CENTRAL LAW JOURNAL 59. Limitation of Actions Debt. Where acceleration clause provides that Acceleration of on default the mortgagee may declare whole debt due, the entire amount does not become due on failure to pay an installment note so as to start statute of limitations (Comp. Laws 1913, § 7374) against action to foreclose without declaration to that effect by holder.-McCarty v. Goodsman, N. D., 167 N. W. 503. 60. Malicious Prosecution-Probable Cause.In prosecution by private individual before justice of the peace, discharge of defendant without participation of public prosecutor, or trial or finding on merits, is no evidence of want of probable cause for filing complaint.-Snide v. Smith, Neb., 167 N. W. 573. 61. Mandamus-Appeal and Error.-A writ of mandamus will not be granted to require a District Judge to correct alleged errors occuring on the trial of a cause, where they can be brought up for review by appeal.-In re Duncan, U. S. C. C. A., 249 Fed. 155. 62. Remedy.--City fireman under civil service, by reason of indirect interest in establishment of double platoon system, shortening his hours, may maintain mandamus to compel the inauguration of such system, voted for by citizens and refused by council on ground of lack of funds.-State v. City of Everett, Wash., 172 Pac. 752. 63. Remedy. Mandamus is appropriate remedy to compel recalcitrant officer to perform merely ministerial duty which law quires.-Cain v. Burroughs Adding Mach. Co., Ky., 203 S. W. 315. 64. re Master and Servant-Assumption of Risk. -Switchman, with 11 years' experience, familiar with yards, knowing location of guard rail, and that cars had been kicked toward him at rate at 15 miles an hour, and who stepped between rail and guard rail, was caught, and injured, assumed the risk.-Gaddy v. North Carolina R. Co., N. C., 95 S. E. 925. 65. Federal Employers' Liability Act.-An express company is a carrier by railroad, within section 5 of federal Employers' Liability Act; hence an agreement between company and its messenger that there could be no recovery by messenger for injuries sustained while traveling on any railroad is invalid.-Taylor v. Wells Fargo & Co., U. S. C. C. A., 249 Fed. 109. 66.--Fellow Servant.-Where chauffeur, doing master's work in garage, explosion of percussion cap brought in by anwas injured by other chauffeur, his fellow servant, with which latter was experimenting, injury did not arise out of first chauffeur's employment, within Workmen's Compensation Donovan, N. Y., 170 N. Y. S. 340. Law. Laurino 67.- Insurance.-Employers' Liability Act is not invalid as making employe, without his consent, a party in a employer with an insurance company, as contract entered into by employe is thereby given additional security, the and as under express provision of section 41 nullity of such provision as to contract would not nullify entire act.-Boyer v. Crescent Paper Box Factory, La., 78 So. 596. V. 68.-Non-Suit. In an action by experienced section hand, where there was evidence that he was injured while getting on a motor propelled car going six or seven miles per hour in obedience to an order of his foreman, the court properly refused to non-suit the plaintiff.-Ware V. Southern Ry. Co., N. C., 95 S. E. 921. feur 69. Obvious Risk. Where plaintiff chaufhad through various parts of state before accident, operated defendant's automobile any defect in brakes was as obvious to plaintiff as defendant, and defendant owed no duty To warn.-Plasikowski v. Arbus, Conn., 103 Ati. 642. 70-Physical Disability.-That employe injured in service arising out of and incidenta! to his employment was then afflicted with a 107 dormant disease would not defeat compensation under Employers' Liability Act for injury which added to disease, superintenduced physical disability. Behan v. John B. Honor Co., La., 78 So. 589. 71. Respondeat Superior. duty of defendant's automobile driver to take Where it was a certain employe home each evening, and one evening, on arriving home, rected the driver to take a certain person to the employe diher home, defendant was not liable for injuries to a pedestrian, although the accident occurred on the route that the driver would have gone in any event in taking the car to the garage. -Clawson v. Pierce-Arrow Motor Car Co., N. Y., 170 N. Y. S. 310. 72. -Workmen's Compensation Act.-Plaintiff, an employe injured while engaged in sorting time cards in cost and pay roll department of defendant's camera and supply factory, was within Workmen's Compensation Law, § 2, group 23, as to hazardous employment.-Joyce v. Eastman Kodak Co., N. Y., 170 N. Y. S. 401. 