the contents of a sewer into an open stream above the well, and that the sewage from the stream percolated through gravelly soil into the well. The court regarded the connection between the act of the city in depositing the sewage into the stream, and the result charged as being altogether too remote and too uncertain to be permitted as a basis of recovery. There were no such connected facts as made a chain of causes so that the first could be called proximate to the end. In addition there was a very strong probability of the interposition of other entirely disconnected circumstances in producing the result the death of the child.

NEGLIGENCE. (PAVING STREETS-LEAVING WHEEL SCRAPER UNGUARDED-INJURY TO CHILDREN PLAYING THEREON.)

KANSAS CITY COURT OF APPEALS. Kelley v. Parker-Washington Co., 81 Southwestern Reporter 631, was an action to recover damages for personal injuries. Defendant had a contract with city to pave a street. During the progress of the work it left a wheel scraper on the street without fastening the lever so as to prevent the falling of the pan, and without guarding the scraper in any way. In consequence of this, plaintiff, a child, was injured while playing on the scraper. It was contended that defendant was not liable as plaintiff was a mere trespasser. The court notes cases in which it has been held that an owner of premises owes no duty to trespassers except of not wantonly or recklessly injuring them after having discovered them to be in peril; and then says: "But it has also been held that: 'It is negligence on the part of a railroad company to omit to secure its turntables so that children cannot revolve them. If a child is injured in consequence of such omission, the company will be liable,' etc. Nagel v. Railway Co., 75 Missouri 653. 42 American Reports 418. And while the rule that 'the owner of property is under no obligation to keep it in a condition which will insure the safety of persons who go upon it without license or invitation, yet an excep

tion to the above rule exists where the owner permits upon his premises dangerous machinery or other dangerous things likely to attract children, and does not place guards around the same so as to prevent injury to such children.' Schmidt v. Distilling Co., 90 Missouri 284, I Southwestern Reporter 865, 2 Southwestern Reporter 417, 59 American Reports 16. The distinction seems to be that it is negligence for the owner to permit on his premises dangerous machinery in a condition likely to cause injury. The case at bar falls under the latter rule; and, besides, it has another element to distinguish it from the cases first cited, in that the plaintiff was not a trespasser. It is true, the defendant was in possession of the street making the improvements, but it was not an exclusive possession as to persons whose business or inclinations might induce them to be there, and while their presence did not interfere with the work."

PEDDLERS. (LICENSE-FARMERS SELLING THEIR OWN PRODUCE.)

SUPREME COURT OF MINNESOTA. State v. Jensen, 100 Northwestern Reporter 644, involved the construction of an ordinance of the city of Minneapolis, which provides that no person shall "exercise the vocation" of a wagon peddler within the city without paying a yearly license of one hundred and twenty-five dollars. It was contended that a farmer selling his own produce at retail was not a peddler within the meaning of this ordinance, and was therefore not required to pay the prescribed license. There are decisions of other courts which hold that a farmer or gardener, who, as an incident to his business, sells the product of his farm or garden at retail from door to door, should not be regarded as a peddler. At the first blush, this seems to be sound and just, because the so selling of such products is not in and of itself a harmful business, but, on the contrary, mutually beneficial to both seller and purchaser, and a matter of convenience in the smaller towns of the State. But the fact that the articles sold from house

to house are the products of the seller's own farm or garden affords no just reason why he should not be placed on the same basis as parties who purchase their stock from others. In either case the need of police regulation is the same. There can be no distinction in principle between the party who peddles his own product and the one who buys his stock from the producer and peddles it; and the court says that it cannot recognize any such distinction. It therefore holds that the ordinance applies to all persons who exercise the vocation of peddler within the city, whether they peddle their own product or that of another.

PERSONAL INJURIES. (ACTION PHYSICAL EXAMINATION OF PLAINTIFF.)

COURT OF CIVIL APPEALS OF TEXAS.

