ship of the witness to a party interested in the action, if otherwise receivable for the purpose of affecting his credibility, would not be rendered inadmissible because it also disclosed that P had insurance on his car.1

The common statement that a party 'vouches' for the credibility of his own witness and therefore can not impeach him, is subject to a number of qualifications.

It is now uniformly held that a party may always prove a contrary state of facts by other witnesses, though the effect is to discredit his own witness in whole or in part.5

It is also generally agreed that if a party's own witness turns out to be adverse, what amounts to a cross-examination may be permitted, and under the guise of refreshing his memory he may be interrogated to prior contradictory statements."

Where the witness admits making such contradictory statements and does not furnish a satisfactory explanation, he is bound to be discredited more or less; and according to the view of the Supreme Court of the United States the examination is allowed for the very purpose of discrediting him."

Whether a party is permitted to prove by other witnesses that his own witness has made contradictory statements is a matter on which "courts have differed, and opinions may vary to the end of time."8

Lord Denman allowed a party thus to contradict his own witness and the ruling was affirmed by a divided court. Lord Denman's view, that the general rule, prohibiting a direct attack on the character of one's own witness, did not exclude proof of contradictory statements, was substantially embodied in the 17 and 18 Vict. c. 125 s. 22, quoted in Putnam v. United States, supra, and the question thus set at rest in England.

In the United States there is much conflict on this point. A majority of the cases disapprove such contradiction, unless the party was "entrapped" by the witness,10 or unless there was collusion between the witness and the adverse party." It is easy to understand a certain instinctive feeling which probably gave rise to the rule prohibiting a party from attacking the character of his own witness. He was thought of as attempting to perpetrate a fraud on the court when he put forward a witness as ostensibly credible, but whose character he was prepared to attack in case of unfavorable testimony. This notion seems to have little application to proof of contradictory statements, and less to proof of bias. The main objec

4. Dempsey v. Goldstein 121 N. E. (Mass.) 429.

5 Bradley v. Ricardo 8 Bing. 57; Cochburn v. Hawkeye Ass'n. 143 N. W. (Ia.) 1006; Moultrie v. Hall 120 Ga. 730; Municipal Court v. Kirby 28 R. I. 287.

6. Merlhuish v. Collier 15 Ad. & El. (n. s.) 878; Bullard v. Pearsall 53 N. Y. 230; Consol. Coal Co. v. Seniger 179 Ill. 370.

7. Putnam v. U. S. 162 U. S. 687.

8. Merlhuish v. Collier, supra.

9. Wright v. Becket 1 Moody & R. 414.

10. Moultrie v. Hall 120 Ga. 730.

11. Clancy v. Transit Co. 192 Mo. 615.

tion urged to proof of contradictory statements is the danger that the jury may make a hearsay use of them, a danger equally applicable to similar contradiction of a witness of the adverse party, which is allowed as a matter of course. No plausible reason has been suggested for excluding proof of bias. Most of the courts appear to have taken it for granted that the rule against impeaching your own witness by proof of bad character applies equally to proof of bias.12

The majority of the cases support Professor Wigmore's view that the mere fact that A takes a deposition, which he does not offer to use, does not make the deponent the witness of A so as to prevent impeachment, when the deposition is read by B.13

A party who merely takes a deposition, which he does not use, has never put the witness forward as worthy of belief. The rule that a foundation must be laid by cross-examination of a witness before he can be impeached by proof of contradictory statements was first announced in the Queen's Case,14 though the advisory opinion of the judges indicates that the practice had prevailed for some time in the trial courts. This rule seems to be based largely on the idea of fairness to the witness, who might not otherwise have an opportunity to explain an actual or apparent discrepancy in his statements. So where it is sought to prove the bias of a witness by his declarations showing hostility or the like, the same reasons may require a foundation by cross-examination. The statements may have been misunderstood, or may be susceptible of some explanation which the witness alone can give. For this method of proving bias, the cases quite generally require a foundation to be laid.15 But where it is sought to prove facts, such as interest, relationship or the like, the reason for requiring a prior cross-examination wholly fails.16 In the principal case the distinction seems to have been overlooked.

WISCONSIN

EDWARD W. HINTON.

