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"Rollestone v. Cassirer, 3 Ga. App. 161 (1907); Brown v. American Steel &
Wire Co., 43 Ind. App. 560 (1908); Guille v. Swan, 19 Johns. (N. Y.) 381 (1822).

I'Griggs V. Pledcenstein, 14 Minn. 62 (1869); Pearl v. Macaulay, 6 App. Div.
(N. Y.) 70 (1896); Williams v. Koehler & Co., 41 App. Div. (N. Y.) 426 (1899);
Amend v. L. & N. W. R. R. Co., 91 Neb. i (1912); CSahill v. Stone Co., 167 Cal.
126 (1914).

«*See also Matter of Waters v. Taylor Co., 213 N. Y. 248 (1916).

"Ehrgott V. Mayor, etc., of City of New York, 96 N. Y. 264 (1884).



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NOTESiANDjCOMMENT 275

to believe that they will be willing to agree with Cardozo, J., when he
says in the Wagner case, "The law does not discriminate between
the rescuer oblivious of peril and the one who counts the cost. It
is enough that the act, whether impulsive or deliberate, is the child of
the occasion."

William K, Laidlaw, '24

Torts: Pre-natal injuries: Right of an infant to sue. — While
plaintiff was en ventre sa mere his mother was injured by falling into a
coal hole left open through the defendant's negligence. Hadmtiff,
who was bom eleven days later in deformed concfition, brings action
for damages.

It was held, Drobner v. Peters, 232 N. Y. 220 {1921), Cardozo J.,
dissenting, that the plaintiff had no cause of action, reversing Drobner
V. Peters 194, App. Div, (N, Y.) 6q6 {1921), which was criticized
favorably at the time, with a review of the authorities in 6 Cornell
Law Quarterly 341. In the previous note authorities were collected
which held that it is a crime to kill an infant in his mother's womb,
that an infant could sue on a death statute for the death of a parent
who had been killed while the infant was en ventre sa mere, and that
he is considered a being in esse as having property rights. In addition
it may be pointed out that Massachusetts has allowed an infant to
recover a sum of money promised his father by a third party in con-
sideration of naming the infant after him, holding that, in making the
contract, the father acted as the agent of the diild who was at the
time of the promise in his mother's womb.^

The Court of Appeals has denied recovery because of (i.) lack of
authority, (2.) practical inconvenience in proof and possibility of
injustice, and (3.) because plaintiff had no separate entity apart from
his mother at the time the accident occurred and so was owed no duty
of care. There being no express authority, it would seem a proper
case for the court to have disregarded the physiological aspect of the
child being part of its mother and to have aUow^ recovery. The
greatest objection would seem to lie in the Court's second reason for
denying recovery, i. e., the difficulty of proof. How is it to be es-
tablished that defendant's negligence was the cause or that there was
no intervening cause between the time of the accident and the plain-
tiff's birth which may have contributed to his deformity? It is
submitted, however, that there is a difference between the sub-
stantive right and the adjective means of proof of causation. It
seems unjust that the infant should go through life deformed as the
result of the defendant's negligence with no right of recovery therefor
in a case where the train of causation can be indisputably established.

The court did not favor the granting of relief where none existed at
common law and thought the Legislature the proper body to correct
any apparent lack of justice. It is but another instance in which the
Court of Api)eals has been reluctant to innovate. The court denied
recovery in the so-called "right of privacy" cases* and also in cases
where physical injury resulted from nervous shock without actual

Kjardner v. Denison, 217 Mass. 492 (1914).

'Robertson v. Rochester Folding Box Co., 171 N. Y. 538 (1902).



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276 THE CORNELL LAW QUARTERLY

physical impact.* Both lines of decisions have been criticized and the
former has been remedied by statute* while recovery is now allowed
in the latter where the tort was intentional.* In regard to the
difficulty of proof, the English court has said in criticism of the New
York and Masachusetts courts* decisions upon the right of recovery
for phjrsical injuries resulting from mental shock, "Such a course
involves the denial of redress in meritorious cases, and it necessarily
implies a certain degree of distrust, which I do not share, in the
capacity of legal tribunals to get at the truth in this class of claim.***
So in the instant case if the right is denied absolutely, would not the
infant be remediless if the injury were intentional and there were no
difficulty about the exactness of the proof?

