Straker v. Erie R. Co. (N. Y.), Brakeman on Switching Engine Returning After Delivering Interstate Cars Was in "Interstate Commerce,' R. D. 95. Taylor v. Lambert (Pa.), Covenants-Building Restrictions, ann. case, 212. Temple v. Keeler (N. Y.), Food-Implied Warranty, ann. case, 411. Tepper v. New York, N. H. & H. R. Co. (N. Y.), United States v. Grossman (U. S. D. C.), Power of the President to Pardon for Contempt of Court, Ed. 219. Van Blaricom v. Dodgson (N. Y.), Husband's Liability for Wife's Negligent Use of His Automobile, R. D. 292. Vial v. Rhode Island Hospital Trust Co. (R. I.). Trustee's Discretion Subject to Control of Court, ann. case, 139. Wallace v. New York, N. H., & H. R. Co. (Conn.), Railroad Employee Restraining Power Wires Engaged in Interstate Commerce, R. D. 22. White v. United States (U. S. D. C.), InsuranceWar Risk, ann, case, 356. Whitaker v. Hitt (U. S. D. C.), Constitutionality and Construction of the Dyer Act, Ed. 237. Wiener v. National Bank of Commerce (Mo.), Liability of Bank for Breach of Contract to Issue Check on Foreign Bank, R. D. 366. Zlang Sung Wan v. United States (U. S. S. C.), Concerning Confessions of Crime, Ed. 401. Central Law Journal St. Louis, January 5, 1924 DISPOSITION OF INSURANCE FUNDS WHEN INSURED IS MURDERED BY BENEFICIARY The rule is that when an insured is murdered by the beneficiary named in his policy of insurance such beneficiary forfeits all right to claim under the policy. How ever, this does not relieve the insurance company from liability on the policy, but it is required to pay the proceeds to the insured's estate (7 A. L. D. 828 Note). The doctrine of public policy which bars the person named in the policy as beneficiary from recovering will not be carried by the courts any further than is necessary to prevent resort to it for the purpose of effecting a fraudlent purpose. It is not with the intention of relieving the insurance company from liability, and if there is any person without fault who has a right to the benefit of the policy the same will be enforced. In other words, if there is no condition in the policy avoiding it in case of the murder of the insured, the liability of the company is the same where death is the result of murder as where it is produced by any other cause. This follows the very general rule that, where the specific beneficiary named in a policy of life insurance dies, the policy of insurance nevertheless remains in force, and recovery may be had thereon by the personal representatives of the insured upon his death for the benefit of his estate. In the recent case of Slocum v. Metropolitan Life Ins. Co. (139 N. E. 816), it appeared that a woman was murdered by her husband who was designated as the beneficiary in her insurance policy. An action was commenced against the insurance company by the administrator of the murdered woman. The Supreme Judicial Court of Massachusetts, following the reasoning of the English cases, held that the beneficiary having debarred himself from recovering on the policy, the insured's personal representative was entitled to the proceeds. In this case the Court in part said: "In a policy which permits the insured to change the beneficiary the latter has no vester interest in the money to be paid, but only an expectancy. It is clear from the terms of the present policy that Miller had no vested right in the proceeds as against the company; and as against him the insured retained an interest in the policy and a right to determine who should be entitled to the proceeds as beneficiary in the event of her death prior to the maturity of th endowment. As Miller by his conduct has raised a personal bar at law to his recovery, and the company has not availed itself of the authority to pay the proceeds to any other of the persons specified in the contract, the Court rightly refused to make the rulings requested by the defendant and found for the plaintiff, the administrator of the estate of the insured. "While the question is not now directly before us as to what disposition the administrator must make of the money, amounting to $190.99, it may be added that, if any of it should remain after the payment of the debts of the insured and charges of administration, it cannot go to Miller, who feloniously took her life. The same principle of public policy which precludes him from claiming directly under the insurance contract equally precludes him from claiming under the statute of descent and distribution." This question is sometimes regulated in fraternal orders by provisions in the bylaws or policies. It has been held that a by-law of the association providing that if the insured should be murdered by the beneficiary the benefit should revert to the society, was valid, and that a recovery by the insured's heirs was precluded where she had been murdered by her husband, the beneficiary (Grand Circle W. W. v. Rausch, 24 Colo. App. 304, 134 Pac. 141). If the guilty person would take the whole of the deceased's estate under the laws of descent and distribution; the personal representative of the deceased would not be permitted to recover under the policy, for to do so would be to permit the guilty person to receive the benefit of the insurance by merely paying the same to the insured's. estate and paying the beneficiary from the estate. This rule has been paid down in Johnston v. Metropolitan Life Insurance Company (100 S. E. 865, 7 A. L. R. 823), a case decided by the West Virginia Supreme Court of Appeals. So, in McDonald v. Mutual Life Insurance Company (178 Iowa 863, 160 N. W. 289), an action was brought on a policy by the administrator of the insured, who died from a criminal operation, and it was held that no recovery could be had by the insured's parents, who were her sole heirs, who had aided in procuring the operation. NOTES OF IMPORTANT DECISIONS WHEN OFFICER MAY ARREST SUSPECTED NARCOTIC DEALER WITHOUT WARRANT.