TORTS-PARENT'S LIABILITY FOR CHILD'S TORTS.-Hopkins v. Droppers, which ruled that a father may become liable for his son's torts under circumstances not creating an agency, gives rise to reflections on some related aspects of our legal system, and this case is a suitable text for expounding the "firstly," "secondly," and "thirdly," that are involved.

12. Wigmore "Evidence" 901 and cases there cited.

13. Wigmore "Evidence" 913; Cadsworth v. Ins. Co. 4 Rich. (S. C. Law) 416; Neil v. Childs 10 Ired. (N. C.) 195; Richmond v. Richmond 10 Yerg. (Tenn.) 343; City v. Osterlee 139 I11. 120 (semble).

14. (1820) 2 Brod. & Bing. 284, loc. 312 et seq.

15. Fagan v. Lentz 156 Cal. 681.

16. People v. Brooks 131 N. Y. 321; People v. Lustig 206 N. Y. 162; People v. Michalard 229 N. Y. 325; State v. Smith 183 N. W. 873.

1. Wisconsin 198 N. W. 738.

Hopkins v. Droppers was not the usual instance of a "family automobile." On the facts there could be no inference of an agency. The boy of 15, riding a motorcycle in the highway, culpably injured the plaintiff; a statute made it a penal offense for a person under 16 to operate a motorcycle in the highway unaccompanied by an adult; the father had purchased this motorcycle, delivered it to the son to use, procured a license in the son's name, and paid for the rent and repairs; the son at the time was riding solely for his personal affairs. On what principle could the father be made liable?

There were three possibilities: first, agency; secondly, parenthood; thirdly, responsibility for a third person's tort made possible by the defendant. The court's opinion astutely fixes upon the third principle; and it is this principle that we desire to develop.

First, Agency was here out of the question. In the "family automobile" cases, some courts, aiming to hold the parent on "dictates of natural justice," have overstrained the agency principle; others have regretfully declined to do so.

Secondly, Parenthood is in Anglo-American law not the basis of a liability; the court in Hopkins v. Droppers takes occasion to repudiate the popular impression "that parents are civilly liable for the tortious acts of their minor children."

This negative doctrine deserves notice here for its anomaly. In the living legal systems of the world, apparently it has no place except in our own.

Note the related doctrines. As between parent and child, there may be four principal legal relations of right-duty, viz., (a) the parent's right to control the child; i. e., to beat him, and to make him work for the parent; (b) the parent's duty to support the child during minority, and to give him or her a dowry or "start in life"; (c) the parent's duty to bequeath to the child a fair portion of the family estate-the "legitim" of Continental law, and (d) the parent's duty to compensate third persons injured by the child's misconduct. The first of these the selfish, profitable oneis recognized, to the parent's benefit, in our law; the second, third, and fourth-the humane complements of the first-are not recognized. Thus, our legal system is anomalous in repudiating the three types of responsibility which in other systems are treated as the natural complements of parental right. The history and the policy of this anomaly are interesting matters, not suitable for elaboration at this moment; they were considered by the present writer a few years ago in a lengthy comment on the Mississippi opinion of Rawlings v. Rawlings.2

Enough here to note that, so far as some of the "family automobile" opinions have overstrained the doctrine of agency to hold the parent liable, no great harm is done; because in virtually enforcing a mild sort of parenthood liability, those courts have merely made a small advance towards correcting the above anomaly.

2. 121 Miss. 140, 83 So. 146 (1920); 14 ILL. LAW REV. 645.

Third, there remains a doctrine which may suffice to establish liability (up to a certain point) without resorting either to parenthood or agency.

(a) A person is responsible tortiously for harmful consequences which a reasonable person should have anticipated to result from a voluntary act. (The variances of phrasing on this grand principle are not here important.) Ordinarily, when the voluntary act of a third person intervenes as the immediate cause of the harm, the first actor's responsibility ceases. But, again, if that third person's harmful act should itself have been anticipated as a probable consequence of the first act, then the exception fails and the first actor's responsibility remains. Now when the original act consists in the delivery of a known inherently dangerous article, this principle is particularly illustrated. Under certain conditions, the lessor of a defective building in possession of the lessee, or of a railroad car, may become liable; and of course the liability of the manufacturer for harm caused by goods sold to a retailer and by him sold to a consumer is now constantly enforced, far beyond the limits once laid down in the stage-coach and belladonna cases.

