Torts. Negligence. Liability for Use of Dangerous Agency

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  • The Yale Law Journal Company, Inc.

    Torts. Negligence. Liability for Use of Dangerous AgencySource: The Yale Law Journal, Vol. 30, No. 7 (May, 1921), p. 770Published by: The Yale Law Journal Company, Inc.Stable URL: http://www.jstor.org/stable/788313 .Accessed: 23/05/2014 18:12

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  • 770 YALE LAW JOURNAL

    TAXATION-FEDERAL INCOME TAX-FEDERAL ESTATE TAX DtDUCTIBLE.-The plaintiff, having paid the federal estate tax under the provisions of the War Revenue Act of October 3, 19I7 (40 Stat. at L. 300, 324) amending the Act of September 8, i9i6 (39 Stat. at L. 756, 777) as amended by the act of March 3, I9I7 (39 Stat. at L. io000, io2), upon an estate of which they are the executors, paid the federal income tax on that estate, as required by sec. 225 of the Revenue Act of i9i8 (40 Stat. at L. I074), claiming as a deduction the amount paid under the federal estate tax. Upon a refusal to allow the deduction, suit was instituted to recover the amount. Held, that the amount paid under the estate tax was deductible from the income tax. Woodward v. United States (March I4, I921) U. S. Ct. of Claims, No. 34734.

    The decision may be sustained only by the court's interpretation of sec. 214 of the Revenue Act of i918, which provides that "there shall be allowed as deduc- tions . . . taxes paid or accrued . . . imposed by the authority of the United States, except income, war profits and excess profits taxes." It is opposed to the theory of the leading case on the subject, that an inheritance tax is not a tax upon the legatee or the corpus of the estate but upon the power of transmitting property by will or descent. United States v. Perkins (i895) i63 U. S. 625, i6 Sup. Ct. I073; Prentiss v. Eisner (i920, C. C. A. 2d) 267 Fed. i6. An appeal to the Supreme Court will compel an exact definition of that theory or its prac- tical rejection. See (1920) 30 YALE LAW JOURNAL, i99; Holmes, Federal Taxes (I920) 368; (1921) 7 A. B. A. JOUR. I3I.

    TORTS-NEGLIGENCE-LIABILITY FOR USE OF DANGEROUS AGENCY.-The def en- dant railroad kindled a fire on its own land for the purpose of burning up dry

    leaves. The property was near a playground and was crossed by a path which

    the public were permitted to use at will. Some time after the fire was started,

    a child, five years old, was discovered in flames on or near the property. The

    child having died, his administrator brought this action. Held, that he should

    recover, regardless of any implied invitation to the child, because of the

    defendant's liability for the use of a dangerous agency. Piraccini v. Director

    Gen. of Railroads (i92o, N. J.) II2 AtI. 3II. This case is extreme in view of the fact that New Jersey has repudiated the

    attractive nuisance doctrine and held that a landowner owes no duty to a

    licensee or trespasser, even though a child, except to refrain from wilfully

    injuring him. D. L. & W. Ry. v. Reich (i898) 6i N. J. L. 635, 40 Atl. 682; Fleckenstein v. Tea Co. (I9I7) 9i N. J. L. I45, io2 Atl. 7oo. The rule in

    Rylands v. Fletcher (i868) L. R. 3 H. L. 330, has not been generally followed in this country and the dangerous agency doctrine is usually not carried so far. See (1920) 30 YALE LAW JOURNAL, 200; (i9i6) 25 id. 679. For a discussion of

    the real problem involved in cases like the instant one see COMMENTS (I9I9) 29 id. 223.