In International & G. N. R. Co. v. Butcher, 81 Southwestern Reporter 819, it was determined that a court has no power to compel a party, against his consent, to submit to a physical examination by physicians. The failure of a party, upon the request of his adversary, to submit to a physical examination, by physicians to be appointed by the court, is simply a matter to be considered by the jury. In support of this ruling the court cites A. & N. W. Ry. Co. v. Cluck, 8 Tex. Ct. Rep. 681, 77 S. W. 403.

PHYSICIANS. (PRIVILEGED COMMUNICATIONS
CONSTRUCTION OF STATUTF.)

SUPREME COURT OF IOWA.

Battis v. Chicago, Rock Island & Pacific Railway Company, 100 Northwestern Reporter 543, was an action against a carrier for injuries to a passenger. It appears that the company had sent its local surgeon to see plaintiff for the sole purpose of ascertaining his condition for its benefit, and on the trial the company attempted to introduce his testimony as to the condition in which he found plaintiff shortly after the accident. The admission of this evidence was objected to by plaintiff on the ground that it came within Code of Iowa, section 4608, which provides that no practising physician shall

be allowed to disclose any confidential communications properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office. The objection was sustained, it appearing that the company's surgeon had rendered plaintiff professional services when calling on him. On the appeal the company complained of this ruling, but the court says: "It may be conceded that the sole purpose of the agent in calling the physician was that the latter might ascertain the condition of plaintiff, and thus be prepared to advise the company, should occasion therefor arise, or be a witness on its behalf, if necessary. Certainly, if the visit of the physician had been confined to the limits incident to such purpose alone, his eligibility as a witness on behalf of the company might not be open to question. Without doubt, a railway company, with the utmost propriety, may thus advise itself of the fact of injury, and the character and extent thereof, in anticipation of a possible claim against it for damages. And with that end in view, it may send a physician to inspect and take notes, or otherwise inform himself of existing conditions. But this can avail the company nothing unless the physician shall strictly retain his character as an employé of company. If, upon request or upon his own motion, he assumes to advise or administer treatment to the patient, and the latter in any manner acquiesces therein, the physician thereby casts aside his relation as an employé of the company, and transfers his allegiance to the patient. In such instances a case is presented where one cannot serve two masters at one and the same time. The allegiance of the physician must be wholly upon one side or the other. It matters not, in this connection, who calls him in the first instance, or who pays him. He may present himself at the side of the patient on his own motion, and he may not expect, or in fact receive, pay. The reason for this is apparent upon a moment's reflection. If the physician assumes to advise or treat, he should be put in possession of all facts necessary or material to enable him to

do so properly. If the patient acquiesce, he should have the right to, and should, communicate freely and fully, without fear of exposure or of having his confidence made common property. It was to this end that the statute was enacted, and manifestly the purpose thereof may not be frustrated by proof that, at the time of rendering professional service, the physician was under contract of employment to serve the interest of the person or company subsequently charged with responsibility for the identical injury he is called upon or assumes to treat. Accordingly we hold that the trial court did not err in refusing to permit answers to the questions asked of the witness. The views above expressed find support, in principle, at least, in the following cases: Raymond v. Railway, 65 Iowa 152, 21 N. W. 495; Kiest v. Railway (Iowa) 81 N. W. 181; Griffith v. Railway (Sup.) 66 N. Y. Supp. 801; Railway v. Mushres, 37 N. E. 154; Pennsylvania Co. v. Maron (Ind.) 23 N. E. 973; Grossman v. Knights of Honor (Sup.) 6 N. Y. Supp. 821; State v. Houseworth, 91 Iowa 740, 60 N. W. 221; State v. Swafford, 98 Iowa 362; 67 N. W. 284."

POSSESSION OF WILD DUCKS WITH INTENT TO SELL. (VIOLATION OF LAWCRUEL AND UNUSUAL PUNISHMENT.)

SUPREME COURT OF MINNESOTA.

