AGENCY

AGENTS' LIABILITY TO THIRD PERSONS LIABILITY ON CONTRACT FOR PARTLY UNDISCLOSED PRINCIPAL. - The defendant, a hotel porter, called the plaintiff, a cabman, for a customer who later changed his mind and refused to take the cab. Held, that the plaintiff may recover. Isaacs v.

Allen, 48 L. J. 501.

The facts show that an action on the contract by the third party against the agent of a partly undisclosed principal is anomalous and not based on any real agreement between the parties. It is, however, well established law. Argersinger v. Macnaughton, 21 N. E. 1022, 114 N. Y. 535; Horan v. Hughes, 129 Fed. 248, 1005. It can be said in favor of this action that it works practical justice by offering the third party some other security than the credit of an unknown principal. The present defendant might well have been relieved, however, on the ground that he acted as an automaton, or messenger, rather than as an agent; and that no reliance was placed on his responsibility for the performance of the contract.

BANKRUPTCY

PROPERTY PASSING TO TRUSTEE — LIFE INSURANCE POLICIES. - A bankrupt had a life insurance policy payable to his executors, administrators, or assigns, which, however, had been pledged to the amount of its cash surrender value. Section 75 a (5) of the Bankruptcy Act provides that by paying his trustee the cash surrender value of his policy he may retain it. Held, that the policy does not pass to the trustee. Burlingham v. Crouse, 33 Sup. Ct. 564.

The court proceeds upon the theory that as the bankrupt is to keep his interest over and above the cash surrender value, there is no occasion here for paying anything, because he has not any interest up to that amount. A decision to the same effect when the principal case was in the lower court was approved in 24 HARV. L. REV. 317.

CARRIERS - DISCRIMINATION AND OVERCHARGE - RIGHT TO COLLECT BALANCE OF LEGAL RATE FROM CONSIGNEE WHEN LOWER RATE WAS ORIGINALLY CHARGED. The plaintiff collected from the defendant by mistake an amount lower than the rate published in accordance with the Interstate Commerce Act. The consignee was the commission agent of the consignor and had already accounted to his principal, - this relationship being unknown to the plaintiff when the goods were delivered. The plaintiff now sues the consignee for the balance of the legal rate. Held, that the plaintiff cannot recover. Pennsylvania R. C. v. Titus, 142 N. Y. Supp. 43 (App. Div.).

In Massachusetts a case arose having exactly the same facts as those in the New York case above. Held, that the plaintiff can recover. New York, N. H. & H. R. Co. v. York & Whitney Co., 102 N. E. 366 (Mass.). When a carrier by mistake, or even intentionally, quotes a lower rate than that published in accordance with the provisions of section 6 of the Interstate Commerce Act (Act Feb. 4, 1887, C. 104, 24 Stat. 380; Amend. Act, June 29, 1906, C. 3591, 34 Stat. 586), the carrier can demand the lawful rate before surrendering the goods. Gulf, etc. Ry. v. Hefley, 158 U. S. 98; Southern Ry. v. Harrison, 119 Ala. 539, 24 So. 552. It can sue for the unpaid balance after the goods have been delivered. Union Pacific R. Co. v. American Smelting & Refining Co., 202 Fed. 720. And the carrier is not liable to the shipper for negligence in quoting the lower rate. Texas & Pacific Ry. Co. v. Mugg, 202 U. S. 242; Illinois Central R. Co. v. Henderson Elevator Co., 226 U. S. 441. Upon a true analysis the rights and liabilities of employer and carrier arise by way of relation and not by way of contract. See I WYMAN, PUBLIC SERVICE CORPORATIONS, § 331 et seq. Therefore whoever enters into a relation with a carrier must pay the legal freight rate, since this payment is one of the duties incident to the relation. Any contract for a lower rate does not alter this duty,

as the statute is construed. The relation of carrier and employer between the company and the consignor is not exclusive of the same relation between the company and the consignee. The consignor may be bound by the tender of the goods for carriage. Great Western Ry. Co. v. Bagge, L. R. 15 Q. B. D. 625. The consignee may be bound by the acceptance of the goods. Union Pacific R. Co. v. American Smelting & Refining Co., supra; Davison v. City Bank, 57 N. Y. 81. See 2 HUTCHINSON, CARRIERS (3 ed.), § 807 et seq. The fact that the consignee is the agent of the consignor does not prevent the relationship from arising unless the carrier knew this fact, since the identity of the employer depends upon the reasonable impression of the carrier. Sheets v. Wilgus, 56 Barb. 662. The court in the New York case admits the liability of the consignor for the full legal rate, but denies the liability of the consignee for any amount in excess of the freight bill. The consignee entered the relationship just as did the consignor, and if he is bound at all, why is he not bound to the same extent as the consignor? Union Pacific R. Co. v. American Smelting & Refining Co., supra. It is difficult to see any reason why the consignee and not the consignor can employ as a defense either a contract to carry at an illegal rate or an estoppel which would force the plaintiff to do that which he is forbidden by statute. This would seem more clearly true, since in both cases the bill of lading said, "Owner or consignee shall pay freight." The result of the Massachusetts case seems necessary to preserve the integrity of the act.

