Central Law Journal.

A LEGAL WEEKLY NEWSPAPER

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Copyright, 1914; by Central Law Journal Co. Entered at the Post-Office, St. Louis, Mo., as second-class matter.

NEEDHAM C. COLLIER, EDITOR-IN-CHIEF ALEXANDER H. ROBBINS, MANAGING EDITOR

CONTENTS

Was he Guilty?

J. S. was a clerk who attended his employer on a race track to record in a book his employer's bets on the races. Was he guilty of "occupying a place on the ground for the purpose of recording bets," under a penal statute making that a punishable offense?

See "Occupant-Agent or employee," in Words and Phrases, for the answer

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Specialist on the Uniform Negotiable Instruments Law and Adviser in Cases thereunder See Central Law Journal, Oct. 17. 1913; Michigan Law Review, Dec., 1913; Yale Law Journal, Feb., 1914; Central Law Journal, Feb. 20, 1914: University of Pennsylvania Law Review, April, 1914.

Central Law Journal.

ST. LOUIS-MO., MAY 8, 1914.

LOSS OF SOCIAL ENJOYMENT ARISING OUT OF BREACH OF CONTRACT AS SPECIAL DAMAGES IN CONTEMPLATION OF PARTIES.

The Supreme Court of Michigan held that where a lady purchased a ticket for an ocean voyage in a personally conducted tour and shipped her trunk to the pier in New York, fully apprising the carrier of her purpose, it became liable for failure to deliver the trunk in time, for the mental trouble over loss of social enjoyment she suffered on the trip.

being that as the lady's trunk was left behind she must

"Let concealment, like a worm in the bud Feed on her damask cheek."

The affirming opinion refers to many telegraph cases showing mental trouble from a telegram not being delivered, a case where a carriage had been engaged to convey a bridegroom to a wedding ceremony, the expulsion of a ticket purchaser from the line where she was, at a bathing resort, none of which seem to us to cover a case of this kind.

Indeed if this sort of case is to come within the rule of mental anguish from the breach of a contract, we do not see but the rule of contemplation of damages is without any limit at all.

The four members of the court against affirmance thought that plaintiff was entitled to recover only for the physical suffering occasioned by the breach and damages to the feelings and mental suffering occasioned by the loss of social enjoyment were not within the contemplation of the parties.

The plaintiff had testified she was not seasick on the voyage, which caused the affirming opinion to say that: "It also may be asserted that for people who are good sailors, one of the chief advantages of the journey is the ability to be comfortably clothed and reclining in an easy chair, or walking about the deck, be able to fill the lungs with ozone and to feel the tang of the salt sea in the nostrils and throat, and to watch the ever changing procession of the waves and the clouds and the color effects upon the sea and sky. It would add, also, to the enjoyment of a cultivated, normal person to be able to exchange greetings and social amenities with other normal cultivated people, who are sure to be present upon a Cunarder."

The opinion goes on at some length in this vein, the deprivation of all these things

in advance an ocean voyage. Knowing from previous experience the advantages she might reasonably expect from it, planning in great detail for a wardrobe and other articles which would supply her necessities and provide for her comfort and pleasure." Must a carrier in a contract such as was entered into this case go into all of these things in merely engaging to deliver a trunk for a passenger in time for her trip?

Must it consider whether it was dealing with one who could not enjoy "the tang of the salt sea in her nostrils" unless she were correctly dressed or may it suppose that one out for a pleasant voyage is going to have it whether she have the clothes for the occasion or not?

To refer to cases where sorrow intervenes from the breach of a contract, a court puts itself on ground where the common experience of mankind sustains it. But when it gets down to chagrin and disappointment over the loss of social pleasure, which one person would bear with philosophical patience and another would exaggerate into a mountain of woe, gets us into a region of doubt and difficulty, where temperaments. are the rule of damages. With tempera

ments hardly may it be supposed the carrier has any acquaintance.

The trouble with this kind of ruling is, that notwithstanding every one is on an equality in demanding service such as was contracted to be given in this case, the court divides its customers into classes opposed to that very equality.

It seems especially true that when people go to traveling highly sensitive organisms must mix with hoi polloi and take the jolts and pushing and scrambling in a good natured way. They are supposed to be away from their exclusive environments, if our law recognizes anything of that sort, and to take their chance and if their sensitive souls need to be guarded, they should stay at home. We do not believe in aristocratic notions finding a basis for damages in our law. The lady in this case should be supposed to have to put up with her deprivation in an American way, and a lesson in the doing of this might have brought her more pleasure on her trip, than had she been able to have responded to the utmost to "the social amenities of other normal cultivated people." At all events, why should it be said that the carrier knew she set so very much store by all of these amenities?

We think that whenever we get into questions of this nature we get into exceptional atmosphere, and that all that a public carrier should be bound for would be what a normal American would suffer under the same circumstances, and not a highly sensitive person trusting herself alone on a long personally conducted tour.

NOTES OF IMPORTANT DECISIONS.

HOSPITALS-NON-LIABILITY FOR ACTS OF PHYSICIANS AND NURSES.-The New York Court of Appeals in an opinion reported in 51 N. Y. Law Journal, 367, holds that physicians and nurses are not servants of a hospital maintained as a charitable institution. Schloendorf v. The Society of the New York Hospital, 104 N. E.

