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THE GREEN BAG
INSURANCE. (INJURIES DURING CONSTRUC TION OF BUILDING — "CONTINGENT LIABIL ITY" OF OWNER) N. Y. SUPREME COURT, APPELLATE TERM. The head-note to the case of Sroka v. Frankfort American Insurance Company of New York, 94 New York Supplement. 501, would seem to state a rather startling proposition. It is as follows: "A policy insuring the owner of a building in process of erection against loss from common law or statutory liability arising from the ' con tingent liability ' of the assured as owner, for dam ages on account of injuries accidentally suffered by any person in connection with and during the construction of the building, caused by the act or negligence of any contractor or subcontractor, imposes no liability on the insurer." The proposition that the document purporting to be a policy imposes no liability of any kind on the insurance company seems, however, to be substantiated by the opinion in the case, wherein it is said that the somewhat elaborate verbage of the policy is well calculated to induce in the mind of a layman a belief that he is obtaining an insurance against something in return for the premium he pays, but that, as a matter of fact, the words are meaningless. "The insurance." says the cour;, " s against contingent liability" f< r the act or negligence of a contractor or subcon tractor. There is no such liability known to the law. The owner may be liable in a given case for the result of an accident, but his liability in such a case will be original and not contingent. A suggestion by defendant's counsel that the policy was intended to cover the cost of investiga ting claims and defending actions when the owner was wrongfully sued for injuries caused by the contractor or his workmen is met by the state ment that it is not apparent why the defendant admitted that much liability, unless for mere shame's sake in order to avoid the appearance of having given nothing for the premium received but that, even in that event, the "contingent liability" against which the policy purported to insure was limited to the owner's "common law or statutory liability" and that the expense of defending an unfounded claim was neither a common law nor statutory liability. In saying that "the words are meaningless," it is possible that the court was discouraged too easily. The language of the policy indicates an intention that the underwriter shall assume the liability which may be cast upon the assured in the future by reason of accident; and as the liability of the assured has not yet accrued, and can never accrue except upon condition that an
accident shall happen and that an injury shall result therefrom, the liability may naturally enough be called "contingent." Eugene Wambaugh. INTOXICATING LIQUORS. (INTERSTATE COM MERCE — FRAUDULENT SHIPMENT) KENTUCKY COURT OF APPEALS. Crigler v. Commonwealth, 87 Southwestern Re porter, 276, contains a holding relative to the Interstate Commerce Act, which is analogous to several cases which have been previously de cided, but which involves facts which are some what different from those in any previously decided case which we have noticed. Whisky manufactured in Kentucky was sent by the dis tiller to Ohio, for the express purpose of having it reshipped from that state into a section of Kentucky where the local option law was in force, and where orders for the whisky had been taken by the distiller's agents. Quoting from Austin v. Tennessee, 179 U. S. 343, 21 Sup. Ct. 132, where Mr. Justice Brown says that the doc trine of original packages has no application where the manufacturer puts up the. package with the express intent of evading the law of another state, it is held that the fraudulent in tent of the distiller in the present case prevents a reshipment from Ohio to Kentucky from con stituting a subject of interstate commerce. Prima facie, transportation from Kentucky to Kentucky by way of Ohio is interstate commerce. Hanley v. Kansas City S. Ry. Co., 187 U. S. 617 (1903). Quaere whether this would be true in case the very place of shipment and the very place of destination were identical. In the principal case the places were different; and hence the rule in the case just now cited is applicable, unless some other distinction can be taken. The distinction upon which the decision proceeds being the mere intent to evade the statutes of Kentucky, it may be interesting to inquire whether the legal result would be the same where the intent was wholly or partly to obtain for the liquor the improvement sometimes supposed to result from transportation. Possibly it is a needless refinement to distinguish between the case where this improvement can be obtained from transportation within the state of manufacture, and the case where it can be ob tained only through subjecting the liquor to the climate of another state. It is of greater practical importance to notice that in the principal case the shipment was from the Kentucky manufacturer to his own Ohio agent, and then from that same agent to a Kentucky customer, and that, conse quently, the decision does not directly solve the
