NEW YORK Ace. INS. eo.v. CLAYTON.
by reason of the form of the action to enforce it. So of a suit for a statutory penalty. An action against a married woman, who happened to own a mill site and tract of land, obligated to keep up a bridge over the runway of a mill stream at a public road crossing, would be in form ex contractu. I do not suppose the position would be taken that under the act of 1871 the married woman could own the land without being liable both to the obligation and its en· forcement, or that the act in question has the effect to prevent her acquisition of the mill property without the written consent of her husband. Obligations of this class are called by the civilians "quasi contracts," or, to use the more proper vocabulary of our own law, they arise from "constructive contracts," which Sir Henry Maine distinguishes from "implied contracts" in his AncieJ!t Law. Page 373. He says:
"It has been usual for English critics to identify quasi contracts with implied contracts; but this is an error, for implied contracts are true contracts, which quasi contracts are not. In Implied contracts, acts and circumstances are the symbols of the same Ingredients whlcb are symbolized in express contracts by words; and whether a man employs one set of symbols or the other must be a matter of indifference, as far as concerns the theory of agreement. But a quasi contract is not a contract at alL"
is very well elaborated in an article by Mr. Keener in the May (1893)
This distinction between "contract" and "constructive contract"
number of the Harvard Law Review. Inattention to it has caused the difficulty sometimes felt in discussing the liabilities of infants and lunatics, and particularly of reconciling the proposition, universally admitted, that a lunatic cannot contract, with his liability to an action on a contract. The liability of the defendant in this action is quasi contractual; is treated, for certain purposes growing out of the limitations of ancient forms of action, as contractual; but it does not arise from a contract, and is not affected by the act of 1871--72, supra. No state statute prohibited Mrs. Turrentine from being the owner of the bank stock in question as being a married woman. Could such a statute be found, it would perhaps conflict with the rights given married women by the state constitution, (article 10, § 6.) No law of the state, as I construe the state statutes, exempts married women from this assessment. If it did, such law would violate the organic law of the United States, unless it at the same time forbade her ownership of the stock. No objection is taken to the form of the suit, nor do I see that such objection, if taken, could be sustained. Judgment for plaintiff.
NEW YORK ACC. INS. CO. .oF CITY OF NEW YORK v. CLAYTON. (Circuit Court of Appeals, Eighth Circuit. December 4, 1893.) No. 320.
ACCIDENT INBURANCE-DEFENBES-VJOJ,ATJNG LAW.
A defense that the injury was sustained while violating the law by hunting on Sunday, contrary to a provision of the policy, need not be established beyond a reasonable doubt. A preponderance of evidence is sufficient.
of the appl1cant's occupation by a general agent of the !oompally,who has been fully Informed as to the facts, isblnding on the <::ompanY. Insurance Co. v. Snowden, 58 Fed. 342, and Irisurance Co. v. Robison, ld. 723, followed.
OF RISKS-ACTS. OF GEXERAI:. AGENT.
In Error to the Oircuit Oourt of the United States for the Western District of Missouri. Reversed. Wiliiatri H.Dowe,Grant R. Bennett, William D. Rusk, and J. M. for plaintiff in error. H. K. White,S. P.. Ruston, and T. H. Parrish; for defendant in errol'. and SANBORN, Circuit Judges.
'Circuit Judge. George W. Olayton, the defendant in error, br<mght an action upon a policy of accident insurance issued by the 'York Accident IusuranceOompanyof the Oity of New York,,rt:heplllintiffin error, to recover '2,500 for the loss of his right, foot by the aociden'1ial dtscharge ofa shotgun. The case was and . a judgment rendered 'against the .oompany. of the. defenses. to the .action was that the policy contained a stipulation that "this policy.does not cover injuriesj flltal or otherwise; cHli,ed wholly or in part, dir,ectly or indirectly, by any of the Violating the law;" and that when the accident.'happened the . insured .W'as hunting game on Sunday, . in violation' 'of section 3852 .of' the Revised Statutes of.MisBOuri, 1889, which pJ'oVides that:"
who shall either labor bJ,IDself, or compel 91," permit his apprentice or servant or any other persoJ:!. under his charge or ()OIltrol to labor orperfOl!l![HUiy work other than the )household offices of dally necessity, or otherW;0liks of necessity or charity, or, who shall be guilty of'hunting game or shootiI/:g on the first day of the commonly called· Sllnday, shall. be deemed gl1llty of a misdemeapor, and filled not fifty dollars."