In this case an operation was performed in a case where the patient testified, that she

agreed to an ether examination only and while she was under the influence of the ether an operation was performed, from which she suf fered serious consequences. There was a suit against the hospital and a verdict was directed in its favor. It was said that the relation of master and servant does not exist between the hospital and its physicians.

So far as the hospital was concerned, it was said: "The defendant undertook to procure for this plaintiff the services of a physician. One or both of these physicians (if we are to credit the plaintiff's narrative) ordered that such an operation be performed on her in disregard of her instructions. The administrative staff of the hospital, believing in good faith that the order was a proper one and without notice to the contrary gave to the operating surgeons the facilities of the surgical ward. The wrong was not that of the hospital; it was that of the physicians, who were not defendant's servants, but were pursuing an independent calling, a profession sanctioned by a solemn oath and safeguarded by stringent penalties."

In answer to the claim that plaintiff informed a nurse that she did not consent to an operation, it was said: "It is true, I think, of nurses, as of physicians, that in treating a patient they are not acting as the servants of the hospital. The superintendent is a servant of the hospital; the assistant superintendent, the orderlies and the other members of the administrative staff are servants of the hospital. But nurses are employed to carry out the orders of the physicians, to whose authority they are subject. The hospital undertakes to procure for the patient the services of a nurse. It does not undertake through the agency of the nurses to render those services itself."

For the proposition that a physician is not the servant of the hospital, cites a recent English case very much in point. Hillger v. St. Bartholomew's Hospital, 1909, 2 K. B. 602, and several American cases bearing close analogy.

The opinion is also interesting as distinguishing between a pay patient and one cared for as a charity patient, holding in this case that what was paid was not sufficient as full compensation but only a contribution to keep the work going on. The learned editor of N. Y. Law Journal in commenting on the case, calls attention to a Nebraska decision which holds that even if a patient pays full price the law is the same.

The opinion in its distinction between physicians and nurses and the administrative staff of a hospital appears sound, though the hospital at least ought to have some measure of responsibility in the selection of physicians and the calling in of nurses, unless all of these are chosen by the patient.

HOLDING PUBLIC MEETINGS IN

THE STREET.

Highways and therein. are included streets and sidewalks of cities and townsare primarily for the use of the public in passing from one place to another, as well as for owners of property abutting thereon as having a right of passageway thereto ast well as those persons visiting them, either on business or pleasure, to gain ingress thereto or egress therefrom. No one has the right to permanently appropriate a highway to his own exclusive private use; nor has any number of persons to so use it. Under the English law these public passageways are known as the "King's Highways." because they are opened by the authority of the king, though, in early times, maintained in a way by the local parishes. But the term was seldom applied to streets in a city, for that was usually opened and always controlled by the municipal authorities. But by whomsoever they were opened or by whatever authority, it has always been an indictable offence to permanently

obstruct them.

Temporary Obstruction.-From the law of necessity, it has always been regarded lawful for an abutting property owner to maintain a temporary obstruction of a street, if sufficient passageway was left to accommodate the public. Such is the case of a lot owner in a city building a large

structure on his lot where it becomes necessary to temporarily lay timbers in the street preparatory to its use in the building, when his lot is not of sufficient size to enable him to lay the timber on the lot; or where he builds sheds over the sidewalk to protect the public from articles that may fall from the structure being built. So a merchant may temporarily deposit his goods in the street, preparatory to taking them into the store, not leaving them there an unnecessary length of time and not preventing the public using the street, though such public may be to some extent temporarily inconvenienced. The Supreme Court of Illinois has very well stated the rule on this point:

"The owners of lots bordering on streets or ways," says the court, "have the right to make all proper and reasonable use of such part of the street for the convenience of their lots, not inconsistent with the permanent rights of the public to the use of the street in all its parts."1

In another case the same court said: "Placing building material in the street preparatory to building on the land is not unlawful if the street is not improperly obstructed if the materials are removed within a, reasonable time. The delivery of merchandise, fuel, or other supplies at business or other lands on a street is a necessary incident to the use of a public highway. The streets of a city would be of comparatively little use if merchants could not deposit their goods in them temporarily in the transit to the storehouse. A merchant may use and temporarily obstruct the street and sidewalk in front of his premises for loading and unloading goods, when not restrained by ordinance, if he does not unnecessarily or unreasonably interfere with the traveling public." "The extent of the right thus to interfere with the public's free use of the sidewalk depends upon the necessity of the case so far as the indi

vidual is concerned and the reasonableness of the use against the public.""

"It is true," said the Supreme Court of Pennsylvania in an early case, "that necessity justifies actions which would otherwise

be nuisances. It is true, also, that this necessity need not be absolute-it is enough if it be reasonable. No man has a right to throw wood or stone into the street at pleasure, but, inasmuch as fuel is necessary, a man may throw wood into the street for the purpose of having it carried to his house, and it may be there a reasonable time. So, because building is necessary, stone, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner.' 993

(1) McCormick v. South Park Comrs., 150 Ill. 516, 37 N. E. 1075.

(2) Tolman & Co. v. Chicago, 240 Ill. 268, 88 N. E. 488, 16 Ann. Cas. 142.

(3) Commonwealth v. Passmore, 1 S. & R. 217.