St. Louis, March 5, 1926

LIABILITY OF HUSBAND FOR INJURY TO WIFE DUE TO HUSBAND FALLING ASLEEP WHILE DRIVING AUTOMOBILE

In the case of Bushnell v. Bushnell, 131 Atlantic 432, decided by the Supreme Court of Errors of Connecticut, it appeared that the plaintiff and defendant, husband and wife, were riding together in an automobile, which he was driving. The plaintiff had been asleep for some minutes at the time of the accident, and the defendant fell asleep momentarily, with the result that the automobile ran off the highway and struck a tree at the side of the road, with consequent injury to the plaintiff. It was contended, first, that a wife cannot maintain an action against her husband to recover damages growing out of his negligence; secondly, that the parties were engaged in a joint enterprise at the time of the injury; thirdly, that the defendant could not be held to have been negligent because the accident was due to the fact that he momentarily dropped off to sleep while operating the automobile; and, fourthly, that the plaintiff was guilty of contributory negligence.

There was, a judgment in the lower court in favor of the plaintiff for $2,000.00, which was sustained on appeal provided a remittitur of $300.00 was made. The court held that it was of no consequence whether or not the plaintiff and defendant were engaged in a joint enterprise, as the driver of the vehicle engaged in a joint enterprise is liable for his negligence to an associate who is injured thereby. The fact that the defendant fell asleep was sufficient to submit the question of his negligence in so doing to the jury.

On the question of the defendant's neg

court as follows:

"In such a case, the question must be, Was the defendant negligent in permitting himself to fall asleep? Helton v. Alabama Midland R. Co., 97 Ala. 275, 284, 12 So. 276. The defendant argues that, granted that premise, then he cannot be charged with negligence because no man can tell when sleep will fall upon him. It is probably true that one cannot ordinarily fix with certainty upon the precise moment when he lapses into unconsciousness, but it is not true that ordinarily sleep comes unheralded. Purves Stewart, in his 'Diagnosis of Nervous Diseases' (3d Ed.), p. 423, thus describes the chief phenomena of ordinary healthy sleep:

"Firstly, there is diminution and then loss of conscious recognition of ordinary stimuli, such as would ordinarily attract our attention, whether these stimuli be derived from the outer world or from within the sleeper's own organism. There is also, as consciousness is becoming blunted, a characteristic and indescribable sense of well-being. Voluntary movements become languid and ultimately cease and the muscles of the limbs relax. Meanwhile there develops double ptosis or drooping of the eyelids; the pupils contract; the respiratory movements become slower and deeper, the pulse is slowed, the cutaneous vessels dilate to a slight extent and the general temperature of the body falls, whilst many

processes of metabolism, such as those of digestion and of certain secretions are retarded.'

"Particularly would this be true where the onset of sleep is due to the prolonged action of a uniform excitant, associated with little voluntary movement and a large degree of muscular relaxation, acting upon one who has become more or less fatigued and is sitting down in a warm atmosphere. 66 American Journal of Physiology, pp. 83, 84. Sleep in such a situation does not come upon one unawares, and, by watching for indications of its approach or heeding circumstances, which are likely to bring it about, one may either ward it off or cease an activity capable of danger to himself or to others. There are few ordinary agencies so fraught with danger to life and property as an automobile proceeding upon the highway freed of the direction of a conscious mind, and, because this is so, reasonable care to avoid such a danger requires very great care. Mulligan v. New Britain, 69 Conn. 96, 102, 36 A. 1005; Brown v. New Haven Taxicab Co., 93 Conn. 251, 257, 105 A. 706; Walters v. Hansen, 99 Conn. 680, 683, 122 A. 564; Tower v. Camp, 103 Conn. 41, 46, 130 A. 86.

"In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent. It lies within his own control to keep awake or cease from driving. And so the mere fact of his going to sleep while driving is a

proper basis for an inference of negligence

sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven. Carlson v. Connecticut Co., 85 Conn. 724, 112 A. 646; Sliwowski v. New York, N. H. & H. R. Co., 94 Conn. 303, 309, 108 A. 805; 1 Shearman & Redfield, Negligence, § 58a et seq.; posthumous paper of Ezra Ripley Thayer, 29 Harvard Law Review, 807. If such circumstances are claimed to have been proven, it then becomes a question of fact whether or not

the driver was negligent; and, in determining that issue, all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach. 5 Wigmore, Evidence (2d Ed.) § 2491. The trial court was right in leaving the issue to the jury as one of fact, but it might properly have gone farther and called attention to the last-mentioned feature of

the case.