VANT.

CARRIERS PERSONAL INJURIES TO PASSENGERS INSULTS BY A SERIn response to the plaintiff's demand for a seat on the defendant's train, the conductor in a sarcastic manner said in the hearing of other passengers that he would ask a lady friend of his to give up hers. Held, that the plaintiff may recover for mental humiliation and also have punitive damages. Cave v. Seaboard Air Line Ry., 77 S. E. 1017 (S. C.).

For a discussion of the principles involved see 15 HARV. L. REV. 670. The decided cases relate to insults of a somewhat coarser kind. The allowance of punitive damages in the principal case is an eloquent tribute to South Carolina chivalry.

STATUTORY TORT - AC- A statute in Illinois

CONFLICT OF LAWS - REMEDIES: PROCEDURE · TION BARRED BY LIMITATION CLAUSE IN STATUTE. gave a right of action for death by wrongful act, but provided that such action must be brought within a year. The plaintiff brought suit in Iowa upon the Illinois statute, but amended his declaration in an essential particular after the year had passed. By Illinois decisions the amendment as well as the original declaration had to be filed within a year, or else the action was held not to have been brought within the year. Held, that the action was commenced within the year. Knight v. Moline, E. M. & W. Ry. Co., 140 N. W. 839 (Ia.).

In general, statutes of limitation affect the remedy only, not the right. Therefore an action barred by the lex loci may be maintained in a foreign state if not barred by the law of that state. Le Roy v. Crowninshield, 2 Mason 151, Fed. Cases 8, 269; Finch v. Finch, 45 L. J. Ch. N. s. 816. But where the statute creating the right of action also prescribes a time within which suit must be brought, the limitation is a condition of the cause of action and the expiration of the period extinguishes the right. Davis v. Mills, 194 U. S. 451, 24 Sup. Ct. Rep. 692; Boyd v. Clark, 8 Fed. 849. Thus the limitation in this class of cases, being one of substantive law, is governed by the lex loci delicti. Boston and Maine R. R. v. Hurd, 108 Fed. 116, 47 C. C. A. 615; The Harrisburg, 119 U. S. 199. 7 Sup. Ct. Rep. 140. Questions of procedure, however, are necessarily decided by the lex fori. Bank of United States v. Donnally, 8 Pet. 361; Heaton

v. Eldredge, 56 Ohio St. 87, 46 N. E. 638. "Commencement" of an action is a term of art in the law of procedure, and consequently the question of when an action based upon an amended pleading is commenced, is governed by the Iowa law. Bank of United States v. Donnally, supra. Once admitting the propriety of deciding this question by the lex fori, the substantive law of Illinois as to limitation is in no way violated, since the action is begun within the year. Therefore the decision of the principal case seems correct.

CONSTITUTIONAL LAW - DUE PROCESS OF LAW - SERVICE UPON A CORPORATION OUTSIDE of State. — Under a statute in South Dakota, providing for service of process upon corporations, in an action for damages for breach of contract to convey land, service was made on the defendant, a domestic corporation of South Dakota, by delivery of summons and complaint at the Iowa residence of the treasurer, the other officers of the corporation having resigned. Held, that the service was due process of law to support a default judgment. Straub v. Lyman Land & Investment Co., 141 N. W. 979, s. c. 138 N. W. 957 (S. D.).

Interpreting the statute as authorizing service "within or without" the state in such a case, the court argues that a domestic corporation is always resident and within the jurisdiction of the state. Hence service of process amounts to a mere notice of an action to give an opportunity to defend the same. Any reasonable means of notification may be authorized, since there is no attempt to cite into court any individual outside of the court's jurisdiction. The conclusion of the court, however, may be reached in a less involved way. Corporations are artificial units created by legislative act. Any state may prescribe its own terms for admitting foreign corporations within its territorial limits. Philadelphia Fire Association v. New York, 119 U. S. 110; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181. By statute the powers and control of domestic corporations may be revised by subsequent legislation. And a reasonable method of service may therefore be established by the state as a term of the continued existence of a domestic corporation. Now provisions for service upon a corporation are in substance provisions for substituted service. Hence service by publication or by mailing a copy of summons to the office of the corporation has been upheld as reasonable. Clearwater Merc. Co. v. Roberts, etc. Shoe Co., 51 Fla. 176, 40 So. 436; Nelson v. C. B. & A. R. Co., 225 Ill. 197, 80 N. E. 109. Consequently the power of the state should extend to providing such reasonable procedure for creatures of its own legislature, as was provided in the principal case.

