Central Law Journal.

ST. LOUIS, MO., JULY 26, 1901.

Probably the most important of all studies known to men is also the most neglectedthat of the study of man himself. What is known as physiological psychology is comparatively a new science which is rapidly developing many practical features, not the least of which is the movement which is be

ing earnestly promoted by Prof. Arthur MacDonald, specialist in the Bureau of Education at Washington, to establish under the supervision and control of the Department of the Interior a Psycho-Physical Laboratory for sociological, educational and medicoscientific purposes. The purpose of such a laboratory is well set forth in a resolution which is being referred for favorable action to the leading bar associations, both state and national, all over the country. The draft of the resolution is as follows:

Resolved, That we are in favor of the establishment of a Psycho-Physical Laboratory in the Department of the Interior at Washington, for the practical application of physiological psychology to sociological, jurisprudential and abnormal or pathological data, especially as found in institutions for the criminal, pauper and defective classes and in hospitals and also as may be observed in schools aud other institutions.

"A rigid and patient study of man," says Prof. MacDonald, "must be based primarily upon the individual, who is the unit in society. If trustworthy knowledge is to be obtained, it must come from the study of large numbers of individuals. Such a laboratory is not in the least in competition with other psycho-physical laboratories in our country. Its purpose is to gather sociological, pathological, or abnormal data, as found especially in children and in criminal, pauper, and defective classes and in hospitals. Besides these data, it is desired to gather more special data with laboratory instruments of precision, and to make such experiments or measurements as are generally considered of value, not only by psycho-physicists and anthropologists, but by physiological and pathological specialists. It is also desirable that the results of similar

work in this country and Europe be collected, compared, and published from time to time. If we are ever to have sufficient definite knowledge of living human beings to become a science, it can only be done by the careful study of large numbers of individuals. The more thorough the study and the larger the number, the more useful such investigation can be made to society. We pay out millions to catch, try, and care for criminals, but give very little to study the causes that lead to crime. The study of man, to be of most utility, must be directed first to the causes of crime, pauperism, alchoholism, and other forms of abnormality. To do this the individuals themselves must be studied. As the seeds of evil are usually sown in childhood and youth, it is here that all investigation should commence, for there is little hope of making the world better if we do not seek the causes of social evils at their beginnings."

We earnestly share the sentiments of Prof. MacDonald and heartily indorse his efforts to induce the national government to establish a psycho-physical laboratory for the study of criminology and kindred subjects. Knowledge is power-a trite saying but one which has peculiar significance in this connection. One of the supremest objects of every government is absolute power within itself to suppress crime. The severest penalties of law have been futile to deter the criminal inflamed by passionate anger or a burning lust for gold. The drunkard, the pauper and the criminal are creatures of circumstance, education and heredity and the science that can tell us under what conditions these forces act in evolving the abnormal man, would necessarily put into our hands the secret of how to change those conditions. We especially commend the resolution drafted by Prof. MacDonald to the favorable attention of bar associations all over the country.

NOTES OF IMPORTANT DECISIONS

CONTRACTS FOR FUTURE DELIVERY.-"A decision of importance regarding the validity of contracts for future delivery," says the Bradstreet's Journal, "was rendered by the Supreme Court of the United States in the case Clews v. Jamison. This was a suit to recover the difference between the price at which the defendants, stock brokers in Chicago, agreed to purchase a certain number of shares of stock and the price

at which it sold at auction after the defendants had declined to receive it. The action was dismissed by the United States circuit court, whose decision was affirmed by the circuit court of appeals, in part on the ground that the contract was a gambling one. The supreme court reversed the decisions below, holding that there was nothing in the contracts involved in the case, or in the evidence presented, from which it could be inferred that they fell within the statutes of Illinois on the subject of gambling. It was admitted by all the parties to the suit that the transaction was according to the rules of the Chicago Stock Exchange, which prohibited, under penalty of suspension, sales for mere collection of differences, and also provided that every sale must be one in good faith for the delivery, either present or future, of the article sold, and tha sales for the account' should be made upon the basis of an intended actual delivery of the stock at the time when due. The court declared that it would not say that these rules prevented gambling on the exchange, but if gambling were carried on it must be in violation of and not pursuant to the rules.

