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Court said: "And in Vermont, where by In New Hampshire the son of an adoptspecial statute an adopted child is made an ing parent cannot inherit through the heir-at-law in as full and perfect a manner adopting parent the estate of the latter's as if born to the adopting parents, it is held mother, where the adopting parent dies bethat the adopted child cannot become an fore his mother. 46 heir of a brother of his adoptive mother, In Georgia, where the testator adopted a although she would be an heir if living. child and the child died before the testator, The Kentucky Court then said: "The act the children of the adopted child stood in of the foster parents in adopting the child their father's place and inherited the share is a contract into which they entered with of their father in the testator's estate. 47. those having the lawful custody of the In Kansas an adopted child died intestate, child, an agreement personal to themselves, leaving a husband and child, before the and while they have a perfect right to bind death of her adoptive father, who left suror obligate themselves to make the child viving a widow. The Court held,48 that their heir, they are powerless to extend this the widower and child inherited the share right on his part to inherit from others. in the estate of the adoptive father, which All inheritance laws are based or built upon the adopted child would have taken had natural ties of blood relationship, whereas she been alive when he died. an adopted child's right to inherit rests In 1842 the Legislature of Kentucky by upon a contract, and hence only those par

a special act authorized one Hafley to ties to the contract are bound by it."

adopt a child in which she was made In the Walworth Case, supra, the l'er- capable of taking and holding, by descent, mont Court said: “The exceptants rely

ihe estate of her adopting father, real, perupon the cases of Moone v. Moone's Exrs., sonai, and mixed, in as full and as compleje supra, and Stanley v. Chandler, 45a as au

a manner as if she was his lawful child. thorities against such right of representa

After the adoption she married one Power, tion. Yet they are not so. In the Moone

and several years after her marriage, she Case by the special act the name of the

died, leaving children. After her death, person was changed, and she was consti

the adopting father, Hafley, died. The chiltuted heir-at-law of,' etc., in as full and

dren of the adopted daughter claimed the perfect a manner as if she had been the

estate of the adopting father as his legal daughter of the said man and wife named, representatives. The Court held, that the born in lawful wedlock.' The word

children of the adopted mother were the 'adopt' or 'adoption' is not used in the act,

legal grandchildren of the adopting father, hence a construction based upon the mean

and as such were entitled to share in the irg of the term 'adoption' under the civil distribution of his estate, under the Ken11w, as in the Louisiana case, could not be

tucky laws of descent. given; nor did the act confer upon either

Do Terms "Child," "Children," "Heirs," party, any rights, duties, or obligations

Issue,etc., Include Adopted Children? other than such as resulted from the mere

- The word "heirs" will include all who creation of an heir-at-law. * * * We think

stand in a relation to the ancestor that will that the Moone Case and the Stanley Case

entitle them to inherit upon his death. This are so distinguishable in bases, and in the would include an adopted child, for. the questions involved, from the case at bar, statute puts him on an equality with chilthat they have but little force as precedents

dren by birth for the purpose of inheriting in solving the questions before us.”

(46) Meader v. Archer, 65 N. H. 214.

(47) Pace y. Klink, 51 Ga. (45) Moone v. Moone, 35 Vt. 98.

(48) Gray v. Holmes, 57 Kan. 217. (45a)

(49) Power v. Halfley, 85 Ky. 671.

53 Vt. 519.

....

50

The son

from the adopting parent. By adoption he alty, and if no issue, one-half, the Court acquires no right to inherit from anyone held,52 that the adopted child was issue else than the adopting parent.

within the meaning of the statute and that

the widow was only entitled to one-third In this case, the testator devised land

of the surplus. "The word 'issue' has alto his son, but provided that if his son died

ways been construed to mean a child or leaving no heirs, then the land was to go to children, or their descendants, born of the other children of the testator.

marriage, and capable of taking at the death died, leaving no children born in lawful of the intestate; but the statute in question wedlock, but left adopted children. When

has intervened, and, on the application of the will was made there was no law in Illi

both husband and wife, the adopted child nois providing for the adoption of children,

is made to inherit in the same manner as if The Court held that these adopted children

a child in fact." could not have been within the contempla

An adopted child can inherit property tion of the testator, and, therefore, they

deeded to his adopting father and his heirs, could not inherit the property devised to

and not property deeded to his adopting their adoptive father.

father and his "bodily heirs," because he A testator in a Massachusetts case,51 in

is not an heir of the body of his adopting his will devised the remainder to the heirs

father.53 A testator left a fund to trustees at-law of his said wife. When the wife to pay the income, in stated proportions, to died she left no children, born of her body, children and grandchildren, and upon their but she left an adopted son that she had

death to pay their respective portions to

their lawful issue, and, if any of them adopted several years after the testator's death. The Court held, that under the

should die without leaving lawful issue,

then a gift over. adoption statutes in force at the time the

A granddaughter died, adopted child was not an heir-at-law of leaving no issue of her body, but leaving the wife, within the meaning of the law,

an adopted daughter. The Court held, 54 and as there was nothing to show that the

that the word “issue,” as used in the will, testator contemplated that his wife might,

included all descendants; and as the statafter his death, adopt a child, it was im

ute gave to an adopted child the status of possible to say that, in the words of the

descendant, and all the legal constatute, it plainly appeared to have been

sequences and incidents thereof, the same the intention of the testator to include in his

