Page:Harvard Law Review Volume 12.djvu/455

435 RECENT CASES. 431 N. W. Rep. 500 (Mich.); Healey v. Mut. Ace. Ass., 133 111. 556. The construction placed by the court upon the excepting clause appears to be in accordance with good sense and sound reason. The dissenting judge finds a conclusive analogy between the principal case and those cases in which it has been held that the exception in an in- surance policy of death from inhaling gas covers voluntary inhaling only. Paul v. Travelers' Ins. Co., 112 N. Y. 472. The result reached in those decisions is forced and technical but, granting their soundness, they cnnot be said to conclude cases like the present. It was found necessary in those cases to hold that the word "inhaling" implied a voluntary act, but no such notion can be imputed to the clause "resulting from poison," and hence the analogy fails. Master and Servant — Wrongful Discharge — Measure of Damages. — The plaintiff entered into a contract to serve the defendant for a year. He was wrong- fully discharged at the end of two months, and brought an action against the defendant before the expiration of the year. Held, that the measure of damages is the amount of the plaintiff's wages to the time of the trial, less what he had been paid and what he could have earned by reasonable efforts between the time of his discharge and the time of-trial. Sommer v. Conhaim, 54 N. Y. Supp. 146 (Sup. Ct., App. Term). The doctrine of this case is contrary to the English decisions and to the weight of American authority, and is wholly indefensible in principle. However, it has some support. Gordon v. Brewster, 7 Wis. 355; Association v. Wiedenman, 28 N. E. Rep. 834 (111.); Van Winkle v. Salterfield, 58 Ark. 617. The court base the refusal to allow a recovery for damages that may accrue between the time of trial and the expiration of the term of employment, upon the argument that such damages are so uncertain and contingent as to make it unsafe to attempt to estimate them. The argument is equally applicable in actions of tort for personal injuries in which prospective damages are constantly estimated. Curtis v. The Rochester, etc. R. R. Co., 18 N. Y. 534. The ob- jections to such a rule are obvious. The employee must elect to bring his action imme- diately upon his discharge and thus lose a large part of the damages to which he is entitled, or he must wait until the expiration of the term, and thus run the risk of loss of evidence and the solvency of his employer. Indeed, in certain cases he may be forced to sue before the term expires or have his action barred by the Statute of Limitations. As a matter of fact, while it is always essential that the damage should flow certainly from the defendants' wrongful act, certainty in the amount of the damage is never requisite to a recovery. Persons — Divorce — Attorney's Fees. — Plaintiff, an attorney, commenced a divorce suit for a wife, but the suit was dismissed through the collusion of the husband and wife, without the plaintiff's knowledge. Held, that the plaintiff is entitled to recover reasonable attorney's fees from the husband in an action at law. Ceccato v. Deutscham, 47 S. W. Rep. 739 (Tex., Civ. App.). It is generally held in this country that the compensation by the husband of an attorney for services rendered to the wife in conducting a divorce suit, is a matter solely within the discretion of the divorce court. Wescott v. Hinckley, 56 N. J. Law, 343, The reason given is that the contract of marriage is indissoluble at common law, and the husband cannot therefore be put under a legal obligation to provide for its dissolu- tion. Shelton v. Pendleton, 18 Conn. 417. The principal case, however, is in accord with the English decisions, which hold that such services are within the common law definition of necessaries. Brown v. Ackroyd, 5 E. & B. 819. This rule seems to be sound. Legal services essential to relieve the wife from physical or mental distress occasioned by the husband, are held to be necessaries for the wife. Conant v. Burn- ham, 133 Mass. 505. And services essential to secure or prevent the annulment of the contract of marriage, seem equally necessary. Otherwise the wife might be unable to obtain counsel to adequately enforce her rights. Property — Ejectment — Reservation of Title. — The plaintiff contracted to sell the defendant railroad company a right of way over his lands, reserving title to himself until the notes given for the purchase money should be paid. Held, that the plaintiff cannot maintain an action of ejectment after the railroad company, with the plaintiff's consent, has built its track across the land, even though the notes are un- paid. Atlanta, Knoxville, etc. R. R. Co. v. Barker, 31 S. E. Rep. 452 (Ga.). This is well settled law, and is based upon principles of public policy. In the present case actual authority was given to the railroad company, but it has been held that even where there was no actual authority, but where the individual merely acquiesced in the building of the road across his land as part of a continuous line, he is estopped from afterwards bringing an action of ejectment, even though he still