It would seem that to have allowed recovery would not have
subjected the court to the criticism of having encroached upon the
legislative functions, and would have fumish«i a decisive answer to
the criticisms that our common law cannot keep pace with advancing
civilization.^

Arthur H. Dean, '23

Trials: Constitutionality of section 457a of the New York Civil
Practice Act providing that a judge may direct a verdict when he
would set aside a contrary verdict as against the weight of evidence. —

Prior to 1 90 1 there had been an apparent conflict in the decisions in
this state as to whether a judge might direct a verdict when he
would set aside a contrary verdict as against the weight of the evi-
dence.^ The conflict was settled by McDonald v. Metropolitan
Street Railway Co,,^ which stated very emphatically that the rule for
directing a verdict and setting aside a verdict were not and could not
be the same unless the ri^ht of trial by jury is to be partially if not
wholly abolished. The statutory change of the practice as established
in the McDonald case squarely presents the question whether, as
intimated in that case, the constitutional right of trial by jury has
been interfered with.

At the outset it must be admitted that the jury has never had the
unlindted right to finally determine all questions of fact. The
court has always exercised a wise control over that body in the
interest of justice. The dividing line between the functions of the
court and of the jury has frequently been said to be that the court
decides the law and the jury the facts. But a contract is no less a

•Mitchell V. Rochester Ry. Co., 151 N. Y. 107 (1896).

*Civil Rights Law, sec., 50, 51 .

•Williams v. UnderhiU, 63 App. Div. (N. Y.) 223 (1901); see 5 Cornell Law

QUARTBBLY 489.

•Kennedy J., in Dulieu v. White & Sons. L. R. (1901) 2 K. B. 669, 681.

'For notes on subject see 76 Cent. L. J. 351 (19 13); 18 Law Notes 88 (1914);
34 Har. Law Rev. 549 (1921) favoring giving infant remedy but maldng rules of
I»oo£ strict; 26 Yale Law Jour. 315 (1917); *Wrf, Vol. 30, p. 770; ibid, Vol. 31
P 563.

^That he could: Bulger v. Rosa, 119 N. Y. 459 (1890); Linkauf v. Lombard,
137 N. Y. 417 (1893). That he could not: Colt v. Sixth Ave. Ry. Co., 49
N. Y. 671 (1872); Sagley v. Bowe, 105 N. Y. 171 (1887); Luhrs v. Brooklyn
Heights R. K., 11 App. Div. (N. Y.) 173 (1896).

•167 N. Y. 66 (1901).



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NOTES AND COMMENT 277

fact because it is in writing and yet there is no doubt but that under
our system it is error for a coiut to permit the jury to construe a
written contract oflEered in evidence. Our constitution provides the
test as to the constitutionality of any innovations in our procedure
when it states: "The trial by jury in all cases in which it has been
heretofore used shall remain inviolate forever; ♦♦♦."» The question
then is as to what degree of freedom the jury had obtained at the
time our constitution was adopted.

It seems dear that before the adoption of our constitution there
was no practice either in this cotmtry or in England of directing a
verdict.* The motion for a directed verdict is not, however, without
precedent. It is the logical successor of the old demurrer to the
evidence, which was analogous to the present demurrer upon the
facts alleged in the pleadings. The party demurring had to admit
the truth of all the evidence against him ; and if this were circumstan-
tial, he was bound to admit every fact in favor of his adversary whidi
the circumstances might reasonably tend to prove. Unless he did
so, the other party was not bound to join in the demurrer.? Like
the demurrer on the pleadings only the evidence demurred to was
considered.* The constitutionality of the demurrer to the evidence
has been challenged but its constitutionality has been upheld on the
ground that "the province of the jury is to weigh the evidence, but
when there is no disputed facts in the record, there is nothing to be
weighed.'*^ And "tf the facts upon which the plaintiff relies are
uncontroverted and are expressly admitted by the defendant, to-
gether with all legal and reasonable inferences that may be deduced
Sierefrom, it is difficult to perceive what function is to be performed
by the jury in the settlement of such agreed facts."* And it has
been stated that the motion to direct a verdict is in effect a demurrer
to the evidence and should be governed by the same rules.

The main distinction between the two has been that if a demurrer
is not sustained the parties have no right to go to the jury whereas
if a motion to direct a verdict is refused the party making the motion
still had the right to go before the jury on the facts.*

The motion to direct a non-suit is somewhat analogous to the
motion to direct a verdict and it has also developed from the old
demurrer to the evidence. The effect, if the motion is sustained, is
to prevent the case from going to the jury but it does not ordinarily
prevent the plaintiff from bringing a new action upon payment of
costs.*® Since a new action may be brought on obtaining more

'Article I, sec. 2.

