to come there, and whiniver a wake is held there is no implied invitation to ivery one iv the same nationality and religion to attend it. Mindin your own business, and not goin unless you're axed, is good law, legal, moral, ecclesiastical and scriptural. "Now the coort takes judicial notice that the heart bowed down by weight iv woe nades a stimu lant, and it sames to be undisputed that stimulants are passed round at ivery dacent wake. Also that people may and do attind a wake for irriverent and selfish motives; to backbite their neighbors, thry to catch a husband, and the loike. It would be absurd to hould the landlord liable for an accident happenin to any such busybodies. "If this accident happened goin to the wake, I would find due care on the part of the plaintiff an give him judgmint, but happenin as it did after the plaintiff had been several hours at the wake, and during that toime no doubt had indulged in several heart to heart talks wid ould frinds and neighbors, and there bein no ividence that the plaintiff suffered from vertigo, I must foind that the plaintiff wint to the wake av his own peril, and must be damed guilthy of contributory nigligence, and take the stips and primises es he finds them. "I must give judgmint for the defindant." JOSEPH M. SULLIVAN, LL. B., of the Suffolk (Mass.) Bar. : 0: The Humorous Side of the Law. Librarians of law libraries are used to answering. all sorts of legal puzzles, but one of them had to confess, a few days ago, that he was floored. A young man interrogated him in this wise: "What you got on forms?" Why, we have a number of books of forms," was the reply. "There is Abbott's Forms and various other works. What sort of a form are you looking for?" "Well, I will tell you," said he. "I want a form The case was submitted by both sides without for an affidavit to use in an application to a court argument. to compel a man to foreclose a mechanics' lien." acter has been allowed. Should we sustain THE ALBANY LAW JOURNAL this claim we would impose on executors the A Monthly Record of the Law and the Lawyers N. Y. Contributions, items of news about courts, judges and lawyers' queries or comments, criticisms on various law ques timely interest, are solicited from members of the bar and those interested in legal proceedings. duty of supplying provisions, liquors, wines Published by THE ALBANY LAW JOURNAL COMPANY, Albany, and cigars at funerals. We are of opinion that refreshments on such occasions are not the right either of friends or relatives." The tions, addresses on legal topics, or discussions on questions of itemized bill, it may be explained, included Scotch, Irish and rye whiskey, port and sherry wines, soda water, cigars, ham, corned beef, steak, eggs, butter, potatoes, bread, rolls and cake, and the majority of the appellate court held that all this was properly included All communications intended for the Editor should be addressed simply to the Editor of the ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions or other business matters should be addressed to THE ALBANY LAW JOURNAL COMPANY. Subscription price. Three Dollars per annum, in advance in the funeral charges. ALBANY, N. Y., FEBRUARY, 1907 Current Topics. "The term 'funeral,'" said Justice MacLean, 'includes many circumstances and may cover various outlays which are commanded by custom and respect. It is of judicial learning in this State that 'funeral' embraces not only the solemnization of interment, but the ceremonies and accompaniments attending-ceremonies prompted by affection-determined by the religious faith and sentiment of the friends of the deceased and varying from the simple bier to the imposing catafalque, from the informal liturgical services or Scriptural reading for the hum ble to the elaborate services attending the obsequies of the renowned. I concur in reversing the judg ment and overruling the demurrer.” The time-honored institution known as the wake," dear to every Milesian heart in connection with the last honors paid to the beloved dead, has been sustained by the Supreme Court, although by the narrow majority of two justices to one, and if upheld by the Court of Appeals it will be quite the thing to charge up the necessary expenses to the estates of the deceased. When Peter McCullough died in the city of New York, The appointment of Hon. Edward Pathis nephew, Joseph, provided refreshments to terson as Presiding Justice of the Appellate the amount of $71.25, and when the feasting Division of the Supreme Court in the First was over he called upon the executors of his Department, is one which has been unreuncle's estate to foot the bill. They deservedly commended by the bench and the murred, and Municipal Justice Hoyer upheld bar alike. It comes as a fitting culmination their contention that the nephew's claim was of a long and distinguished service at the an improper one. The Appellate Division of bar and on the bench, and