New York's Experience-"New York and Massachusetts have abandoned the policy of imposing an inheritance tax upon the personal property of the estates of nonresidents within their jurisdictions and thus have set good examples. But I suspect this change upon their part was not prompted so much by a desire to do right as because they found, under the other plan, they were getting the worse of it."

U. S. Supreme Court Condemns Double Tax-Our highest tribunal3 places its stamp of approval upon the principle of uniformity, declaring:

"No doubt it would be of great advantage to the country and to the individual states if principles of taxation could be agreed upon which did not conflict with others, and

a

common scheme could be adopted by which taxation of substantially the same property in two jurisdictions could be avoided, but the constitution of the United States did not go so far, and a state was not bound to make its tax laws harmonious in principle with those of other states."

While the newly enacted federal inheritance Tax Act may be open to objection by reason of its invasion of a field of taxation wisely considered sacred to the state, nevertheless it will have at least one good effect if it serves to hasten the passage of uniform laws in those states still imposing a double tax. Should the federal tax instead prove to be only an additional charge upon the transmission of inherited wealth, the coun

.3) Kidd v. Alabama, 188 U. S. 730.

sense. In China it is recorded by a recent writer on caste "the officials of a district a parricide lived in were put out of office or demoted; his immediate neighbors were severely punished." In addition to foregoing his share of the inheritance each of the heirs of a deceased property owner may be called upon eventually in the course of the development of this method of taxation to make payment from his own funds of a penalty upon the death of his ancestor. JOSEPH F. MCCLOY.

FELT, J. This is an action for damages for an assault and battery, alleged to have been committed on appellee by the servants and employes of appellant. The issues were formed by a complaint, a general denial, and a special paragraph of answer, to which a reply of general denial was filed. The jury returned a verdict for $300. Appellant's motion for a new trial was overruled, and judgment was rendered on the verdict. Appellant has assigned as error the overruling of its motion for a new trial.

The substance of the complaint is that appellant is a corporation operating a plant for the production of cotton goods; that appellee and his wife were both employes of appellant, and worked in its factory and plant; that L. F. Hilton and George Jones, respectively, held the positions of overseer and second overseer of said plant, and on November 8, 1913, appellee

went to said factory for the lawful purpose of collecting wages due his wife from appellant, and while there in the discharge of such duty was assaulted by said Hilton and Jones, who were then and there acting for and on behalf of appellant and exercising authority and control over appellant's plant and acting within the scope of their authority; that without cause or provocation, they beat, bruised and wrongfully ejected appellee from appellant's plant; that by reason of said assault upon him he suffered, and still suffers, great bodily pain, and has suffered great humiliation, loss of employment and income, and has been caused to expend a large sum of money for medical treatment, all to his damage in the sum of $20,000. Appellant contends that the court erred in giving to the jury certain instructions and in refusing to give certain instructions tendered by appellant. The principal controverted question presented by the instructions given and refused relates to the right of appellee to recover punitive damages. The instructions presented by appellant and refused informed the jury that in case they found for appellee he could only recover actual damages, and that they should not allow anything for punitive or exemplary damages. The court correctly instructed the jury on the subject of actual damages, and then said:

"If you should be of the opinion that the injuries which plaintiff received, if any, were inflicted in a spirit of wanton malice and with intent to injure plaintiff, then you would have a right to add a further sum by way of punishment of the defendant."

Appellant contends that Hilton and Jones, who committed the assault and battery, if any was committed, are subject to punishment for the offense under the criminal laws of the state; that if any damages are recovered in this suit appellant has a right of action against Hilton and Jones to recover from them the amount it may be compelled to pay on that account; that punitive damages cannot be assessed against appellant, because the law does not warrant their assessment against Hilton and Jones. Furthermore, it is contended that neither the complaint nor the evidence is sufficient to authorize the assessment of punitive damages in this case, for the reason that malice is not alleged or proven. The general proposition is well established in Indiana that for wrongs, the commission of which subjects the wrongdoer to both a criminal prosecution and a civil action, exemplary damages cannot be assessed. Wabash Printing Co. v. Crumrine,

