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Wills Perpetuities, Turner v. Board of Commissioners (U. S. S. C.) United States Supreme Court-Jurisdiction-Error of State United States v. Matthews (U. S. S. C.) Rewards to United States v. Percy Jones (U. S. D. C., W. D. Ark.) The Rights and Limitations of Strikers and Em. Village of L'Anse v. Fire Assn. (Mich.) Insurance- Violette v. Rice (Mass.) Written Contract-Parol Evi Walker v. Green (Kan.) Carriers of Passengers-In- Warren v. Buck (Vt.) Sale-Implied Warranty, R. D. Weeks v. McNulty (Tenn.) Innkeepers - Liability- - - Western Union Telegraph Co. v. Call Publishing Co. (Neb.) Discrimination in Rates by Public Service Corporations at Common Law, Ed. 467. Whiteside v. First National Bank (Tenn.) Bills and Value-Stolen Property, R. D. 68. Winston, Strather & Smith v. United States (U. S. S. C.) Interpretation of the Federal Statute Giving Power to Juries to Qualify Verdicts as to Capital Yale University v. Town of New Haven (Conn.) 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Satisfaction-A Canon of Construction Central Law Journal. ST. LOUIS, MO., JANUARY 6, 1899. Involved in the recent case of O'Flaherty v. Nassau Electric Railroad Co., decided by the New York Supreme Court, is the question of the allowance of damages for personal injuries occasioned by fright, which has been a more or less vexed question to the courts within the past few months. The holding there was that a recovery cannot be had for injuries occasioned by mere fright, but that such rule does not apply where the fright in question was occasioned by and accompanied by an electric shock, to which plaintiff was subjected through the negligence of the defendant. A recent Illinois case involves the same question-Braun v. Craven, 51 N. E. Rep. 657. There it appeared that defendant, the landlord of plaintiff's sister, entered the house to collect the rent, and went into the room where plaintiff was packing her goods prior to removal, and stated to her in a loud and angry tone and boisterous manner that if she attempted to move he would have a constable there in five minutes. Plaintiff asked damages for a severe nervous shock claimed to have been suffered thereby, which resulted in St. Vitus' Dance. The landlord had a right to enter the house. He knew nothing of plaintiff's nervous temperament. It was held that damages were not recoverable, since not the natural and probable consequences of defendant's acts. In a long and exhaustive opinion, Judge Phillips reviewed all the cases upon the question of the recovery of damages for fright. In the following cases, mental suffering alone, unattended by any injury to the person, caused by simple, actionable negligence, was held insufficient to sustain an action. Wyman v. Leavitt, 71 Me. 227; Railway Co. v. Trott, 86 Tex. 412; Railroad Co. v. Stables, 62 Ill. 313; City of Chicago v. McLean, 133 Ill. 148; Canning v. Inhabitants, 1 Cush. 452; Keyes v. Railway Co., 36 Minn. 290; Ewing v. Railway Co., 147 Pa. St. 40; Mitchell v. Rochester Railway Co., 151 N. Y. 107, 44 Cent. L. J. 89; Spade v. R. R. Co., 47 N. E. Rep. 88; Haile's Curator v. Railway Co., 60 Fed. Rep. 567. The case in appellant the recent Illinois (Braun v. Craven), relied with much confidence upon Bell v. Railroad Co., 26 L. R. A. 432, and Purcell v. Railway Co., 48 Minn. 134, 50 N. W. Rep. 1034, as justifying a claim for damages occasioned by mere fright. But, as the court shows, those cases are not clearly susceptible of such an interpretation, though they go far in that direction. Both cases sustain the proposition that where sudden terror occasions a nervous shock, resulting from a negligent act, without impact or physical contact, by which the mind is affected, which may press on the health and affect the physical organization, a cause of action for negligence results. These cases have the approval of Mr. Beavan, in his work on Negligence (volume 1, pp. 76-84), and of Mr. Sedgwick, in his work on Damages (8th Ed. § 861). The Purcell case arose on a demurrer to the complaint, and it was conceded that the effect of a wrongful act or of negligence on the mind alone will not furnish ground of action. The entire discussion was confined to the question whether the defendant's negligence was the proximate cause of the injury, and whether, if the fright was a natural consequence thereof, and caused the nervous shock and consequent illness, the negligence was actionable. While it is the duty of a carrier to anticipate that an accident or appearance of great danger will produce fright and excitement, and that an accident will cause physical injury, it could not be anticipated that a disease of the mind would result; and, unless such anticipation could be had in the light of the attending surroundings, it would not constitute the proximate cause of the injury, under the great weight of authority. In the Purcell case, fright may have been the natural consequence of the circumstances of peril and alarm in which defendant's negligence placed plaintiff, and the fright may have caused the nervous shock and consequent illness of the plaintiff, as held by the Supreme Court of Minnesota ; yet, if it could not have been reasonably anticipated as a result of the fright, it would not be the proximate cause of her injuries. The question of the reasonable anticipation of the injury as a result of the fright is entirely disregarded in that case, and causes it to be in conflict with the weight of authority, because it absolutely disregards this principle. It may be said that if these cases go to the length contended for by those who argue for the doctrine of damages for freight and mental suffering, they are not only against the great weight of authority, but