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People v. Village of Holly (Mich.) Municipal Corpo. Stewart v. Hirsch (Tex.) Chattel Mortgage-Drug.
gists' Prescriptions, R. D. 409.
Pfeiffer v. Board of Education (Mich.) Reading the Streitwolf v. Streitwolf (N. J.) Injunction Against Di.
Bible in Public Schools as Violative of the Con vorce Proceedings in Another State, Ed. 467.
Svenberg v. Fogseen (Minn.) Specific Performance-
Prendergast v. Walsh (N. J.) Wills-Ademption of tion-('onditiong-Doing Business, ann. case, 493.
Telegram Newspaper Co. v. Commonwealth (Mass.)
-Newspaper Article, R. D. 148.
Savage v. Gerstner (N. Y.) The Law of the Road, Ed. Turner v. Board of Commissioners (U. S. S. C.) United
States Supreme Court-Jurisdiction-Error of State
Smith v. Pittsburgh & W. Ry. Co. (U.S.C.O., N. D. Violette v. Rice (Mass.) Written Contract-Parol Evi.
Ohio) Damages- Personal Injury to Child - Im. dence, R. D. 289, 330.
Walker v. Green (Kan.) Carriers of Passengers-In.
Warren v. Buck (Vt.) Sale-Implied Warranty, R. D.
Weeks v. McNulty (Tenn.) Innkeeperg – Liability-
Offense-Shipping Lottery Tickets into a Territory, Western Union Telegraph Co. v. Call Publishing Co.
(Neb.) Discrimination in Rates by Public Service
Whiteside v. First National Bank (Tenn.) Bills and
Notes - Negotiable Instrument - Purchasers for
Value-Stolen Property, R. D. 68.
Winston, Strather & Smith v. United States (U. S. S.
C.) Interpretation of the Federal Statute Giving
Power to Juries to Quality Verdicts as to Capital
Punishment, Ed. 207.
Yale University v. Town of New Haven (Conn.) Taxa-
tion of "College" Dormitory, Ed. 187.
Croft (Oreg.) Liability of Grantee of Mortgaged
LIST OF LEADING ARTICLES IN VOLUME 48.
No. 3. Possession-Actual and Constructive in
No. 15. Principal and Surety-Effect on Surety's
No. 4. Consent in Its Relation to Criminal Lia-
tion of the Payment of Interest in Advance.
No. 16. The Status of the Law Governing the
Liability of Irregular Indorsers. By D. W.
No. 6. Interference of Third Parties in Con-
No. 17. Jurisdiction of State and Federal Courts
No. 10. Liability of Stockholders in Foreign Ju-
No. 21. Liability of a Corporation Recovering Its
the Partner's Interest is Ascertained. By No. 23. Satisfaction-A Canon of Construction
in Courts of Equity. By Colin P. Campbell,
Central Law Journal. appellant in the recent Illinois case
(Braun v. Craven), relied with much con
fidence upon Bell v. Railroad Co., 26 L. R. ST. LOUIS, MO., JANUARY 6, 1899.