-In the case of Green v. United States (C. C. A. Eight Cir.), 289 Fed. 236, the evidence discloses that for over a month prior to the arrest of the defendants they had been under surveillance by the narcotic agents, who had information that they had brought narcotics into Kansas City. The officers were also watching a certain drug store that was notorious as a rendezvous for drug peddlers, and during the time mentioned the defendant Lichtor was seen to drive up there in his car and engage in conversation with the proprietor, then under indictment for dealing in narcotics. Their investigation further disclosed that the car the defendant Lichtor was using was licensed in the name of the defendant Green. There is evidence that on the day of the arrest the two defendants drove up to the drug store,, and one of them went in. Later they were observed at a barber shop run by Green, where Lichtor spent part of his time. From there they proceeded in the car licensed in the name of Green, and drove to the drug store. Green alighted, carrying a grip, followed by Lichtor. At this point the officers stepped up, disclosed their identity, and placed them under arrest, and, putting them back in the car, started with them for the police station. Immmediately the defendants began to talk about "fixing the matter up," etc., so as not to be taken to jail, and exhibited and offered $250 to the officers, stating there would be more coming, if necessary. At the same time the officers inquired what was in the bag that was in possession of the defendants in the car, and they replied, "Nothing." The officers requested them to open it. They complied, and a quantity of morphine and cocaine was found therein, which was afterwards used as evidence at the trial. In holding that the arrest of defendants witnout a warrant was justified, the court said: "Probable cause which will justify an arrest is reasonable grounds of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offense of which he is suspected. The evidence discloses that, in the case at bar, the narcotic officers had probable cause to warrant the arrest of the defendants, and, having made a legal arrest, they had the right to search and take from them narcotics, the mere possession of which, under the circumstances existing, constituted a felony. "Every search and seizure made by an officer without a search warrant is not within the condemnation of the Fourth Amendment. It is the right and duty of the government to secure evidence of crime, even from the accused himself, if this can be done without violating his constitutional rights.' Gouled v. U. S., 255 U. S. 298, at page 301 (41 Sup. Ct. 261, 65 L. Ed. 647). "The right of the government to search the person of the accused for evidence of a crime, and discover and seize the fruits or evidence of the crime, has always been maintained under English and American law. Weeks v. U. S., 232 U. S. 383, at page 392 (34 Sup. Ct. 341, 58 L. Ed. 652,, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177). Judge Hook said in Pritchett v. Sullivan (8 C. C. A.) 182 Fed. 480, 104 C. C. A. 624, that public officers, especially charged with the enforcement of the law and preservation of the peace, may lawfully arrest without warrant and without view of the crime where they have reasonable grounds for believing that a felony has been committed. "It is not only the right, but the duty, of an officer making an arrest to take from the prisoner, not only stolen goods, but any article which may be of use as proof in the trial of the offense with which the prisoner is charged.' From dissenting opinion in Newberry v. Carpenter, 107 Mich. 567, 65 N. W. 530, 31 L. R. A. 163, 61 Am. St. Rep. 346. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several states to be in force in cases of felony punishable by the civil tribunals. Kurtz v. Moffitt, 115 U. S. 487, at 504, 6 Sup. Ct. 148, at page 154 (29 L. Ed. 458)." OWNER PERMITTING INTOXICATED PER SON TO OPERATE CAR CAUSING DEATH OF ANOTHER, GUILTY OF MANSLAUGHTER.-In a prosecution for manslaughter for causing the death of a pedestrian resulting from driving an automobile while intoxicated, proof that the machine owned by accused was being operated by an intoxicated person while accused, who had control of the automobile, was sitting therein, was sufficient to charge accused with knowledge of the operator's condition, and accused was therefor guilty under a statute providing that a person who, while intoxicated, causes death in the operation of any vehicle, is guilty of a felony. Ex parte Liotard Nev. 217, Pac. 960. In this respect the court said: "While it does not appear that petitioner gave Krites instructions to operate the car, it is an undisputed fact that the petitioner was present while Krites was at the wheel and while the engine was in action. Krites admits that he was at the wheel at the time of the tragedy. He was in control of the car by consent of the petitioner. Petitioner is chargeable with knowledge of Krites' condition. No one would contend that the owner of a car would not be liable for injuries resulting from his operating it while intoxicated. How, then, can he escape the consequence when he sits by and permits another, who is intoxicated to operate it? In civil actions the negligence of a chauffeur is imputed to the owner, when he is riding in the car at the time of the negligent act. Huddy on Automobiles (5th Ed.) § 629. "The reasoning which leads to this conclusion is equally applicable in the situation here presented. The public welfare, as well as sound logic, justifies the conclusion. The owner of a dangerous instrumentality cannot jeopardize the lives of others by placing it in the hands of one under the influence of liquor with permission to use it, or allow him to use it with his knowledge and approval, wthout becoming both civilly and criminally liable, when a statute such as the one in question controls. One who is so careless of the rights of others as to use a dangerous instrumentality while incapacitated by drink, or who permits others to do so, as here shown, invites the consequences. He must pay the penalty. In the case of Commonwealth v. Sherman, 191 Mass. 439, 78 N. E. 98, which is almost identical to this so far as the facts are concerned, the Supreme Judicial Court of Massachusetts disposes of the case in these brief words: "In our opinion those facts warranted the inference that the owner knew and allowed the his