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Central Law Journal.
sion, the most directly applicable one is as follows:
Sec. 1: “* * * and the term transporST. LOUIS, MO., JUNE 4, 1920
tation shall include cars and other vehicles
and all instrumentalities and facilities of CARRIER'S LIABILITY FOR NOT SUPPLY shipment or carriage * * *; and it shall ING CARS.
be the duty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request
therefor." Chap. 3501, 34 Stat. at L. 584, The coal companies served by the Chesa
Comp. Stat. 1914, Sec. 8563. peake & Ohio Railroad Company are threatening suits to recover damages for losses The U. S. Supreme Court in Pennsylsustained through an inadequate car sup | vania R. Co. v. Sonman, 242 U. S. 188, 61 ply, wherein an interesting legal contro L. ed. 188 (1916), held that “it is plain that versy with important ramifications may supplying the requisite cars was an essenarise. The C. & O. case is differentiated tial step in the intended movement of the from that of other carriers for the reason coal and a part of the commerce *** to stated that "it followed the policy of in which that movement belonged.” It was creasing the burden upon it by constantly expressly held that the act did not abridge adding new coal territory without adding the right to redress for failure to supply additional cars in spite of the fact that it requisite cars and that suit might be brought was unable to serve the territory already in a state Court. The injured person would developed,” that “this was done to prevent be required to elect between two remedies the entrance of rival carriers into territory to make complaint to the Interstate Comcapable of being reached by the C. & O. merce Commission or to bring an action for Railroad.” If this allegation can be proved damages in a Court, but could not do both.” a novel case will arise.
It was held that "such appropriate com
mon law and statutory remedies as can be The particular incident is interesting,
enforced consistently with the scheme and however, as furnishing an opportunity for
purpose of the act are not abrogated or fixing a liability for losses falling upon in displaced; that the act does not supersede dustry through an inadequate car supply the jurisdiction of state Courts in any case, about which there has been much discus
new or old, where the decision does not insion in the public print. There will be two
volve the determination of matters calling issues, viz.: First, when a carrier fails to
for the exercise of the administrative power supply itself with sufficient cars in normal
and discretion of the Interstate Commerce times and to meet normal demands, does Commission or relate to a subject as to it become liable in damages in abnormal which the jurisdiction of the federal Courts times for all or a proportionate share of the
is otherwise made exclusive.” injuries suffered by industry through enforced idleness? Secondly, may the indus
When the jurisdiction of the Interstate try recover this damage for breach of con
Commerce Commission is not exclusive is tract, for failure to perform a common law
defined as follows: duty or for failure to meet a statutory re "Claims for damages arising out of the quirement? This, of course, involves the application, in interstate commerce, of rules effect of the several acts to regulate com
for distributing cars in times of shortage,
call for the exercise of the administrative merce and the several amendments thereto.
authority of the Commission where the rule Leaving aside the “Railroad Act of 1920"
is assailed as unjustly discriminatory, but which virtually puts car service at the com where the assault is not against the rule, mand of the Interstate Commerce Commis- | but against its unequal and discriminatory
application, no administrative question is | The determination of this issue will be presented and the claim may be prosecuted
aided by the judicial views expressed in in a federal or state Court without any
Penn. R. Co. v. Sonman Co. (Supra, p. precedent action by the Commission.” See also Penn. R. Co. v. Puritan Co., 237 U. S. 123-5), although the facts differed mate121, 129; 59 Led. 867, 872.
rially. It was conceded in that case that "If no administrative question be in
"the times were normal,” and the jury
found that the carrier had a generally amvolved, as well may be the case, a claim
ple car supply for the needs of the coal for damages for failing upon reasonable re
traffic under normal conditions, and the quest to furnish to a shipper in interstate commerce a sufficient number of cars to
jury further found that the conditions in satisfy his needs may be enforced in either
the coal trade being normal, as just shown, a federal or state Court without any pre the number of cars to which the coal comliminary finding by the Commission, and pany was entitled was to be measured by this whether the carrier's default was a vio its reasonable requests based upon its actual lation of its common law duty, existing needs." prior to the Hepburn Act of 1906, or of
The Railroad Company defended by setthe duty prescribed by that act,” which act
ting up its “car distribution rules,” but the was quoted at the outset. In so many words the Court held that the Hepburn Act "may
Court held that "it was only in times of car be regarded as merely adopting the com
shortage resulting from unusual demands mon law rule,” This sentence sufficiently
or other abnormal conditions, not reasonclears the atmosphere.