may be said to the Supreme Court has now overruled Jus- be almost ideal. His work at the Special tice Hoyer, and the wake, with all its old- and Trial Terms was of such a high chartime memories and hallowed associations, is acter as to more than justify the wisdom of vindicated. The case was heard on appeal by his selection, and his unopposed re-election Justices Amend, Gildersleeve and MacLean. at the end of his first term was an expression Justice Gildersleeve was the dissentient, who, of this view of his eminent fitness for the in spite of the wealth of lore which William position to which he had been selected. Upon F. Clarke submitted on behalf of the nephew the reorganization of the Appellate Division in favor of the institution, including Charles he was designated as one of its members. His Lever, Sir Walter Scott, Shakespeare, the service has been of such a nature as to give Bible, Virgil and the Jewish Enclycopedia, still further proofs of his great capacity for held that the charge was improper. "We the work of the arbiter of Justice. Posfind no case," said Mr. Justice Gildersleeve, sessed of a keen, discerning mind, unflagging "where a recovery for a claim of this char-industry, a high sense of justice and the proper judicial temperament, he has held the scales with an even hand, and in his labors has upheld the high traditions of the bench. In his relations with the members of the legal profession he has been most circumspect, and it can be said without exaggeration that he is one of the most conspicuous examples of the upright judge whom the system of jurisdence in this country has evolved. It is an appointment which materially elevates the standard of excellence. It is to be hoped that there are still many years of usefulness yet before him in his chosen work. Expert Evidence. ACTION FOR PERSONAL INJURIES. NEW YORK COURT OF APPEALS. BERNHARD WELLE, respondent, v. CELLULOID COM- Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, entered June 30, 1905, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. Jos. Larocque, Jr., for appellant; Stephen C. Baldwin, for respondent. CHASE, J.-This action is brought to recover dam ages for personal injuries, and it has been twice tried. The facts appearing in the present record, so far as they are material to the question now considered, are substantially as stated in the opinion on the former appeal to this court, which is reported in 175 N. Y., at page 401. The plaintiff on the trial called a witness, who, after stating his experience as a consulting and mechanical engineer, was given the hook from which the pot slipped when the plaintiff was injured, and to him was described the apparatus with which the pot and hook are used, and he was told that when the plaintiff took "hold of the top of this pot with the acid in it, in order to bring it down a little so as to put the hook in the back lug, the pot suddenly Denver, Colorado, has just enjoyed the sensation of a female juror, in the trial of a divorce case in that city. The lady in question is described in the newspaper reports as young, with masses of fluffy golden hair and dancing blue eyes, and we are told that she stepped jauntily forward as her name was called from the open venire as that of the first taleswoman to be summoned in that state, and made promise to truthfully answer such questions as might be put to her touching her qualifications to sit as a "fair" and impartial juror in the case at bar. We are further told that Miss Smith for that is her name sat in the jurors' box beside five men without the slightest signs of nervous trepidation. "Gentlemen of the jury," said the Court in his charge. Then the Court paused and glanced at the smiling face of the youthful juror and added, "lady of the jury." The jury found in favor of the plain-immaterial. It is taking from the jury what they tiff, giving him a decree upon the ground of desertion, and Miss Smith collected the $1.50 to which she was entitled and resumed her labors of gathering news. Miss Smith remarked that the work was neither hard nor disagreeable, and added that she had not desire to become a professional juror. : 0: Seduction is held, in Wrynn v. Downey (R. I.), 4 L. R. A. (N. S.) 615, not to be properly considered in aggravation of damages for breach of promise of marriage. slips off the hook next to him," and then after some discussion the witness was asked: "Q. Can you state with reasonable certainty what caused the pot to slip from the hook? Answer yes or no." The defendant's counsel said: "I object to that as incompetent, irrelevant and are to determine in the case the issue in the case. The facts are facts which do not call for expert opinion, and even assuming that an expert opinion is proper here, an expert can state to the jury only those facts which are not within common knowledge from which conclusions must be drawn. Now, this question calls for a conclusion