medicine or surgery in certain counties therein C. P. No. 3.
named "who has not graduated with the degree
of Doctor of Medicine and received a diploma
from a chartered medical college or other insti-
tute authorized to grant diplomas."

By subsequent Act this prohibition is extended over the whole, or nearly the whole State. The Act of March 24, 1877 (Purd. Dig. 2151), goes a step further, and provides as follows: Sec. 1. "The standard qualification of a practitioner of medicine, surgery, or obstetrics shall be and consist of the following, namely: A good moral character, a thorough elementary education, a comprehensive knowledge of human anatomy, human physiology, pathology, chemistry, materia medica, obstetrics, and practice of medicine and surgery and public hygiene."

We are asked in this case to charter an educational institution which, while giving instruction in electricity, galvanism, and magnetism only, may confer degrees in medicine and arm its graduates with diplomas intended to entitle them to practise medicine, and to place them, as far as that right is concerned, upon the same level with graduates of institutions which require a thorough course of instruction in every branch of the science of medicine.

To do this, in our judgment, would be in violation of the spirit and letter of the legislation referred to, and of the manifest propriety of restricting the right to practise medicine to those possessing in a higher degree qualifications for so important a trust.

Whatever may be the value of electricity and magnetism as curative agents, a knowledge of their principles in their application to disease does not comprehend the degree of learning which the law, and the interests of society as well, require in a practitioner of medicine.

Since the filing of this charter we have been asked to approve it after it shall have been amended by striking out the words "degree in medicine," and inserting in place thereof the words "degree in electricity."

We cannot consider the charter thus amended with greater favor than as it was originally presented.

The corporation sought to be created would still sustain in its relation to the public the character of a medical college, and it is this character, while its course of instruction is thus limited, that is without authority of law, and liable to become a source of danger to the community. The application is refused. Opinion by FELL, J.

Frick et al. v. McClain.

June 9, 1880.

Landlord and tenant-Judgment creditor of tenant-Distress-Claim of exemption, and appraisement of goods at less than $300-Subsequent sale under a judgment in which there is a waiver of the exemption-Claim of landlord and execution creditor to the fund.

Case stated, between Frick et al., plaintiffs in the above case, and Garrett, landlord of defendant, setting forth the following facts: On March 5, 1880, a fi. fa. issued in the above case, and a levy was made on defendant's property at No. 700 Brooklyn St. Prior to this levy, the landlord, Garrett, had distrained on the same goods for the rent of said premises, and the landlord's bailiff was in possession of the goods under a distress warrant at the time of the sheriff's levy. The lease was not in writing, and the tenant had not waived the exemption. The constable appraised the goods at less than $300, and, as the tenant had claimed the exemption, went no further. The judgment upon which the abovenamed fi. fa. issued contained a waiver of the exemption. Under this writ, the sheriff sold the goods of defendant, at No. 700 Brooklyn St., for $239, upon which fund the landlord, Garrett, made a claim of $63.26, for rent accrued up to the time of distress made. The claim was filed before the sale. If the Court be of opinion that the landlord has a claim for the rent upon the fund, then judgment to be entered for the landlord for $63.26; otherwise, judgment for the execution creditor.

the

A. A. Hirst, for the landlord.

The landlord is entitled to claim rent out of
proceeds of a sale in the sheriff's hands.
Gray v. Wilson, 4 Watts, 39.

Appeal of Collins, etc., II Casey, 83.

The case is exactly the same as where there are two executions levied on the same goods, and the judgment on which the junior writ was issued alone contains a waiver; where it is held that the senior writ is also entitled to claim the bene

fit of the waiver.

James Alcorn, for the execution creditor.

By the appraisement, the goods were set aside as the debtor's, and were his without being subject to a claim for rent.

Rowland v. Goldsmith, 2 Gr. 378.
Collins' Appeal, 11 Casey, 83.
Gray v. Wilson, 4 Watts, 39.

June 26, 1880. THE COURT. favor of execution creditor.

C. A. V. Judgment in

WEEKLY NOTES OF CASES.

VOL. IX.] THURSDAY, SEPT. 9, 1880.

Supreme Court.

Jan. '79, 88.