*In Appleton v. Sweetapple, 3 Dougl. (Eng.) i J7 (1782), there were four trials
and four venlicts for the plaintiff and yet no motion for a directed verdict for the
defendant was made.

•Gibson v. Hunter, 2 H. Bl. (Eng.) 187 (1793); 2 Tidd's Practice, 865-«67.

•Reynolds v. Baldwin, 93 Ind. 57, 59 (1883); Hart v. Calloway, 2 Bibb (Ky.)
460 (181 1).

Hopkins V. Railroad, 96 Tenn. 409, 420 (1896).

•Jrf., p. 420.

•See Eberstadt v. State, 92 Tex. 94 (1898) for a comparison between the motion
for a directed verdict and a demurrer to the evidence.

^•An important change is to be noted in the Civil Practice Act as to the effect
of the court directing a non-suit. The rule in the past in this state has been that



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278 THE CORNELL LAW QUARTERLY

evidence there is not a final determination of any issue by the court
and there is therefore no question in such a case of depriving a
party of his right to jury tiial.

Section 549 of the Civil Practice Act^* provides that: **The judge,
presi<Ung at a trial by a jury, may, in his discretion, entertain a
motion, made upon his minutes, at the same term, to set aside the
verdict or a direction dismissing the complaint and grant a new trial
upon exceptions; or because the verdict is for excessive or insufficient
damages, or otherwise contrary to the evidence, or contrary to law."
In interpreting this section the courts of this state have uniformly
held that a trial judge should not set aside a verdict tmless he be-
lieve that no body of reasonable men could have brought in the vadict
which the jury has brought in." He has no right to set aside the
verdict simply because he does not agree with the jury. This in-
terpretation seems to be the general rule in this country." California
and Idaho appear to have a rule that the trial coiut may set aside a
verdict whenever in his opinion the verdict returned by the jury is
not the proper one from the evidence." This rule apparently origin-
ated in a statement in Graham and Waterman on New Trials, in
which the authors go on to say: **in granting a new trial, it [the
court] does not assume that the verdict is, but that it may be wrong.""
The reason for the New York and majority rule in this country is
stated in Layman v. Anderson,^* where the court says: "If the verdict
of a jury may be set aside in any case where the court is not satisfied
as well as the jury, then the court may as well dispense with the
jury altogether and make the decision itself." From the language of
the McDonald case it would seem that the Cotut of Appeals had in
mind the California rule, for it says: "The rule that a verdict may
be directed whenever the proof is such that a decision to the contrary
might be set aside as against the weight of evidence would be both
uncertain and delusive. There is no standard by which to determine
when a verdict may be thus set aside. It depends upon the discretion of
ihe court,'* And again it says in that case: "While in many cases,
even where the evidence is sufficient to sustain it, a verdict may be
properly set aside and a new trial ordered, yet, that in every such

a final judgment on a non-suit would not bar another action unless the judgment
was stated to be upon the merits. This was section 1209 of the Code of Civil
Procedure. Sec. 482 of the Civil Practice Act provides that where there is a
final judgment on a motion for a non-suit after the plaintiff closes his case then
such judgment is presumed to be on the merits tmless it is stated to be without
prejudice. This is an important change in actual practice but would seem to
raise no constitutional question since it does not take away any right but only
changes the way in which the right must be exercised.

^^Tnis section is exactly the same as the first sentence of section 999 of the Code
of Civil Procediu-e.



"von der Bom v. Schultz, 104 App. Div. (N. Y.) 94 {1905); Ridgely v. Taylor
: Co.. 126 App. Div. (N. Y.) 303 (1908), aff'd in 196 N. Y. 556 (1909).
"McAndre v. Osbum, 28 Ky. (5 J. J. Marsh.) 529 (1831); McCord v. Atlanta,



etc., R. R. Co., 134N. C. 53 (1903); Or^on Cascades R. Co. v. Oregon Steam
Nav. Co., 3 Or. 178 (1860); Lewis v. Roby, 79 Vt. 487 {1907).

**Green v. Soule, 145 Cal. 96 (1904); Jones v. Campbell, 11 Idaho 752 (1906).

»3 Graham and Waterman on New TVials, 121 1.

"4 App. Div. (N. Y.) 124 {1896).