are not sustainable upon principle. NOTES OF IMPORTANT DECISIONS. RATIFICATION-IG INFANTS CONTRACTS NORANCE OF RIGHTS-DURESS-THREAT TO SUE. In Bestor v. Hickey, 41 Atl. Rep. 555, decided by the Supreme Court of Errors of Connecticut, it was held that an adult's promise to pay the rent of premises occupied by him while an infant over fourteen years of age is binding, even if made in ignorance of his non-liability. It was further held that an adult's promise to pay a debt contracted during infancy, made in response to a threat of suit unless payment be made, is not under duress. The court said in part: "There are dicta to be found in some text-books and in opinions of the court in cases decided elsewhere, and some cases hold, that the promise of the adult to bind himself by a contract made in infancy must not only be voluntary and explicit, but must be made with knowledge that he is not legally liable unless the promise is made. The claim of the necessity of such knowledge first appears in a dictum in Harmer v. Killing, 5 Esp. 102, a nisi prius case tried after the date of our Independence. The error has been exposed, and its effect traced, by the Massachusetts court, in Morse v. Wheeler, 4 Allen, 570. But the errone ́ous dictum afterwards crept into a brief and hasty opinion of the same court in Owen v. Long, 112 Mass. 403, 404. It is difficult to account for this error. Possibly it arose from treating the promise, not as a mere adjunct of an infant's contract authorized by the public policy which controls such contracts, but as an independent act, and strictly analogous either to a waiver, or a ratification, or a new contract. Such a promise is frequently indicated by all these names. They have been indifferently used in several of our decisions as terms of convenience and partial illustration, but it certainly cannot be accurately described by either. In a sense, such a promise operates as a waiver; but the contract of an infant cannot be relieved from the original want of capacity to bind, through the operation of the law of waiver. The voluntary specific promise of the adult is required to perfect the contract of the infant. Nor is it, except by figure of speech, a ratification. The infant is not an unauthorized agent of the adult, and the contract is not strictly analogous to one tainted by fraud. Perhaps the promise comes more closely to being a new undertaking, but it clearly is not The action must be brought on the original contract. The promise affects only the liability, one. and has no effect unless there is an existing contract. When that is established, through the acts of the infant, the liability must be proved, and is limited by the promise of the adult. Reeve Dom. Rel. p. 240; Edgerly v. Shaw, 25 N. H. 514. We deem it immaterial whether the promise, if it could be treated as being strictly a waiver, or a ratification, or a new contract, could or could not be held invalid by reason of ignorance of the law. The validity of the promise does not depend upon such analogies. The option of the adult to confirm or rescined is an attribute of the infant's contract. The validity of a promise to pay is derived from the exceptional law which controls the contracts of infants. It is an exercise of deferred capacity involved in the original contract. That an adult may relieve himself from the legal effect of such an act by setting up an unexpressed and secret belief as to the law which everyone is presumed to know, involves an addition, novel in this State, certainly, to the law of infants' contracts, and for obvious reasons obnoxious to sound public policy. "The promise was not made under duress. In asking the defendant for payment, and in threatening to commence a civil action if payment were not made, the plaintiff acted legally. Such threats cannot be held to invalidate an act otherwise voluntary. 1 Swift, Dig. p. 311; Barrett v. French, 1 Conn. 354, 356. If the defendant intended to rely on duress, he should have alleged it. McVane v. Williams, 50 Conn. 548." MARRIED WOMEN LIABILITY FOR ACTS OF HUSBAND AS AGENT.-In Shane v. Lyons, 51 N. E. Rep. 976, decided by the Supreme Judicial Court of Massachusetts, it was held that a married woman can be civilly responsible for personal injuries inflicted, not in her presence, on a third person, by her husband, while acting within the scope of his authority as her agent, she having of her free will, and without coercion appointed him agent. The court said: "The only question is whether a married woman can be civilly responsible for personal injuries inflicted, not in her presence, upon a third person, by her husband, while acting within the scope of his authority as her agent. The act of the agent is the act of the principal, and she must be held unless there is something in the relation of husband and wife which takes the case out of the general rule. It is claimed by the defendant that, while the wife is liable for assaults and other torts committed by her when not acting under the coercion of her husband, she is not so liable when acting under such coercion, and that, as the husband was present at the time of this assault, she herself, if she had been personally present, and had actually joined in the assault, would have been presumed to have acted under coercion, and so would not have been liable, and that, a fortiori, she ought not to be held liable when absent. But this presumption of coercion is simply a presumption which may be rebutted by evidence, and a wife may be held responsible, either criminally or civilly, for assault committed of her own free will, and while actually under no coercion from her husband, even although he be present and joint therein. Com. v. Eagan, 103 Mass. 71; Handy v. Foley, 121 Mass. 259, and cases cited; Ferguson v. Brooks, 67 Me. 251. Our statutes have given to a married woman the right to hold, manage and dispose of her property in the same manner as if she were sole; and a necessary consequence of this enlargement of her power is a corresponding increase of her responsibility for all acts relating thereto and growing out of her management and control. If she appoints her husband as her agent in such a matter, and, in making such appointment, acts of her own free will, and without coercion from him, we see no reason for regarding her as incapable of authorizing any act to be done by him in her name, and on her behalf, or for shielding her from responsibility. It must be held that whatever is done within the scope of the agency is done by her authority." NUI MUNICIPAL CORPORATION SEWERS SANCE-SUCCESSIVE ACTIONS.