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CONSTITUTIONAL LAW PRIVILEGES AND IMMUNITIES: CLASS LEGISLATION CITIES CLASSIFIED FOR PURPOSES OF ELECTION LAW. - The Pennsylvania constitution prohibited "local or special" legislation regulating the holding of elections. A statute provided for the government of cities having less than a given population by a commission to be chosen by a special process of non-partisan election. Held, that the statute is constitutional. Commonwealth ex rel. Jackson v. Corl, 61 Pitts. Leg. J. 513 (Pa. C. P.); Commonwealth ex rel. Kessler v. Moore, 61 Pitts. Leg. J. 481 (Pa. C. P.). Contra, Commonwealth ex rel. Vannatta v. Fayette County Commissioners, 61 Pitts. Leg. J. 465 (Pa. C. P.).

A law is general if it applies one rule to all like cases: it is local or special only if it treats differently cases between which there is no "substantial distinction having a reference to the subject matter" of the law. See State ex rel. Richards v. Hammer, 42 N. J. L. 435, 440; People ex rel. Davis v. Nellis, 249 Ill. 12, 23, 94 N. E. 165, 170. What are substantial distinctions between cases justifying different legal results can be determined only by the judgment born of experience. A court, confronted with this question, can do no more

than decide whether, in the light of its judicial knowledge, the distinction drawn by the statute seems reasonable. No rational ground suggests itself for confining non-partisan elections to cities of any particular size, as such. Wanser v. Hoos, 60 N. J. L. 482, 38 Atl. 449. But cf. State ex rel. Crow v. Fleming, 147 Mo. 1, 44 S. W. 758; Ladd v. Holmes, 40 Ore. 167, 66 Pac. 714. But population furnishes a basis for differences in organization. Hence commission government may be confined to cities of a certain size. State ex rel. Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651. Since commission government requires non-partisan officers more imperatively than does the bicameral system, it would seem that non-partisan elections in commission-governed cities may coexist with partisan elections in cities differently organized consistently with the constitutional requirement of uniformity. If so, the present statute should be sustained.

CORPORATIONS

TION

- TORTS AND CRIMES

CRIMINAL LIABILITY OF CORPORA- CRIMINAL ACT OF AGENT FORBIDDEN BUT WITHIN SCOPE OF AUTHORITY. — The defendant's agent aided in the sale of liquor, contrary to the U. S. PENAL CODE, § 239. This was within the scope of the agent's authority, but was forbidden by the defendant's regulations. The jury were charged that the defendants were criminally responsible for such acts. Held, that the instruction was wrong. John Gund Brewing Co. v. United States, 204 Fed. 17. There is a tendency at present to hold a corporation criminally liable even where mens rea is required. See 20 HARV. L. REV. 321; 22 HARV. L. REV. 537. While courts may have been loath to impose the stigma of criminality on an individual for the fault of his agent, no such considerations apply to corporations where a conviction can result only in a fine.

CRIMINAL LAW - PLEAS WITHDRAWAL OF PLEA OF GUILTY. The defendants in a criminal prosecution were induced to plead guilty, by the representation of the prosecuting attorney that the court would impose a light sentence. A heavy sentence, however, being imposed, the defendants moved for permission to withdraw the plea and plead not guilty. The trial court denied the motion. Held, that the sentence be vacated and the defendants permitted to withdraw the plea. Griffin v. State, 77 S. E. (Ga.) 1080.

The plea of guilty, being a confession in open court and a waiver of trial, has always been received with great caution. The court must see that the defendant thoroughly understands the situation and acts voluntarily before receiving it. Gardner v. People, 106 Ill. 76; State v. Stephens, 71 Mo. 535. Whenever the accused through ignorance, fraud, or intimidation has been induced to plead guilty he should be permitted to withdraw the plea. Myers v. State, 115 Ind. 554, 18 N. E. 42; Swang v. State, 2 Cold. (Tenn.) 212. This may be done at the discretion of the trial court before sentence. Rex v. Plummer [1902], 2 K. B. 339. In some jurisdictions this right is granted by statute.__State v. Kraft, 10 Ia. 330; People v. Richmond, 57 Mich. 339, 24 N. W. 124. The same reasons would apply in favor of withdrawing a plea of guilty after sentence, and in America it is generally permitted. City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233; Little v. Comm. 142 Ky. 92, 133 S. W. 1149. Contra, Regina v. Sell, 9 Car. & P. 346. Whether this is so far within the court's discretion as not to be subject to review by an appellate court is a question of local practice. In some jurisdictions such rulings by the lower court are not open to review. Comm. v. Tucker, 189 Mass. 457, 76 N. E. 127. But judicial discretion is not usually regarded as an arbitrary power. State v. McNally, 55 Md. 559. Where the circumstances are such as to make the ruling of the lower court in denying the motion a clear abuse of its discretion, the ruling should be subject to review on appeal. Deloach v. State, 77 Miss. 691, 27 So. 618; City of Salina v. Cooper, supra. See 14 HARV. L. REV. 609.