73. Mechanics' Liens-Original Contractor. Under Gen. St. 1902, § 4138, providing that if unpaid balance of contract price is insufficient to satisfy claims of subcontractors, the same shall be distributed pro rata, and allowing owner credit for payments made in good faith to original contractor before receiving notice of liens, where part of balance is paid after notice by one subcontractor, such subcontractor and the others who serve their notices thereafter are entitled to a pro rata distribution of the unpaid balance, leaving the owner liable to the subcontractor first serving notice for the amount still due on his claim not exceeding the amount of the improper payment.-Stone v. Moomjian, Conn., 103 Atl. 635. 74. Mines and Minerals-Tenantability.-Gen. St. 1902, § 4045, providing that, where a "tenement" becomes unfit for occupancy, tenant is not liable for rent while premises remain untenantable, refers only to buildings, and does not excuse tenant of mining property from paying rent upon destruction of buildings, where property is not rendered unfit for extraction of ore.-Tungsten Co. of America v. Beach., Conn., 103 Atl. 632. 75. Mortgages-Pleading and Practice. - In action by heirs of mortgagor to have defendant mortgagee to whom mortgagor had given a deed to part of property covered by mortgage declared a trustee, where answer did not allege that defendant bought for full value, etc., and tendered no issue to that effect, court properly directed a statement of account and reconveyance upon payment of balance due on mortgage debt.-Cole v. Boyd, N. C., 95 S. E. 778, 76. Municipal Corporations-Negligence-Allegations that defendant stopped its car on a carrier negligently that another defendant négligently allowed a street intersection, and broken pole to broke and caused team to run away and run remain in his wagon, which into car and injure a passenger who would not have been injured except for the fault of each in so doing, sufficiently charged individual defendant with concurring negligence.-Ft. Wayne & Northern Indiana Traction Co. v. Parish, Ind., 119 N. E. 488. 77.-Sidewalks. Agent-Ratification.-If a 108 CENTRAL LAW JOURNAL furniture agreeing with the mortgagee to in- 80. Railroads-Fences. Corporation operat- 82.- -Look and Listen.-Where passenger in 83. Positive Testimony. neer pole rent to defray expenses of supervision and 91. Trusts Laches.-Eighteen years' delay by complainants in suing defendant, executor of their father's estate, to compel accounting in trust of which the father was trustee, held not to amount to laches, complainants by other proceedings and demands having advised defendant of their claim.-Alexander v. Fidelity Trust Co., U. S. C. C. A., 249 Fed. 1. no 92. Vendor and Purchaser-Defect in Title.Though purchaser relied on its own title examination when it contracted, and there was fraud or misleading by vendor, yet action for damages on account of vendor's inability to convey title as agreed cannot be defeated, unless purchaser knew of defect when it contracted.Crocker v. Ingersoll Engineering & Constructing Co., U. S. C. C. A., 249 Fed. 31. Requirement that 93. Purchase Money. vendor show perfect title from the commonwealth does not apply where he sues for the purchase money due under an executed contract with covenants of warranty and the vendee whoes possession has not been distributed asks rescission on the ground of defective title and non-residency of the vendor.-Vaughan v. Wells, Ky., 203 S. W. 191. -If there is any Where the parties have a railroad engi94. Rescission. contracted for a sale of land with "good and sufficient wararnty title" doctrine that buyer in possession cannot rescind for alleged defect in title conveyed to him, save in case of eviction does not apply-nor does Civ. Code, art. 2462. apply.-Talbot v. New Orleans Land Co., La., 553. 78 So. saw a hand car on the track in time to are 95. Waters and Water Courses-Easement.Relation. Advice for irrigation ditch being an 84. Release-Confidential Right of way easement, "ownership," as used in contract and of physician of railroad to settle, or his false as to extent of injuries, decree, affecting rights in irrigation ditch and representations water, means ownership of the easement, but not grounds for setting aside release, where not of the subservient land.--Little-Wetzel Co. physician had nothing to do with obtaining releases, and claim agent did not knowingly take v. Lincoln, Wash., 172 Pac. 746. confidence in person's will devising 96. Wills Children.-Under a advantage of injured physician.-Chicago, R. I. & P. Ry. Co. v. Tayestate to four children, their share in case of to W. 90. go to survivor, held, lor, Tex., 203 S. death without issue that last survivor took, whole share of brother dying without issue, though sisters predeceased brother, and both left issue.