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NOTES AND COMMENT 279

case the trial court may, whenever it sees fit, direct a verdict and thtis
forever conclude the parties, has no basis in the law. ♦ * ♦***^

Now if the rule apparently followed in CaUfomia and Idaho as to
setting aside verdicts be the proper rule then it would seem to follow
without argument that section 457a of the Civil Practice Act is
unconstitutional. Certainly, under our constitution no court could
direct a verdict on the evidence merely because he thought that such a
verdict should be reached. K he cottld do so then there would seem
to be lictle use left for a juiy in civil actions. The court in sudi a
case would be clearly usurping the functions of the jury under our
system.

If, on the other hand, the correct rule in respect to setting aside
verdicts as against the weight of the evidence be that he can ciily do
so where he believes that no body of reasonable men could bring in the
verdict whidi the jury has brought in, on the evidence introduced,
our problem becomes more complex. The court might set aside a
verdict as against the weight of the evidence without running counter
to any constitutional right to a jury trial, for the party has no consti-
tutional right that any particular juiy decide the facts and where the
verdict has been set aside the case may come up again before another
jury. Under the general rule as to setting aside a verdict the court
is required to weigh the evidence introduced the same as the jury has
done for the purpose of determining whether any reasonable jury
could have found the evidence to preponderate as the particular
jury before the court has found it. If, after so weighing, he concludes
that a reasonable body of men might have brought in the evidence
the jury has, then he must not set aside the verdict even though he
would have brought in a different verdict if he had been the jury.
If he decides to set aside the verdict then he must have decided that
the present jury acted as no reasonable jury could act on the evi-
dence before it. But if all reasonable juries must of necessity have
brought in a verdict different from the one brought in, was there in
fact any real controversy?

The question of credibility of witnesses is said to be a question for
the jury and credibility is involved where the evidence is conflicting.
But where there could be no reasonable difference of opinion as to
credibility is there a conflict on the question of credibility for the
jury? If there is no controversy why may not the court direct a
verdict as well as set one aside, keeping in mind that the function of
the jury is to decide controverted facts? If the general view is
adopted as the situation where a verdict may be set aside, is that
situation essentially different from the one where it is generally con-
ceded a verdict may be directed, that is, where there is no contro-
versy? Is it not true that an * 'apparent controversy" because of the
conflict in the evidence has been reduced to no "real controversy"
b«»use reasonable men cannot differ as to the weight of the evi-
dence?

A possible answer to this line of argtunent is that where there is
only a scintilla of evidence the court may disregard the scintilla and
say that there is no real controversy. But where there is a clear

''At p. 69. Italics in both quotations are writer's.



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28o THE CORNELL LAW QUARTERLY

conflict of evidence, although all reasonable men must say that one
side clearly outweighs the other, the evidence outweighed is never-
theless appreciable, and, therefore, more than a scintilla. There is
a real conflict in such a case and it is the function of the jury to decide
it. It must be admitted that arguing solely from the past this would
probably be the answer of the courts. But it must be remembered
that even the scintilla doctrine, which has never been clearly ddSned
by the courts, is a fairly recent growth.^*

In reply to this answer may it not be said, true there is a conflict,
and the conflicting evidence does amount to more than a scintilla,
but there is a positive rule of law that one party must establish his
case or defense by a preponderance of the evidence. Admittedly, if
the court thinks no reasonable jury could find the evidence to prepon-
derate a certain way, it may set aside the verdict and award a new
trial. But if there is no real conflict as to where the preponderance
lies, is the settling of where that preponderance lies a jury question, if
the only function of a jury is to settle "real controversies?"**

Earl C, Vedder, '22

Wills: Soldiers holographic: Testamentary intent.— Whether a
soldier's letter written from France to his wife was properlj^ dmitted
to probate as his will was the important question in Rice i>. Freeland,
log S. E. {Va.) 186 {1921). In regard to the disposition of bis
property the soldier wrote, "don't worry about the lotment or in-
surance for you will get everything that is coming to me — I have
fixed the insurance and lotment so you will get it alright." The
court says that the testator, in all probability, did not think he was
writing a will, yet he was expressing in writing what he desired to be
done with his property. That ordinary rules of construction are
relaxed in recognition of the general tendency of the legislatures and
courts to treat soldiers in active service as entitled to special con-

**The doctrine that where there is any evidence, however slight, it must be
left for the jtiry, was not overturned in Iowa until 1892. See Meyer v. Houck,
85 la. 319 (1892).

