Imágenes de páginas
PDF
EPUB
[blocks in formation]

Published monthly during the Academic year, by students of the Yale Law School.
P. Ó. Address, Box 893, Yale Station, New Haven, Conn.

If a subscriber wishes his copy of the JOURNAL discontinued at the expiration of his subscription, notice to that effect should be sent; otherwise it is assumed that a contínuation of the subscription is desired.

LIABILITY OF MASTER FOR FAILURE TO WARN INEXPERIENCED SER

VANT OF DANGERS OF EMPLOYMENT.

In the late case of Fletcher Bros. v. Hyde, 75 N. E. 9, the Appellate Court of Indiana handed down an interesting opinion upon the question of the liability of a master, who, without instruction or warning, knowingly directed an inexperienced employee to aid in the moving of certain trusses and assigned to him a dangerous position, where, by reason of the breaking of the apparatus supporting the truss and the employee's ignorance of the method of handling the same, and of the proper manner in which to protect himself, such employee was seriously injured. It must be remembered that each state has its own regulations in regard to liability in such cases. Notwithstanding this, there seems to be a strong tendency amongst the authorities, as seen by the adjudicated cases, to the effect that the master is liable in such cases, even where the danger is obvious. Neither an employer or any other proprietor has a right to direct an employee to do a particular act, and expect that employee to take precautions against dangers unknown to him. It may frequently happen that the dangers of a particular position for, or mode of doing work, are great, and apparent to persons of capacity and knowledge of the subject, and yet a party from inexperience, ignorance, or general want of capacity and knowledge may fail to appreciate them. It would be a breach of duty on the part of the master to expose a servant of this character, even with his own consent, to such dangers, unless with instructions or cautions sufficient to en

able him to comprehend them, and do his work, with proper care on his part, with safety. A service which involves obvious dangers may be performed in comparative safety by one of experience, or sufficient instruction, while the same service will be attended with almost certain injury if attempted by one who has had neither experience or instruction. In such a case, the employer, who, with knowledge of the want of experience of an employee, nevertheless, without instruction or warning, exacts from him a service which requires the observance of extraordinary caution or the exercise of peculiar skill in order that an apparent danger may be avoided, may be liable for the injury, Ry. Co. v. Wright, 115 Ind. 378; Ryan v. Tarbox, 135 Mass. 294; Sullivan v. Man. Co. 113 Mass. 396. It is a well known rule that a servant when he enters upon employment which is from its nature necessarily hazardous, assumes the usual risks and perils of the service, and this is especially so as to all those risks which require only the exercise of ordinary observation to make them apparent. In such cases, there is held to be an implied contract on the part of the employee to take all the risks of the service, and to waive any right of action against the employer arising from such risks. Engine Works v. Randal, 100 Ind. 293. The severity of these principles, however, is relaxed measurably in favor of employees, in case the danger is not open to observation or ordinary inspection, or in case the employee is known not to be of sufficient capacity or experience to appreciate the dangers, or to know how to perform the requisite service, and yet avoid the obvious hazard. Pittsburgh v. Ry. Co. 105 Ind. 151.

or

It must be presumed that an employee will not undertake to perform labor or operate machinery concerning which he has no knowledge or experience. Hence, his willingness to undertake the work is sufficient to warrant the employer in assuming that he is competent, unless, as in the present case, it is shown that the master knows to the contrary. Nail Co. v Connelly, 8 Ind. App. 398

cases.

