Central Law Journal

St. Louis, October 20, 1924

THE RODEO SUMMONSES

The Rodeo Summonses, which were dismissed by the Hendon magistrates, by a majority of six to five, have performed a useful service in calling attention to the cruelty of the performances which were going on at the Wembley Exhibition. We do not propose unduly to criticize the decision of the majority, for we have no doubt they have the judicial temperament which the Lord Chancellor said at the Mansion House dinner is the general characteristic of the unpaid magistracy. The question, of course, was one of law -whether the facts as proved brought the case within the Protection of Animals Act, 1911. Under that Act, which was a consolidating and amending Act, it is an offense for any person cruelly to ill-treat, torture, or terrify any animal, or for any person, being the owner, to cause any unnecessary suffering to an animal. The leading case on the application of this provision is Ford v. Wiley, which related to the dishorning of cattle, and which came before Lord Coleridge, C.J., and Hawkins, J., in 1889: 23 Q.B.D. 203. "The mere infliction of pain," said the late Lord Coleridge, "even if extreme pain, is manifestly not by itself sufficient. Men constantly inflict great pain on one another and upon the brute creation, either for reasons of beneficence, as in surgery and medicine, or under sanctions which warrant its infliction, as in war or in punishment. It is further lawful to inflict it if it is reasonably necessary; a phrase vague, no doubt, but with which in many branches of the law every lawyer is familiar." Pain, he pointed out, inflicted merely for increasing the pecuniary value of the animal, or, as in the case of dishorning, for convenience of packing in a farmyard or in a truck, is not neces

sary. "These things may be convenient or profitable to the owners of cattle, but they cannot, with any show of reason, be called necessary. That without which an animal cannot attain its full development or be fitted for its ordinary use may fairly come within the term 'necessary,' and if it is something to be done to the animal it may fairly and properly be done. What is necessary, therefore, within these limits, I should be of opinion may be done even though it causes pain; but only such pain as is reasonably necessary to effect the result." Accordingly, the dishorning of cattle was held to be an offense under the Act, and Hawkins, J., concurred. "In my opinion the practice is illegal and ought to be suppressed." That case stands to the credit of the R.S.P.C.A., and upon the well-known facts as to the Rodeo exhibition, there is no doubt the summonses would have succeeded had the justices correctly applied the law.

The above, taken from The Solicitors' Journal, an English law weekly, reminds us that whether an act impresses us as being cruel depends to some extent upon whether we are accustomed to it. The English and American people consider the Spanish bull fight so cruel that it is not to be tolerated. The English attitude toward the rodeo is much the same. Many think that the steeplechase falls in the same category. Any so-called sport of the kind should be relegated to a barbaric age. We trust that this sincere expression of' English opinion as to the rodeo will have the effect of barring it from the legitimate sports.

"Look here," said a young juryman after the jury had retired, "if I understand aright, the plaintiff doesn't ask damages for blighted affections or anything of that sort, but only wants his presents back."

"That is so," agreed the foreman.

"Well, then, I vote we don't give him a cent," said the young juryman hastily. "If all the fun he had with that girl didn't cover the amount the presents cost him, it was his own fault. Gentlemen, I courted that girl once myself!"-Mystic Worker.

NOTES OF IMPORTANT DECISIONS.

BLIND TESTATRIX PRESUMED TO KNOW CONTENTS OF HER WILL.-The presumption is that the contents of a properly executed will were known to the testator. The wills of the blind are no exception. There being no proof of imposition by fraud or undue influence, a blind testatrix, in the full possession of her faculties otherwise, will not be presumed ignorant of the contents of her duly executed and attested will. In re Bakke's Will, Minn., 199 N. W. 438.