ably to have been foreseen, that car distri
bution rules originating with the carrier can The carrier's most probable defense will be regarded as qualifying or affecting the be that the times are not normal. From his right of a shipper to demand and to reallegations the shipper no doubt intends to
ceive cars commensurate in number with counter with the claim that the carrier did
his needs.” It will be observed that the atnot supply itself with sufficient cars to meet
tack on the distribution rules was not as to the reasonable demands of normal times.
their reasonableness, for that would have Conceding for the moment that the times
been a question for the Interstate Comhave been made abnormal through govern
merce Commission, but on the failure to mental interference, the case would mani
supply "vehicles and all instrumentalities festly turn upon the past failure to supply
and facilities of shipment” by whatever sufficient cars for the territory served, and
rules administered, and that the rules could that the offense and the injury of which
not be pleaded as a defense. complaint is made is a continuing one, finding its origin back in normal times. In If it be conceded that the present abnorother words, the carrier would not be per mal demand for cars is such that it "could mitted to go scot-free but would be held
not reasonably have been foreseen” then for the injury occasioned by its past fail
the C. & O. case would seem to have to turn ure of duty continuing into the present, if
on the past failure of the carrier to supply not for injury directly traceable to abnor
sufficient cars for normal times and that mal demands. This would call for a de
the injury does not arise wholly from abcision upon the right of a carrier to extend
normal conditions, but is only aggravated its lines and thereby take on new and ad
thereby. It will prove a nice question and ditional burdens of service without making
opens a wide field for speculation on a quesa proportionate increase in its "vehicles and all instrumentalities and facilities of ship
tion agitating every shipper. ment or carriage.”
THOMAS W. SHELTON.
NOTES OF IMPORTANT DECISIONS. the contract entered into between respondent
and appellant's grantor.
"That they do impair the obligation of this CONSTITUTIONALITY OF MORATORIUM
contract is perfectly apparent. As said by the
court in Edmondson y. Ferguson (supra): LAWS.--South Dakota, in company with many “ 'If the General Assembly were to pass an other states during the war with Germany, act declaring that a contract for the payment passed moratorium laws, the aim of which was
of any stipulated sum of money within one
year should not be due and payable for five to prevent those who enlisted in the armed
years, it would be readily seen that the obliforces of the United States from being de
gation of the contract was impaired—the conprived of their legal rights without opportunity tract would be lessened in value.' to take the proper steps to conserve such rights.
"Here, by section 1, our lawmakers have at
tempted to extend the time for payment of But South Dakota went further than most
money due under contract. If A enters into a states and passed a law which, instead of
contract whereby he leases land to B, B's merely preserving the remedies of the enlisted right of entry to come into existence and the man, released him from the obligation of the
term of the lease to commence upon a certain contract into which he had entered. Section
date, any law that would take from B the
! right to enter on said land or defer the exer1 of the Moratorium law of South Dakota ex
į cise of such right impairs A's obligation unemps the beneficiaries under such law, until der such contract and thereby diminishes the one year after the termination of the war or of value of such contract to B. Here, upon the hapservice therein from any obligation to pay
pening of either one or two events, the lessor
or his grantee had, under the contract entered moneys due on any contract except life insur
upon and taken possession of said premises. ance policies. Section 2 provides that "the Both events happened; respondent defaulted enforcement of any right of entry which may in payment of rent, and the lessor sold the hereafter arise during the continuance of the
premises." present war shall be suspended or stayed” dur
It is to be observed that most of the Moraing the period above mentioned.
torium laws passed during the Civil War
merely suspended the right to sue or issue The Supreme Court of South Dakota, in the
process against one in the military service of recent case of Granger v. Luther, 176 N. W.