The decisions, however, in other jurisdictions seem to favor a less stringent rule in regard to the liability of an employer in such Thus it is held that the master is not bound to exercise the highest possible diligence to instruct the employee in every conceivable particular of the circumstances in which he might be placed, or in every possible detail of his conduct in the performance of his duties. The requirement in this respect is only that the employer exercise ordinary and reasonable care to see that the employee possesses a competent knowledge of the peculiar dangers to which he is exposed in doing his work, and the precautions necessary to be taken to guard himself against those dangers; and in the exercise of that care the master has the right to assume that the servant brings to the work ordinary intelligence and power of observation, and the capacity to learn something by observation. Oberlies v. Bullinger, 27 N. Y. Supp. 16; De Forrest v. Jewett, 23 Hun. 4. If the servant is ignorant of the method of operating certain machinery with which he is to work, it is his duty to inform the employer, and if he conceals his inexperience,

and undertakes to work with the machinery, with the operation of which he is unfamiliar, and is injured by reason of his inexperience, the employer is not answerable therefor. When a servant undertakes to engage in a master's service, and to perform certain duties, the master has a right to assume that he is qualified to perform the duties of the position he seeks to occupy, and competent to apprehend and avoid all obvious hazards of such service. Bellows v. Ry. Co. 157 Pa. St. 51. The great weight of authority, however, based upon a review of all the decisions seems to favor the strict application of the rule in regard to the master's liability and where he knows that the employee is inexperienced it is his duty to warn and instruct him, however obvious and apparent the dangers of the employment may be. Murphy v. Mairs, 6 N. Y. St. 42; Atkins v. Thread Co. 104 Mass. 431.

PERFORATED MUSIC ROLLS NOT SHEET MUSIC WITHIN MEANING OF COPYRIGHT LAW.

"Copyright is the exclusive right of the owner to multiply and to dispose of copies of an intellectual production." Drone Copyright, 100. Musical compositions were first protected under the statute 8 Anne, 18. In this country they were for the first time specifically protected in 1878. Musical composers had certain rights in their productions at common law, but now their rights depend wholly upon the provisions of the copyright act, such former rights having been superseded by statute. Holmes v. Hurst, 74 U. S. 82. An action for penal damages lies for the unlawful representation or performance of a dramatic or musical composition, and if the unlawful representation or performance is given wilfully and for profit, it is a misdemeanor, punishable by imprisonment for a term not exceeding one year. U. S. Comp. Stat. (1901), P. 3 415. The copyright in musical compositions is more extensively protected than the copyright in dramatic pieces. Russel v. Smith, 15 Sim. 181. The same principle which holds good in regard to books is applied to maps, charts, pictures, musical compositions, etc. The test is not whether the piratical production is an exact copy of the original, but whether it is substantially copied. Emerson v. Davies, 3 Story 768. It is true that in some parts of the statutes the words "book," "print," and "musical composition," refer to the intellectual conception as the essential element, and in other parts may refer more particularly to the material form in which it is expressed; but nowhere does either element exclusively exist, because no intellectual conception can be copyrighted until it has taken material shape. Oliver Ditson Co. v. Littleton, 67 Fed. 905.

The question whether or not perforated sheets of paper could be an infringement of copyrighted sheet music was first decided in 1888, by the case of Kennedy v. McTammany, 33 Fed. 584. In that case the defendant manufactured perforated papers which, when used in organettes, produced the music alleged to be pirated. As was said in that decision, to the ordinary mind it is certainly a

difficult thing to consider such strips of paper as sheet music. There is no clef, no bars, no lines, no spaces, nor any other marks such as are found in common printed music, but only plain strips of paper with rows of holes or perforations. They are not made to be addressed to the eye as sheet music, but they form a part of the machine. They are not designed to be used for such purposes as sheet music, nor do they in any sense occupy the same field as sheet music. They are a mechanical invention made for the sole purpose of performing tunes mechanically upon a musical instrument. Their use resembles more nearly the barrel of a hand organ or music box. It is said that sheet music may consist of different characters or devices, and that the perforated strips are simply another form of musical notation; but the reply to this is that they are not designed or used as a new form of musical notation. While it may not be denied that some persons by study and practice, may read music from these perforated strips, yet as a practical question in the musical profession, or in the sale of printed music, it may be said that they are not recognized as sheet music. In Stein v. Rosey, 17 App. D. C. 562, it was at tempted to be shown that the wax cylinder of a phonograph was an infringement upon sheet music. The court in that case corcluded that the marks upon the wax cylinder could not be made out by the eye and therefore could not be utilized in any other way than as parts of the mechanism of the phonograph. This peculiar use of a phonograph instead of copying the music in the sense of the copyright act, to the injury of the publisher, would rather seem analogous to that of one, who, having purchased the sheet music of the publisher, proceeds to perform it continually in public for his own profit.

