Notes of Recent Cases. question as to whether or not a telegraph operator was a fellow servant of a locomotive fireman. Justice Brewer, writing, the majority opinion, cites Northern Рас. R. Co. v. Peterson, 162 U. S. 346, 40 L. Ed. 994, 16 Sup. Ct. Rep. 843, wherein it was held that a foreman of a repair gang was a fellow ser vant with the men of the gang, and North ern P. R. Co. v. Hambly, 154 U. S. 349. 38 L. Ed. 1009, 14 Sup. Ct. Rep. 983, in which a laborer employed in a section gang and a conductor and engineer of a train were held to be fellow servants, and comes to the con clusion that a local telegraph operator and station agent of a railway company in observ ing and reporting by telegraph to the train dispatcher the movement of trains past his station is a fellow servant of a fireman on the train. Therefore, the negligence of the telegraph operator in reporting the move ment of trains to the train dispatcher, which caused the death of the fireman, was a risk which the fireman assumed on entering the railway company's employ. In a dissenting opinion by Justice White, in which the Chief Justice and Justices Harían and McKennn concurred, it was said that as the train dis patcher, to whom the erroneous report was sent, and who issued the order for the move ment of the train on which the fireimn was killed, was either a vice principal of the rail way or performing a positive duty of his master, the negligence, however occasioned, was the art of master and not the act of a fellow servant.
MUNICIPAL CORPORATION. (TREASURER'S BOND — LIABILITY OK SURETIES FOR MONEY ILLEGALLY COLLECTED.) SUPREME COURT OF MONTANA-
City of Philipsburg v. Degenhart, 76 Paci fic Reporter, 694. was an action by the city against the sureties on the official bond of the treasurer of the city to recover for a defi ciency in his account. It was shown that the treasurer had received and receipted for the moneys in question, as city treasurer and had acknowledged the receipt and holding of said moneys as moneys of the city by his
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monthly reports and accounts to the city; but the defence was that as the money was col lected from various gambling houses and houses of prostitution, which the officers and agents of the city had no right to collect, the city had no right to the money received from such sources, and the conversion and invest ment of such moneys was only the conver sion of money not belonging to the city. The court says, that, however reprehensible the conduct of the city officials was in col lecting the money, there was no showing, but that the money was paid voluntarily, and therefore could not be recovered from the city by the parties paying the same. Al though illegally collected it -was nevertheless the money of the city. It was paid to the treasurer, and he embezzled or converted it. The sureties on his bond contracted with the city against such conduct of the treas urer. It does not lie in their mouths to say that the money was paid illegally, and there fore does not belong to the city, or that it was so tainted with corruption that it would be violative of public policy to allow the re covery against the treasurer's bond. The mere fact that the money was collected without authority can make no difference in the liability of the sureties. This ques tion has been practically decided in the cases of Smith i'. Lovell, 2 Mont. 332, and Meagher County Commissioners v. Gard ner, 18 Mont, no, 44 Рас. 407. The court also cites Sutherland v. Carr, 85 N. Y. 105; Wylie v. Gallagher. 46 Pa. 452; Heope v. Johnson. 73 Cal. 265, 14 Рас. 833: Detroit Savings Bank <•. Zeigler, 49 Mich. 157, 13 N. W. 496, 43 Am. St. Rep. 456; Galbraith v. Gaines, ю Lea, 568. NEGLIGENCE. (OBSTRUCTION OF STREET — NEG LIGENT DEATH — PROXIMATE CAUSE-) COURT OF CIVIL APPEALS OF TEXAS.
Shippers' Compress & Warehouse Co. v. Davidson, 80 Southwestern Reporter, 1032, was an action to recover damages for the death of plaintiff's husband. Defendant had erected an inclined gangway across a street in violation of law. While plaintiff's hus
