The theory of police power to sustain such a statute is fully demonstrated in the opinion in the German Alliance Insurance case, supra, but independently of that it hardly ought to be deemed true, that if an assured found it impossible to pay a loss. before he could call upon the company, that such impossibility should acquit the company of all obligation to pay. Lex non cogit ad impossibilia is on the same grade of inherent justice as are its companion maxims, and contracts must be very explicit to exclude its application-especially when no enforcement of contractual right is violated thereby.

All of this is outside of the theory that contracts of this kind provide for interposition between litigants of a party, who by reason of damage sued for have nothing but a contractual right between a company and only one of the litigants to interpose. This interposition, as we have several times contended in this Journal, smacks strongly of common law barratry. A statute easily might designate it such and receive constiional approval. That the law of Mass chusetts still allows a casualty company to have exclusive control over a case brought against an assured ieaves it in better position, than it leaves an ordinary volunteer interfering in something where he has no standing in court. We very heartily commend the Massachusetts statute to other states as being generally more beneficial than the ruling out of such interposition as these companies assume to exercise. It helps along in the protection of the public against irresponsible tort feasors. Indeed, a condition of licensing, say, automobile drivers, should be the giving of a bond for the benefit of those or their representatives they may maim or kill, it specifically providing that a company giving bond may, under contract with assured, defend any action brought against the assured.

LANDLORD AND TENANT-KNOWLEDGE BY INDEPENDENT CONTRACTOR OF DEFECTS IN BUILDING.-It is held by Kentucky Court of Appeals that knowledge by an independent contractor, employed by landlord to make improvements on a building, of dangerous condition is not imputable to the latter in leasing same. R. C. H. Covington & Co. v. Masonic Temple Co., 197 S. W. 420.

In this case the premises were leased while one of its walls was slightly out of aplomb at

the time the building was being repaired. The contractor thought, however, the foundation was not safe at the corner, but the wall was sufficient to sustain the weight of a beam supporting another wall. Therefore, this inde pendent contractor did nothing to remedy the defect in the wall and said nothing to the landlord about the matter. During the tenancy the wall collapsed, because of its defective condition existing at the time of the letting, causing damage to plaintiff's stock in the building.

The Court said: "Any knowledge possessed by the contractors could not be imputed to the appellee (landlord) unless they had imparted such knowledge to it, as the evidence shows they were independent contractors and not servants of the appellee. The work was done by them under a written contract and in ac cordance with plans and specifications, and they were answerable to the appellee for the result of the work only. An independent contractor is defined to be one who contracts to do a piece of work according to his own ideas, or in accordance with plans previously furnished to him by his employer, and has the right to select his own assistants, the em ployer having no control over the hands doing the work, further than to require that it shall be done in compliance with the plans and specifications under which it is contracted to be done."

The theory upon which this case proceeds is that the landlord being liable for renting dangerous premises to one innocently taking possession, where the danger is not apparent or discoverable upon reasonable inspection, yet he is relieved therefrom, where this knowl edge is not known to him or his servant, but only to an independent contractor who is not his servant. We do not believe the principle in this exception is sound.

The principle that one is not liable for the acts of an independent contractor or of his servants committed in the course of the work done by him or them is well established. But

even this is qualified by the fact that the independent contractor is competent and there has been due care in his selection. Noggle W. & M. Co., Mo. App. 183 S. W. 659. But this is different from authorizing one as independent contractor to leave property in a condition dangerous to others. As for example the court last cited held that responsibility for damage caused by a threshing machine inherently dangerous by reason of its defective condition could not be avoided by principal employing an independent contractor. Johnson v. J. I. Case Thrshing M. Co., 182 S. W. 1089. Also a city has been held liable for removal of lateral support of an abutting lot owner in improving a street though the work was done by an independent contractor. City of Cincinnati v. Filser, 2 Ohio App. 394, 35 Ohio C. C. 487. And so where an independent contractor placed a wire where a pedestrian stumbled over it, city was held liable. Henry V. Saratoga Springs, 155 N. Y. Supp. 942, 171 App. Div. 827.

