Page:The Green Bag (1889–1914), Volume 17.pdf/204

 NOTES OF RECENT CASES along the same through the iron pole to the ground. Plaintiff's intestate was injured while climbing the telegraph pole by stepping upon the spike which was in contact with the feed wire of the traction company. Both the telegraph com pany and the traction company were joined as defendants and contended that this was erroneous because no joint negligence was shown. After quotation of authorities stating in general terms the principle that if persons acting independently by their several acts contribute to produce a single injury, each being sufficient to have caused the whole, they are joint tort feasors, holds spe cifically that upon the facts alleged the omissions of the two defendants were concurrent and con tributed to produce a single injury, each being sufficient to have caused the whole, so that if either had performed the duty which the law im posed upon it, the accident would not have oc curred.

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LIFE INSURANCE. (DEATH WHILE IN VIO LATION OP CRIMINAL LAW — ENCOUNTER BROUGHT ON BY ASSURED.) ARKANSAS SUPREME COURT. The insured in a policy exempting the insurer from liability if death is caused by the violation or attempted violation of any criminal law is not required, like the common law self-defender, to re treat to the wall when he encounters an unlawful personal difficulty, but he preserves his insurance from forfeiture if he is engaged in retreating from the scene of hostilities at the time death overtakes him instead of encountering the king of terrors face to face while aggressively continuing the dis turbance. So says the Supreme Court of Arkan sas in Supreme Lodge K. P. against Bradley, 83 S. W. Reporter, 1055. Bradley was the insured in such policy and, meeting an ancient enemy of his at the entrance of the Court House one frosty January morning, "smote him between the joints of the harness" with a piece of iron, whereupon the party attacked, retreating a few steps, contin ued the hostilities with a pistol. At this juncture, JUDICIAL NOTICE. (VACCINATION — POLICE Bradley, remembering some such maxim as the ancient one, "Discretion is the better part of POWER.) valor," or the more modern one that "A live cow NEW YORK COURT OP APPEALS. ard is better than a dead hero," or possibly re The Court of Appeals of New York has given calling the forfeiture clause of his insurance policy, additional support to the doctrine announced precipitately retreated, choosing the sheriff's some time ago that courts will not pretend to be office as sanctuary. Bradley 'was killed by a more ignorant than ordinary persons. In Vie- shot which took effect in the back after he had meister v. White, 72 Northeastern Reporter, 97, commenced his retreat, and in an action on the it is held that the court will take judicial notice of policy, it was insisted that if there was a causa tive connection between the assault and the death, the fact that it is the common belief that vaccina tion is a preventive of smallpox, and on this the death was the proximate result of the assault. ground, Laws 1893, p. 1495, c. 661, as amended by To this contention the court replies that it con tains the fallacy that an assault will be repelled Laws 1903, p. 1484, c. 667, § 2, constituting sec tion 210 of the Public Health Law, is upheld as with more than iawiui force, and while this is often a valid exercise of the police power. This statute the case, it is not the result to be naturally ex excludes children not vaccinated from the public pected under the law, which calls for the repulse schools, until they are vaccinated, and in addition of the assault by only such force as may be neces to holding that a common belief, like common sary to overcome it. Therefore, argues the court, knowledge, does not require evidence to establish when Bradley made his attack the other party its existence, but may be acted upon without was justified in overcoming that attack, and, if proof by the courts, it is held that the possibility necessary to do so, in taking Bradley's life, so that that the belief may be wrong, and that science a death resulting while so lawfully resisting the may yet show it to be wrong, is not conclusive attack would be the natural result thereof, and there would be a causative connection between against the validity of the law, because the legis the assault and the death, or, in other words, the lature has the right to pass laws which, accord ing to the common belief of the people, arc adapted attack would be the proximate cause of the death. to prevent the spread of contagious diseases. But as in this case Bradley fled from the conflict and received the mortal wound in the back while What the people believe is for the common wel fare must be accepted as tending to promote the escaping, the other party was not justified in in common welfare, whether it does, in fact, or not. flicting it; his act in so doing was unlawful, and It is also decided that this requirement is not in hence the first violation of the law by Bradley contravention of Const., art. 9, § i, providing for was not the proximate cause of his death, but the free common schools, wherein all the children of subsequent unlawful act of the person he assaulted was the proximate cause. the state may be educated.