As to the plaintiff's contributory negli gence, the Court said:

"It is agreed that the plaintiff was asleep at the time of the accident and had been for some time before. The defendant claims that the evidence establishes these further facts: The defendant was in his sixty-first year. He and the plaintiff, with their son, left Thompsonville to drive to Providence at 4:30 in the morning, and the son had driven the automobile until that destination was reached. The plaintiff and defendant soon set out on their return; the latter driving. They had planned to stop at Danielson for lunch, but, finding no acceptable place to procure it, drove on. The day was a warm, drowsy spring day. The sun at times shone into the automobile, particularly on the driver's side. The car was a closed car and all the windows were shut except that next the driver's seat. The road was smooth and dry, and the traffic light. The engine of the car had a particularly musical hum, and the plaintiff felt drowsy and sleepy; in fact she fell asleep before noon, and continued asleep until the accident, which took place about 12:30. The defendant was an experienced driver, had never before fallen asleep while driving, had seldom felt sleepy, and on this occasion had no warning of sleepiness and felt no drowsiness. Accepting these as the proven facts, they do not show that as a matter of law the plaintiff was guilty of contributory negligence, for they fall far short of establishing any obligation upon her part to exercise an oversight as to the way in which the automobile was being operated, to keep a lookout for impending

danger, or to watch against sleepiness on the part of her husband. Clarke v. Connecticut Co., 83 Conn. 219, 221, 76 A. 523; Weidlich v. New York, N. H. & H. R. Co., 93 Conn., 438, 441, 106 A. 323; Sampson v. Wilson, 89 Conn. 707, 708, 96 A. 163; Duffy v. Bishop Co., 99 Conn. 573, 578, 122 A. 121. These being the only ways in which she might have been instrumental in preventing the accident, she cannot, as matter of law, be charged with any breach of duty which materially contributed to bring it about. The issue was rightly submitted to the jury by the trial judge as one of fact, under adequate and proper instructions.

NOTES OF IMPORTANT DECISIONS

LIABILITY OF CITY FOR NEGLIGENCE OF AGENT CAUSING INJURY BY WILD ANIMAL IN ZOO.-The Supreme Court of Mississippi, in Byrnes v. City of Jackson, 105 So. 861, holds that a city maintaining a zoo in a public park, keeping therein wild and dangerous animals, is responsible in damages for the negligence of its officers and agents by which persons visiting the park are injured by such wild animals. In part the Court said:

"It seems to us that the rule making it the duty of the city to exercise reasonable care to make its parks reasonably safe places for people to resort to, and making the city liable for negligence, is the better rule. Certainly it would not be the rule of wisdom to permit a city to fill its parks with dangerous and ferocious animals without having it exercise a high degree of care, if not absolute liability in keeping them safely confined. It is insisted by the appellee that the zoo is a part of the education of the public, and that educating the people is a governmental function, and that no liability exists against the city for negligence in this regard.

"It cannot be the law that the city can place in its parks ferocious and dangerous animals by which the safety, and even the lives, of the public would be endangered without requiring the city to keep such animals securely confined. As a general rule persons having animals wild by nature and of ferocious disposition are required to keep such animals confined absolutely, or pay for any damage sustained by a failure so to do. This court held in Phillips v. Garner,

106 Miss. 828, 64 So. 735, 52 L. R. A. (N. S.) 377, that persons possessing such animals are under the absolute duty to keep them safely confined. The same rule was recognized in Ammons v. Kellogg, 137 Miss. 551, 102 So. 562.

"While the city may be maintaining the zoo for educational purposes, it is not such an education as the city is required by law to furnish to the public. There is no mandatory duty upon the city to either maintain a park or to keep a zoo therein. The right is permissive rather than mandatory, and we think when the city undertakes to maintain a zoo, and to keep therein dangerous and ferocious animals, it must be held to the strict duty of keeping them safely, and that it was negligence on the part of the keeper to chain the bear in the present case in the open park with a chain 6 or 10 feet in length tied to the bear, giving it such a range, and therefore capacity to do harm, of the circumference of a circle of which this chain is the radius."

FUMES FROM A STILL COMING FROM A PRIVATE RESIDENCE DO NOT JUSTIFY A SEARCH WARRANT.-In the case of Staker v. United States (C. C. A., 6th Cir.), 5 F. (2d) 312, it appeared from the testimony that the prohibition agents, while passing in Maysville, Ky., along the public street or highway and past defendant's house, which was used and occupied by him as his dwelling, detected the odor of cooking mash emanating from the basement, made affidavit before the police judge and secured a warrant to search the dwelling house; in the affidavit it was alleged that the affiant is a general prohibition officer, and that he has smelled the fumes from a still making intoxicating liquors, and that he has reasonable grounds to believe and does believe that intoxicating liquors are being sold, manufactured, disposed of, or illegally possessed in a house, building, and premises owned or controlled by John H. Staker and described and located as follows: 1417 Forest avenue, Maysville, Ky., one-story frame. A 12-gallon still was found in operation in the cellar, and also some moonshine whisky and wine. There was a door leading into the cellar from the outside, but as this was padlocked the cellar could not be entered without going into the house.

