Central Law Journal.

ST. LOUIS, MO., NOVEMBER 5, 1920.

LIABILITY OF ATTORNEYS FOR NEGLI GENCE.

With the rapid increase in the number of statutes and decisions it is reassuring to

and many authorities sustain the text: "If an attorney is fairly capacitated to discharge the duties ordinarily incumbent upon one of his profession, and acts with a proper degree of attention, with reasonable care and to the best of his skill and knowledge he will not be responsible."

It seems to us that the courts should prop

peals of England that it might be too much to expect of attorneys that they should know the detailed requirements of every statute of the realm. This declaration was made in the recent case of Flether v. Jubb, 122 L. T. Rep. 258,. (1920) 1 K. B. 275, where, however, the Court declared that there was one class of laws which attorneys must know at their peril, to-wit: laws limiting the bringing of a cause of action.

In this case plaintiffs employed defendant's firm of solicitors to bring an action against a municipality for negligence in the operation of a municipal tram-car resulting in a collision with plaintiff's wagon. Defendant made a demand for a settlement and received an offer of £20. He refused this offer and demanded £75. The municipality refused the demand. Defendant then waited ten months before bringing his action but was defeated by a statute limiting the time when an action could be brought against a municipality. The plaintiff brought suit against his solicitor for negligence. The lower court held the defendant not liable on the ground that he had been misled by supposing that the municipality had admitted liability, but the Court of Appeal set the judgment aside on the ground that a solicitor must protect the right of a client to bring his action from any act or delay on his part.

In this country the general rule of liability of an attorney for negligence is limited by the rule of reasonableness. He is required to possess only a "reasonable knowledge of the laws" and to "exercise only reasonable skill." In 6 Corpus Juris 696 the rule is stated even more loosely

judgment and errors of practice. As the English Court of Appeal well says, no lawyer can be expected to know all the law nor, what is more important, to know what some court will declare the law to be. For such errors an attorney should not ordinarily be liable. "The law is a science," declares a Kentucky Court," but an imperfect one, for the reason that it depends for exemplification and enforcement upon the imperfect judgments and consciences of men. Therefore when the attorney has used ordinary. care in acquainting himself with the facts, his misjudgment as to the law thereon will not generally render him liable. Humboldt Bldg. Assn. v. Ducker, 111 Ky. 759, 64 S. W. 671, 23 Ky. L. 1073.

In addition to errors of judgment and want of skill there is the case of ordinary negligence. In such cases there is no error of judgment. Nor is there any want of skill. The law is free from ambiguity and the attorney is well informed both as to the particular rule of law applicable to his case and the practice to be observed to protect his client's rights. But he is simply careless; his office-management is defective and he does not keep himself properly informed of the steps necessary to be taken. and when to take them. In such case the Court should hold the attorney to a high degree of care. The principal case (supra) is an illustration in point. In that case the solicitor knew the law as to the liability of the municipality, he knew how and when to bring the action but he delayed to bring it claiming that he was misled by what he erroneously thought was an admission of liability on the part of the municipality. He was

The contract at the time of performance was possible of performance; it is absolute in terms; it did not refer to any particular hay then in existence and contained no exceptions or conditions.

The general rule that subsequent impossibility of performance does not excuse performance has certain well defined exceptions: First, where the event which, occurring subsequent to the contract, is not reasonably within the intention of the parties at the time of the contract. Chicago, etc., R. R. Co., v. Hoyt, 149 U. S. 1, 13 Sup. Ct. Rep. 779; Krause v. Crothersville School Town, 162 Ind. 278, 70 N. E. 264, 102 Am. St. Rep. 203. Second, where the contract specifies a particular thing then in existence in respect to which the promises are made and whose continued existence is necessary to performance. In such a case there is an implied condition that the particular thing shall continue to exist.

Neither of these exceptions applies to the contract here under consideration. The fact that a farmer who is growing his own wheat, oats, hay, etc., contracts to sell a certain amount does not necessarily imply that he sells any particular wheat, oats, hay, etc., growing on his own land and he would not be required under the terms of such a contract to deliver the crop raised on his own farm but might go into the open market or to a neighbor and secure the particular quantity of the crop he agreed to sell. Under such circumstances one who unqualifiedly promises to deliver a quantity of hay on a day certain at a price specified should not be excused from performance because rain damaged his own hay crop. In the recent case of Berg v. Erickson, 234 Fed. 817, it was held that a resident of Kansas who agreed to furnish one thousand cattle, "plenty" of good grass, salt and water during grazing season, was not relieved of liability for performance by a drought which burned up his own and all surrounding pastures. We presume the court believed that a resident of Kansas should have been familiar enough with possibility of droughts to have anticipated that contingency.