the United States. Edmondson v. Ferguson, 11 1019, held this act to be unconstitutional on
Mo. 344; Johnson v. Higgins, 3 Metc. (Ky.) the ground that instead of affecting the rem
556; Coxe's Executor v. Martin, 44 Pa. 322; edy it destroyed the obligation of contracts
McCormick v. Rusch, 15 Iowa, 127. It is also entered into by enlisted men. In the case un
well to observe that a state of war does not der consideration the plaintiff, who afterwards
justify a breach of constitutional rights. enlisted in the army, was in possession of a
The obligation of a contract cannot be imlease, a provision in which gave the landlord
paired, although the legal remedy thereon a right to re-enter and take possession on non
may be deferred. Recent decisions on the payment of the rent. After plaintiff had gone
Moratorium laws recently enacted disclose the into the army and had defaulted in his rent
fact that the courts are careful to find as a the landlord took possession of the premises
fact that the purpose and effect of such laws and subsequently sold the property to the de
is merely to suspend the ordinary legal remfendant. On his return from the war plaintiff
edies. Thress v. Zemple, 174 N. W. (N. D.) brought suit to recover the possession of the
85; Konkel v. State, 168 Wis. 335; Pierrard v. premises under his lease. In reversing a judg
Hoch (Ore.) 184 Pac. 494. ment nisi in favor of the plaintiff the Supreme Court said:
LIABILITY OF MASTER WHO LENDS HIS "We are of the opinion, in view of the re
SERVANT TO ANOTHER FOR THE NEGLI. mainder of section 2, that the above provision as to enforcement of ‘right of entry' relates GENCE OF SUCH SERVANT.-The cases in only to enforcement by action and therefore America and England are difficult to reconpertains only to legal proceedings brought
cile or to distinguish on the question of which against the beneficiary under such law. We
master is liable when one lends a servant to therefore think it has no application to the facts of this case. But if we were to hold that it the other. In the recent English case of Paul denied to a party the contracted right of en | son v. Jarvis & Co., 122 L. T. Rep. 471 (Decided try-the only ground upon which respondent
Dec. 17, 1919, by the Court of Appeals) it was can deny appellant's right of possession of said
held that the master who lends a team and land--then we are presented with the question as to whether the provisions of sections 1 and driver to another is liable for the driver's neg2 above referred to impair the obligation of lligence.
In the Poulson case it appeared that defend. 1 (1911) 2 Ir. Rep. 143, the master of a vessel ants Jarvis & Co., team owners and haulers, | hired a crane worked by a man in the employ. received an order from the Ministry of Muni | ment of the defendants to discharge his vestions to send a team and driver to haul wagons, sel. The man received the same directions as which were being loaded at one of the Liver in Donovan v. Wharton (ubi sup.). It was pool docks. The defendant sent a team and a held in the Court of Session and in the House man, Davies, who was directed to report to 1 of Lords that the defendants were liable, as the agent of the Minister of Munitions and use the crane man was in their service, and not the team in hauling wagons which were being in that of the master or owners of the vessel. loaded by said agent. Defendants testified The rule in the so-called carriage casesthat they had no control over their servant Quarman v. Burnett, 6 M. & W. 499 and Jones after he reported to the Minister of Munitions; v. Corporation of Liverpool, 14 Q. B. Dir. 890— that when they control a job, they usually send is well known and generally accepted to-wit: a foreman to direct their men. Nevertheless, that one who hires a carriage and driver from the Court of Appeals held that Jarvis & Co. | à liveryman is not liable for the driver's negand not the Ministry of Munitions was liable ligence. These cases are unusually distinfor the negligence of Davies in injuring the guished on the ground that the hirer is a pas. plaintiff. The sole question on appeal was senger rather than an employer and has no whether the superior who should respond for control over the driver. It is interesting, how. the negligent conduct of Davies was Jarvis & ever, to note the argument of Lord Dunedin Co. or the Ministry of Munitions. In deciding on the McCartan case (supra) in which he prothat the foremen were liable, Lord Sterndale, fesses to see no distinction in principle beM. R., said:
tween those cases and the cases where a mas"I think that on this evidence, apart from ter lends a servant and a crane to another. He authority, it was competent for the learned
said: judge in the court below to come to the conclusion at which he did. As I have pointed "Take the case of the hire of a carriage out, as is so often the case, neither the Min from a jobmaster. The hirer can tell the ister of Munitions nor the defendants in any coachman 'to go on, to stop, to go to a certain way interfered with Davies except that the 1 place.' He can tell him to drive slower or representative of the Minister of Munitions told faster within certain limits. All this control him when the wagon was filled to take it out of the servant has been surrendered and transside away from the road traffic. There is noth
ferred by the 'general master, the jobmaster. ing to show that it was contemplated by either
But he cannot tell the coachman to drive at party to the agreement that the representative a speed which involves danger to the horses or of the Minister of Munitions should interfere the carriage; he cannot tell him to leave the with Davies in the management of his masters' box and allow the horses to be driven by the horses, or that he ever attempted to do so,
hirer himself or someone else of his selection. and I do not think the defendants would ever
So here the hirer could tell the crane-man 10 have allowed him to do so."