-Robertson v. Andrews, N. C., 95 S. E. 892. 85. Sales-Breach of Contract.-In action for 86. Delivery.-Where buyer of two cars of -Under Sea- 88. Specific Performance-Contract.--Contract Look and Listen. could have 90. Telegraphs and Telephones-Police Power.-Conceding that a county can, under police power, require a telephone company to pay a 97. -Construction. A provision in a will, whereby testator devised property to go to his wife and two daughters for the life of the wife, and thereafter to his two daughters and their children, construed to mean that each daughter was to get an undivided one-half interest for each share to go to life, with remainder in the children of that daughter, and the daughters taking severally, no cross-remainder could arise by implication.-Eskridge v. Deweese, Ky., 203 S. W. 197. 98. --Contingency of Death.-A will, providing that, "in the event of the death of C., the income of the investments is to be divided between his children *** under the same conditions," held to provide for the contingency of C.'s death either before or after death of testator. Holmes v. Connecticut Trust & Safe Deposit Co., Conn., 103 Atl. 640. 99.- -Election.-Where beneficiary under will was trustee elected to take beof one who quest, which will stated should be in full payment of any demands for which testator was liable as trustee, such election is binding on she cannot compel testator's beneficiary, and executor to account for trust property in his hands. Alexander v. Fidelity Trust Co., U. S C. C. A., 249 Fed. 1. 100.-Intention.-Where testator had remodeled and added to house, making it a two-apartment building, so arranged that the chimney of one apartment was situated on the premises of the other, testator, in devising former "premises" to son and latter to daughter, held to have take her property subintended daughter to ject to the easement of the chimney.-Stoneman v. Breitenstein, N. Y.. 170 N. Y. S. 362. Central Law Journal. ST. LOUIS, MO., AUGUST 16, 1918. STATUTORY RATES BY PUBLIC SERVICE CORPORATIONS AS DEPRIVING PUB- One among the results of our engaging in the world war is to call into question maximum rates fixed by statute or constitution for public service corporations. because such maximum will not yield the compensation a public service company is entitled to earn. It is not to be doubted, however, that, independently of war power under our Federal Constitution, these corporations have the same constitutional right to protection as against rates of a confiscatory nature as in ordinary times. The question, therefore, is suggested by decision of New York Court of Appeals as to the meaning of a statutory limitation in rates to be charged by a public service water company as affecting jurisdiction by a public service commission to entertain an application to fix a rate in excess of that limitation. People ex rel. Gas Company v. Public Service Com'n, 120 N. E. ་ The court on certiorari affirmed rul ing of Supreme Court in Appellate Term, there being a memorandum opinion to which one judge records a formal dissent. We have been unable to find the case as disposed of by Supreme Court in special term. This ruling was that the commission had no jurisdiction to entertain the application. This case came about because increase in war prices has made the maximum statutory rate no longer sufficient for a public service company under its constitutional right to demand a rate it is entitled to charge. The question strikes us as very interesting indeed. It must be conceded, that a public service commission is a special tri bunal, created by the legislature and having no jurisdiction except under conferred. power. As well expressed in an early New Hampshire case, "the jurisdiction of such commissions is not given by implication. Commissions of that character are mere creatures of the statute and possess no power except what the statute expressly confers upon them." Blake v. Concord & M. R. C., 73 N. H. 597, 64 Atl. 202. A great abundance of cases is cited to this principle in Collier on Public Service Commissions 1918, § 171, and as a general principle it must be conceded that the principle is sound. But is the principle one of universal application? May no unforeseen circumstance displace it? In 87 Cent. L. J., 91, we attempted to draw a distinction between act of God preventing performance of contracts and such performance becoming contrary to public policy. It is a part of our public policy, that a public service corporation is entitled to earn a compensatory