\V.as evidence in support ()f this defense. The court charged the j'\lJ;y: that, in order tQ avail itself of this defense, the company must it beyond a: reasonable doubt. This was clearly erroneous. i; Where a criminal act is alleged in a civil suit, proof beyond'a .reasonable doubt is not required to warrant a verdict and decision .' support of the allegation. A preponderance of the sufficient. This is so well settled by the authorities in that it does not perm,it discussion. U. S. v. Shapleigh, 4 O. O. A. 237, 54 Fed. 126, 134; 1, Green!. Ev. § 13a, note; Kane v. Insurance 00., 17 Amer. Law Reg. (N. S.) 293, 297; Insurance 00. v. Wilson, 7 Wis. 169; Blaeser v. Insurance Co., 37 Wis. 31; Knowles v. Scribner, 57 Me. 495; Hoffman v. Insu::-ance Co., 1 La. Ann. 216j Schmidt v.lnsuranceCo., l Gray, 529; Young v.Edwards, 72.Pa. St. 257, 267; Insurance Co. v. Joh,nson, 11 Bush, 587; Rothschildv. !nsurance. 00., 62 Mo. 356; Bradish v. Bliss, 35 Vt. 326; Ellis v. Buzzell, 60 Me. 209; Folsom v. Brawn, 5 Fost. (N. H.) 114; Matthews v. Hu;ntley,9N. H; 146; Welch v; Jugenheimer, 56 8N. W. 673. . ' ..... Mqtlter ddense pleaded in the answer was that i,iJ. .hisapplication for 'insurance die insured had warranted that he was a merchant,
IN BE AH YOW.
when in fact he was a junk dealer; that a junk dealer belonged to a more hazardous class than a merchant, and could obtain fr(}m thi9 company but $300 insurance against death, and but $100 against the loss (}f a foot, while a merchant could obtain, and this defendant in error did obtain, if he was properly insured as a merchant, $5,000 insurance against death and $2,500 against the loss of a foot. There was, however, evidence tending to show that the agent of the cOllllpany who solicited the application was fully informed of, and well knew the character of, the business and of the occupation in which the insured was engaged when he took his application; that he desired the general agent to classify this risk; that he took the application from the insured, signed in blank, so far as the occupation was concerned, for this purpose; that he stated to the general agent of the -company the character of the business and occupation of the insured, and the general agent then classified him, and wrote the word "merchant" into the application, to describe his occupation. On this application the policy was issued and the premium paid. Some portions of the charge of the court upon this state of facts are assigned as error. We shall not pause to state or review them, as the case must be retried in any event. We content ourselves with citing Insurance Co. v. Snowden, 58 Fed. 342, and Insurance Co. v. Robison, Id. 723, where the rule we deem applicable to this class of cases, and the reasons for it, are stated. The judgment below is reversed, and the cause remanded, with directions to grant a new trial.
In re AH YOW.
(District Court, D.· Washington, N. D.
January 16, 1894.)
A restaurant proprIetor, who keeps a place for serving meals, and provides, prepares, and cooks raw materials to suit the tastes of his patrons, is a laborer, and is not privileged to enter the United States as a merchant.
At Law. Petition for habeas corpus in behalf of Ah Yow, a Chinese passenger detained by reason of the refusal of the collector of customs to permit him to land in the United States. Denied. Frank Hartley Jones, for petitioner. W. H. Brinker, U. S. Atty. HANFORD, District Judge. The petition for a writ of habeas corpus in this case is filed in behalf of a Chinese passenger on board the steamship Tacoma, and sets forth that said Chinese person is proprietor of a restaurant in Seattle, to which place he is now returning from a visit to China, and that he is unlawfully detained on said vessel by the master thereof, for the reason that the collector of customs has refused to permit him to land in the United States; and, in the argument, counsel for thf>petitioner insists that a restaurant keeper is not a ''laborer,'' in the sense in which that v.59F.no.5-36