The courts are inclined to be too lenient with those who enter into absolute undertakings on which the other parties to the contract have a right to rely. If one does not wish to agree to do a thing at all events it is easy for him to exclude contingencies which are liable to happen and for that reason should be presumed to be within the intention of the parties at the time they enter into their contract.

INCREASING CAPITAL STOCK DOES NOT GIVE STOCKHOLDER RIGHT TO HIS PROPORTIONATE SHARE UNTIL STOCK IS ACTUALLY ISSUED.-An interesting application of the pre-emption right of a stockholder in new stock issued by the company is found in the case of Hammer v. Cash, 178 N. W. 465, in which the Supreme Court of Wisconsin held that where an increase of stock was authorized and part of it issued that part already issued could be canceled and returned to the treasury at the discretion of the directors. The argument of defendant's attorney was that as soon as the increase in capital stock was voted defendant was entitled to his proportionate part and therefore was entitled to retain the stock To this contention previously issued to him. the court replied:

"The amendment of the articles of the corporation increasing its capital stock merely authorizes and empowers the corporation to issue increased stock in such amounts and at such times as may thereafter be determined by proper corporate authority. It is under no obligation to issue the stock merely because it has acquired power and authority so to do. Articles of incorporation are frequently so amended as to increase the amount of the authorized capital stock of a company in such amounts as will meet its contemplated requirements for some time in the future, without any thought that the whole amount of such increase shall at once be issued. May a stockholder, immediately upon an amendment of such character becoming effective, demand that his proportionate share of the entire amount of such increase be issued to him? Bearing in mind that this right is accorded to the stockholder in order that he may maintain his relative voice in the affairs of the corporation, it is manifest that the reason upon which the principle is founded is fully satisfied if he is permitted to purchase his relative proportion of such amount of the stock as is a be issued. To illustrate, a corporatio amend its articles as to provide for an incre of its capital stock in the sum of $100,000. From the mere amendment of the articles, however, it does not follow that the entire amount of such increase is to be issued. Whether any part of such increase is to be issued, and when, and for what amount, rests with the corporation after it has acquired the authority so to do by the amendment to its articles. When the corporation decides to issue $50,000 of the authorized increase, the right of the stockholder is fully protected by permitting him to purchase his proportionate share of such $50,000 proposed to be issued, and this, we think, is as far as the rule extends."

ized is to

d.

V SO

The court further held that since the project for which the increase was voted (the building of an extension to a railway) was abandoned, the president and secretary had no authority to sell the stock and that therefore such sale was void.

Introductory-Public highways are for use by the public, for travel for purposes of pleasure as well as business, for short trips as well as long journeys. One may lawfully drive his automobile or his carriage and four or his ox-cart from his residence to the residence of his next-door neighbor, and with equal, but no greater right, from New York to San Francisco.

The fundamental idea of a highway is not only that it is public for free and unmolested passage thereon by all persons desiring to use it, but the use of a highway is not a privilege, but a right, limited by the rights of others, and to be exercised in a reasonable manner.1

The primary and dominant purpose of the establishment of highways is to facilitate travel and transportation. They belong from side to side and end to end to the public, that the public may enjoy the right of traveling and transporting their goods over them."

Coasting as a Customary Use-In determining the rights and liability of persons coasting in the public highways great stress has been laid upon the question of "customary use of the highways." Even admitting, however, that such use of a highway periodically, when the condition of the weather and the highway at the place made use of is permissible and inviting, is not a customary use, and that it does interfere to some extent with the use of the highway by usual and customary methods, is it in any sense unlawful for that reason? Has the right of sleighing parties, seeking pleasure only, to the use of the highways ever been questioned, although such use is periodical only, and depends upon climatic and highway conditions? Coast

(1) Terrill v. Walker, 5 Ala. App. 535. (2) Terrill v. Walker, 5 Ala. App. 535; Cincinnati Inclined Plane R. Co. v. Telegraph Assn., 48 Ohio St. 390, 426.

by automobiles, yet the latter use was not declared illegal when first introduced because it was not then usual and customary to travel in automobiles.

If such use of the public ways were new and novel, it could not be declared illegal on that account alone. Nor could it be so held because it interferes to some extent, that is, to a reasonable degree, with the use by other and more common methods.

