II.

In 1846, when Anthony v. Slaid was decided, this phase of the problem, of course, did not present itself. When that court then decided that such damages were "remote" it had behind it that one time decisive factor "lack of precedent." When it therefore concluded "that there is no precedent for such action is strong argument against it," the futility of the plaintiff's position was obvious. Altho the court in the instant case, almost a century later (for obvious reasons which will be discussed in due order), is supported by that same "strong argument," we cannot help but disagree with the reasoning that these two courts apply to arrive at their conclusion.

It is submitted that in neither case is there the least justification for the injection of the theory of "remoteness". The court in the instant case is clearly inconsistent when it approves of the decision of the court in Cuming v. Brooklyn R. Co., and in effect holds that if the person injured in the instant case had been the libellant's child, he could have recovered. If "remoteness" is to be the test, then a recovery in the one case is no more logical than a recovery in the other. Yet the rule is almost universal that a parent may recover in such a case. Then again, suppose the defendant's act was malicious, the injury to the employee being done with the intent of causing the damages in question, would any court deny recovery in such a case? Yet if "remoteness" is the test, this court to be consistent, would have to deny recovery in such a case as well.

It is therefore obvious that if the court's conclusion is to be sustained it must be, by some reasoning other than the court promulgated. The other reasoning we have in mind, it is submitted, may do so. The reason why the libellant should not have a right to relief in an action of tort in the instant case is because the duty and the right do not correspond in genere. The right violated must be one of a kind or species of rights that such duties are designed to protect. The duty not to commit a negligent act which was broken by the defendant, corresponds only to the right of bodily security of property and of potestas. But the libellant has none of these rights in his employee. The paying of money by the libellant was not a violation of the libellant's right of property, it was merely a violation of the libellant's right of unimpaired pecuniary condition, which is often confused with

'Supra note 1. "Supra note 2. "Ibid note 6.

In reference to this right, all that a person has is looked upon simply with regard to its value, whereas the rights of property concern the specific qualities of the things. A thing may be possessed and its physical condition be preserved unimpaired though it has no value whatever; and, on the other hand, a given act may be a clear and an undoubted violation of the right of property in a thing, though it greatly enhances its value, as where A builds a house on B's land without the latter's permission, so that the house becomes the property of B. Primarily the distinction is between the violation of a right and its deprivation. All protected rights are conclusively presumed to have a pecuniary value, so that the deprivation of a property right which cannot be violated, is a violation of the right of unimpaired pecuniary condition. Thus malice, fraud and deceit would correspond to the right of unimpaired pecuniary condition, while negligence would correspond to the right of property. The right of unimpaired pecuniary condition is a

that of property, or as Dean Wigmore so aptly phrased it, "the right to have a burdensome relation not enlarged, not made more burdensome; the claim is based not on the social benefits that would otherwise come to us, but on the social burden that would otherwise not have come to us."9

It is very desirable to know as nearly as we can the standard by which we shall be judged at a given moment. The fact that legal, like natural divisions, however clear in their general outlines, are found upon exact scrutiny to end in a penumbra or debatable land, should never justify "people to drift away from the control of principles, each one doing the best he can to do what is right in the cases that come up. "10 The tendency of the law must always be to narrow this field of uncertainty." The debatable region that we have attempted to narrow is that of "remoteness." Construing that term, not in that archaic manner adopted by the instant court-as suggesting connotations of time and space; but in the manner of our more liberal courts:-if as a man of reasonable prudence he could not have foreseen the probability of harm to others in the act he did and at the time in which he did it. The "narrowing" suggested, consists of a total elimination of this test from all cases such as the instant one. Probability is not an attribute of events in themselves but of our expectations of them. It is subjective not objective. Events occur according to invariable laws. If we knew these laws nothing would be uncertain to us. It is only because we are ignorant that we speak of events as being more or less probable. The person whose supposed estimate of the chances that should be taken as the test of probability can therefore be no other than the "standard man"-whom the jury as a composite body is supposed to represent. What may seem very probable to one individual, may seem highly improbable to another.

Take, for example, two recent cases with basicly the same facts, decided within a year of each other, and which are typical of the recent trend of thought in this field. Two parties A and B make a contract whereby B undertakes to perform certain services for A. He performs his task in a negligent manner, and as a consequence C, a third party suffers injury. Has C a cause of action against B in tort? Both courts apply the same test of "probability of harm" or remoteness, and arrive at exactly opposite results.

In Glanzer v. Shepard,12 the court, speaking through Cardozo, J., rules that "The controlling circumstance is not the character of the consequences, but its proximity or remoteness in the thought and purpose of the actor.**** The plaintiff's use of the certificate was a

comparatively newly formulated right, and is derived from the civil law rights of damnum emergens and lucrum cessans. For an excellent exposition of these principles see H. T. Terry's, SOME LEADING PRINCIPLES OF ANGLO-AMERICAN LAW (1884) 542 et seq. See also W. N. Hohfeld, Fundamental Legal Conceptions (1913) 23 YALE LAW J. 16.