from the witness as to what caused the fall of the pot." Counsel for the plaintiff stated to the witness that he should add to the hypothesis that nothing about the appliance broke and that the hook and chain were found intact. The defendant's counsel also objected "because calling for a conclusion, and even assuming that the witness may state principles 424. which are not within the common knowledge of all 66; Van Wycklen v. City of Brooklyn, 118 N. Y. men and from which a jury should draw their own conclusions, this witness, by this question, is called upon to draw a conclusion as to what causel the fall of the pot." After some further discussion the court overruled the objections, and the defendant excepted; the wit ness answered: "A. I can." The examination continued: "Q. Please do so." The defendant's counsel: "I renew my objection on the ground that expert evidence is not competent here; that it is an ordinary question which ordinary men have full knowledge of, in addition to the other objection. Applying these rules to this case, it is clear that the witness should not have been allowed to give his opinion as to what caused the accident. It is urged that this court, on the former appeal, referred without criticism to the evidence of an expert tending to show that the new form of hook was likely to pull out on account of its shape, and that when the chain was tautened in raising the pot, the lug, instead of settling down to the base of the hook, might easily and naturally rest on the curve at the mouth of the hook and thus what is called a forced axis be formed. The former record did not present the defendant's exceptions, but even if technical and peculiar knowledge is required to determine the tendency of the Yes, he may answer that question. hook under specified conditions, it does not follow The defendant excepted. "A. From the use of a short and open-mouthed hook. By the court: Q. What do you call a short and open-mouthed hook? "A. That is a short and open-mouthed hook." This court has, on several occasions recently, stated the rule as to the admissibility of expert evidence. In Dougherty v. Milliken, 163 N. Y. 527, the court says: "It may be broadly stated as a general proposition that there are two classes of cases in which expert testimony is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend upon the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. If, in such cases, the jury, with all the facts before them, can form a conclusion thereon, it is their sole province to do so. In the other class, we find those cases in which the conclusions to be drawn from the facts stated as well as knowledge of the facts themselves depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts." In Schutz v. Union Ry., 181 N. Y. 33, the rule, as stated in Dougherty v. Milliken, was repeated. The governing rule deduced from the cases permitting the opinion of witnesses is that the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exists in reasons rather than descriptive facts, and therefore cannot be intelligently communicated to others not familiar with the subject so as to possess them with a full understanding of it. Schwander v. Birge, 46 Hun, that unusual knowledge or training is required to determine from all the evidence what caused the pot to slip from the hook. The record presents a very simple state of facts. The accident may have been caused by the failure of a co-employee of the plaintiff to properly insert the hook in the lug or to hold the same there until the chain had been wound around the drum of the windlass sufficiently to retain the lug in the base of the hook. The witness by his answer to the questions is allowed to weigh all of the evidence in the case and to form and express an opinion generally upon the cause of the pot slipping from the hook. When all of the facts, together with such statements by experts relating to matters of which the mass of mankind are not supposed to be acquainted, were before the jury, it was for them to determine whether the cause of the pot slipping from the hook was one for which the defendant is responsible. The answer to that question did not require professional or scientific knowledge or skill. It was one which could be answered by persons of ordinary training and intelligence and was not a subject for expert opinion. In a close case an erroneous admission of such opinion evidence may very seriously prejudice a defendant. The judgment should be reversed and a new trial granted, with costs to abide the event. CULLEN, Ch. J.; EDWARD T. BARTLETT, HAIGHT, VANN and HISCOCK, JJ., concur; GRAY, J., absent. Judgment reversed, etc. : 0: A written charge of insolvency of a bank, which names an individual in the same connection, is held, in Witham v. Atlanta Journal (Ga.), 4 L. R. A. (. S.) 977, not to make a libel per se on him if it does not refer to him or his business except by the aid of innuendo. |