The leading English case on this proposition is Boosey v. Whight, L. R. 1899, which was decided under an act defining copyright as "the sole and exclusive liberty of printing and otherwise multiplying copies." Here it was held that perforated papers, used in an Aeolian, which represented the instrumental music of certain songs, were parts of the instrument and not sheets of music within the act.

The late case of White-Smith Music Co. v. Appollo Co., 139 Fed. 4, which is analogous to the cases heretofore mentioned, decides that a written musical conception, which has been copyrighted is not infringed by a perforated record or sheet designed for use in an automatic piano-player. Much stress is laid upon the fact that the perforated paper is not a copy within the meaning of the act.

RECENT CASES.

ATTORNEY & Client-Lien-Priority-Set-Off. -SMITH V. Cayuga Lake CEMENT CO., 95 N. Y. Supp. 236.-Held, that where a judgment for plaintiff is wholly for disbursements incurred and services rendered by his attorney in correcting an erroneous decision, and plaintiff is a non-resident and insolvent, the attorney's lien for costs and compensation is superior to the defendant's claim for a set-off on a judgment in his favor rendered by another court in the same action.

The practice of courts, both in England and in this country, has differed widely in regard to this proposition. In England, the attorney's right to have his fees and disbursements paid out of the judgment obtained has long been recognized. Marshall v. Meech, 10 Am. Rep. 573. The courts of Common Pleas and Chancery held the lien subordinate to defendant's right of set-off. Taylor v. Popham, 15 Ves. 79. Later, these courts reversed their position and adopted the rule of the Court of King's Bench. Simpson v. Lamb, 49 Eng. L. & Eq. 59. The same rule was adopted by the Supreme Court of New York in the early case of Devoy v. Boyer, 3 Johns. 247. In the majority of states the attorney is deemed, to the amount of his lien, an equitable assignee of the judgment. Marshall v. Meech, 10 Am. Rep. 573. On the other hand, the courts of a few states hold the right of set-off is superior to the attorney's lien. McDonald v. Smith, 57 Ves. 502; Mosely v. Norman, 74 Ala. 422.

CONSTITUTIONAL LAW-Federal CourTS-HABEAS CORPUS-CONCLUSIVENESS OF STATE DECISION.-BROWN V. URQUHART, 139 FED. 846.- Held, that the decision of the Supreme Court of a state that a state prisoner is not held in violation of rights under U. S. Constitution is not conclusive upon a federal court, which may, in its discretion, determine the question for itself on a writ of habeas corpus.

The decision of the highest court of a state should be obtained and carefully reviewed before a writ issue from a federal court. People of N. Y. v. Eno, 155 U. S. 89. And the petition must clearly show an irreconcilable antagonism between the federal and state law, otherwise the writ will not issue. In re Hoover, 30 Fed. 51. A claim under a provision in a state law would not justify a writ of habeas corpus by a federal court. Gut v. Minnesota, 76 U. S. 35; In re Bresnahan, 18 Fed. 62: In ex parte Calvera, 1 Wash. C. C., a foreign minister, illegally confined under a proper state warrant, was refused a writ. A noted case was Whitten v. Tomlinson, 160 U. S. 231, where, although an indictment lacked the words "a true bill," and was found by the grand jury by mistake and misconception, the federal courts refused to interpose.

CONTRACTS-Promise to Answer for the Debt of Another-Statute of FRAUDS.-Smith v. Burdett, 95 N. Y. Supp. 188.—Held, that an oral agreement by an owner to pay for the work and material furnished by a sub-contractor in the construction of a building, in case the principal contractor neglected to do so, is unenforceable because within the Statute of Frauds.

The interest which the promisor has in the performance of a contract by another, or the benefit which he may derive thereby, cannot determine his lia

« AnteriorContinuar »