lower or raise or move the crane alongside; The learned Master of the Rolls discussed
he could not tell him to put a weighi on the
crane more than it would bear, or to drive it several leading English cases the conclusions
so fast as to endanger the machinery; or to in which indicate the difficulty in exactly de. descend from the crane, and let the hirer or fining the rule in this class of cases. The
one of his men work the crane instead of him. principal case on which defendants relied and
What difference in quality is there between
these two sets of allowable and unallowable which the Court found difficult in distinguish
acts; I confess I see none, and the learned ing was that of Donovan v. Laing, 68 L. T. counsel íor the appellants were utterly unable Rep. 512 (1893), Q. B. 629. In this case the to suggest any." defendants supplied to another firm a crane In Dewar v. Tasker (23 Times L. Rep. 259), and a man to work it in loading and unload an engine was hired from the defendants by ing vessels. The working of the crane was a company to do the hirers' work. The endirected by the hirers in the sense that their gine was worked by a man in the defendants' men gave the directions when to raise and service, but was put at the disposal of the lower the goods, and when to swing the arm hirers, the Subsoil Company, and the defendof the crane. It was held that the defendants ants in fact exercised no control over the man were not liable for the acts of the crane man, or engine while working for the hirers, and because he was for the time the servant of the did not know where it went or what it carried. hirer.
The defendants were held liable on the ground On the other hand, in McCartan v. Belfast that the man was acting as their servant, and Harbour Commissioners (1910), 2 Ir. Rep. 470; | not as the servant of the hirers.
| p. 75.)
FACTS AND FICTION ABOUT THE | dom. The writings of J. Allan Smith and CONSTITUTION.
C. A. Beard’ are typical. An examination
of their books shows that (1) the RevoluAttacks on the Constitution.— Typical of
tion is regarded as an expression of demothe Socialist and I. W. W. assaults on
cratic thought, and (2) that the Federal Americanism are their attempts to over
Constitution represents a return to power throw the confidence the American people
of “the solid, conservative, commercial and have enjoyed in their Constitution, and the
financial interests of the country.” (Beard, faith we have had in Washington, Jefferson, Hamilton, and the other men who What test can we apply? Can we not steered the thirteen colonies out of the
say that the opinions of the signers of the maze of confusion existing after the Revo
Declaration of Independence on the adoplutionary War. They established a govern
tion of the new Constitution, would strongment which has borne the brunt of many ly indicate whether or not that document an assault and attempt at overthrow, down
| was really "reactionary?” ing the forces of sedition and establishing a strong national government, capable of
The writings of both Smith and Beard dealing with national problems, yet with
would lead us to believe that a majority out discarding the principle of "local self of the “signers” opposed the Constitution. government” brought to this country by
“The Federal Convention assembled in the Pilgrims.
Philadelphia only eleven years after the
Declaration of Independence - was signed, We are today told that the Constitution
yet only six of the fifty-six men who is a document of infamy, designed to sup
signed that document were among its mempress the many for the advantage of the
bers.” (Smith, p. 33.) few. Men, such as the notorious Allen S. Broms, sometimes openly and sometimes A large majority of the “signers," as a covertly attempt to thrust the dagger of matter of fact, favored the Constitution. distrust into the hearts of Americans. Nor The claim, let us remember, is that the Condo they indulge only in generalities; thanks stitution is a reactionary document and that to the writings of some of our scholars this is evidenced by the fact that its framand university investigators they are able ers were not in sympathy with the views to quote from these sources. For instance, of the men who had encouraged our war on Sunday, December 7, 1919, Broms with England, the latter class being adequoted copiously from Charles A. Beard, quately represented by those who had the leaving in the minds of his hearers the con nerve to sign the Declaration of Independclusion that the Constitution was framed ence. by grafters and thieves and has beeen used
Careful investigation has disclosed the to destroy real democracy.
following facts as to the attitude of the Let us examine some of the particular “signers” on the adoption of the Constituclaims made by these agitators and see just tion: Twenty-five favored and only eight how much truth they contain. The acid
opposed ir. The views of the other nine test of facts must be applied—here goes! (fourteen were dead) are unknown, though
Was It Framed by Reactionaries?-It is probably three would have been inclined frequentiy stated that the Constitution was framed by reactionaries, men entirely out (1) Spirit of American Government. of touch with the spirit of the men who
(2) The Supreme Court and the Constitution.
(3) For detailed proof see the author's artihad fathered and fostered our war for free- I cle in the Central Law Journal, Dec. 7. 1917.