-In Mayor, etc. v. Dowling, 47 S. W. Rep. 700, it was held by the Supreme Court of Tennessee, that the owner of lands where a sewer discharges may bring successive actions, against a city maintaining it, for the nuisance thereby created; it being abatable by an extension of the sewer to a proper place of outflow, for there can be no entire recovery in one action. The court says in part: "It may be taken for granted that the power of the city of Chattanooga to construct this sewer did not involve the right to so construct it as that its offensive contents would be frequently, if not continuously, discharged upon Dowling's land. The authorities agree that a municipality, in pursuing a public work, is not privileged to commit a nuisance, to the special injury of the citizens, and, if it does, it must, as would a private individual, respond in damages therefor. Burton v. Mayor, etc. 7 Lea, 739; Pumpelly v. Green Bay Co., 13 Wall, 166; Eaton v. Railroad Co., 15 N. H. 504; Rowell v. City of Lowell, 7 Gray, 100; Noonan v. City of Albany, 79 N. Y. 470; Dill. Mun. Corp. § 1047. But the question here presented is, conceding the liability of the city to suit for the injury complained of, should all the damages have been recovered in one action by the injured party, or can he maintain successive suits, until the nuisance is abated? Carriger v. Railroad Co., 7 Lea, 388, was an action against a railroad company for so carelessly constructing its road as to cause the plaintiff's land to overflow. The embankment, which impeded the natural flow of the water, and threw it back on the land of the plaintiff, was built on the company's right of way under the authority of its charter, and it was permanent in its character; yet it was said by this court that 'each overflow caused by the negligence, carelessness, or want of skill of the defendant or its agents is an independent wrong, and a cause of action for the damages resulting therefrom to the crops and other property of the rightful possessor of the soil or premises.' In Harmon v. Railway Co., 87 Tenn. 614, 11 S. W. Rep. 703, it was held that if a railway company, lawfully located upon a street in a city, under its charter, and by permission of the local government, uses the street beyond what is necessary for the proper running of its trains, and by such excessive and improper use substantially destroys the easement of way and of ingress and egress appurtenant to an abutting lot, the owner of such lot can maintain successive actions for such nuisance, recovering the damages that have accrued up to the time each action is instituted, and a recovery in one action will not bar a subsequent one brought for a continuance of these wrongs. The opinion in that case was vested largely upon the leading case of Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536, in which it was held that where a railroad corporation or municipality, under proper authority, erects an embankment in a street, if the work be carefully and skillfully done, it cannot be made liable for the consequential damages to adjacent property, but, if it be carelessly and unskillfully done, it can be made liable, in successive actions, until the nuisance is abated. But, if any doubt remained as to the rule in cases of this sort in this State, we think, it was set at rest in Nashville v. Comar, 88 Tenn. 418, 12 S. W. Rep. 1027. In that case the city of Nashville had constructed a sewer along one of its streets, the supposed defect of which seemed to be that it had not capacity sufficient to carry off the storm water flowing into it, so that upon occasions the pressure of accumulated sewage and storm water had been so great as to back or throw the contents of a smaller and tributary sewer of Comar on his premises. On the trial the circuit judge told the jury that in such a case the measure of damages was 'the difference in market value of the property before and since the building of the sewer.' This charge of the trial judge was maintained in argument by the counsel of Comar as correct, upon the suggestion that the sewer was a permanent improvement, and whatever damage it .occasioned was of a permanent character; and it was therefore insisted that for this reason he could only bring one action, rather than successive actions, and must recover damages once for all. This view was rejected by this court, as being based upon the assumption that the premises of Comar will for all time to come be subjected to same disgusting invasions of sewage as have heretofore occurred.' Continuing, this court said: "The complaint is not that the city has been guilty of any misconduct in erecting a sewer where this has been constructed, but that its servants have so unskillfully built it that upon the occurrence of unusual conditions it discharges its contents upon the premises of defendant in error. Now, upon what authority is it to be assumed |