123 Ind. 89-93, 21 N. E. 904; Stewart v. Maddox, 63 Ind. 51-55; Borkenstein v. Schrack, 31 Ind. App. 220-221, 67 N. E. 547. The distinction which appellant seeks to make, by which appellee would be denied the right to claim exemplary damages against appellant notwithstanding the latter is not subject to criminal prosecution for the alleged assault and battery, has not been recognized in Indiana, and the decisions of this court and of our Supreme Court cannot be brought into harmony with such distinction. In B. & O. S. W. R. R. Co. v. Davis, 44 Ind. App. 375, 89 N. E. 403, this court considered a case involving damages in a suit against the railroad company for an assault and battery committed by its conductor upon a passenger. The conductor was clearly liable criminally for the assault and battery, if committed, but the court held that exemplary damages could be allowed against the railroad company, and in so doing said:

"In such cases exemplary damages may be recovered against a corporation for the wrongful acts of its agents. *** Appellant corporation is not liable to a state prosecution. If it were subject to such prosecution, exemplary damages could not be assessed."

In Citizens' Street R. Co. v. Willoeby, 134 Ind. 565, 33 N. E. 1014, the court construed the complaint as not proceeding upon the theory of a breach of the company's contract, as a common carrier of passengers, but upon the theory that the servant of the company, while acting within the scope of his employment, inflicted upon the appellee a willful injury by wantonly and recklessly throwing him from the car upon the street. Complaint was made of instructions which permitted the jury, in its discretion, to allow exemplary damages, and in disposing of the question the opinion states:

"The court did not err in instructing the jury that they might add exemplary damages in the event they found that the appellant's conductor inflicted the injury complained of in a spirit of oppressive malice, or that his acts were of such character as to indicate a heedless disregard of consequences."

The following decisions have recognized and applied the doctrine that a corporation may be liable for exemplary damages for the wrong of its servant, where such servant could be held amenable to the criminal law for the wrongful act which caused the injury: Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116-126, 10 Am. Rep. 103; Jeffersonville R. R. Co. v. Rogers, 28 Ind. 1-6, 92 Am. Dec. 276; L. N. A. & Chicago Ry. Co. v. Wolfe, 128 Ind. 347-352, 27 N. E. 606, 25

Am. St. Rep. 436; Western Union Telegraph Co. v. Bierhaus, 8 Ind. App. 563-568, 36 N. E. 161; L. N. A. & Chicago Ry. Co. v. Goben, 15 Ind. App. 123- 127, 42 N. E. 1116, 43 N. E. 890.

Without an averment of malice, the jury has the right to assess exemplary damages when the facts justify such assessment. Such damages do not necessarily depend on express malice, but may be awarded when the wrongful act is willfully done in an abusive, wanton, or oppressive manner, or done in reckless disregard of the rights of the complaining party. Under such conditions the element of malice may be implied.

There is no absolute right to exemplary damages, but in a proper case such damages may be awarded in addition to actual damages as punishment for the offense, and also to restrain and prevent such conduct.

Exemplary damages are not in the nature of special damages, and do not come within the rule of pleading, which requires specific averments to warrant their recovery. 5 Words and Phrases, 4299-4300; Cleveland v. Emerson, 51 Ind. App. 339-345, 99 N. E. 796; Harness v. Steele, 159 Ind. 286-299, 64 N. E. 875; American Sand & Gravel Co. v. Spencer, 55 Ind. App. 523532, 103 N. E. 426; Anderson v. International Harvester Co., 104 Minn. 49, 116 N. W. 101, 16 L. R. A. (N. S.) 440, and notes; Goddard v. Grand Trunk Ry. Co., 57 Me. 202-223, 2 Am. Rep. 39.

The rule as to punitive damages has not been uniform in all jurisdictions, and authority is available which would not support the rule as established and applied in this state. 13 Сус., pp. 114-118; Warner v. So. Pacific Co., 113 Cal. 105, 45 Pac. 187, 54 Am. St. Rep. 327.

The instructions given, when considered as a whole, fairly and accurately state the law applicable to the case. Those refused, as far as correct, were substantially covered by those given.

Under the law as above announced the evidence is sufficient to sustain the verdict. We find no reversible error. Judgment affirmed.

NOTE. Exemplary Damages Against Wrongdoer Who also may be Punished for Criminal Act. -This question as the instant case holds has no necessary relation to the liability of a corporation for the acts of its servant. The theory upon which the instant case proceeds, but which seemed unnecessary to be decided, is that if a wrong is also a crime then only actual but no punitive damages are recoverable from the wrongdoer, has been

long established in Indiana, the earliest case on this subject being Taber v. Hudson, 5 Ind. 322. In Missouri, however, it was said: "It will not do to say that the offender can be punished by the enforcement of the criminal laws of the state," as a civil court has no concern with such enforcement. Summers v. Keller, 152 Mo. App. 626, 133 S. W. 1180.