machine to be illegally run. The case so made out is a prima facie case only. It may be contradicted or explained. But, uncontradicted and unexplained, it does, in our opinion, warrant that inference, and so makes out a prima facie case. THE INDUSTRIAL LAW OF COLORADO* BY WILLIAM R. EATON The strongest support in the structure of our government is the power vested in our courts to hear and determine disputes between all persons, and thus afford protection to our liberties which were so carefully guarded by the constitutional guaranties. Settlement of private quarrels by duel was finally prohibited in the early part of the nineteenth century, and imprisonment for debt or contract liabilities entirely ceased. Judgments in cases arising out of contract or property right gave no redress which interferred with the life or the liberty of the unsuccessful litigant. As the last century was drawing to a close the aplication of the doctrines of assumption of risk and acts of a fellow servant in actions concerning personal injuries to employees, were the subject of much anarchistic comment; just after the beginning of the twentieth century, workmen's compensation laws had eliminated the questions of risk in employment and acts of fellow servants in most of the states. In considering wages and hours of labor, public brawling was claimed as a right and the weapon of the strike and lockout was invoked every day. Turmoil instead of tranquality was the doctrine being preached and followed by the parties on both sides of industrial questions. It logically follows that much thought would be given to a means of settling the disputes between employers and employees on the subject of wages, hours of labor and other conditions of employment instead of the strike and lockout, and an attempt made to put some stop to industrial strife, disorder and waste by decisions of impartial men after full opportunity for hearing. Colorado has been a wide field for industrial disorder in the past. Today the situation is entirely changed. The strikes of the past thirty years have imposed tremendous losses upon both sides to each controversy. *Address before the Colorado Bar Association, August 4, 1923. It has made little difference who has prevailed in the dispute when a strike or lockout was commenced and stubbornly fought. Frequently the employer has been better able financially to stand the loss, but it has been said by many that the greatest loss has fallen upon the employees on account of lost wages alone. When this question has been seriously considered, a means of averting these losses and breaches of the peace by requiring the disputants to submit the causes of their controversy to some disinterested persons is always uppermost. Arbitration along old and established lines has frequently failed to bring satisfactory results. The disputes involved are much like. those found in any law suit. One side charges the other with breach of contract; or, possibly, on account of new conditions, the facts and circumstances underlying the provisions of the existing contract have changed so as to show a partial failure of consideration, and a novation or amendment is desired. In any event, it logically follows that attempts would be made to create tribunals where the questions involved in industrial disputes would be presented, heard and decided by disinterested and impartial persons. In Colorado, Kansas and the Dominion of Canada, such tribunals have been in existence recently. The detail of whether such a tribunal should consist of one or more persons has been resolved in favor of a board of three; possibly this will be changed during the next decade or two, just as the old court system of having two or more judges hear certain preliminary trials has now almost disappeared. Upon June 11, 1923, nation-wide publicity was given to a decision rendered that day by the United States Supreme Court to the effect that the Kansas Law creating a Court of Industrial Relations was unconstitutional, and here in Colorado, where the first commission in the United States was created to hear and determine questions arising out of industrial disputes, many employers and employees, as well as lawyers, have been considering the effect of that decision upon the powers vested in the Industrial Commission of Colorado. Consideration of the opinion by Chief Justice Taft in Charles Wolff Packing Company v. The Court of Industrial Relations of the State of Kansas,1 and of the decision of Justice Denison of the Supreme Court of Colorado in the People v. the United Mine Workers of America,2 finally decided October 3, 1921, together with a brief of the history of the sources and results of the Colorado statute (Chapter 180, Session Laws of Colorado, 1915, with amendments of 1921 and 1923), and a synopsis of the powers vested in the Industrial Commission of Colorado will give us some light on the subject. Upon March 22, 1907, there was enacted in the Dominion of Canada an "Act to aid in the prevention and settlement of strikes and lockouts in mines and industries connected with public utilities," Investigation Acts" (Chapter 20, 6-7, Ednow known as "The Industrial Disputes ward VII.) This act provides for boards of conciliation to be composed of three persons, one to be appointed on the recommendation of the employer, one on the recommendation of the employees (the parties to the dispute) and the third on the recommendation of the members so chosen. The complainant is required to set forth in writing a statement showing the names of the parties, the nature and cause of the dispute, the claims and demands over which exception is being taken, the number of persons involved, the attempts of the parties themselves to adjust the dispute, and the further statement that it is the belief of the complainant that if there is no adjustment of the dispute, a strike or lockout will result. The board so selected and appointed is required to do all such things as it deems right and proper to obtain a fair and amicable adjustment of the dispute, make findings, reports and recom (1) 17 U. S. Supreme Court Advance Opinions, 756, 111 Kansas 501, 207 Pac. 806. (2) 70 Colorado, 269. |