In State v. Poole, 100 Northwestern Reporter 647, defendants were convicted of having two thousand wild ducks in their possession, contrary to law, and fined $20,000. It was contended that the statute (Laws Minn. 1903, c. 336, p. 606, § 45), under which this conviction was had, which provides that a person having in his possession wild ducks with intent to sell shall, on conviction, be punished by a fine of not less than ten dollars nor more than twenty-five dollars for each and every bird so had in his possession, was unconstitutional, on the ground that it provides for the imposition of excessive fines, and the infliction of cruel and unusual punishments. It must be admitted that the penalties fixed

by the statute are drastic when imposed in cases where there has been a wholesale violation of the law. It is, however, clear that the purpose of the statute is to protect the wild game of the State, and that, if the punishment were not graduated according to the number of birds unlawfully possessed, this purpose would be defeated. If the penalty were not graduated, so that the greater the offense the greater the punishinent, the stat ute would invite its own defeat. It would be absurd to punish the unlawful possession of 2,000 or more birds on the basis of one. It would have been competent for the Legislature to have provided that the unlawful possession of each bird should be a distinct offense, punishable by a fine of not less than ten dollars nor more than twenty-five dollars, or by imprisonment in the county jail for not less than ten nor more than thirty days. If such were the statute, it could not be fairly claimed that the fine was excessive, or the imprisonment cruel or unusual, although separate indictments might be found for each offense, and in case of convictions cumulative sentences would be legal. Now, the statute in question secures the same result by treating the unlawful possession of wild ducks, no matter how many, as one offense, and graduating the punishment according to the number of birds-that is, the number of offenses, if the possession of each were declared a separate offense-thereby avoiding separate indictments and cumulative sentences. So, in its last analysis, the fines imposed in this case are seemingly excessive, not by reason of the statute, but by reason of the magnitude of the offense, or of its equivalent, the number of offenses of which the defendants were convicted. The fault is theirs, not that of the statute. This method of fitting the punishment to the crime by graduating the penalty according to the number of animals, birds or fish unlawfully killed, taken or possessed has been adopted by the statutes of many States, and sustained as a proper exercise of legislative discretion. In support of its position, the court cites: State . Lubee, 93 Maine 418, 45 Atlantic

Reporter 520; State v. Craig, 80 Maine 85, 13 Atlantic Reporter 129; Blydenburgh v. Miles, 39 Connecticut 484; State v. O'Neil, 58 Vermont 140; 2 Atlantic Reporter 586; 56 American Reports 557. Furthermore, the court considers State v. Rodman & Cobb, 58 Minnesota 393, 59 Northwestern Reporter 1098, as controlling.

RAILROADS. (ASSAULT ON PASSENGER BY BRAKEMAN-PHYSICAL EXAMINATION-INDECENT EXPOSURE.)

SUPREME COURT OF IOWA.

Garvik v. Burlington, C. R. & N. Ry. Co., 100 Northwestern Reporter 498, was an action against a railroad company for rape on a female passenger, alleged to have been committed by defendant's brakeman. As a defence it was pleaded that by reason of an injury, the brakeman was impotent. In support of this issue the court permitted a physical examination of the brakeman by the jury; but this examination the supreme court regards as highly improper, saying, "We do not think it should have been permitted. There was There was no showing that the private parts were in the same condition as they were when the assault is said to have bcen committed. Moreover, the ultimate question was not the exact condition of this inember, but whether or not the owner was physically incapacitated from having sexual intercourse. We doubt if this could be determined by a non-expert from a mere examination of his penis. Again, the examination was indecent, and should not have been tolerated. As said by Ryan, C. J., in Brown v. Swineford, 44 Wis. 282, 28 American Reporter 582: 'If the condition of any private part of the body of any party, male or female, is material on any trial, it should be privately examined by experts, out of court, and expert testimony be given of it.' He further said of such an examination as was here made: 'It was improper and indecent, well calculated to disgrace the administration of justice, and to bring it into ridicule, if not into contempt.' In this case expert witnesses were examined, and it was thought

necessary for them, after examining the witness' private parts, to give professional opinions as to his ability to have sexual intercourse. Wounds resulting from injuries may undoubtedly be exhibited in open court to the jury, but even here no indecent exposures should be made. There is also a species of evidence denominated as 'real,' which may often be produced before a jury, but we hardly think this case comes within that rule. Authority to view the premises which obtains in a certain class of cases will not sustain the procedure adopted in this case. Moreover, the evidence was not demonstrative in character. We have found no authority which justifies the ruling made by the trial court, and doubt if there is any to be found in the books. Be it remembered that plaintiff was entitled to be present during the entire trial with her counsel, and that there were others aside from the witness Dye who were entitled to be present at the examination of his private parts. Let it be said, once for all, that we cannot lend our support to such a shocking and indecent performance as was permitted in this case."