A. 432, and Purcell v. Railway Co., 48 Minn.
claim for damages occasioned by mere fright. Involved in the recent case of O'Flaherty But, as the court shows, those cases are not v. Nassau Electric Railroad Co., decided by clearly susceptible of such an interpretation, the New York Supreme Court, is the question though they go far in that direction. Both of the allowance of damages for personal in cases sustain the proposition that where sudjuries occasioned by fright, which has been den terror occasions a nervous shock, resulta more or less vexed question to the courts ing from a negligent act, without impact or within the past few months. The holding physical contact, by which the mind is afthere was that a recovery cannot be had for fected, which may press on the health and afinjuries occasioned by mere fright, but that fect the physical organization, a cause of acsuch rule does not apply where the fright in tion for negligence results. These cases have question was occasioned by and accompanied the approval of Mr. Beavan, in his work on by an electric shock, to which plaintiff was Negligence (volume 1, pp. 76-84), and of subjected through the negligence of the de Mr. Sedgwick, in his work on Damages (8th fendant. A recent Illinois case involves the Ed. $ 861). The Purcell case arose on a desame question-Braun v. Craven, 51 N. E. murrer to the complaint, and it was conceded. Rep. 657. There it appeared that defendant, that the effect of a wrongful act or of neglithe landlord of plaintiff's sister, entered the gence on the mind alone will not furnish house to collect the rent, and went into the ground of action. The entire discussion room where plaintiff was packing her goods was confined to the question whether the deprior to removal, and stated to her in a loud fendant's negligence was the proximate cause and angry tone and boisterous manner that if of the injury, and whether, if the fright was she attempted to move he would have a con a natural consequence thereof, and caused the stable there in five minutes. Plaintiff asked nervous shock and consequent illness, the damages for a severe nervous shock claimed negligence was actionable. Wbile it is the to have been suffered thereby, which resulted duty of a carrier to anticipate that an acciin St. Vitus' Dance. The landlord had a dent or appearance of great danger will proright to enter the house. He knew nothing duce fright and excitement, and that an acciof plaintiff's nervous temperament. It was dent will cause physical injury, it could not held that damages were not recoverable, since be anticipated that a disease of the mind not the natural and probable consequences of would result; and, unless such anticipation defendant's acts. In a long and exhaustive could be had in the light of the attending suropinion, Judge Phillips reviewed all the cases roundings, it would not constitute the proxi. upon the question of the recovery of damages mate cause of the injury, under the great for fright.
weight of authority. In the Purcell case, In the following cases, mental suffering fright may have been the natural consequence alone, unattended by any injury to the per of the circumstances of peril and alarm in son, caused by simple, actionable negligence, which defendant's negligence placed plaintiff, was held insufficient to sustain an action. and the fright may have caused the nervous Wyman v. Leavitt, 71 Me. 227; Railway Co. shock and consequent illness of the plaintiff, v. Trott, 86 Tex. 412 ; Railroad Co. v. Stables, as held by the Supreme Court of Minnesota ; 62 Ill. 313; City of Chicago v. McLean, 133 yet, if it could not have been reasonably anIll. 148; Canning v. Inhabitants, 1 Cush. ticipated as a result of the fright, it would 452 ; Keyes v. Railway Co., 36 Minn. 290 ; not be the proximate cause of her injuries. Ewing v. Railway Co., 147 Pa. St. 40; The question of the reasonable anticipation Mitchell v. Rochester Railway Co., 151 N. of the injury as a result of the fright is enY. 107, 44 Cent. L. J. 89; Spade v. R. tirely disregarded in that case, and causes it R. Co., 47 N. E. Rep. 88; Haile’s Curator to be in conflict with the weight of authority, v. Railway Co., 60 Fed. Rep. 567. The because it absolutely disregards this principle.
It may be said that if these cases go to the and has no effect unless there is an existing conlength contended for by those who argue for
tract. When that is established, through the acts the doctrine of damages for freight and
of the infant, the liability must be proved, and is
limited by the promise of the adult. Reeve mental suffering, they are not only against Dom. Rel. p. 240; Edgerly v. Shaw, 25 N. H. 514. the great weight of authority, but are not
We deem it immaterial whether the promise, if sustainable upon principle.
it could be treated as being strictly a waiver, or a ratification, or a new contract, could or could not be held invalid by reason of ignorance of the
law. The validity of the promise does not deNOTES OF IMPORTANT DECISIONS. pend upon such analogies. The option of the
adult to confirm or rescined is an attribute of the
infant's contract. The validity of a promise to INFANTS CONTRACTS RATIFICATION-IG
pay is derived from the exceptional law which NORANCE OF RIGHTS-DURESS-THREAT TO SUE.