Such illustrations as we have instanced show there are delegable and non-delegable duties. As to the former the independent contractor theory may constitute a defense; as to the latter not. But his knowledge acquired in the course of his employment may be knowledge of employer, because he is the servant of the employer in acquiring that knowledge. The employer puts him where he learns of a condition dangerous to the public, and impliedly the independent contractor is told to advise his employer thereof. The very fact that there exists such an exception, as that the independent contractor must be selected with proper care, shows that employer is not acquitted altogether merely by employing such a contractor.

CARRIER-DAMAGES FOR DELAY PREVENTING SHIPPER FROM COMPETING FOR PRIZE.-In Kansas City M. & O. R. Co. v. Bell, 197 S. W. 322, decided by Texas Court of Civil Appeals, it was held, that damages for loss of prize money at an exhibition of live stock at a stock show were not too remote and speculative to be recovered.

The Court said: "An analysis of the authorities on this question may be found in Sutherland on Damages (4th Ed.) § 71. According to this authority, it is now the rule in England, established by the case of Chaplin v. Hicks (1911), 2 K. B. 786, that, where one by the wrongful act of another is deprived of the opportunity of competing in a contest where prizes are to be awarded to successful

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contestants, he may recover the value of the opportunity to compete. In the case of Adams Exp. Co. v. Egbert, 36 Pa. 360, 78 Am. Dec. 382, it was recognized that the plaintiff, in a proper case, might recover the value of his opportunity to compete, where by wrongful acts defendant deprived the plaintiff of this opportunity. In the case of Western Union Tel. Co. v. Crall, 39 Kan. 580, 18 Pac. 719, it was held that: 'No damages ought to have been allowed based upon the probability of the horse being able to win prizes in trotting races.' Frequently, preparations are made at considerable expense for entry in exhibitions and contests, where prizes and premiums are to be awarded, and it appears to us that the chance which a competitor has of being awarded a prize or premium in such contest is a right which may be of value, and that one wrongfully impairing or destroying such right ought to be held liable therefor in damages." If anything could be deemed of a purely speculative character, it would seem that the chance of carrying away a prize or premium is such. The chance does not lie in any view an outsider other than the judges might take as to the merits of an entry for a prize. Therefore, a jury may not pass upon such a fact. It is purest guess what the judges might determine.

The Court further says: "It is true it is difficult to determine the value of this chance, but ordinarily difficulty in ascertaining the amount of damages resulting from the violation of a right is not an insuperable obstacle to recovery. The chance might be worth little or nothing, or it might be worth, under some circumstances, the full amount of the premium offered for the best of the class in which plaintiff was to be a competitor."

Analyzing this reasoning, we think it demonstrates there should be no recovery. In the first place, if there were only one prize to be awarded, plaintiff's chance is worth that or nothing. If there were two prizes it would be worth first, or second or nothing and so on if there were more than two prizes. There is, therefore, not so much difficulty to determine value as there is to say with any sort of certainty that there can be submitted any proof that plaintiff can show he had any chance, simply for the reason that it cannot be shown how judges would have acted in awarding the prizes. Lawyers know it is quite difficult even in such a science as the law to foretell which way judges of the law will decide, and it has been said that no one may predict the verdict of a jury.

MENTS OF THE LAST FIVE YEARS IN THE LAW OF CARRIERS OF GOODS IN INTERSTATE COMMERCE-PART I-DECISIONS PRIOR TO THE CARMACK AMENDMENT.

Prior to the enactment of the Hepburn Act in 1906, the rights and obligations of shippers and carriers of goods in interstate commerce were largely controlled by the statutes and common law of the particular state the law of which was applicable. The decision of a state court could not be reviewed by the federal Supreme Court because of the absence of a federal question.1 True there was a body of law which may be called the general common law obtaining in the federal courts, which was applied by the federal courts in cases where no state law controlled but in the great bulk of cases the federal law did not come into play.