J. H. Wigmore, A Ġeneral Analysis of Tort-Relations (1894) 8 Harvard L. Rev.

377.

10Hon. Elihu Root, in an address before the New York Bar Ass'n. "HOLMES,J. in COMMON LAW LECTURES, 3 and 4.

12233 N. Y. 236, 135 N. E. 275 (1922).

consequence, which, to the weigher's knowledge was the end and aim of the transaction," and holds that the negligent act of B employed by A in weighing the beans incorrectly, in consequence of which a subsequent purchaser of these beans suffers a loss, is such conduct as to make B liable for the loss sustained.

In re Fitzpatrick,13 the court applies practically the same test and holds that the negligent omission of a solicitor employed to prepare and supervise the execution of a will, to attach his signature thereto as an attesting witness, in consequence of which it could not be probated, was not such conduct as to make him liable for the loss sustained by the sole beneficiary of a will.

On the other hand, if the suggested test of correspondence of rights to duties had been applied in these two cases, the results would have been less conjectural and inevitably uniform. They afford excellent illustrations of the correspondence of a duty to the comparatively recently formulated right of unimpaired pecuniary condition, as distinguished from the right of property. (A person who is prevented from acquiring a property right, as in these two cases, has plainly not suffered a violation of the right, because the right is not yet vested in him. But the deprivation is a violation of his right to unimpaired pecuniary condition.) If a person who is employed to perform a task for another, leads the person for whose benefit he is employed to rely on him for the performance, and if he believes or ought to believe that he is so relied on, he must use reasonable care to perform what he has undertaken, and to do so in a careful and skillful manner. If he thus negligently causes an injury to the plaintiff, we have the elements corresponding to the duty of deceit, which correspond to the plaintiff's right to unimpaired pecuniary condition.15 The same theory is applicable to the recent cases of manufactured articles which are bought on reliance of the manufacturer's implied warranty.16

It is therefore submitted that whether or not the plaintiff has a cause of action in such cases as here discussed, depends upon whether or not there is a correspondence of right to duty. It is suggested that the test of "remoteness" should be applied only by a jury, in such cases where the court has determined that such correspondence exists.

To substantiate our position as to the instant case, we have this oft-quoted practical statement by Storrs, J., "Such are the complications of human affairs, so endless and far reaching the mutual promises of man to man in business and in matters of money and property, that rarely is a death (or injury) produced by human agency which does not affect the pecuniary interests of those to whom the deceased (or injured person) was bound by contract. To open up the door of legal redress to wrongs received through the mere voluntary and factitious relation of a contractor with the immediate subject of the injury would be to encourage collusion and extravagant contracts between men; by which the death (or injury) of either,

1354 Ont. L. Rep. 3 (1923).

14 Supra note 8.

15 Supra note 8.

16MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050 (1916).

through the involuntary default of others, might be made a source of splendid profits to the other, and would also invite a system of litigation more portentious than our legal jurisprudence has yet known."17

III.

The closing of this practically unused door of relief to the libellant however does not preclude his right to one of two other doors-namely, (1) a right in quasi-contract, to be indemnified for the money paid by the libellant for the constructive use of the claimant, and (2), the right to be subrogated to the seaman's right to damages. The universal recognition of the first right and the majority recognition of the second, have been the reasons for the lack of precedent for a cause of action as submitted by the libellant in the instant case.^ Though the question of quasi-contract was not discussed in the instant case there seems to be no doubt that if it had been presented by the libellant as his theory of recovery, that the court would have allowed it. Where one is compelled to pay money which in justice another ought to pay, the former may recover from the latter the sum so paid.18 An implied contract of indemnity arises in favor of a person, who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious. act of another, the former having a right of action against the other for indemnity.19 The right is based on the principle that every one is responsible for his own negligence.20

IV.

The theory of "subrogation" was advanced by the libellant, but only to sustain his primary contention that there is a cause of action in tort. It seems certain however, that the court would have denied it as well, if advanced by the libellant as the theory for his recovery. The court cites for its position an isolated New York case, which denied an accident insurance company's right to subrogation.21 That this is no more the law in New York is evident from the case of Traveler's Insurance Co. v. Brass Goods Mfg. Co.,22 which completely 17Conn. Mutual Life Ins. Co. v. N. Y. & N. H. R. Co., 25 Conn. 265 (1856). 18Vogemann v. Amer. Dock Co., 131 App. Div. 216, 115 N. Y. Supp. (2nd Dept. 1909); WOODWARD, QUASI-CONTRACTS (1913) § 258.