^•The evil intended to be remedied by section 457a is undoubtedly the large
ntunber of new trials that clog our judicial machinery at the present time.
See note in 22 Col. Law Rev. 256. Another section tending in the same direction
is sec. 584 of the Civil Practice Act, which was section 1,317 of the Code of Civil
Procedure, which provides that the Appellate Division may reverse the judgment
of the trial court without remanding where it would have been proper for the
trial court to have directed a verdict upon the evidence and such a motion was
made on trial. This is the interpretation put on the section by the Appellate
Division in Peterson v. Ocean Electric Co., 161 App. Div. (N. Y.) 720 (1914).
This section has been held constitutional in the same case. In Illinois the oourt
has gone a step farther. Apparently in that state the appellate court may reverse
without remanding and may find different facts from those which the trial court
fotmd but must set such facts forth when it reverses without remanding. This
has been held to be constitutional in that state in Siddall v. Jansen, 143 111. 537
(1892). This rule of practice in IlHnois has been attacked by Charles H. Robm-
son in an article in 8 111. Law Rev. 255, entitled "Proposed Bill to Restore Trial
by Jury." A practice that is common in some states is to give a judgment not-
withstanding the verdict brought in by the jury. This rule obtains in Pennsyl-
vania. However, it is stated that the oourt cannot give such a jud^ent
where there is a conflict no more than it could direct a v^dict on trial. See Duffy
v. York Haven Water and Power Co., 233 Pa. 107 (191 1).



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NOTES AND COMMENT a8i

sideration in respect to their private and property interests. The
judgment of the lower court admitting the letter to probate was
affirmed.

The question which arises, then, is whether the admission to pro-
bate of a paper, not regarded as having been written animo testandi,
is justified by a relaxation of the rules of construction in favor of
soldiers in active service. This privilege to soldiers has an historical
origin. Under the civil law, the soldier was given unusual immunities
in the way of exemption from the ordinary rules with respect to wills.^
Also imder the conamon law, soldiers were a privileged class in this
respect.* In some states, as in Virginia,' there are statutes exempting
soldiers from certain of the requirements for executing a will.

It becomes important to determine how far this leniency has ex-
tended. The general rule is that an instrument in the form of a
letter may be a valid will if it shows a testamentary intent.* Testa-
mentary intent is necessary to the validity of a holographic will.'
It has been said that if the language used by the writer shows an
evident intent to make a disposition of his property to the person
addressed, after the writer's death, it will be regarded as a will unless
the statutory requirements have been disregarded.* A letter has
been admitted to probate as a valid will where the whole document
seemed to show that it was intended as a testamentary disposition.^
It is sufficient if the writing expresses, however informally, a testa-
mentaiy purpose in language sufficiently clear to be imderstood.'
But when the letter is not of testamentary character it has not been
regarded as a valid will.' If the letter is treated as a holographic
wiU some states require additional facts to be shown to establish it
as a will.^® New York is especially strict in its determination of
whether informal writings are valid holographic wills.^^ From an
inspection of the cases it appears that the leniency of the courts has

^"If a soldier, in the article of death, wrote anything in bloody letters on his
shield, or in the dust of the field with his sword, it was a very good military
testament." i Blackstone Com.417.

•Swinburne on Wills (7th ed.), Part I, sec. 13; Hubbard v. Hubbard, 8 N. Y.
196 {1853); Gould V. Safford's Estate, 39 Vt. 498 (1866).

•Virginia Code 1920, sec. 5231.

*40 Cyc. 1092; Cowley v. Knapp, 42 N. J. Law, 297 (1880); Morell v. Dickey,
I Johns. Chan. (N. Y.) 153 (1814).

•40 Cyc. 1 130; BoUng v. Holing, 22 Ala. 826 (1853); Hocker v. Hocker, 4
Gratt. (Va.) 277 (1848).

•Alston V. Davis, 118 N. C. 202 (1896).

'Gattwood V. Knee, L. R. (1902) Prob. Div. 99.

•In re Spratt, 75 L. T. N. S. (Eng.)5i8(i896);Leathersv.Greenacre,55Me.56i
(1866); Byers v. Hoppe, 61 Md. 206 (1883); Botsford v. Krake, i Abb. Prac.
(N. S.) (N.Y.) 112(1866).

•In re Anthony's Estate, 131 Pac. (Cal.) 96 (1913); In re Noyes' Estate, 40
Mont. 231 (1909).

"Dated by testator: In re Plumel, 151 Cal. 77 (1Q07); Waller v. Waller, i
Gratt. (Va.) 454 (1845). Signed by testator: In re Plumel, 151 Cal. 77 (1Q07);
Dinning v. Dmning, 102 Va. 467 (1904). Found among valuable effects of tes-



Online LibraryCornell Law School Cornell University. College of LawThe Cornell law quarterly, Volume 7 → online text (page 36 of 53)