After the enactment of the Hepburn Act, certain provisions of section 20 of which are known as the Carmack Amendment, this situation was completely changed, though it was some time before the profession and the public concerned awoke to the farreaching character of the change..

Provisions of the Hepburn Act were relied on, as changing the pre-existing law, by the plaintiff in error in Southern Ry. Co. v. Reid,3 (January, 1912), where a state statute imposing penalties for failure of a carrier immediately to receive shipments was held invalid as applied to an interstate shipment, the decision being rested upon. provisions of the Act to Regulate Commerce, primarily upon that provision of the Hepburn Act (Sec. 1 of the Act to Regulate Commerce as amended) which re

(1) Pennsylvania R. Co. v. Hughes, 191 U. S. 477.

(2) Hart v. Pennsylvania R. Co., 112 U. S. 338; Adams Express Company v. Croninger, 226 U. S. 504; M. K. & T. Ry. Co. v. Harriman, 227 U. S. 657.

(3) 222 U. S. 424.

reasonable request, by which provision Congress was held to have assumed exclusive control of the subject matter involved.

There was grave doubt of the constitutionality of the Carmack Amendment until its validity was sustained by the Supreme Court, (January, 1911), in Atlantic Coast Line R. Co. v. Riverside Mills. It was then, of course, realized that the initial carrier could be held liable for the default of its connecting carrier in case of loss or damage to goods shipped in interstate commerce, but it was not until the decision of the Supreme Court in Adams Express Company v. Croninger, (January, 1913), that it began to be seen that the Carmack Amendment had placed the whole subject of loss and damage to interstate shipments within the aegis of federal law, and that a federal question existed in every such case by virtue of that enactment. In the Croninger case it was held that the shipper of an express package which was lost in interstate transit could not recover its full value but was bound by the valuation stipulated in the receipt and provided, as a limitation upon the amount of recovery, in tariffs duly established under the Interstate Commerce Act by filing with the Interstate Commerce Commission. While the court discussed and relied upon the Carmack Amendment, the decision might well have been rested, altogether aside from the provisions of that amendment, upon the provisions of section 6 of the Act, authorizing and requiring carriers to show in their tariffs filed with the Interstate Commerce Commission all "rules or regulations which in any wise change, affect or determine the value of the service rendered to the passenger, shipper, or consignee," the provision of such tariffs fixing the valuation of the goods in accordance with the rate paid, and the provisions of the Act

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(4) 219 U. S. 186 (See G. H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, and N. & W. Ry. Co. v. Dixie Tobacco Co., 228 U. S. 593).

(5) 226 U. S. 491.

making rates and provisions required to be and shown in duly established tariffs binding upon shipper and carrier.

was

The court's decision, however, placed upon the ground that the effect of the Carmack Amendment was, in case of loss or damage to freight shipped in interstate commerce, to supersede state law and to substitute therefor the federal law declared by the Carmack Amendment. The effect of this Amendment is, in addition to the imposition of liability upon the initial carrier in case of loss or damage caused by a connecting carrier, in effect to incorporate the general common law obtaining in the federal courts into a legislative enactment and to codify it as the body of law exclusively controlling the subject matter.

6

The Croninger case was followed in Missouri, K. & T. Ry. Co. v. Harriman, where a provision in an interstate bill of lading requiring suit to be brought within a limited time, which had been held invalid by the Texas courts applying the Texas law, was tested by the federal law and upheld.

The effect of the Act to regulate commerce as amended by the Hepburn Act is illustrated by the following cases.

In Chicago & Alton Ry. Co. v. Kirby, it was held that an agreement by a carrier to give a shipment special service or an expedited movement was invalid in the absence of a tariff provision providing for terms open to all.

In Kansas City Southern Ry. v. Carl, the limitation of value contained in the bill of lading and tariff restricting the amount of recovery in case of loss of or damage to household goods was held to be valid and binding."

