The sun. [volume] (New York [N.Y.]) 1833-1916, 1914-02-22
NOVEL POINTS OF THE LAW.


one oifer,iig a w.i Tor pioUate 10 under
the buI Den VI proving rs ,x.s.ence AT
Vne tame OF the tes,stVi death Or that II
was iisuouiently destroyed III las Ite-
time.
wnere q ttstator 10 affected with
name Oppressive insanity" the burden
10 o.i The p.Oponent Va n.s VIII &c Prove
The testimony OF subscribing witnesses
to las, wal who have had nv pr,or
with t,statof Is not vi TIE
highest v, uer Oh All ,ssu. Of testaihentary
capacity. nor 10 u controii,ng when con-
trove, ted by better evidence
The supreme Court wui not tale cog
nixance ut SUIT Tor the CONSUMPTION ~
viii where complete renef can be
obtained In tho SuirUgates Court Thus
II viii not entertain n suit to Determine
how q residuary estate should be divided
where the matter may be determined ~
the Surrogate.
The MtcAtoan Lav Review makes the
following comment on the decision OF the
Supreme Court Of Nevada In Forester W.
Southern Pacific Company:
"P.Aintiff. a passenger, was wrongfully
elected from q train OF d'fendant COM
pany by q train agent. who humiiia.cd
and insulted him. Due to the exposure
following the election the pa ntifY be-
came SICK and died after this SUIT was
b, ought Held. In sustaining a verdict
for p.aintifYs Administrators for Hl.ll6,
that a principal 10 able for exemplary
damages for the wrongful, wanton and
opp essive acts OF his agents when act
ing within the scope of their employment.
although the particular acts were not au-
thoiised or ratified"
The Supreme Court OF Missouri In
Sh ppey vs. Kansas City makcs ruling
on the liability of municipality II IL
neglects proper precautions TO protect
pedestrians fiom falling billboards. The
court held that ~htre, In ped. strlan
action for injuries from the falling OF a
billboard erected On a lot near the edge OF
the side walk. plaintiffs evidence showed
that the posts were rotten and that the
board fell by reason thereof, the QUESTION
whether the city by ordinary care would
have discovered the defect IN time to nave
prevented the injury was for III. jury.
even though there was no superficial
appea rance OF ro,tenness In the parts
supporting the boa d and further. that
Y the city had no, exercised ordinary care
1t would be liable In damages Tor
plaintiffs Injuries.
In ingram vs. State december, 1918,
Is2 s. w, CO. the Supreme Court or
Arkansas, after noting that the tribunals
OF some States hold that any reference
in argument Of counsel to the fact that
the ACCUSED has not testified must be
pre- sumed to have wrought lrreparable
hahn to the defence, constituting reNersi-
BILE error. takes tho view that such mis-
conduct OF the prosecuting attorney was
cured where the court had charged that
the fact that the accused did not TESTIFY
could not be considered as circum-
stance against them and after the state
ment again charged the Jury not TO con-
slider II and the pros cutting attorney
himself Withdrew his statement and re-
quested the jury to disregard It.
In Peterson VS. Locomotive Engineer
ing Mutual Life and Accident lnsur-
ance, in the Supreme Court of MINES sofa.
It appeared that plaintir, locomotive
engineer. held an accident policy Issued
by defendant The bylaws precluded re-
covery for IAN invisible injury unless
certified to by medical expert desig-
mated by the association" Plaintiffs en-
gine was d., lied while running at d
rapid rate. He sustained only slight exter-
nal injuries. but there Is evidence tending
TO show that for nearly two years. be-
gnn ng few days after the accident
he was mentally deranged so as 20 unnl
Aim for duty. and that this condition
resulted from the acc dent. II was held
that il his condition could be ascertainet
by observat on or examination IL was a
visible injury within the meaning OF the
bylaw. The court said in part:
IT.. yr.l OF such a provision is Il
'rotc }. al urer against sham claim'
by bart.s the insured from recoverint
for a,logen iOuri,s OF which there Is M
proof except has own asset ton But Il
5 we'll set ~ that visible injuries
within the m-aning OF such a provision
are not limited to external injuries bu
also include any int rnal injuries th'
* Silence OF which may be ascertai inc,
/ through observation or eNamin ton. i
/ plain.ln's mental arrangement was sucl
| as to be observable and ccu'd be ascer
aimed by proper cxamjnat on we thnl
/ IT was a visible injury within the mean
1 ng OF the bylaw or course IL must b
shown to have ,sulted from the acc.den
before recovery can be had"
The Court OF Appeals has decided II
| Cert vs. Deiner that although "A mar
disappeared twenty five years ago afie
starting Oh prospecting trip through
! Colorado or Arizona. he could not b'
! presumed to be dead In the suit uf tn,
plaintiff TO compel the defendant a. carry
out an agleem.nt to buy real estate
/ Matthew Tivhe the man who disappes "a
became entitled to the life use OF Ger
tain property after he was lost to MI
relatives and the defendant contendc,
that IL she bought the property she wou
nave no defence In case Tighe appca 80
I and clalmed the property The cour
decided that under the circumstances tn
title was not marketable.
So far as Is possible TO state ru
applicable TO all kinds OF material foun'
upon a railroad right OF way, II seems &
be settled that railroad company
/ entitled to remove any mlterial when tn
safety or convenience OF the road re
quiIes such removal, ami also is entitle
to appropriate 80 much Of the materia
20 its own use as is reasonably nee, ssar,
for the construction and maintenance o
lts road at least for use on that par
Of the road but II has no right to sci
or give away such material to anothe
person.
The condemnation of n right Of way ~
/ railway PURPOSES Is held In the Indian
case OF Cleveland Cn'cinn9ti. Chcag
and 81 Louis Railroad Company vs.
Hadiey, a. l.. r, 4 IN 81 7G6. ,
include the right to use elsewhere p
much OF the earth, rock and gravel n
~ necessary or convenient to remove i
constructing or repairing the roadbed
The right of n physlcian To sell drug