controls the contracts of infants. It is an ex- In Bestor v. Hickey, 41 Atl. Rep. 555, decided
ercise of deferred capacity involved in the origby the Supreme Court of Errors of Connecticut,
inal contract. That an adult may relieve himit was held that an adult's promise to pay the
self from the legal effect of such an act by setrent of premises occupied by him while an in
ting up an unexpressed and secret belief as to the fant over fourteen years of age is binding, even if
law which everyone is presumed to know, inmade in ignorance of his non-liability. It was
volves an addition, novel in this State, certainly, further held that an adult's promise to pay a debt
to the law of infants' contracts, and for obvious contracted during infancy, made in response to a
reasons obnoxious to sound public policy. threat of suit unless payment be made, is not under duress. The court said in part: "There
“The promise was not made under duress. In are dicta to be found in some text-books and in
asking the defendant for payment, and in threat
ening to commence a civil action if payment opinions of the court in cases decided elsewhere,
were not made, the plaintiff acted legally. Such and some cases hold, that the promise of the
threats cannot be held to invalidate an act otheradult to bind himself by a contract made in in
wise voluntary. 1 Swift, Dig. p. 311; Barrett v. fancy must not only be voluntary and explicit,
French, 1 Conn. 354, 356. If the defendant inbut must be made with knowledge that he is not legally liable unless the promise is made. The
tended to rely on duress, he should have alleged claim of the necessity of such knowledge first ap
it. McVane v. Williams, 50 Conn. 548." pears in a dictum in Harmer v. Killing, 5 Esp. 102, a nisi prius case tried after the date of our Inde MARRIED WOMEN – LIABILITY FOR ACTS OF pendence. The error has been exposed, and its HUSBAND AS AGENT.-In Shane v. Lyons, 51 N. effect traced, by the Massachusetts court, in E. Rep. 976, decided by the Supreme Judicial Morse v. Wheeler, 4 Allen, 570. But the errone Court of Massachusetts, it was held that a mar'ous dictum afterwards crept into a brief and hasty ried woman can be civilly responsible for peropinion of the same court in Owen v. Long, 112 sonal injuries inflicted, not in her presence, on a Mass. 403, 404. It is difficult to account for this third person, by her husband, wbile acting error. Possibly it arose from treating the prom within the scope of his authority as her agent, ise, not as a mere adjunct of an infant's con she having of her free will, and without coercion tract authorized by the public policy which con appointed him agent. The court said: "The trols such contracts, but as an independent act, only question is whether a married woman can and strictly analogous either to a waiver, or a be civilly responsible for personal injuries inratification, or a new contract. Such a prom flicted, not in her presence, upon a third person, ise is frequently indicated by all these names. by her husband, while acting within the scope of They have been indifferently used in several his authority as her agent. The act of the agent of our decisions as terms of convenience and par- is the act of the principal, and she must be held tial illustration, but it certainly cannot be ac unless there is something in the relation of huscurately described by either. In a sense, such band and wife which takes the case out of the a promise operates as a waiver; but the contract general rule. It is claimed by the defendant that, of an infant cannot be relieved from the orig while the wife is liable for assaults and other torts inal want of capacity to bind, through the committed by her when not acting under the operation of the law of waiver. The voluntary coercion of her husband, she is not so liable when specific promise of the adult is required to perfect acting under such coercion, and that, as the husthe contract of the infant. Nor is it, except by band was present at the time of this assault, she figure of speech, a ratification. The infant is not herself, if she had been personally present, and an unauthorized agent of the adult, and the con had actually joined in the assault, would have tract is not strictly analogous to one tainted by been presumed to have acted under coercion, and fraud. Perhaps the promise comes more fclosely so would not have been liable, and that, a fortiori, to being a new undertaking, but it clearly is not she ought not to be held liable when absent. one. The action must be brought on the original But this presumption of coercion is simply a contract. The promise affects only the liability, presumption which may be rebutted by evidence,
and a wife may be held responsible, either crim defendant or its agents is an independent wrong, inally or civilly, for assault committed of her own and a cause of action for the damages resulting free will, and while actually under no coercion therefrom to the crops and other property of the from her husband, even although he be present rightful possessor of the soil or premises. In and joint therein. Com. v. Eagan, 103 Mass. 71; Harmon v. Railway Co., 87 Tenn. 614, 11S. W. Rep. Handy.v. Foley, 121 Mass. 259, and cases cited; 703, it was held that if a railway company, lawFerguson v. Brooks, 67 Me. 251. Our statutes fully located upon a street in a city, under its have given to a married woman the right to hold, charter, and by permission of the local governmanage and dispose of her property in the same ment, uses the street beyond what is necessary manner as if she were sole; and a necessary con for the proper running of its trains, and by such sequence of this enlargement of her power is a excessive and improper use substantially destroys corresponding increase of her responsibility for the easement of way and of ingress and egress apall acts relating thereto and growing out of her purtenant to an abutting lot, the owner of such management and control. If she appoints her lot can maintain successive actions for such nuihusband as her agent in such a matter, and, in sance, recovering the damages that have accrued making such appointment, acts of her own free up to the time each action is instituted, and a will, and without coercion from him, we see no recovery in one action will not bar a subsequent reason for regarding her as incapable of author one brought for a continuance of these wrongs. izing any act to be done by bim in her name, and The opinion in that case was vested largely on her behalf, or for shielding her from responsi upon the leading case of Uline v. Railroad Co., bility. It must be held that whatever is done 101 N. Y. 98, 4 N. E. Rep. 536, in which it was within the scope of the agency is done by her held that where a railroad corporation or municiauthority."
