Hamm, Robert P.

English

Marquette University Law School

Marquette Law ReviewVolume 25Issue 1 December 1940: A Symposium on Freedom Article 11Insurance - Use of Automobile as "PublicConveyance for Compensation"Robert P. HammFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationRobert P. Hamm, Insurance - Use of Automobile as "Public Conveyance for Compensation", 25 Marq. L. Rev. 51 (1940).Available at: http://scholarship.law.marquette.edu/mulr/vol25/iss1/11RECENT DECISIONSNon-experts may, after describing the wound, give an opinion that the woundcaused death, not in answer to a hypothetical question but as a conclusion offact based on their observations. Tanner v. State, 163 Ga. 121, 135 S.E. 917(1926); Fudge v. State, 9 S.E. (2d) 259 (Ga. 1940) ; Johnson v. State, 80 Fla.61, 85 So. 155 (1920). Where the evidence of medical experts is not accessible,a non-medic's testimony is sufficient to sustain a conviction where the witnessdescribes the wounds he examined and gives his opinion, with reasons, that thewounds caused death. Edwards v. State, 39 Fla. 753, 23 So. 537 (1897) ; Revelsv. State, 64 Fla. 432, 59 So. 951 (1912) ; Cecil v. State, 100 S.W. 390 (Tex. Cr.App. 1907). A physician licensed to practice medicine, but not being a graduateof a medical school and it appearing that he was not familiar with surgeryfrom reading nor with gunshot wounds from experience, was not permitted totestify in answer to hypothetical questions as to the cause of death to the de-ceased whose body he had not examined. Smith v. State, 99 S.W. 100 (Tex. Cr.App. 1907).While a non-medical witness was erroneously permitted to testify that therehad been no cases of a particular disease in the neighborhood, since he wasnot shown to have had any knowledge of the sickness in question, he could testi-fy whether or not there had been any disease at all. The court stated that sincethere are as many grades of knowledge in the professions as out of them, theonly safe method is to permit the witness to speak within the range of his ascer-tained qualifications. Evans v. People, 12 Mich. 27 (1863). A medical studentwho was present while a doctor made a physical examination may testify that theperson was afflicted with a venereal disease, where the student had studied andpracticed under the doctor- and had treated not less than fifty cases of thedisease. State v. Dixon, 47 La. 1, 16 So. 589 (1895). In a prosecution for abor-tion, a witness who was a student interne in an obstetrical ward when shemade an examination of the deceased prior to receiving her license to practice,was permitted to testify as an expert having received her license by the timeof trial. People v. Heissler, 338 Ill. 596, 170 N.E. 685 (1930).In Wisconsin it does not appear that there has been a decision to the effectthat non-medics are not permitted to testify as experts on physical or mentalconditions, but the cases indicate that all expert testimony in such matters hasbeen presented, in criminal actions, by licensed physicians and surgeons only.Tendrup v. State, 193 Wis. 482, 214 N.W. 356 (1927) ; Lowe v. State, 118 Wis.641, 96 N.W. 417 (1903).PHnaP W. GRO:SmAN, Ja.Insurance-Use of Automobile as "Public Conveyance for Compensation.'-The defendant insurance company insured the plaintiff against damage to hisautomobile, but the policy was to be void if the automobile was "used as a pub-lic or livery conveyance for carrying passengers for compensation." The plain-tiff used the car in going to and from school, and carried other students whovoluntarily paid him 75 cents per week. Held, that the contributions of 75 centsper week, being voluntary, did not make the car a "public or livery conveyancefor compensation" such as was described in the policy. Wood v. Merchants'Insurance Co. of Providence, 289 N.W. 259 (Mich. 1939).To be a public conveyance the vehicle must be operated as either a privatecontract-carrier or as a common carrier. Primrose v. Casualty Co. of America,232 Pa. 230, 81 Atl. 212 (1911); Anderson v. Fidelity and Casualty Co., 170 N.Y.Supp. 431, 183 App. Div. 170 (1918). Since the plaintiff in the principal case did19401THE MARQUETTE LAW REVIEWnot hold himself out as ready to carry all who requested transportation he wasnot operating a common carrier. Brown v. Pacific Mutual Life Insurance Co. ofCalif., 8 F. (2d) 996 (C.C.A. 5th, 1925). And since the contributions were volun-tary he was not under a contractual duty to the passengers and therefore wasnot a private carrier. Marks et al. v. Home Fire and Marine Insurance Co. ofCalif., 285 Fed. 959 (App. D.C. 1923).The question whether he was carrying for hire or compensation offers moredifficulty. In deciding whether the Board of Railroad Commissioners had juris-diction over a motor vehicle as being operated for hire, the words "for hire"were held to mean "for remuneration of any kind, paid or promised, eitherdirectly or indirectly." Murphy et al v. Standard Oil Co. of Indiana, 49 S.D.197, 207 N.W. 92 (1926). When the owner of the car himself contributed hisproportionate share of the gas, oil, and garage expenses for a trip, it has beenheld that there was not a carrying for hire or compensation so as to make thedriver exercise a higher degree of care. Askowith v. Massel, 250 Mass. 202, 156N.E. 875 (1927). Requiring the passenger to pay the cost of the gas and oilused on a trip has been held not a carrying for hire. Armistead v. Lenkeit, 230Ala. 155, 160 So. 257 (1935). But where students agreed to pay the amount ofgas and oil used on a trip plus a small sum to the driver for the use of thecar, it was held a carrying for hire within the provisions of defendant's insur-ance policy because of the slight sum given in addition to the cost of the gas andoil. Gross et al. v. Kubel, 315 Pa. 396, 172 Atl. 649 (1934).Where plaintiff's car was used for hire on two or three occasions to carrypassengers to fair grounds during a county fair, it was not such a carrying forhire as would enable an insurance company to avoid liability on its policy, thecourt holding that in order to make a carrying for hire or compensation resultin a foreiture of the policy it must be shown that the automobile was used con-tinuously for that purpose, or that the owner made a business of it. Comner-cial Union Assurance Co. of London v. Hill, 167 S.W. 1095 (Texas, 1914). Ifthere is a carrying for hire it makes no difference that the compensation wasnever in fact paid. Thus, where the plaintiff made an agreement to carry for acertain sum and the passenger stole the car, recovery for the value of the carwas refused by the court since the car was being used in violation of the pro-visions of the policy. Mittet et al. v. Home Insurance Co., 49 S.D. 319, 207 N.W.49 (1926).ROBERT P. HAMM.Workmen's Compensation-Accident Distinguished from Occupational Dis-ease.-The plaintiff operated for one day a motor truck which emitted exces-sive quantities of fumes. These were inhaled by the plaintiff, who contractedpneumonia as a result. Held, that pneumonia thus acquired was not an injuryby "accident" within the New Mexico Workmen's Compensation Act, since thevictim was "conscious of no mishap, hazard, or-misadventure." Stevenson v.Lee Moor Contracting Co., 9 U.S.L. WEEK 2242 (N.Mex. Sup. Ct., Sept. 21,1940).The subjection of an employee to extraordinary strain, or unusual conditionsand definite as to time and place, causing injury, is an "accidental" injury,under the compensation acts. Esmonde v. Lima Locomotive Works, 51 Ohio App.454, 1 N.E. (2d) 633 (1937). Where the disability results from continual breath-ing of iron dust, and the employee can point to no particular occurrence or time[Vol. 25

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