It is on this principle that the Wisconsin court bases the parent's liability in Hopkins v. Droppers. The boy was under 16; it was a crime for a boy under 16 to operate a motorcycle, the statute's motive being the danger inhering in such operation by immature youths; the father delivered the motorcycle to the boy for the express purpose of doing the act which was a crime. Thus, the harmful consequence, which the statute aimed to prevent, was caused by the father's voluntary act.

The principle is capable of liberal treatment in other situations. The range of liberality would not stop with leaving it to the jury to say whether the particular harm was probable, but might go to the extent of ruling, as matter of law, that a father's act in delivering an automobile to the control of a boy of a certain age was an act done at peril.

(b) But the opinion in Hopkins v. Droppers (inadvertently, we believe) goes further, and opens up still wider possibilities. It proceeds: "If a father knows that his minor child, under his control, is committing a tort or violating a statute, and makes no effort to restrain him, he will be regarded as authorizing or consenting to the act." This would make the father liable for mere passivity, i. e., even though the father had not done the active act of delivering the lethal instrument to the boy, and the boy had procured it elsewhere, the father would be liable for the consequences of not taking it away from him. Such a liability, however, is not known to our law of torts in general; fundamentally, one must somewhere have done an active act. But there are a few standard exceptions (e. g., the

3. Clifford v. Atlantic Mills (1888) 146 Mass. 47, 15 N. E. 84 (citing cases).

4. Glynn v. Central R. Co. (1900) 175 Mass. 510, 56 N. E. 698. 5. Winterbottom v. Wright 10 M. & W. 109 (1842).

6. Thomas v. Winchester 6 N. Y. 397 (1852).

abutting owner's liability, in some states, for harm done by icy sidewalks). And the last few years have seen wide possibilities opened for another large (but, as yet hazy) exception, to which one court has given the name "privity, not of contract, but of duty." The subject has been elaborately treated by Professor Francis H. Bohlen, of the University of Pennsylvania, in his article on "The Moral Duty to Aid Others as a Basis of Tort Liability." Concisely put, it amounts to this, that under certain circumstances a person may become liable for not acting to prevent a serious harm which is impending before his eyes and is peculiarly in his power to control.

Now this is the principle which should be developed liberally in its application to the "family automobile" cases. Even though the father did not procure and donate the lethal machine to the child, even though he did not send the child as his agent on family business, still since he had the legal control over the child's conduct, and since no one else did have that control, the parent may be made responsible for harm which he passively failed to prevent but could have prevented by forbidding the use of the instrument.

We are perfectly aware that this is a period in which parents do very little forbidding. We are aware also that the pernicious philosophy of education now dominant, which apothesizes selfexpression, is interpreted to permit the child to make an unrestrained fool of himself in as many ways as his immature impulses may dictate. But that philosophy does not excuse parents for letting the child make a nuisance of himself to others.

Harking back to secondly, above, we offer the suggestion that inasmuch as parents, in our legal system, have hitherto had all the right and none of the responsibilities that other legal systems attribute to them, it is not excessive nor unfair to burden them with this particular responsibility-harmonious as it is with the exceptional principle above described, viz., responsibility for children's harmful acts which could have been prevented by watchful exercise of the parental power.

WYOMING

JOHN H. WIGMORE.

EVIDENCE-PAROL EVIDENCE-RELEASE OF A JOINT TORTFEASOR. In Natrona Power Co. v. Clark1 was presented a question apparently novel and yet likely to recur, in the application of the parol evidence rules to a release of a joint tortfeasor.

The plaintiff was injured by contact with an electric wire maintained by the defendant over the tracks of the Chicago, Burlington & Quicy R. Co. The plaintiff had executed a release, in the usual sweeping terms, to the railroad company, for a payment of $30, on

7. Pittsfield Cottonwear Mfg. Co. v. Pittsfield Shoe Co. (1902) 71 N. H. 522, 53 Atl. 807.

8. American Law Register o. s. (Pa. L. Rev.) LVI 217, 316 and again in 53 id. 209, 273, 337.

1. Wyoming 225 Pac. 586.