In Hauser v. Griffith, 102 Iowa 215, 71 N. W. 223, the defendant had been fined in an assault and battery case. It was said: "It is urged that that fact should defeat an allowance of exemplary damages in this case, because otherwise there is a double punishment. That the claim has strong support in reason hardly admits of doubt, but a contrary rule seems to have obtained since the case of Hendrickson v. Kingsbury, 21 Iowa 379. ***That other states have announced a different rule is true, but a review of the cases would be of no use."

In Brown v. Swineford, 44 Wis. 282, 28 Am. Rep. 582, it was held that principle of twice in jeopardy was confined to criminal prosecutions, the word having a "technical sense at the common law."

The case of Brown v. Swineford, supra, was followed in a recent Wisconsin case. Luther v. Shaw, 147 N. W. 18.

In Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668, Campbell, J., said: "The argument that a person is thereby punished twice within the constitutional and common law rules is, in our opinion, entirely fallacious," for "there is no analogy between the civil and criminal remedies."

In Fay v. Parker, 53 N. H. 342, 16 Am. Rep. 270, the opposite view was taken. Foster, J., said: "These maxims apply both to civil and criminal proceedings. *** If the constitutional prohibition of a double penalty is indeed nothing more than an affirmation of the general principle of the common law, applicable alike to civil and criminal cases, making a judgment in one action a bar to another action, founded on the same cause, it follows logically that punitive damages are a violation of the general principle of the common law as well as of the constitution."

In Colbert v. Journal Pub. Co., N. W. 142 Pac. 146, it was said: "We concede that some jurisdictions have held that the doctrine of exemplary damages does not apply to actions for wrongs which are also criminal offenses. The great weight of authority, however, is to the contrary."

In Cosgriff v. Miller, 10 Wyo. 190, 236, 68 Pac. 206, 98 Am. St. Rep. 977, it was said: "Where the act is punishable criminally the judgment for the act as an offense against the criminal laws is for the wrong done the public, while the damages awarded in a civil action, although punitive and inflicted by way of example and punishment, are for the offense committed wantonly or maliciously against an individual sufferer."

The theory adhered to by the instant case appears to have little to rest upon, viz.: the double jeopardy idea, and very many cases in which it might have been raised, but was not, appear tacitly to condemn it. C.

CORRESPONDENCE.

DISCRIMINATION BY PUBLIC UTILITY IN FAVOR OF MUNICIPAL CORPORATION.

Editor, Central Law Journal:

Re your editorial in 83 Cent. Law Journal, 345, concerning discrimination by public service companies in favor of the public.

In order to clearly understand whether or not a rate or requirement is discriminatory, the public service corporation must be placed in its proper legal position. It must be considered as having, in the way of tangible property, only the facilities for furnishing service. It also has the right to furnish service and the right to earn a fair return on the money invested in the facilities-for convenience, say eight per cent is a fair return. The rates it may charge should and must be sufficient to pay operating expenses and all legitimate charges against it, all maintenance charges, and the eight per cent which it is entitled to earn. The company has but one source of income-its customers or consumers. They must pay all of these charges, and each must pay according to his class of service.

When the affairs of the company are conducted theoretically perfectly, the income from these charges is exactly enough to pay these expenses and earnings, and no more. There is not one cent more or less than this amount. Consequently, if a customer is granted an advantage whereby he receives service for one dollar a year less than his proportionate part of the total expenses, the company, which is entitled to earn the amounts stated, is short one dollar, and must compel the other customers to make it up by paying that much more than is their proportionate share. It is quite clear that it is of no consequence whether the recipient of this unfair advantage is a preacher, a charitable institution, or a bricklayer, the principle of law is violated in one instance the same as in another.