In Chicago, R. I. & P. Ry. Co. v. Hardwick Farmers Elevator Co.,10 it was held that the provision of the Hepburn Act (Section 1), requiring carriers "to provide and furnish transportation upon reasonable request therefor" nullified a staute of Minnesota imposing penalties for failure to furnish cars within a specified time.

A similar case was St. Louis, &c., Ry. Co. v. Edwards,11 in which a statute of Arkansas penalizing the carrier for failure to give notice of arrival of goods to the consignee was held invalid by reason of the provisions of Section 1 of the Hepburn Act.12

Prior to the decision in Charleston, &c., Ry. Co. v. Varnville Furniture Company,18 carriers had been subjected to an increasing burden by reason of state statutes imposing penalties for failure to pay freight claims (for loss, damage, or overcharge), within a specified time.1 In that case such a state statute was heid invalid as applied to interstate shipments because inconsistent. with provisions of the Hepburn Act.

In Cleveland &c., Ry. Co. v. Dettlebach,15 it was held that the limited valuation stipulated in the bill of lading and provided for in the tariff was applicable and binding though the goods had reached destination and were held by the railroad company as warehouseman.

In Southern Express Co. v. Byers,10 an action for damages for mental suffering

gage); Atchison, etc., Ry. Co. v. Robinson, 233 U. S. 173; Pierce Co. v. Wells Fargo Co., 236 U. S. 278 (limited valuation of automobiles); Cleveland, etc., Ry. Co. v. Dettlebach, 239 U. S. 588 (see infra); Cincinnati, etc., Ry. Co. v. Rankin, 241 U. S. 319 (see infra); New York, etc., R. Co. v. Beaham, 242 U. S. 148; Western Transit Co. v. A. C. Leslie & Co., 242 U. S. 488( see infra). (10) 226 U. S. 426.

growing out of delay in the transportation of a corpse in interstate commerce, the court held that under the federal law such damages were not recoverable.

In New York, P. & N. R. Co. v. Peninsula Produce Exchange," it was held that the Carmack Amendment imposed liability upon the initial carrier for loss in market value of a shipment of perishables due to delay on the line of a connecting carrier. In supporting this construction of the

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amendment the Court referred to Act of January 20, 1914,18 which provides "that no suit brought in any state court of competent jurisdiction against a railroad company to recover damages for delay, loss of, or injury to property received for transportation by such common carrier under Section twenty (Carmack Amendment) of the Act to Regulate Comshall be removed to any court of the United States where the matter in controversy does not exceed, exclusive of interest and costs, the sum or value of $3,000."

merce

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Southern Railway Co. v. Prescott19 is an interesting and important case. Nine boxes of shoes consigned in interstate commerce to Prescott at Edgefield, S. C., were destroyed by fire while in possession of Southern Railway Company at that point. After notice of arrival of the goods at destination, consignee paid the entire freight charges, receipted for the goods, and removed four boxes leaving the remaining nine to be removed later, the agent testifying that he made no charge for storing them. In this situation the goods were burned. The railway company contended that the question of its liability was controlled by federal law and that under that law, after proof by it of the destruction of

the goods by fire, the burden of proof was upon the plaintiff to prove that the railway company's negligence caused or contributed to the loss. The trial court held that the contract of transportation had been consummated; that the goods were being held under a new and separate contract; that the South Carolina law was applicable and controlling; and that the burden was upon the railway company to prove that it was not guilty of negligence. The Supreme Court of South Carolina affirmed the judgment of the trial court. The United States Supreme Court reversed the decision of the State Supreme Court, and sustained the contentions of the railway company, declaring that the holding of the goods as warehouseman was a part of "transportation" within the meaning of Section 1 of the Hepburn Act, that the federal law governed the case to the exclusion of the state law, that the tariff provisions could not be altered by the parties, and that the plaintiff had failed to carry the burden to prove negligence imposed upon him by federal