DAMAGES

PARASITIC

MENTAL DISTRESS AS ELEMENT OF Damage · DAMAGES IN ACTION OF TRESPASS. The plaintiff's landlord, wrongfully entering her premises, frightened her badly by a violent disturbance. There was no physical injury either simultaneous with the fright or resulting from it. Held, that in an action for the wrongful entry the plaintiff may recover for her mental suffering. Nordgren v. Lawrence, 133 Pac. 436 (Wash.).

The principal case does not involve the question of whether mental suffering is sufficient damage to sustain a cause of action for negligence without physical impact. Cf. Spade v. Lynn & Boston R. Co., 168 Mass. 285. It rests on the principle, now quite widely accepted, that where an independent cause of action exists, mental suffering is a proper element of damage. Bouillon v. Laclede Gaslight Co., 129 S. W. 401, 148 Mo. App. 462; Tennessee Cent. R. Co. v. Brasher's Guardian, 97 S. W. 349, 29 Ky. Law Rep. 1277. A common illustration is a suit for wrongful ejection from railway premises under humiliating circumstances. Davis v. Tacoma Ry. & Power Co., 77 Pac. 209, 35 Wash. 209. Another is the mutilation or the disinterment of a corpse. Larson v. Chase, 50 N. W. 238, 47 Minn. 307. The limitation, that the mental suffering must have been wilfully inflicted, seems to be applied in some jurisdictions. Wyman v. Leavitt, 71 Me. 227; Buchanan v. Stout, 108 N. Y. Supp. 38. It is submitted that this is incorrect. Granting that the act was wrongful in the legal sense, and that fright is damage, the plaintiff should recover for all proximate mental suffering. The danger, made much of in analogous cases, of a multitude of groundless suits based on mental injury alone is not present here, since the plaintiff is already in court on a good cause of action. Cf. Spade v. Lynn & Boston R. Co., 168 Mass. 285; Dulieu v. White, 2 K. B. 669. The fact that such damages would not have been allowed in a technical action of trespass does not seem to trouble modern courts.

DEATH BY WRONGFUL ACT - DAMAGES IN STATUTORY ACTION - RIGHT OF DAUGHTER NOT SUPPORTED BY FATHER, TO SUE FOR HIS DEATH. - An administratrix sues under the Employers' Liability Act for death negligently caused. One of the beneficiaries was a married daughter who had not been supported by the deceased. Held, that there can be no recovery for the benefit of the non-dependent child. Gulf, Colorado, & Santa Fe R. Co. v. McGinnis, 228 U. S. 173.

This case is interesting as showing that the Supreme Court regards recovery under the Employers' Liability Act as a new right given to the beneficiaries through the administrator as representative, and not as a right left as a legacy by the deceased. It being a right of the beneficiaries, damage to them must be shown for a recovery. For a discussion of the principles here involved, see 21 HARV. L. REV. 636.

DEATH BY WRONGFUL ACT - DEFENSES TO STATUTORY LIABILITY — EFFECT OF CONTRIBUTORY NEGLIGENCE OF BENEFICIARY. Under the New York statute an administrator sues a street railway company for negligently causing the death of his intestate. The administrator was the sole beneficiary under the death statute, and his negligence had contributed to the disaster. Held, that the plaintiff may recover. McKay v. Syracuse Rapid Transit Co., 101 N. E. 885 (N. Y.).

There are two types of death statutes. When the right of action is given to the next of kin as such, it is law everywhere that his contributory negligence will bar. St. Louis, I. M. & S. R. Co. v. Freeman, 36 Ark. 41; Baltimore & Ohio R. Co. v. The State, 30 Md. 47. When the right of action is given to the administrator for the benefit of the next of kin, here again the weight of authority is that the contributory negligence of the beneficiary is a bar. Richmond, etc. R. Co. v. Martin's Adm'r, 102 Va. 201. In a few jurisdictions, however,