pality, under proper authority, erects an em
bankment in a street, if the work be carefully MUNICIPAL CORPORATION SEWERS - NUI and skillfully done, it cannot be made liable for SANCE-SUCCESSIVE ACTIONS.-In Mayor, etc. v. the consequential damages to adjacent property, Dowling, 47 S. W. Rep. 700, it was held by the but, if it be carelessly and unskillfully done, it Supreme Court of Tennessee, that the owner of can be made liable, in successive actions, until lands where a sewer discharges may bring suc the nuisance is abated. But, if any doubt recessive actions, against a city maintaining it, for mained as to the rule in cases of this sort in this the nuisance thereby created; it being abatable by State, we tbink, it was set at rest in Nashville v. an extension of the sewer to a proper place of Comar, 88 Tenn. 418, 12 S. W. Rep. 1027. In outflow, for there can be no entire recovery in one that case the city of Nashville had constructed a action. The court says in part: “It may be sewer along one of its streets, the supposed detaken for granted that the power of the city of fect of which seemed to be that it bad not capacChattanooga to construct this sewer did not in ity sufficient to carry off the storm water flowing volve the right to so construct it as that its of into it, so that upon occasions the pressure of acfensive contents would be frequently, if not con cumulated sewage and storm water had been so tinuously, discharged upon Dowling's land. The great as to back or throw the contents of a smalauthorities agree that a municipality, in pursu - ler and tributary sewer of Comar on his preming a public work, is not privileged to commit a ises. On the trial the circuit judge told the jury nuisance, to the special injury of the citizens, that in such a case the measure of damages was and, if it does, it must, as would a private in- | the difference in market value of the property dividual, respond in damages therefor. Burton before and since the building of the sewer.' v. Mayor, etc. 7 Lea, 739; Pumpells v. Green This charge of the trial judge was maintained Bay Co., 13 Wall, 166; Eaton v. Railroad Co., 15 in argument by the counsel of Comar as correct, N. H. 504; Rowell v. City of Lowell, 7 Gray, 100; upon the suggestion that the sewer was a perNoonan v. City of Albany, 79 N. Y. 470; Dill. manent improvement, and whatever damage it Mun. Corp. § 1047. But the question here pre- occasioned was of a permanent character; and it sented is, conceding the liability of the city to was therefore insisted that for this reason he suit for the injury complained of, should all the could only bring one action, rather than succesdamages have been recovered in one action by sive actions, and must recover damages once for the injured party, or can be maintain successive all. This view was rejected by this court, as besuits, until the nuisance is abated? Carriger v. ing based upon the assumption that the premRailroad Co., 7 Lea, 388, was an action against a ises of Comar will for all time to come be subrailroad company for so carelessly constructing jected to same disgusting invasions of sewage as its road as to cause the plaintiff's land to overflow. have heretofore occurred.' Continuing, this court The embankment, which impeded the natural said: "The complaint is not that the city has flow of the water, and threw it back on the land been guilty of any misconduct in erecting a sewer of the plaintiff, was built on the company's right where this has been constructed, but that its servof way under the authority of its charter, and it ants have so unskillfully built it that upon the was permanent in its character; yet it was said occurrence of unusual conditions it discharges its by this court that each overflow caused by the contents upon the premises of defendant in error. negligence, carelessness, or want of skill of the Now, upon what authority is it to be assumed