"Part of the opinion in the case enunciates so clearly and tersely the legal status of future contracts that it is worth while to direct special attention to it. The ground is taken that as a sale for future delivery is not on its face void, but is a perfectly legal and valid contract, it must be shown by him who attacks it that it was not intended to deliver the articles sold, and that nothing but the difference between the contract and the market price was to be paid by the parties to the contract. Moreover, the fact that at the time of making a contract for future delivery the party binding himself to sell has not the goods in his possession, and has no means of obtaining them for delivery or otherwise than by purchasing them after the contract is made, does not invalidate the contract. In order to invalidate a contract as a wagering one, the court says, both parties must intend that, instead of the delivery of the article, there shall be a mere payment of the difference between the contract and the market price, and the proof must show that there was a mutual understanding that the transaction was to be a mere settlement of differences, or, in other words, a mere wagering contract. The doctrine here enunciated contains nothing that is novel to the readers of these columns, but the statement of it by the highest court in the country is deserving of being emphasized."

TORTS OF CHARITABLE INSTITUTIONS MAINTAINED BY TAXATION.

Introductory.-There is substantial unanimity in the judicial denial of any liability on the part of what are familiarly known as "public institutions" for the torts of officers and employees thereof, on the ground that

such institutions are to be regarded as governmental instrumentalities and therefore partake of the same immunity extended to other departments of the State, in its sovereign capacity, or to those municipal or quasimunicipal corporations invested with such portions of the sovereignty of the State, as are essential to the performance of the functions of local government, unless some statute has expressly admitted the liability of the institution or of the State, or municipal or quasi-municipal corporation to respond in damages in actions of that nature. The grounds of this immunity are somtimes confused with the other and different grounds upon which immunity from liability in personal injury cases is extended to charitable institutions endowed and maintained by private benevolence, but the distinction between the theories of immunity in the respective cases is nevertheless valid and substantial, although occasionally obscured by the looseness of expression indulged in by some judges and the slovenliness in arrangement that mars the work of some writers of treatises. This distinction will be developed, and the doctrine formulated in this introduction will be supported, by a review of the American decisions wherein liabilities of this nature were sought to be enforced against either; institutions maintained by State, city, or county taxation.

State Institutions.-In Maia v. Eastern State Hospital,' an administrator sued for damages for the death of his intestate alleging the same to have been caused by the negligence of the defendant or its agents in requiring the intestate while a patient and inmate of the defendant's hospital for the insane to dig and excavate in the side of an embankment, the property of the defendant, without providing props or supports to prevent the overhanging earth from falling on him. It appeared from an examination of the statutes constituting the charter of the institution, that it was created for purely governmental purposes, and the court therefore held that its ownership and control by the executive department of the common-' wealth, made it a State agency for the protection of society and for the promotion of the best interests of the unfortunate people

197 Va. 507, 34 S. E. Rep. 617, 47 L. R. A. 577; 32

Chicago Legal News, 166, No. 20, Jan. 6, 1900.

of the commonwealth of insane or disordered minds. The question whether the defendant, a public corporation, acting as a State agency, exercising exclusively governmental functions, was liable for the injuries complained of in the declaration, was consequently decided in the negative.

If the State interposes on behalf of neglected and abandoned children within its confines in its capacity of parens patria and assumes their guardianship for the purpose of committing them to an industrial school conducted by a body corporate created by the general assembly and under the control and oversight thereof, maintained by State aid from taxation, such institution will be held to constitute an agency or instrumentality of .the State, and its objects charitable. One committed to its care and custody for the purpose of securing the moral and physical training and education which it was its purpose to bestow, by training its inmates to the habits of industry and by instilling into their minds the principles of right living to the end that they might become useful citizens of the State, rather than fill its prisons and poorhouses, is not entitled to an action against the corporation to recover damages for an alleged cruel and inhuman beating resulting in permanent injuries, inflicted on him while an inmate of the institution by one of the servants and employees of the corporation, even though such employee was known to be unfit and incompetent for such services, but was nevertheless kept in its employ. And although the court intimated that the fact that the institution, a house of refuge for homeless or destitute boys, was under the control of an incorporation whose affairs were intrusted to a board of twenty-four managers, ten elected by members of the association, ten chosen by the mayor and city council of the city wherein the institution was located, and four appointed by the Governor, and the current expenses were defrayed by appropriations by the city council, and legislative aid was also received from the State treasury, did not divest the defendant of the attributes of a private corpo

2 Williamson v. Louisville Industrial School of Reform, 95 Ky. 25, 15 Ky. L. Rep. 629, 24 S. W. Rep. 1065, 23 L. R. A. 200, 44 Am. St. Rep. 243, 38 Cent. L. J. 426.

ration, and clothe it with the immunity and privileges appertaining to public institutions, the court held nevertheless that the fact that the funds of the institution were controlled by the managers solely for the charitable purposes designated by the organic law, entitled such corporation to all of the immunities of an institution resting on an eleemosynary foundation, where a liability was contended for by an inmate of such institution for damages resulting from an assault and battery inflicted by way of punishment by teachers employed by the institution.3 From the foregoing cases it would seem that State control or representation in the management of any institution whose purpose is charitable, together with its maintenance in whole or in part by appropriations from the State treasury, will constitute it in the strictest sense a governmental instrumentality although it may possess and manage large amounts of property and be governed by corporate officers in almost all particulars like hospitals, asylums, homes, etc., of a similar kind, founded and sustained by private benevolence.