Justice Stone wrote the opinion of the court, a portion of which is as follows:

"We adopt without hesitation the views expressed in Lipphard v. Humphrey, 209 U. S. 264, 28 Sup. Ct. 561, 52 L. Ed. 783, 14 Ann. Cas. 872. There the inability of the testatrix to read her will, although not caused by blindness, was as complete as that of Mrs. Bakke. There was no evidence that it had been read or explained to her. She, as did also Mrs. Bakke, declared in the presence of witnesses that it was her will. There, as here, the provisions of the will were 'reasonable and natural,' and the testatrix was a woman of 'mental health and vigor when the instrument was executed, and there was no suggestion of fraud on undue influence.' Speaking for the unanimous court, Mr. Chief Justice Fuller said:

"In these circumstances the jury properly concluded that the testatrix knew the contents of the will at the time of its execution, and the court might well have directed such finding, unless the bare fact of the inability of testatrix to read raised a legal presumption that she did not possess that knowledge, and the absence of the reading of the will to her at that time was fatal. But we know of no such presumption as matter of law, and on the contrary, the presumption where a will is properly signed and executed is that the testator knows the contents. Where there is evidence of the practice of fraud or of undue influence, affirmative proof of knowledge of the contents may be necessary, but not so in any other case, simply because of a presumption arising from inability to read.

""True, the presumption that a party signing a will by mark, or otherwise, knows its contents is not a conclusive presumption, but it must prevail in the absence of proof of fraud, undue influence, or want of testamentary capacity attending the execution of the will. In the present case there was no attempt to show that the testatrix was not capable of making a valid deed or contract at the date of making the will; on the contrary, the evidence showed that she was a woman of energy, capacity and intelligence. Nor was any proof offered of fraud

or undue influence in the production of will. Mrs. Lipphard brought the will, as have said, to Miss Parker's office for the pose of having it executed; she declared to attesting witnesses the paper to which made her mark to be her last will and te ment. She was a person of sound mind at date of the will, and it was executed and tested in the manner required by statute'

"Blindness only makes easier the task da contestant to prove fraud or undue influen Standing alone, it proves neither."

STATUS OF "MASSACHUSETTS TRUSS UNDER TAX LAWS.-The Supreme Court the United States has held that joint stock sociations, like corporations, were subject a the Federal Corporation Tax Law of 1909 (Ex) v. Freeman, 220 U. S. 178). Mr. Justice D writing for the court, pointed out in that ca that the tax was imposed upon doing busines in a corporate or quasi-corporate capacity, th is, with the facility or advantage of corpora organization. Therefore, corporations an joint stock companies are treated in the same way, since the purpose of the law was to s sess them upon the facility in doing busines which is substantially the same in both forms of organization.

The so-called "Massachusetts Trusts" are a type of business organization neither identica to corporations or to joint stock associations They consist of an arrangement whereby pro erty is conveyed to certain trustees pursuant the terms of a written instrument of trust, t be held and managed by the trustees for the benefit of such persons as may be the holders of transferable certificates issued by the trustees, which represent the shares into which the beneficial interest in the trust property is divided. The certificates are transferable like shares of corporate stock and entitle the share holders to their pro rata proportions of any dividends declared and to the proceeds of the trust, after payment of debts, upon ultimate dissolution. For a discussion of the general nature of these trusts, which exist also in sev eral other states, see Wrightington on Uniacorporated Associations, and Sears on Trust Estates as Business Companies.

It is a matter of common knowledge that for most financial and business purposes all of the larger organizations known as "Massachusetts Trusts," having quasi-corporate organi zations under which they are engaged in carrying on business enterprises, have for some years past been practically indistinguishable from corporations (Cf. Hibbs v. Brown, 190 N. Y., 167, 82 N. E. 1108; see also Dana v. Treas urer, 227 Mass., 562, 116 N. E. 941).