February 20, 1880.

and on the evening of that day, in company with his wife, presented the tickets at the door and attempted to enter, but defendant refused them admission, "and ejected, expelled, thrust [No. 3. out, evicted, pushed, and shoved the said plaintiff and his said wife from the theatre into the street in front of the theatre, and with great force and violence shook and pulled about him the said plaintiff and his said wife, whereby the plaintiff has been greatly injured, and prevented from having the right of admission to the said Arch Street Theatre, and the right to be present at and see the said performances and exhibitions, and to use and enjoy the said two seats; and the said Rachel Allandesa Peer, his wife, by means of the several premises, was then and there greatly hurt, bruised, and wounded, and became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, the space of two weeks then next following, whereby he, the said plaintiff, during all that time, lost and was deprived of all the comfort, benefit, and assistance of his said wife in his domestic affairs which he might and otherwise would have had, and whereby, also, he, the said plaintiff, was forced and obliged and did necessarily pay, lay out, and expend a large sum of money, to wit, the sum of five hundred dollars, in and about endeavoring to have her, his said wife, cured," etc.

Drew v. Peer. Pleading-Form of action-Trespass and case -Suits against master for acts of violence by servant Consequential injuries—Suit by husband for loss of wife's services, etc.-Tickets entitling holder to right to occupy seats in a theatre-Practice.

When an act of violence is committed by a servant in the ordinary course of his employment, but not by the

direct command nor assent of the master, case, and not trespass, is the proper form of action in which to recover damages against the master.

When a husband seeks to recover damages for an act of violence committed upon his wife, whereby he has lost her company and services and suffered expense for medical attendance, case is the proper form of action.

A. and his wife, persons of color, while in lawful possession of two tickets of admission and reserved seats in

defendant's theatre, were refused admission and forcibly ejected from the building by defendant's employés. More than two years afterwards A. brought an action of trespass on the case to recover damages:

Held, that this action was in the proper form to recover the price of the tickets and the loss occasioned the plaintiff by his wife's illness, including all expenses which he was put to in consequence, these being consequential and not direct injuries.

Held, also, where, in the absence of any regulation with reference to color, a colored person lawfully possessed of a ticket for a seat in a theatre for a particular performance is refused admisssion, the proprietor is liable in damages

therefor.

Semble (per STERRETT, J.). A ticket to a reserved seat in a theatre confers more than a revocable license and partakes more of the nature of a lease, entitling the holder to peaceable ingress and egress, and exclusive possession of the seat during the designated performance. It is not error to permit counsel, after the charge of the Court, to state to the jury the specific items for which he claims damages.

Defendant filed a plea of "non assumpsit," which was subsequently withdrawn upon a motion being made by plaintiff to strike it off, and pleas of not guilty" and "not guilty within two years" were filed.

66

At the trial, before THAYER, P. J., the evidence disclosed that on April 10, 1874, two admission tickets had been purchased by the plaintiff, who was a colored man, from a policeman, who was selling them for the benefit of the Police Centennial Fund, and, on the 13th, his wife exchanged them at the box office of the theatre for reserved seat tickets for April 16th. The agent at the office asked her whom they were for, and she replied, "Mr. Peer and family." On the evening in question, the plaintiff and his wife entered the street door and got within a short distance of the ticket-taker at the entrance to the orchestra circle. They were then refused admission, the ticket-taker saying, "Clear them niggers out;" and the usher addressed stating,

Error to the Common Pleas No. 4, of Phila-"We don't admit niggers." There was also delphia County.

Case, by Pusey Anthony Peer against Louisa Drew. The summons issued December 2, 1876. The declaration contained one count in which it was averred that on April 16, 1874, plaintiff purchased two reserved seats and tickets of admission to the Arch Street Theatre, of which the defendant was the lessee and the proprietress; VOL. IX.-3

evidence of violence used in ejecting them, and as to the nature and extent of the injuries received by plaintiff's wife in consequence; there was no evidence of there being any place in the theatre assigned for the use of colored persons, nor any evidence of regulations in regard to color, except the declarations of the employés above quoted.

count only so far as it shows a loss suffered by the plaintiff in consequence of it. The plaintiff cannot recover in this action for an assault and battery, but he may recover for any loss he sustained in consequence of injuries to his wife resulting from the misconduct of the defendant's agents, as well as the price of the tickets.

