it will not be presumed that the evidence which was undoubtedly in the case, as to the time of the defendant's visits, placed them on evenings other than those named
This is impolitic because it will have a tendency to diminish the courting industry. It is immoral be cause it will inspire young men to turn the lights down or out. It reminds one of a recent excellent jest in "Life." A young man applied to a stern father for permission to call on his daughter, which was ac corded, but with the warning, <' Remember, young man, I always turn out the gas at ten o'clock." " All right, sir," replied the young man; ".I will be care ful not to call before that hour."
SLEEPING-CAR COMPANY'S LIABILITY. —A novel point was ruled in Pullman Palace Car Co. v. Gavin, Tennessee Supreme Court, June, 1893. The action was for money given to plaintiff by the parents of a young woman who had been put in his care, for her travelling expenses, and stolen from him by the porter of the sleeping-car i n which they were travelling. It was held that he could maintain the action. The court observed on this point: — "It has been held in this State that an actual and ex clusive possession by a party, even though it be by a wrongdoer, is sufficient to support an action of trespass against a mere stranger or wrongdoer, who has neither title to the possession in himself nor authority from the legal owner (Criner v. Pike, 2 Head, 397). 'Ordinarily,' says the court in that case, 'the party in possession is either the owner of the property, or answerable over to the owner; and in either case he is entitled, not only to dam ages for the taking, but also for the value of the property. This is the general rule. A defendant has been allowed to prove, in mitigation of damages, that the goods did not belong to the plaintiff, and that they have gone to the use of the true owner, either by being restored to him in specie, or taken upon legal process in payment of his debts, for in such case the plaintiff is not answerable over. Hut Mr Sedgwick thinks the principle of these decisions has been carried quite far enough, . . . and that it will not do to permit acts of wilful or wanton trespass to be excused by the defence of outstanding titles in third per sons.' See also Logan 7. Coal Co. (9 Heisk. 690), where it is held that ' mere possession is a sufficient title upon which to maintain trespass against a mere wrongdoer ' (Crawford v. Hynum, 7 Yerg. 381). Miss Kelly having been placed in charge of Mr. Gavin, the latter had become the depositary of this money, for the purpose of defraying her current expenses, as they arose upon the journey. It has been held that members of the same family, travel ling together, may carry each other's effects (Dexter v. Railroad Co., 42 N. Y. 326; Curtis». Railroad Co., 74 N. Y. 116). We think that Miss Kelly, having been placed in charge of Mr. Gavin, was pro hoc vice, for the purposes of the journey, a member of his family, and that a gentle
man in charge of ladies on such an occasion was their protector, and the proper custodian of their money and personal effects intrusted to him. In this view of the case, we think it unnecessary to determine whether, at the time the theft was committed, the money was the property of Miss Kelly or her father, Martin Kelly. The proof shows the money was in the actual possession of Gavin, as its rightful depositary."
It has even been held that a thief may maintain an action against another who steals the stolen goods from him. The principal decision is in the true line of gallantry, and tends to promote civility to woman travelling alone. THE ALCOHOL HABIT. — A beneficent decision is that in Grand Lodge, etc. v. Belcham, Illinois Supreme Court, April, 1893, that where on an appli cation for life insurance, to the question, " To what extent does the person use alcoholic stimulants?" the answer of the insured was, " None; " a reasonable construction of the question and answer implied more than an occasional use of alcoholic stimulants, and that to invalidate the contract of insurance there should be, to some extent at least, a habit or custom as to such use. The court observed: — "The language embodied in the application must receive a reasonable construction, one within the contemplation of the parties 'at the time the contract of insurance was consummated. What was the purpose of requiring the insured to stale in the application to what extent he used alcoholic stimulants, tobacco and opium? But one object can be perceived, and that was to guard against the risk which might arise from insuring the life of one who was in the habit of using the articles, or either of them, to such an extent as to imperil the health and life of the individ ual. If a man drank a glass of liquor or smoked a pipe of opium or a cigar once a month, it is too plain to admit of argument that such a use could not endanger the life of the person, and that such a use was not within the con templation of the parties when the contract of insurance was entered into by the parties. It may be that the lan guage of the question and answer in regard to the use of alcoholic stimulants, if given a strict and technical con struction, might be interpreted that the insured did not use alcoholic liquors at all. But, in our opinion, an in surance company propounding a question of that char acter should not be allowed to indulge in a strict and technical construction; but, on the other hand, the lan guage should receive a fair and reasonable construction, a construction which would imply more than an occasional use. There should be, to some extent at least, a habit or custom. This is the rule established in Van Valkenburg v. A. P. L. Insurance Co., 70 N. Y. 605, and we think it the correct one."
The case of Meacham v. N. Y. etc. Ass'n, 120 N. Y. 237, is in the same line.