Holding that the search warrant was improperly issued, the Court said:

"The search warrant must be deemed invalid, because there were no allegations of fact in the affidavit upon which it was issued which would tend to show that the dwelling house had ever been used for the unlawful sale of intoxicating

liquor, or that any part thereof was used for some business purpose within the meaning of the section of the National Prohibition Act above quoted. Not only were there no allegations of fact in the affidavit, but the affidavit merely alleged that the affiant had reasonable ground to believe and did believe that intoxicating liquors were being sold, manufactured, disposed of, or illegally possessed in the house of the defendant. In view of the use of the disjunctive "or," it did not even contain an unequivocal general allegation or conclusion which would warrant the issuance of the search warrant.

"It seems clear that the statute does not authorize the issuance of a search warrant for a dwelling house merely because it is being used for the manufacture of liquor. Jozwich v. U. S. (C. C. A.) 288 F. 831 (C. C. A. 7); Singleton v. U. S. (C. C. A.) 290 F. 130 (C. C. A. 9); Voorhies v. U. S. (C. C. A.) 299 U. S. 275 (C. C. A. 5). Cf. Carroll v. U. S., 45 S. Ct. 280, 69 L. Ed. March 2, 1925. Whether, if the evidence adduced were sufficient to indicate that the magnitude of the manufacture was of such a degree as fairly to necessitate the conclusion that the manufacture was but a step in the sale or marketing of the product, a search warrant could properly issue, we are not called upon to decide, inasmuch as no such evidence was adduced at the time the warrant was se cured. It is not enough that facts as subse quently shown would have sufficed for the issuance of a warrant. Such facts must be alleged as a basis for the issuance of the search warrant to give the latter validity.

"Furthermore, although in fact the affidavit was made immediately after the facts were discovered, the affidavit itself is silent as to the time element. So far as the affidavit shows, the officer might have smelled the fumes months before the affidavit was made. See Rupinski v. U. S., 4 F. (2d) 17 (C. C. A. 6), February 4, 1925. The officers had no probable cause to believe from the smell alone that the dwelling house was being used for sales. The situation did not justify a search without a warrant. The policy of the statute goes far to restrict the right of searching a dwelling even with a warrant. Such policy cannot be frittered away by granting a broader right of search without a warrant.

"The government attempts to justify the search on the ground that peace officers have the right to arrest and search a person committing a criminal offense in their presence. Leaving aside the question whether prohibition agents are peace officers (see Brady v. U. S., 300 F. 540 [C. C. A. 6]; Agnello v. U. S., 290 F.

was.

671 [C. C. A. 2]), the offender was not in the presence of the officers, and there is no evidence that they had reason to suspect that he (Temperani v. U. S., 299 F. 365 [C. C. A. 9]). Moreover, it may be questioned whether, in cases of misdemeanor, a peace officer or a private person has any power of arresting without a warrant, except when a breach of peace has been committed in his presence, or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence. Wilgus, Arrest without Warrant, 22 Mich. Law Rev. 541, 673, 798, especially 703-709. There is no evidence here of any breach of peace, existing or imminent, which would justify the exercise of powers sanctioned by the common law only in situations of emergency. See Carroll v. U. S., supra. In Agnello v. U. S., supra, McBride v. U. S. (C. C. A.) 284 F. 416 (C. C. A. 5), and Garske v. U. S. (C. C. A.) 1 F. (2d) 620, the search was justified as incidental to a lawful arrest."

MEETING OF THE DELAWARE STATE BAR ASSOCIATION

The annual meeting of the Delaware State Bar Association was held January 8th. Mr. Josiah Marvel, of Wilmington, has been President of the Association three years, and asked to be relieved, but his desires were unavailing, and he was re-elected for this year.

Mr. Charles C. Keedy, of Wilmington, was elected as Secretary; and Mr. Thomas C. Frame, Jr., of Dover, as Treasurer.

Widower with eight children marries widow with seven children.-News Item.

That's not a marriage-just a merger.

A well-known political leader in the Middle West completed a full course of study in veterinary surgery, but never practiced. He branched out into politics. During a campaign his political enemies referred to him with mingled sarcasm and scorn as "the Vet," and one day at a heated debate one of them asked, "Are you really a veterinary surgeon?" "Why do you ask?" queried the quick-witted politician. "Are you ill-Everybody's Magazine.

"Sedentary work," said the college lecturer, "tends to lessen the endurance.''

"In other words," butted in the smart student, "the more one sits, the less one can stand."

"Exactly," retorted the lecturer, "and if one lies a great deal, one's standig is lost completely."-Christian Guardian.