City Hospitals.-Where the conduct and control of such institutions is committed to the city wherein they are located or authority is given by the legislature for the establishment and maintenance thereof by taxation by the city, the management being committed to a corporation similar to those conducting State institutions, the municipality and the corporation are both exempt from liability in the class of cases under discussion on the same theory of immunities recognized with reference to the State institution. In Richmond v. Long, the plaintiff sued for the estimated value of a slave alleged to have been lost by neglect of proper custody and attendance while in the city hospital to which he had been committed while suffering from small-pox, and from which he escaped and soon died by reason of exposure to the inclemency of the weather, the city's liability being predicated upon its proprietorship of the hospital. The court said that "in the passage of the ordinance establishing this hospital, the council, with whom are lodged all corporate powers and franchises, was

3 Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495. 4 17 Gratt. 375, 94 Am. Dec. 461.

legislating by direction of law for the sanitary police of the city and providing the usual accommodations and public charities for the care and cure of the deceased. Under such a state of facts to require the city to answer for the negligence or misconduct of the superintendent, matron, nurses or attendants of the hospital would seem to us to subvert the fundamental doctrines of the law as we understand and have sought to expound them. If this recovery can be made, we do not perceive why by parity of reasoning the State should not be made liable through its public functionaries in civil actions at the suit of individuals or for losses occurring in the management of its departments and public institutions under its immediate control and supervision."

Somewhat different phraseology is employed by the court in the next case to which reference will be made, Mutraugh v. St. Louis, the establishment and maintenance of a public hospital being held to be a corporate function, "conferred upon the city for the public good" and not for private or corporate advantage, and the city consequently entitled to the same immunities from liability for injuries resulting from negligence or misfeasance of the officers and servants of the institution extended to the State. Such immunity not only constitutes an exception to the general principles of law governing the relation of master and servant, but has also been extended under circumstances that seem to constitute an important qualification to the rule that the owner of real estate is bound to take care that those who come

upon his premises on his express or implied invitation must be protected against injury resulting from the unsafe condition of the premises, or from other perils, the existence of which the invited party had no reason to look for. Evidence of negligence on the part of the superintendent will not be sufficient to fix a liability if there is no evidence tending to show that he was not a suitable and proper person to be appointed to such position, where the negligence of such superintendent consisted in permitting the covering of the stairs of the city hospital to continue in an unsafe condition, whereby the

5 44 Mo. 479.

6 Cooley on Torts, p. 648.

It

plaintiff sustained personal injuries while on the premises, having rightfully come there to visit a paying patient in order to arrange for the latter's removal from the hospital. The hospital in question was maintained by the city of Boston with such aid as might be derived from donations and dues received from paying patients, the trustees being in a sense, managing agents merely, in maintaining the hospital, subject to the laws and ordinances of the city. The donations, if any were made, were required by law to be used according to the terms of the gift. The money appropriated by the city of Boston could not be legally used otherwise than according to the terms of the appropriation. Under the ordinances, the sums received from paying patients were required to be credited to the account of the hospital and used for the purpose of maintaining it in accordance with the special act constituting its charter. was therefore held that the corporation of the trustees of the city hospital, of the city of Boston, had in fact, no property. In other words, said corporation was a mere agency of the city, and that municipality was with respect thereto a trustee of all such funds and property and in its management thereof exempt from the responsibilities and duties ordinarily consequent on ownership. "While this act" observed the court, "is a special and not a general statute and is permissive and not imperative upon the part of the city with respect to the establishment of this institution, these distinctions do not render the city liable for negligence in the management of the hospital. The trustees are a body created for the performance of a duty which under the authority of the statute the city of Boston has assumed for the benefit of the public and from the performance of which no profit or advantage is received either by the trustees or by the city. The trustees are, therefore, no more liable for the negligence of their officers and agents than the city would be." The officers, their employees and servants, invested with the management of such institutions, are not, with reference to the duty owing to the public, the agents or servants of the city. The city, therefore, is not liable for the death of

7 Benton v. Trustees, City Hospital, 140 Mass. 13, 1 N. E. Rep. 836, 12 Am. & Eng. Corp. Cas. 625, 54 Am. Rep. 436.