The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-11-01
NOVEL POINTS OF THE LAW.

an INJURY to passenger. although there
are mitigating circumstances. Is McHarg
vs.. Adt decided by the Appellate Divl-
sion. Third Department, in which II APP
peared that the defendant n physician,
had gone to his club and his wife drove
there later to meet him with the car. on
tho way she discovered an injured woman
by tho roadside. and fndin. that the
woman was too seriously hurt to he
moved the physicians wife directed the
chauffeur to find doctor. He got the
plaintiff. and was returning to the scene
when the car struck a wagon and the
plaintiff suffered injuries for which he
sued the owner OF the car The majority
OF the court ruled that the order by the
defendants wife TO the chauffeur to find
physician did not destroy the relation
OF master and servant between the chauf-
feur and the defendant. who was liable
for the chaufreurs negligence Tho dis
senting opinion said In part:
The ordinary instincts OF humanity in
the woman and not the act or volition
OF the wife. directed II. Perhap. any
chauffeur, In the absence OF the master
or tho masters wife. who found n per
son suffering as this woman was suffer
ing nj the roadside, ut the suggestion
Of any bystander or OF his own initiative,
would have used the car In going for
the doctor In such case the owner
could not be liable. II IA immaterial that
the humane instinct OF the wife, rather
than. that Of another. suggested that the
chauffeur bring the doctor. She was not
using the car or giving the order as the
representative OF her husband. II Is
carrying the rule OF respondent superior
too far 10 make the defendant liable under
the circumstances OF this case"
Tho Court OF Criminal Appeals OF Texas
In Brown VS.. State decided that In
prosecution for wife murder declarations
by the deceased to third persons that she
The court said:
"Appellant IN our opinion. makes the
mistake OF thinking II material in this
case to prove the state OF feeling or de-
ceased In this character OF case, where
ono was murdered by some one while
.he slept her state OF feelings would not
be n material inquiry. Deceased was
not being tried. hut Il was appellant. and
Il was his act conduct and state or feel
ing that was an issue In the case. and n
deceased ala love him this would not
provo nor tend 20 prove that he loved
her"
contrary ruling was made by tho SUI
prems Court OF Indiana In Petit VS..
state, which held that where ION prose
cution OF a husband for the murder OF his
wife the State relied on loss OF afrcct!on
for her and infatuatlon for another
woman. an affectionate letter. written by
the wife to the husband. Ii admissible
to disprove the existence Of a motive for
killing his wife"
The following comment on the met
that the will Of the late Justice Lurton Of
tho United States Supreme Court, drawn
by him. was not valid in the District ~
Columbia because he failed to comply
with necessary requirements concerning
witness In made by Henry Wollman.
the New York attorney:
Justice Lurton at the time Of his
death. and during practically all. II not
all, his life. was citizen Of Tennessee.
II IL valid under the laws OF that state.
will OF Il testator. In HIS own hand
writing. signed by him. but which Is not
attested by witnesses. would be void In
most States, for instance. New York. hut
such a will 1. legal. by specific statute.
In Tennessee. Generally speaking, Will
IL good as 10 real estate only when u
~ executed according To the formaliti's
prescribed by the laws ~ the state
whore the real esta,r il situated. hut
personal property passes under viii
that Is valid under the laws OF tho state
or country OF the residence ~ the tesla
tor. although II does not conform to the
laws Of tho State where the personal prop
erty actually in Justice Lurton's Will is
valid as to real estate h. owned In
Tennessee and as 10 any personal prop
erty that no owned in the District OF
Columbia or anywhere else"
noyrl state Of facts in suit over
an accident insurance policy Is revealed
IN Empire Life Insurance co. VS.. Johnson
before the Supreme Court Of Georgia. In
which tho court said in the syllabus:
Where a policy OF accident insurance
contains a condition that Il does not
cover cases where no accident or dis
ability results wholly or partly. directly
or Indirectly from voluntary exposure
10 unnecessary danger on the trial or m
action on the policy. the following In
rtructlon OF tho court TO the jury Is not
error. where the evidence authorizes such
charge: IF YOU believe that the plain
tins husband did not voluntarily cnt"r
into fight, but bccam, involved In .
by the fault 81 Zuber. and what he dld
was in defence OF himself. then such act
on the part OF the plaintiffs husband
would not bar her right TO recover the
whole amount OF the policy"
The evidence showed that Johnson. the
Insured. was standing on his porch when
the man who subsequently, killed him
stepped up on his porch and addressed
him In abusive language. Johnson then
slapped the man. who picked up piece
OF scantlins and struck Johnson as the
latter fred a pistol at him. The court
decides that Johnson did not voluntarlly
EXPOSE himself to unnecessary danger, he
cause his opponent had no weapon whrr
Johnson struck him. The case Is summed
M in the following concurrlnG opinion;
, "Whatever may have been tho truth
as to the facts Of the tragedy which re-
suited in the death OF the Insured, II Is
perf,Ntly clear, II seems 10 me, that the
turv were authorized by the evidence g