RAILROADS. (LIABILITY OF FOREIGN RAILROAD CAR TO SEIZURE OF ATTACHMENT.)

SUPREME COURT OF MINNESOTA. In Connery v. Quincy, O. K. C. R. Co., 99 Northwestern Reporter 365, it was attempted to obtain jurisdiction of a foreign railroad company by attaching a car of such company temporarily in the State. It appeared that the railroad company had sent a car into the State with freight to be delivered there, and the car was to be re-loaded and in the customary and usual course of business forwarded to the State from which it came. The court, says that, strictly speaking, the car was subject to attachment of garnishment una technical reading of a statute providing that a creditor of a foreign corporation may by attachment or garnishment acquire a lien on property of such corporation within the State, but does not think that this conclusion

absolutely follows in all cases. Thus it has been held that the property of a non-resident within the State, while strictly subject to garnishment, as for instance in the case of a common carrier receiving goods consigned for transit to a place outside of the State, is not amenable to such process. Stevenot v. Eastern Minnesota Ry., 61 Minnesota 104, 63 Northwestern Reporter 356, 28 Lawyers' Reports Annotated 600; Baldwin v. Great Northern Railway Co., 81 Minnesota 247, 83 Northwestern Reporter 986, 61 Lawyers' Reports Annotated 640, 83 American State Reports 370. The cases cited the court regards as indicating that it should not give to the Minnesota statute providing for the acquirement of jurisdiction by attachment such interpretation as would, in order to secure jurisdiction, overcome by artifice the mere presence of property in the State, which has practically been enforced, under exceptional circumstances that require its presence temporarily to meet the necessities of commerce. Having this limitation in view, the court notes that under the laws of the State of Minnesota common carriers doing business therein are required to transfer through carload shipments to their destination without unloading, and that the Federal government expressly requires that the movement of railway cars shall not be stopped or delayed at the point where the carrier delivers the cars to the next connecting carrier, but that shipments shall go forward from the originating point to their destination in the cars in which they are first loaded. "These well-known provisions of law are expressive of a universal condition that exists upon all the railway lines of this country, and without giving them effect and permitting the railway carriers from other States to come into our boundaries with goods which are shipped here, and return without being retarded, or so treated that the carriers must protect themselves against litigation away from home, that they would transfer the contents

of such cars to others in our State would be provocative of the greatest detriment to the business interest of our citizens, and be violative of the terms and spirit of the enactments to which we have referred. It follows that we cannot justify a construction of our attachment or garnishee statutes that would effectuate such a result, and, while it was a part of the contract between the non-resident corporation in this State and the connecting carriers that the freight cars should be re-loaded, and within reasonable time returned, this custom was but a practical method of securing compensation for bringing the car into and out of the State in the necessary effort for continuous and unbroken transit, which is essential to the purposes of traffic and interstate commerce; hence it should not be treated as property subject to attachment. This subject has been thoroughly and exhaustively considered in two recent cases, and the reasoning therein within the lines above suggested meets our approval. M. C. R.R. Co. v. C. & M. L. S. R.R. Co., I Ill. App. 399-404; Wall v. Norfolk & Western Ry. Co. (W. Va.) 44 Southeastern Reporter 294. Had the car seized in this case been delayed longer than was necessary in the course of business to return it to the place from whence it came, or had it been diverted within the State to uses and purposes exceptional to its presence here under the demands of interstate commerce with the consent of the owning corporation, a different proposition would be presented; but practically it was engaged in a transit into and from the State upon such reasonable conditions as ought not to impose upon it such property conditions and characteristics as should subject it to seizure in coming into and returning from the State for the purposes of giving jurisdiction to litigants here who otherwise would be compelled to contest their causes of action in the tribunals where the property had its undoubted legal situs."