The public and the company's customers being essentially different and distinct bodies, the rule applies to the public (the state or a municipal corporation) with equal force. Of course, if the company has something to buy, it may pay for it in service as well as in dollars and cents, because the customers are not injured thereby in the least. The transaction handled in this manner does not cost them any more than if cash were paid. By the same token, if the company is buying a franchise or license from the public (acting through a state or municipal corporation), it may pay therefor with service. But after the franchise contract

has been entered into, the contract is complete and cannot be altered or violated by the public any more than it can by the company, and unless as a part of the consideration therefor service was required to be furnished the public, it cannot afterwards be required. The power then remaining in the public, aside from that of taxation, is that of reasonable regulation. But the power of regulation cannot be exercised to take from the company or its customers something of value for which no return is given. When one is made to part with a right (natural or artificial), or anything else of value, he is entitled to a fair equivalent in return. Service rendered by a public service corporation is a thing of value, it is property, and. it cannot be taken from the company without just compensation, at the expense of either the company or the company's customers. Service of this kind cannot be rendered free, it always costs somebody, and it is only a question of whether the public may require the rendition of service to it at the expense of another or others. As it is very that a public service company is entitled to earn a fair return on the money it has invested in facilities, it follows that its customers will pay for any service furnished free to the public. Thus, they are made to pay for something of which they do not derive all the benefit -the remainder going to other members of the public and so to part with their money for which they receive nothing.

well settled

labor-saving to have a form suggestive, if not` controlling, especially as annotation is very full and down to date.

The authors of the first and second edition have had large experience in bankruptcy practice in one of the most important districts in the country, that of the Southern District of New York, and their work has received commendation from very many federal judges for its practical value to practitioners. The book also contains rules and general orders made in some of the more prominent bankruptcy districts in the country. It has also a time table of procedure which is very convenient in its way.

The work before us is well printed, excellently annotated, bound in brown buckram and comes from the house of Matthew Bender & Co., Albany, N. Y., 1916.

BALDWIN'S LAW STUDENTS' VADE-MECUM.

At last the law student may justly shout "Eureka!" A pocket dictionary of everything he wishes to know is now a reality. It is a very dainty little volume in limp seal leather, pocket size, and containing a short explanation of all legal terms and phrases. Included in this volume is a collection of Latin and French legal maxims freely translated; a table of abbreviations of American and English Reports, generally referred to in law books, and the Uniform Negotiable Instruments Law and the Uniform Sales Law.

The definitions and translations in this volume are necessarily brief but are, so far as our examination has disclosed, accurate, clear and suggestive. The book should be a constant companion of every law student and would not be without service to the busy lawyer.

Printed in one volume of 303 pages, pocket size, bound in limp leather, and published by The Baldwin Law Book Co., Louisville, Ky.

BOOKS RECEIVED.

The Law Student's Vade-Mecum. A handbook containing a concise dictionary of law; a collection of legal maxims translated; the Uniform Negotiable Instruments Law; the Uniform Sales Law; and a table of abbreviations of American and English Reports most frequently found in law books. By William E. Baldwin, of the Louisville Bar. Price, $1.50. Baldwin Law Book Company. Louisville, Ky. Review in this issue.

HUMOR OF THE LAW.

Isaacs-Cohen is going to retire from business for five years.

Abrams-Oh, I heard him say dot pefore. Isaacs-Yes, but dis time der judge of the court said it.

Young Hopeful-"Father, what is a traitor in politics?"

Veteran Politician-"A traitor is a man who leaves our party and goes over to the other one."

Young Hopeful-"Well, then, what is a man who leaves his party and comes over to yours?" Veteran Politician-"A convert, my son."Tit-Bits.

A celebrated lawyer was having his head measured at a fashionable hat store the other day. The man remarked, "Why, how long your head is, sir!" "Yes," said the lawyer, "we lawyers must have long heads." The man went on with his work and soon exclaimed: "And it is as thick as it is long, sir!"

It is a dangerous thing, when you have let slip an unfortunate remark, to try to cover up the blunder.

Mrs. G was talking with the wife of Judge H about her son's choice of a profession. "I don't want him to be a lawyer," she said.

"Why not?" asked the judge's wife. "I think there is nothing much finer than the legal profession for a bright boy."

"Well," said Mrs. G, bluntly, "a lawyer has to tell so many lies." Then it dawned on her that she was talking to the wife of a lawyer; so she hastily added, "That is-er-to be a good lawyer."-Youth's Companion.

A negro was arraigned in a Memphis police court for aggravated assault, the fact being that he had hit another negro with a brick-bat. After the attorneys had questioned the defendant, the judge took him in hand:

Judge: Jim, why do you say you hit that other negro with a brick-bat?

Defendant: Jedge, I hit 'im wid a brick-bat 'case he calls me a black, kinky-haired scoundrel. Warn't dat er nuf?

Judge: Jim, do you presume I would hit a man with a brick-bat if he should call me a black, kinky-haired scoundrel?

Defendant: Cose you wouldn't, Jedge. But what if somebody called you de particular kind a scoundrel what you really is?