Very recently, in the case of Hecht v. Malley

197

Sup. Ct. Rep., 462, Advance Sheets of June 924), the Supreme Court of the United *S had occasion to consider whether "Masusetts Trusts" are subject to tax under the ral Revenue Act of 1918, which provides every domestic corporation shall pay a ial franchise tax and which defines the

1

"corporation" to include associations and k companies. The court answered this stion in the affirmative, holding that the d "association" as used in the Tax Act emces Massachusetts Trusts, and it affirmed the sion of the Circuit Court of Appeals, which

declared in referring to these trusts that e might almost say that they are a device ler which parties make their own corpora1 code" (281 Fed., at p. 370).

The subject is discussed, in part, as follows, the opinion of Mr. Justice Sanford: "The 'Massachusetts Trust' is a form of busiss organization, common in that state, conting essentially of an arrangement whereby operty is conveyed to trustees in accordance th the terms of an instrument of trust, to held and managed for the benefit of such rsons as may from time to time be the holds of transferable certificates issued by the ustees showing the shares into which the eneficial interest in the property is divided. hese certificates, which resemble certificates or shares of stock in a corporation, and are sued and transferred in like manner, entitle he holders to share ratably in the income of he property, and, upon termination of the rust, in the proceeds.

"Under the Massachusetts decisions these rust instruments are held to create either ure trusts or partnerships, according to the way in which the trustees are to conduct the affairs committed to their charge. If they are the principals and are free from the control of the certificate holders in the management of the property a trust is created, but if the certificate holders are associated together in the control of the property as principals and the trustees are merely their managing agents, a partnership relation between the certificate holders is created (Williams v. Milton, 215 Mass., 1, 5, 102 N. E. 355; Frost v. Thompson, 219 Mass., 360, 365, 106 N. E. 1009; Dana v. Treasurer, 227 Mass., 562, 565, 116 N. E. 941; Priestly v. Treasurer, 230 Mass., 452, 455, 120 N. E. 100).

"These trusts-whether pure trusts or partnerships are unincorporated. They are not organized under any statute, and they derive no power, benefit or privilege from any statute. The Massachusetts statutes, however, recognize their existence and impose upon them, as 'associations,' certain obligations and liabilities.

"The Hecht Real Estate Trust was established by the members of the Hecht family

upon real estate in Boston used for offices and business purposes, which they owned as tenants in common. It is primarily a family affair. The certificates have no par value, the shares being for one-thousandths of the beneficial interest. They are transferable, but must be offered to the trustees before being transferred to any person outside of the family. The trustees have full and complete powers of management, but no power to create any liability against the certificate holders. There are no meetings of certificate holders, but they may, by written instrument, increase the number of trustees, remove a trustee, appoint a new trustee if there be none remaining, modify the declaration of trust in any particular, terminate the trust or give the trustees any instructions thereunder.

"The Haymarket Trust is strictly a business enterprise. It was established by the original subscribers, who furnished the money for the purchase of a building in Boston used for store and office purposes. The shares are of the par value of $100 each. Except as otherwise restricted, the trustees have general and exclusive powers of management, but no power to bind the certificate holders personally. At any annual or special meeting of the certificate holders they may fill any vacancies in the number of trustees, depose any or all the trustees and elect others in their place, authorize the sale of the property or any part thereof, and alter or amend the agreement of trust.

"The Crocker, Burbank & Co. Association is also a business enterprise. It was formerly entitled the Wachusett Realty Trust. The certificates have no par value, the shares being for ninety-six thousandths of the beneficial interest in the property. The trustees originally held the fee of certain lands subject to a long lease, and the stock of a Massachusetts corporation engaged in manufacturing paper and owning and operating several mills. In Crocker v. Malley (249 U. S., 223, 39 Sup. Ct. 270, 63 L. Ed., 573, 2 A. L. R., 1601, 1919), in which the original trust instrument was before the court, it was held that the trustees were not subject as to the dividends received from the corporation to the tax imposed by the Income Tax Act of 1913 (38 Stat. 172) upon the net income of 'every corporation, joint stock company or association * organized in the United States,' but were subject only to the duties imposed by the act upon trustees.. The original trust agreement involved in that case has now, however, been modified, with the assent of the certificate holders. By this modification the form of (the) organization' was specifically 'changed to that of an association' under its present name. The trustees were authorized to surrender the stock of the manufacturing corporation, to acquire instead its

