674
THE GREEN BAG
allow certain specified persons to obtain possession of the information, did not constitute a monopoly.
statute involved in the present case was obliga tory upon federal courts sitting within that state.
FEDERAL PRACTICE (State Statute.) U. S. C. C. A. gth Circ. — In Northern Pacific Railway Company v. Kempton, 138 Federal Reporter, 992, plaintiff sued for damages resulting from delay in the transportation of live stock, the contract of shipment being made in Minnesota to a destina tion in Montana. This contract contained a stip ulation providing a sixty-day limit for an action thereon, which stipulation would be void under the express provisions of Montana Civ. Code, Sec. 2245, but was not prohibited by the laws of Min nesota where the contract was made. Plaintiff was a resident of Montana and brought suit in that state, after the expiration of the sixty-day limit. The suit was removed by the defendant to the Federal Court sitting in Montana. Under these circumstances it was held that the Federal Court would not enforce the stipulation limiting the time for the bringing of an action, it being said on the authority of Missouri, K. & T. Trust Company v. Krumscig, 172 U. S. 351, 19 Supreme Court Reporter, 179, that the benefit of the pro hibition against the stipulation was a substantive right belonging to plaintiff of which he could not be deprived by removing the case to the Federal Court.
INSURANCE. (Policy — Immediate Peril.) Ky. — Two questions of importance, one of which is almost, if not entirely, novel, are decided in Roch ester German Ins. Co. v. Peaslee Gaulbert Co., 87 Southwestern Reporter, 1115. A building which was insured against loss or damage by fire until noon of a certain day, caught fire at 11.45 A.M. of that day by standard time which was 12.02* by sun time. A question most naturally arose as to what was meant by noon. On this point it was argued that noon was but another name for a physical phenomenon such as sunrise or sunset, but the court holds that this is not the case and that it is used to express merely practical approxi mation and does not necessarily refer to the actual fact. There was evidence in the case that in some lines of business, particularly that of bank ing, in the city in which the insured property was situated, sun time was still in use, although for most business purposes standard time was em ployed. On this state of facts the court holds that it was necessary to submit to the jury the question whether or not there existed a custom or usage with reference to the meaning of the word "noon" which was so well-settled and uni formly acted on as to raise a presumption "that both insurer and insured contracted with reference to it. If such a custom existed it is held that it would govern in determining whether the policy was expired when the loss occurred. Authority for this proposition is found in the similar case of Jones v. German Ins. Co., no Iowa, 75, 81 X. W. 1 88. and in the earlier and somewhat analogous case of Finnic v. Clay, 2 Bibb. 351. The question referred to as. novel, arose from the consideration of when the loss must have occurred in order to be covered by the policy and the court instructed that if the fire did not reach the building before noon, but at noon the destruc tion of the building from the fire already in exis tence elsewhere was inevitable, the loss -was cov ered by the policy. This is held to be erroneous, the Appellate Court observing that the risk as sumed by the insurer was that of loss or damage pending the term of the insurance and not merely peril without loss during the term of the policy. It is said, however, that if the fire broke out in the insured building before the policy expired and continued to burn thereafter until it was totally destroyed, the loss was one occurring within the insured period. In the language of the court, "a damage begun is damage done, where the culmination is the natural and unbroken se quence of the beginning." The line between the
FEDERAL PRACTICE. (State Statutes.) U. S. C. C. A., 3d Circ. — A case somewhat in contrast with that preceding, is that of Doll v. Equitable Life Assurance Society of the United States, 138 Federal Reporter, 705. In this case it is held that a statute of another state, where a life insurance contract is made, prohibiting a physician from disclosing any information acquired in attending any patient in a professional capacity, which in formation was necessary to enable him to pre scribe for such patient as a physician, affects the remedy only, and hence is inapplicable in an action on the policy in a federal court sitting in another state. In this case the court also takes the posi tion that Rev. St. U. S. Sec. 721, providing that the laws of the several states, except where other wise provided, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply, did not apply to the objection to the competency of the physi cian under the statute of the state where the policy was executed. The case of Connecticut Mutual Life Insurance Company v. Union Trust Company, 112 U. S. 250, 5 Supreme Court Re porter, 119, is distinguished, and it is pointed out that the holding therein merely is that the state
