554
THE GREEN BAG
the room under his control, and suffered it to be come offensive, having knowledge of its presence. MUNICIPAL CORPORATIONS (see Constitu tional Law). NEGLIGENCE. (Charities — Master and Ser vant.) Ky. — The Kentucky Court of Appeals has recently filed an opinion on rehearing in the case of Illinois Cent. R. Co. v. Buchanan, which is reported in 103 S. W. 272, wherein the court withdraws its former opinion, reported in 88 S. W. 312. In this case it appears that a railroad hospital corporation was organized as a hospital independent of the railroad. Its directors, how ever, were certain officers of the railroad. All employees of the railroad were, as such, members of the hospital organization, supporting it by monthly contributions. No profit was derived by the railroad from the conduct or operation of the hospital. The physicians, surgeons and nurses in charge were selected by the directors and officers. Suit was brought by an employee of the railroad to recover from it for damages sustained through unskillful and improper treatment received in the hospital. On the original hearing the court held that as the hospital corporation was a separate and distinct organization from the railroad the latter was not liable, but on rehearing, the court reaches a different conclusion. The liability of the railroad is based principally on the ground that the directors who have full charge of the hospital are appointed by the railroad company and that the employees have no voice in the management of the hospital. Under such cir cumstances the court holds the railroad company liable for negligence in failing to exercise reason able care in the selection of persons to have charge of the patients in the hospital. QUASI-CONTRACTS. (Mistake — Insurance.) Ia. — A case presenting an interesting point of insurance law is New York Life Insurance Co. v. Chittenden & Eastmen, 112 N. W. 96. In this case insured had been absent and unheard of for more than seven years, and an administrator had been appointed for his estate. A demand was made on the insurance company for the insurance and this was paid to the administrator and a creditor to whom an assignment had been made by insured. Afterwards it was discovered that insured was not dead. Thereupon the insurance company brought this case to recover the pay ments made, but as these payments had been made voluntarily by the company, the court held that it was not entitled to recover the insurance money paid. At the time payment was made both parties had equal knowledge as to the where abouts of insured and both assumed him to be dead. There was, therefore, no fraud or mutual
mistake of fact which would entitle the insurance company to recover. As an analogous case, the court cites Sears v. Grand Lodge, A. O. U. W. 163 N. Y. 374, 57 N. E. 618, 50 L. R. A. 204. PARTNERSHIP. N. Y. Sup. Ct. — In Voegtlin v. Bowdoin, 104 N. Y. Supp. 394, it appeared that defendant, the owner of a play and a patent on an air reservoir, which makes the play possible, contracted with plaintiff and another to give each a one-third interest in both the play and the patent, and that on securing a contract satis factory to him the three, as joint owners, should share equally all receipts, expenses and profits in connection with the development of plays and the use of the reservoirs. Such arrangement, the court held, constituted a joint adventure and made the parties liable as partners between them selves. Citing Wilcox v. Pratt, 125 N. Y. 688, 25 N. E. 1091; Mitchell v. Tonkin, 109 App. Div165, 95 N. Y. Supp. 669; Jones v. Walker,5i Misc. Rep. 624, 101 N. Y. Supp. 22. PARTNERSHIP (see Corporations). PRACTICE. (New Trial.) N. Y. S. Ct. — A case in which the court stretches a point in grant ing a new trial is that of Fogel v. Interborough Rapid Transit Co., 103 N. Y. Supp. 977, 53 Misc. Rep. 32. In this case plaintiff had sued to recover for personal injuries. The evidence was conflicting as to whether there was a fracture of the spinous processes of the vertebra;, which might be followed by permanent paralysis. A large verdict was rendered for plaintiff which on appeal was affirmed by the Appellate Division and by the Court of Appeals without prejudice to defendant to move for a new trial on the ground that paralysis had not occurred. Several years had passed since the trial, and plaintiff's physical condition showed that the opinions of experts that the injuries would result in paralysis were not well founded. It was held that under the exceptional circumstances of the case and in furtherance of substantial justice, a new trial would be granted, though the case did not come within the settled rules as to granting new trial on the ground of newly discovered evidence. PROPERTY. (License Irrevocable.) Miss. Sup. Ct. — In Frederic v. Mayers, 43 South. 677, it appeared that an owner of land agreed in writing that another might build an office for the publica tion of a newspaper on the land, and retain posses sion thereof as long as he used the same for a newspaper office. The newspaper publisher erected a building on the land and published a newspaper there for about two years. By suc cessive transfers the property then passed into the hands of another newspaper publisher who made improvements upon the land with the