"When the highway is not restricted in its dedication to some particular mode of use," said Chief Justice Cooley, "it is open to all suitable methods; and it cannot be assumed that these will be the same from age to age, or that new means of making the way useful must be excluded merely because their introduction may tend to the inconvenience or even to the injury of those who continue to use the road after the same manner as formerly. A highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them; and if the law should preclude the adaptation of the use to the new methods, it would defeat, in greater or less degree, the purpose for which highways are established."

Any methods of travel may be adopted by individual members of the public, whether it is an ordinary or an extraordinary method of locomotion, if it is not of itself calculated to prevent a reasonably safe use of the highways by others.*

In the absence of any limitation imposed by lawful authority the highways may be used for any and every kind of public travel and transportation which the necessities or convenience of the public may require. This use, of course, may be modified as public convenience or necessity may from time to time demonstrate to be need

(3) Macomber v. Nichols, 34 Mich. 212, 217, 22 Am. Rep. 522.

(4) Chicago v. Banker, 112 Ill. App. 94, 97.

ful. Time and necessity, as well as locality, being important elements in determining the character of any particular use of a highway.

"Almost any proper use of a highway may under some circumstances impede the use by another, and possibly render it dangerous. The appearance of any unusual object in the streets may have some tendency to add to the dangers of travel by

means of horses or other animals, and there

is always more or less danger that a high spirited horse, or indeed any other horse, may become unmanageable, and people who are using the highway be exposed to risks in consequence. But it does not follow that the driver of such a horse is responsible for the consequences because of his bringing him into the street impeding or rendering dangerous the travel by others. The question is one of reasonable use and reasonable care, and if these are observed he is not chargeable."

"The sport itself is not entirely foreign to the purposes for which public ways are established; for the use of these ways for pleasure riding is perfectly legitimate, and coasting is only pleasure riding in a series. of short trips repeated over the same road, not differing essentially from the riding in sleighs, of which so much is seen on some of the streets of northern cities."s

In a Maine case it was said that, like racing or playing ball, sliding downhill is not an unlawful exercise or game, but that the streets are not proper places for such recreation, although one engaged in it is passing along the highway, in one sense, as any traveler would."

The "law of the road" has been held to apply to the use of public highways for coasting, 10 but it has been held that such law does not apply to an unusual and ex

(5) Hamilton & L. El. Tr. Co. v. Hamilton, 1 Ohio St., p. 366.

(6) Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536.

(7) Chief Justice Cooley in Macomber V. Nichols, 34 Mich. 212, 215, 22 Am. Rep. 522. (8) Justice Cooley in Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105. (9) McCarthy v. Portland, 67 Me. 167, 24 Am. Rep. 23.

traordinary use of the highways, such as moving a building.11

The question of the right to coast on a public highway, therefore, does not depend upon whether or not such use is usual and customary, but upon whether it unreasonably interferes with other modes of locomotion. Necessarily, it does interfere with other methods of use, and renders the high

way less safe for use by others, but it cannot be condemned as long as it remains within the bounds of reason in this respect.

As a Nuisance or Wrongful Act-Coasting in a public street of a city is not a nuisance per se. "We cannot concede that coasting upon a public street is an illegal act, so as to constitute it a public nuisance. Public highways are intended for pleasure uses as well as business uses; and it is difficult to see why a sled coasting downhill should be said to be a public nuisance any more than a sleigh drawn by horses going down the same highway."12

"It could not be seriously contended that coasting upon such a street would be to for the municipal authorities to permit · license a public nuisance. On the contrary, as the sport is healthful and exhilarating, it seems eminently proper, if the street is not put to other public use, that this diversion be allowed, if not expressly sanctioned." "13

However, such use of a highway, as any other use, may be made to constitute a nuisance. It has been declared that a large sled loaded with several persons coasting down an icy street after dark, endangers the safety of every traveler upon the highway in its course, is inconsistent with the purposes for which the street was

(10) Terrill v. Virginia Brewing Co., 130 Minn. 46, 153 N. W. 136.

(11) Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Brooks v. Hart, 14 N. H. 307; Norris v. Litchfield, 35 N. H. 271, 69 Am. Dec. 546. (12) Lynch v. Public Service R. Co., 82 N. J. L. 712, 83 Atl. 382, 42 L. R. A. (N. S.) 865. See also, Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105; Jackson v. Castle, 80 Me. 119, 13 Atl. 49.

(13) Burford v. Grand Rapids, 53 Mich. 98, 18 N. W. 571, 51 Am. Rep. 105.