    TORTS-PRENATAL INJURIES-INFANT ALLOWED TO RECOVER.-While the plaintiff

    was en ventre sa menre, his mother was injured due to the defendant's negligence in leaving a coal hole uncovered; and the plaintiff, born eleven days later, was

    thereby permanently injured. The lower court overruled the defendant's demurrer to the complaint. Held, that the judgment should be affirmed. Clarke, P. J. and Page, J., dissenting. Drobner v. Peters (ig2i) i94 App. Div. 696, i86

    N. Y. Supp. 278. The instant case is notable in that it seems to be the first one to allow recovery

    under these circumstances. See I4 R. C. L. 2i8; 45 L. R. A. (N. S.) 625, note. For a discussion recommending recovery if, at the time of the injury, the child could have been viable see COMMENTS (I9I7) 26 YALE LAW JOURNAL, 3I5. For a discussion of the decision of the lower court see NOTES (I921) 34 HARV. L. REV.

    549.

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    Article Contentsp. 770

    Issue Table of ContentsThe Yale Law Journal, Vol. 30, No. 7 (May, 1921), pp. 655-780Validity and Effects of Contracts in the Conflict of Laws. II Law Governing the Intrinsic Validity of Contracts [pp. 655-673]Judgment Claims in Receivership Proceedings [pp. 674-680]Judicial Review as a Requirement of Due Process in Rate Regulation [pp. 681-692]Dual Nationality and Election [pp. 693-709]The "Physical Value" Fallacy in Rate Cases [pp. 710-731]CommentsThe Effect of the Federal Safety Appliance Acts on Workmen's Compensation [pp. 732-735]Present Day Labor Litigation. Statutes [pp. 736-742]Judgment or Satisfaction as Passing Title [pp. 742-748]Criminal Responsibility of Parent Who Refuses to Obtain Medical Treatment for Sick Child [pp. 748-753]When a Will Intends an Equitable Conversion [pp. 754-756]

    Recent Case NotesAdmiralty. Salvage. Rescue of Vessel from Bolsheviki [p. 757]Agency. Master and Servant. Grounds for Discharge. Single Instance of Intoxication [pp. 757-758]Agency. Master and Servant. Liability of Master for Injury to Volunteer [p. 758]Bills and Notes. Checks. Certification Conditional upon Procurement of Indorsement [p. 759]Constitutional Law. Vested Rights. Power to Repurchase School Property upon Non-User [pp. 759-760]Contracts. Duress. Threats to Injure Third Parties [pp. 760-761]Contracts. Usage and Custom. When Admissible as Part of Contract [pp. 761-762]Criminal Law. Scienter and Intent Unnecessary in Statutory Crimes [p. 762]Insurance. Standard Fire Policy. Validity of the Co-Insurance Clause [pp. 762-763]Insurance. Warranty of Seaworthiness. Waiver and Estoppel [pp. 763-765]Practice. Law of the Case. Matters Concluded by a Decision of Appellate Court [p. 765]Property. Future Interests. Rule in Shelley's Case [pp. 765-766]Suretyship. Contractor's Bond. Payments to Materialman as Release of Surety [pp. 766-767]Trusts. Gift of an Unindorsed Certificate of Stock. Antecedent Possession by the Trustee [pp. 767-768]Wills. When after-Acquired Real Estate Passes [p. 768]

    Current DecisionsConstitutional Law. Searches and Seizures. Inadmissibility of Documents Taken in Violation of the Fourth and Fifth Amendments [p. 769]Persons. Marriage. Annulment for Fraud [p. 769]Property. Surface Waters. Lots May be so Graded as to Shed Water on Adjoining Land [p. 769]Taxation. Federal Income Tax. Federal Estate Tax Deductible [p. 770]Torts. Negligence. Liability for Use of Dangerous Agency [p. 770]Torts. Prenatal Injuries. Infant Allowed to Recover [p. 770]

    Book ReviewsReview: untitled [pp. 771-773]Review: untitled [p. 773]Review: untitled [pp. 773-775]Review: untitled [pp. 775-776]Review: untitled [pp. 776-778]Review: untitled [pp. 778-779]

    Books Received [p. 780]

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