* *

entire property, and to carry on the business theretofore conducted by it, or any substantially similar business. The title to all the trust property 'and the right to conduct all the business' were vested exclusively in the trustees, who were authorized to designate from their number a president and other officers, and to prescribe their duties The certificate holders were authorized, at any meeting, to remove any trustee and elect trustees to fill any vacancies. Since the modification of the trust agreement the trustees have carried on the manufacturing business in substantially the same manner as it was formerly conducted by the corporation."-N. Y. Law Journal.

PLATE GLASS INSURER LIABLE FOR GLASS BROKEN BY WORKMEN WHILE REPLACING BROKEN GLASS.-A policy of plate glass insurance provided that the company should not be liable for any loss or damage caused by or from the acts or operations of workmen engaged in the construction of or repairs to the building or frames in which the glass covered by the policy is located. There after the company elected to replace the broken glass, and for that purpose contracted with a person to replace the same, and while so doing one of the workmen engaged in replacing the broken glass negligently broke another glass belonging to the assured and which was covered by the policy. Held the loss in the instant case was not the result of alterations or repairs to the building or frames in which the glass covered by the policy was located, within the meaning of the policy, and that the insur ance company was liable for such breakage.Aetna Casualty Co. & Sur. Co. v. Apple, Okla., 226 Pac. 1026.

"The provisions of the policy referred to, and which the defendant contends relieves it from liability has no application to the state of facts disclosed by the record. It is clear from the evidence that no repairs or alterations were being made by the assured and that the glass for which this action was brought was broken by the parties while engaged in the work of replacing the glass which had been broken and which the defendant company had employed the said parties to replace.

by the assured. In either case the salvage shall belong to the company.'

"It was under that provision of the policy that the defendant company employed the New York Plate Glass Company to replace said glass. The right to replace the broken glass reserved by the defendant in its policy certainly does not relieve the company from liability in case other glass is broken in the building by those employed by it to replace the glass already broken. The provision of the policy with reference to repairs and alterations being done which would relieve the company from liability refers to alterations and repairs made by the assured.

"To show that the policy contemplates that the company shall be liable for glass broken by the acts of other parties, it is only neces sary to refer to a further provision of the policy which provides as follows:

"In case of payment of loss under this policy the company shall be subrogated to the amount of such payment to the assured's rights of recovery against others for such loss, and the assured shall execute all papers required and shall co-operate with the company to secure such rights.'

"The fact that the party who negligently broke this second glass would be liable to the owner would not relieve the insurance company from such liability under the plain terms of its policy."

HOLDER OF CONTRACT FOR DEED NOT OWNER OF "FEE-SIMPLE TITLE."-That he holder of a contract for a deed upon payment of installments, is not the owner in "fee simple" of the property, within the meaning of a fire insurance policy, is held by the Supreme court of Louisiana, in Campbell v. Richmond Ins. Co., 156 La 100 So. 679. "The case of Trichel v. Home Insurance Co., 99 South. 403, No. 24,944, not yet (officially) reported, involved a question not unlike the one here submitted. In that case the policy contained a clause avoiding it, if the interest of the insured in the property, forming the subject of the contract, should be other than “unconditional and sole ownership." After the issuance of the policy, the insured entered into a contract reading substantially as follows: That the said Trichel (the insured) agrees to convey by deed of warranty to the said Mrs. W. G. Cavell, the following described property upon the payment to the said Trichel by the said Mrs. Cavell of $5,760, as follows: $900 cash in hand paid, and the balance at the rate of $50 per month with interest from sale. Whenever the said Mrs. Cavell shall have reduced the principal to such an amount as she can (and will) borrow from a certain building association, said Trichel agrees to make

*

said warranty deed, on being paid said balance. Failure of said Mrs. Cavell to meet any payment within 60 days after the same becomes due shall entitle said Trichel to annul this contract and forfeit all previous payments, as rent and liquidated damages for possession of the premises.'