rate. It is contrary to our law that it must furnish service at a rate that works out the taking of its property without due process of law. And this right may be protected by the courts, but not to the extent that any public service company has the right to have a charge for a particular service declared Commissions, 1918 §§ 112, 113. confiscatory. Collier on Public Service Therefore, while a public service company or one of its customers may complain of a rate that is either confiscatory or too high, this rate is not to be considered alone, but in a body of rates, which have been prescribed by a legislature or one of its administrative tribunals. If the rates in a body of rates generally work out so as to provide fair compensation, all of the rates will be upheld. The theory is, therefore, that courts will "not engage in any mere administrative work," and will not recognize any right of a public service company to claim a single rate for a single service confiscatory in its nature, but will enjoin the enforcement of any body of rates where they do not afford necessary compensation. They therefore, further, may give relief only, when a public service company makes a showing, that a rate complained of is of a body of rates which, as it stands, is confiscatory to enforce. So much was held in Reagan v. Loan & Trust Co., 154 U. S. 362. But what will a court do, when a legislative body of rates has been held to be confiscatory? Will it require a company to submit a body of rates that are satisfactory? If so, this is not very far away from the court engaging in "mere administrative work." Conceding, however, that this is the rule in this country, then courts and legislatures occupy very different positions. The latter have the right to fix rates, but it must prescribe a body of rates and not a rate for a particular service in a separate way. But the legislature undertakes to vest in a commission the right to regulate public service companies and, as incidental thereto, the right to fix rates for its services. Obviously the general purpose is to vest the commission with power of regulation. Therein it has jurisdiction. There is nothing going to the commission in the way of power by any implication. But that principle does not mean, as we take it, that what is necessary to exercise this jurisdiction is not granted. This principle is illustrated in the Blake case supra, where it was said that a public service commission had no power to discontinue any part of a highway, except as this results from a change in location. But this was because the commission was not in express terms allowed to discontinue such highway. That is different from the question involved where a commission is given power to regulate, but it is contended. that regulation must not be beyond allowing a maximum rate for service. It has been held, that where the old commerce act failed to grant specific power to fix rates, this left carriers with the right "to make special contracts looking to the increase of their business," etc. R. Co. v. I. C. C., 162 U. S. 184. But is that authority good in its reasoning as to a state vesting a public service commission with the general power of regulation and including therein specifically the fixing of a maximum rate to be charged? The ruling in this case was of like purport with that in the Blake case. Besides, the government had itself but a conferred power in regulating commerce among the states and that was to be strictly construed. The state legislature, however, has general power over public service companies and it commits to special tribunals certain things out of its unlimited authority, circumscribed only by constitutional right in the subject-matter affected. Within this limitation it is absolutely free. What is the purpose of the grant to its special tribunal? This purpose is to re lieve the legislature of functions which may be better exercised by a tribunal of experts. This is a common law practice coming down to us from early days. Collier on Public Service Companies, 1918, § 123. These commissions, therefore, could exercise all authority fairly delegated as fully as could the legislature and with greater satisfaction. And in the exercise of such power any limitation which would be void in general law would be as though it were not expressed. It would be a surplusage in the statute vesting the power. Let us say a commission is given the power, as in the instant case, to fix rates. Without more this gives power to fix rates which will prove remunerative. Now, if in granting such power a maximum is stated which the commission cannot exceed, then, if that maximum works out confiscation, the legislature attaches a condition to its plain grant of power, which is contrary to constitutional right. Why should not the condition be ignored? It does no good to say the power to fix the rate remains with the legislature, because it is bound in the same way that the commission is bound. And it serves no purpose to throw the question into the courts, because, as we have seen, they have no administrative functions. NOTES OF IMPORTANT DECISIONS. THEORY OF CASE-INSTRUCTIONS APPROPRIATE TO ISSUES ARISING OUT OF EVIDENCE AT TRIAL.