741

1931 C. J. 446, sec. 47, n. 88; George A. Fuller Co. v. Otis Elavator Co., 245 U. S. 489, 38 Sup. Ct. 180 (1918); The Lewis Luckenbach, 207 Fed. 66 (C. C. A. 2nd. 1913); Toxaway Tanning Co. v. Sulzberger & Sons, 242 Fed. 888 (C. C. A. 2nd 1917); Bethlehem Shipbuilding Corp. v. Joseph Gutardt, 10 Fed. (2nd) 769 (C. C. A. 9th 1926); Dunn v. Uvalde Asphalt Co., 175 N. Y. 214, 67 N. E. 439 (1903); Scott v. Curtis, 195 N. Y. 424, 40 L. R. A. (N. s.) 1147, 88 N. E. 794 (1909); Vogemann v. American Dock Co., supra note 12; Lord & Taylor v. Yale Mfg. Co., 230 N. Y. 132, 129 N. E. 346 (1920); John Wanamaker v. Otis Elev. Co., 228 N. Y. 192, 126 N. E. 718 (1920); Wakefield v. N. Y. Edison Co., 179 N. Y. Supp. 605 (Sup. Ct. App. term 1920); Rosebrock v. General Elec. Co., 236 N. Y. 227, 140 N. E. 571 (1923); Pa. R. Co. v. Tozzi, 124 Misc. (N. Y.) 310, 207 N. Y. Supp. 16 (1924).

20 Dunn v. Uvalde Asphalt Co., supra note 13; Pa. R. Co. v. Tozzi, supra note 13. 21 Supra note 4.

22239 N. Y. 273, 146 N. E. 377 (1925); accord, Lord & Taylor v. Yale Mfg. Co., supra note 13. An employer who is compelled to pay compensation for injuries because of assault by a defendant is subrogated to all the rights of the employee. Dietz v. Solomonowitz, 179 App. Div. 560, 166 N. Y. Supp. 849 (3rd Dept. 1917).

overrules the former case and holds that an insurance company is subrogated to the rights of its insured and may recover the full loss caused by the injury, regardless of what it paid to the insured. Furthermore, the dictum of the instant case is announced in the face of a distinct majority view,23 and of the state of the law as evidenced by a superior Federal Court. In Jacoby v. Kelly, 24 the court holds, that evidence of the amount paid to the plaintiff as compensation by his employer for the injuries sustained was properly withdrawn-as it in no wise affects the direct liability of the defendant to the plaintiff. The doctrine of subrogation as now applied is broad enough to include every instance in which one person not acting voluntarily, pays a debt for which another is primarily liable and which in equity and good conscience should have been discharged by the latter.25 Samuel Will g

Usury: Acceptance of bonus by president of bank as rendering bank liable for usury penalty: Effect of repeal of usury statute. In the case of Citizens Bank v. Heyward, 135 Š. C. 190, 133 S. E. 709 (1925), the president of the plaintiff bank, through whom all loans were made, accepted a two per cent bonus offered him by the agent of the borrower, in addition to the maximum legal rate of interest of eight per cent, this bonus being paid to himself personally on the regular interest paying dates and continuing throughout the life of the loan. The transaction was confidential and personal between the president and the borrower, and the bonus was in every instance paid directly to the president by separate check, the bank not appearing in the transaction in any way nor having any knowledge thereof. The loan in question was made in 1912 and the defendant paid interest thereon, in addition to the bonus to the president, until 1920, when the bank sought to foreclose the mortgage given to secure the loan. Shortly after instituting the foreclosure action the bank became insolvent. Defending on the ground of usury, the borrower contended that the penalties provided by the South Carolina statute1 were more than sufficient to cancel the loan. A divided court, Cothran, J. writing an extended and very able dissenting opinion, reversed the lower

23L. R. A. 1916 A. 100, 225, 360; L. R. A. 1917 D. 101; L. R. A. 1918 F. 524; (1922) 19 A. L. R. 766; (1923) 27 A. L. R. 493; (1925) 37 A. L. R. 838, 853. 24296 Fed. 590 (1924).

2525 R. C. L. 1322.

1Code of 1922, vol. 3, § 3639: “Any person or corporation who shall receive, or contract to receive, as interest any greater amount than is provided for in the preceding section shall forfeit all interest, and the costs of the action and such portion of the original debt as shall be due shall be recovered without interest or costs, and where any amount so charged or contracted for has been actually received by such person or corporation, he or she, or they shall also forfeit double the total amount received in respect of interest, to be collected by a separate action or allowed as a counter-claim in any action brought to recover the principal

sum.

At page 227 of the dissenting opinion it is computed that the total loss to the bank, on the basis of this statute, would be in excess of $12,000 on an original loan of $7020.