(12) "The defendant had a right to exclude persons of color from her theatre; and if, upon finding that they were not permitted to enter, they refused to retire, she was authorized to compel them so to do, using no more force than was necessary for that purpose. Refused.

The Court charged, inter alia, that (1) "if done to the plaintiff or his wife, or for losses or the injuries complained of were caused by de-injuries resulting therefrom." Answer. There fendant's agents in the course of the employment is no proof of any injury to the plaintiff's person, committed to them, she was liable in so far as and the injury to the wife can be taken into acthey had occasioned loss and damage to the plaintiff, but, as the action was by the husband alone, only such loss as he had experienced could enter into the verdict;" (2) "there was no evidence of any regulation excluding colored persons from the theatre;" and (3) the question of color does not arise in this case, and has nothing to do with it, there not being a scintilla of proof that there was any regulation of defendant as to colored persons.' The defendant's counsel having argued to the jury from the case of the Westchester R. R. Co. v. Miles (5 Sm. 209), the Court further charged that (6) "if a regulation had been shown, setting apart a particular place in the theatre for colored persons, the defendant might have cited with some plausibility the case of the Westchester R. R. Co. v. Miles; but the law of that case does not authorize defendant to exclude colored persons from the house;" (7) "the plaintiff may recover in this case, not only for any injury to himself, but also for the loss of service to himself of his wife and any expenses to which he had been put on her account;" and (8) "if the ticket-agent had called upon any one in the crowd to put the niggers out,' and some ruffian had done so, the defendant would be liable."

The defendant requested the Court to charge: (9) "The plaintiff cannot in the same suit sue for and recover damages for an assault upon or violence done to himself and also damages for an assault upon or violence done to his wife, and the jury must therefore find for the defendant." Answer. The plaintiff may recover for any consequential injuries caused to himself by the misconduct of the defendant's agents, and in that may be included any loss or damage which he individually has sustained in consequence of the injury to his wife.

(10) The plaintiff cannot in one and the same suit sue for and recover damages for an assault upon or violence done to himself and for the loss of services of his wife and moneys paid or expended for her, and the jury must therefore find for the defendant." Answer. This is not an action for assault and battery, but an action on the case for consequential injuries alleged to have been suffered by himself in consequence of the misconduct of the defendant's agents; and for such injuries he may recover, including any loss or damage which he has individually sustained in consequence of the injury of his wife. (11) "The plaintiff cannot in this action recover more than the price of the tickets which he purchased and interest thereon; he cannot recover damages for assaults upon or violence

(13) "There is no evidence to show that, if any violence was done to the plaintiff or his wife, it was expressly or impliedly authorized by the defendant, and she cannot therefore be made liable for the same.' Refused.

(14) "The defendant is not liable for any violence done by any person not authorized by her to do it; and if the jury believe that the violence, if any, to the plaintiff and his wife, sued for in this case, was done by the crowd, or by persons not authorized by her, she cannot be made liable." Answer. The defendant is responsible for any loss or damage suffered by plaintiff in consequence of the misconduct of the defendant's agent. It did not require an express direction to her agents to commit this injury to make her responsible. Of course she is not responsible for injuries committed by strangers which were not caused by the direction or misconduct of her own agents.

(15) "If the jury believe that the injury, if any, to the plaintiff and his wife, done in this case, was done by or at the command of a person who, though in the employment of the defendant, had no power or authority from her to do or command it, the plaintiff cannot recover.' Answer. The principal is responsible for the misconduct of the agent in the discharge of the functions committed to him by the principal.

(16) "If the jury find that the violence, if any, to the plaintiff and his wife, done in this case, was done by an employé of the defendant, but done without her order, direction, or knowledge, and out of the usual course of the employment of such employé, the plaintiff cannot recover." Answer. If the injury was committed by an agent out of the usual course of employment, the defendant was not responsible; but if the injury was committed by defendant's doorkeeper, or ticket-taker, then it was in the course of their employment.