-In 87 Cent. L. J. 20 we discussed "Pleading and Practice-Rulings on Theory of the Case at Trial," and now we draw the line slightly closer on this subject in discussing a case decided by the Supreme Court of Errors of the State of Connecticut, Gurfein v. Rickard, 103 Atl. 1002. The facts in this case show that the complainant alleged defendant was a common carrier and he negligently failed safely to transport and deliver certain packages of plate glass intrusted to him for that purpose. Defendant admitted he was a common carrier of certain kinds of goods other than plate glass and that on the occasion in which the goods were transported it was by a truck, driver and team upon the express undertaking that the plaintiff should assume all risk for transporta; tion of the plate glass. The court spoke of the question raised by the pleadings, being whether the transportation was by a common carrier and said this affected only the degree of care to be exercised in the transportation, and it was claimed by defendant that the instructions were not adequate on this issue. But the court said: "It is apparent, however, from the findings that the actual issues litigated were much narrower than those which might theoretically have arisen on the pleadings. It was claimed by both parties that the damage was caused by improper loading and insecure bracing of the glass upon the truck, which caused it to tip over against an electric light pole. The plaintiff and the defendant made the claims as to the cause of the damage and in the same words, except that each claimed that the improper loading and bracing was done exclusively by the employes of and under the same direction of the other party." It was said the jury settled this issue against the defendant. The court further said: "Although the charge of the court does not import verity, it may, if not questioned, be assumed to be correct for the purpose of aiding in the understanding of the claims as stated in the finding and the issues of fact actually litigated." But, if plaintiff's theory of the defendant being a common carrier was true, he was an insurer so far as any one took part in the loading was concerned, and if defendant was pro hac vice a private carrier, then all the parties taking part in the loading were plaintiff's servants. Indeed, defendant was not present there by his servants at all the instant he sent them a team, truck and driver reasonably suited for the work to be done. But the court, conceding that the truck, team and driver were so suitable, yet because of the course of conduct by the parties on the trial, considers all bound, in a case of conflict in evidence, by the result reached, under instructions applicable to a status recognized by the parties. It has been thought that in the New England states, if anywhere in this country, the rule of confining trials to issues made by the pleadings, would be strictly observed. MORTGAGE ACCELERATION OF DEBT NOT APPLICABLE TO NOTE.-In Burnside v. Craig, 168 N. W. 175, decided by Minnesota Supreme Court, it is held that a stipulation in a mortgage for the entire debt represented by several notes becoming due upon election of mortgagee, does not authorize action for deficiency judgment upon the notes which by their terms are not due, where on foreclosure the proceeds are not sufficient to discharge the debt. The court refers to previous adjudication and the case was attempted to be distinguished, because the action there was not for a deficiency after foreclosure sale, as was the case before the court. But the court said: "The ground of the decision was the rule in this state that a note and a mortgage securing the same are separate instruments distinctly differing in their nature and purpose. It was held that the object of the clause (in the mortgage) was to instance the entire debt for the purpose of foreclosure, while for all other purposes the terms of the note as to maturity are proved." As ruling the same way the court cites McClelland v. Bishop, 42 Ohio St. 113. Counsel also invoked the rule, that if there are several notes protected by mortgage there |