"The contention of the insurance company was that this contract operated a change of title, or of interest, and that its effect, therefore, was to annul the policy.

"After reviewing the jurisprudence on the question as to whether such a contract operated a change of title, this court said:

* Our conclusion is that any agreement for the sale of real estate, which is not intended to be the final writing between the parties, but on the contrary, to be followed by another and final deed, is a mere promise of sale and not a sale, and does not transfer the title to said property; unless it clearly appear that the parties contemplated that the new deed should be only confirmatus of the first and not indispensable for the transfer of title.' "In the foregoing case, the court found that the contract between Trichel and Mrs. Cavell was not final, but was to be followed by a formal deed, to be given under certain conditions, and hence held that it did not operate a change of title; and therefore did not work forfeiture of the policy."

INJURY TO HOTEL MAID WHILE LEAV ING PREMISES ON DAY OFF HELD COMPENSABLE.-Injury to a hotel maid from slipping on adjoining sidewalk, while leaving hotel on a personal errand on her day off, is held in State Compensation Insurance Fund v. Industrial Accident Commission, 227 Pac. 168, decided by the Supreme Court of California, to be compensable, as "arising out of and in course of employment," where her con tract of employment required her to live at hotel in part payment of wages and to use the exit she did, and contemplated that she enjoy her day off.

We quote a part of the court's opinion:

"In the instant case there is a direct causal connection between the injury received by the employee and her employment by the hotel. The injury directly resulted from the condition of the entrance to the premises of the employer, which, under the regulations governing her employment, Miss Glennan was compelled to use, which caused her to get her feet wet, combined with her natural effort to avoid the water and slush upon the runway immediately adjacent to said entrance, which water and slush had been placed there by employees of the hotel.

"It seems clear, therefore, that the injury arose out of the employment. But a more

serious problem is encountered in the next contention of petitioner, which is that the injury did not occur in the course of the employment or while the employee was performing service incidental thereto. Upon this essential element of the case respondents rely upon a recent decision of this court in which it was held that a number of ranch hands, who, by reason of the situation of the ranch and the nature of their employment, were compelled to sleep in the bunkhouse provided by the employer for their use, were in the course of their employment and performing a service incidental to the employment in which they engaged at a time when they had completed their work and were in the bunkhouse waiting for supper. Larson v. I. A. C. (Cal. Sup.), 224 Pac. 744. Petitioner relies with equal confidence on another decision of this court. Associated Oil Co. v. I. A. C. (Cal. Sup.), 217 Pac. 744. It is contended that this case is determinative against respondents, because it is said therein that the test to be applied to situations where an employee is injured while upon the premises of the employer after working hours, and because of the fact that he is living upon said premises, is 'whether or not the workman is given a choice in the matter and is free as possible to come or go as he pleases.' However, it was pointed out in said case, citing Schneider on Workmen's Compensation Law, that

64

The general rule appears to be that, when the contract of employment contemplates that the employees shall (not must) sleep upon the premises of the employer, the employee, under such circumstances, is considered to be performing services growing out of and incidental to such employment during the time he is on the premises of the employer.'

"And again, in said case it was emphasized by the court that:

""The men were not required to stay there, and it was no part of the contract of employment that they should do so.'

"And we think this is a vital distinguishing feature between this case and the instant case. In the instant case Miss Glennan, it is true, had a choice, when she applied for employment, of making a contract by which she would be paid $50 a month and furnish her own room, or a contract by which she would receive $40 a month and accept a room in the hotel in lieu of the other $10 a month in wages. At the time she had this choice she had not entered upon her status as an employee. It was a preliminary choice which she was given before entering upon the employment. When she had made her choice and signed the contract of employment by which she accepted a room in the hotel as part compensation for her labor, she then, and then only, sustained to the hotel the