(17) The action in this case is barred by the statute of limitations." Refused.

The purchase of tickets conferred a mere re-enable us to determine this question. The devocable license upon the plaintiff. He had originally two remedies for his wrong, either case or trespass; the former lies only for the breach of contract based upon the sale of the tickets, in which case the measure of damages would be the value of the tickets with interest.

etc.

After reviewing the authorities, it is there said that "the injury complained of does not flow directly from the act of the defendant, but consequentially, and that is the criterion between trespass and case. The injury is the loss of services occasioned by consequences flowing from the act itself."

facts then as claimed by the plaintiff below and | bauching the plaintiff's daughter, by which he supported by his testimony were found by the lost her services, and was put to great expense, jury. Upon the facts so found we think there can be no doubt that the form of action was properly case; because the injuries to Mrs. Peer, from which the damages to her husband resulted, were not inflicted personally by the plaintiff in error or by her command or with her assent, but by her agents in the course of their employment. The criterion is not whether the master has given While it is conceded by the Court that tresthe authority to do the particular act, but whether pass has often been resorted to in similar cases, the servant has done it in the ordinary course of it is said in sustaining the action in that case his employment. In 1 Chitty on Pleading, 149, it that, "on principle, the action of case would is said: "For some torts which may prima facie seem to be the more appropriate remedy.' This appear to be forcible and immediate an case was followed by Wilt v. Vickers (8 Watts, action on the case is the proper remedy. So, 227), in which the distinction between trespass though a master may be liable under the circum- and case was elaborately considered, and the stances to compensate an immediate injury com- principle contended for by the learned counsel mitted by his servant in the course of his employ- for the defendant in error recognized. ment with force, yet the action against the master must in general be case, though against the servant it might for the same act be trespass." To maintain trespass vi et armis against the employer it must appear that the particular injury or act of trespass was done by his command or with his assent. (The Railway Company v. Wilt, 4 Whar. 143; Yerger v. Warren, 7 Casey, 319; The Allegheny Valley R. R. Co. v. McLain, 27 Pitts. Leg. Jour. 135.)

The action was properly in case for the further reason that the damages claimed by the plaintiff were consequential. In treating of actions of trespass by husband and wife for battery of the wife, Blackstone says, if the beating be so severe that the husband is thereby "deprived for any time of the company and assistance of his wife, the law gives him a separate remedy by action of trespass in the nature of an action upon the case for this ill usage, per quod consortium amisit, in which he may recover a satisfaction in damages." (3 Bl. Com. 140.) Mr. Stephen, in his treatise on the principles of pleading, says: "The action of trespass lies where a party claims damages for a trespass committed against him. A trespass is an injury committed with violence, either actual or implied; and the law will imply violence, though none is actually used, where the injury is of a direct and immediate kind, and committed on the person or tangible and corporeal property of the plaintiff." It follows from this that where damages are claimed by the husband for loss of his wife's services and for medical attendance resulting from a personal injury to her, that case is the proper form of action. The right to the services is an intangible right, and therefore not the right of immediate forcible injury, such as may be inflicted on tangible or corporeal property. The principle is also recognized in Ream v. Rank (3 S. & R. 215), which was an action on the case for de

There was no error in holding that the action was in proper form, or in submitting the case to the jury, as was done.

If there had been an improper joinder of distinct causes of action in the declaration, this should have been taken advantage of by demurrer; but there was no such misjoinder. The tickets were set out merely by way of inducement to show that the plaintiff and his wife had a right to be where they were at the time the injuries to her person were inflicted, and that as patrons of defendant's theatre they were entitled to protection from injury at the hands of her employés.

Whether the tickets conferred merely a license or something more is immaterial. If they gave only a license to enter the theatre and remain there during the performance, it is very clear that the agents of the defendant had no right to revoke it as they did and summarily eject Peer and his wife from the building in such manner as to injure her. We incline to the opinion, however, that as purchasers and holders of tic ets for particular seats, they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.

It is unnecessary to notice especially the remaining assignments of error further than to say that they are not sustained. The verdict was fully justified by the evidence, and the judgment thereon should not be disturbed. Judgment affirmed.

Opinion by STERRETT, J.