as though he were born in lawful wedlock, devise an adopted child of his wife. He

and, hence, the same as "lawful issue," he

was entitled to take the fund under the bewas not the natural heir of the wife, and the statutes did not give him all the quali

quest. ties and rights of an heir, but only certain

A, in 1825, made a voluntary conveyance, limited rights. Where a husband and wife without reserving any power of revocation, adopt a child and the husband dies, and of personal property to an annuity company leaves by his will a tract of land to a child in trust, to pay the income to him for life, of his adopted child, and restricts his and upon his death to transfer the principal widow (the mother of the adopted child) sum to his executor or administrator, for to that portion of his estate to which she the special use and benefit of any child or was entitled under the statute, which pro

children of A; if only one, in trust for his vides that if the intestate leaves issue the or her use and benefit; if more than one, widow shall have one-third of the person

for their use and benefit equally, the legal

a

(50) Wallace v. Nolan, 246 Ill. 535. (51) Wyeth v. Stone, 144 Mass. 441.

(52) Atchison v. Atchison's Exrs., 89. Ky. 488.
(53) Clarkson v. Hatton, 143 Mo. 47.
(54) Hartwell v. Teffi, 19 R. I. 644.

representatives to take their parent's share; In California,58 legacies in trust for the in case of A's death without leaving any benefit of the children of the adopted issue, to pay the principal to the mother daughter of a deceased testator are exceptfor her own use; in case A survived his ed from the provisions of the law estabmother and died without leaving any law-lishing a tax upon "collateral inheritances. ful issue, then to pay the principal sum to bequests and devises." his executor or administrator in trust for the use of his heirs-at-law, and the heirs

If the adopted child is by virtue of its at-law of his mother equally to be divided status to be regarded and treated in all between them. A subsequently undertook

respects as the child of the person adoptto change the terms of the settlement. In ing. and is to have all the rights and be 1865 he adopted a child in pursuance of subject to all the duties of the legal relation the laws of the State, and died in 1872,

of parent and child the right to succeed to leaving no other child, his mother having the estate of the deceased parent must be died before him.

included. The word "issue" includes all

descendants, and as the statute gives to an The Court held, 55 that A had an equitable life estate and no power to change the adopted child the status of a descendant

all the legal consequences and incidents terms of the settlement, and that the

thereof follow, the same as though the adopted child took the remainder of the

child was born in law ful wedlock. A child property as a “child" under the settlement

is a lineal descendant of its adopting paras one of the “legal consequences and inci

ents; and if, as declared by the civil code, dents of the natural relation of parents and children," by virtue of the statute of

an adopted child is to be "regarded and

treated in all respects as the child of the adoption.

person adopting" and the two "sustain toConclusion. The law of adoption con

wards each other the legal relation of parfers no right upon an adopted child to ad

ent and child, and have all the rights and minister the estate of a deceased adopting

be subject to all the duties of that relation,” parent, or to select an administrator.56 It

it must follow that the children of such is held in Pennsylvania," that an adopted adopted child take by inheritance as issue child is not exempt from payment of col

of the adopting father. Otherwise, the lateral inheritance tax. “It is property de

child adopted and the adopting parent vised or descending to children and lineal

would not sustain towards each other the descendants that is exempt from the tax.

relation of parent and child. Again, the If the heirs or devisees are so in fact, they

act under which the taxes were imposed by are exempt; all others are subject to the

the Court below in its title relates to "coltax. Giving an adopted son a right to in

lateral inheritances, bequests and devises" herit does not make him a son in fact. And only, and under the provisions of the Conhe is so regarded in law, only to give the

stitution its effects must be limited to the right to inherit, and not to change the col.

subjects thus described. This would exlateral inheritance tax law. As against that

clude successions or bequests to children law, he has no higher merit than collateral and grandchildren, whether adopted, or blood relations of the deceased, and is not

natural, for clearly they are not collateral,

but in direct line. at all to be regarded as a son in fact."

W. W. HERRON.

Jefferson City, Mo. (55) Sewall v. Roberts, 115 Mass. 262. (56) Smith's Estate, 225 Pa. St. 630. (57) Commonwealth v. Nancrede, 32 Pa. St. (58) Estate of Winchester, 140 Cal, 468.

(59) Civil Code, sec. 227.

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389.

MUNICIPAL CORPORATIONS LIABILITY

FOR ASSAULT BY AGENT.

MUNICK V. CITY OF DURHAM.

Supreme Court of North Carolina. April 6, 1921.

106 S. E. 665.

City operating water system was liable for assault by superintendent of the waterworks on consumer's tender of 50 cents in pennies in payment of water bill, since the assault was made by the superintendent while acting in his capacity as agent for the city, and since the city operated such water plant in its business capacity and not in its governmental capacity.

The waterworks in the city of Durham are owned by the municipality and are operated by it under the supervision of the defendant board of water commissioners. Among their employees was one Harvey Bolton, who had general charge and supervision of said water system, and among whose duties it was, assisted by others under his supervision, to keep the books continuing

the accounts against all customers purchasing water, to • render statements to said consumers for the

water used by them and collect all sums due, and to give receipts upon payment of said bills. This is an action by the plaintiff against the city for damages for assault and battery upon him by said Bolton.

CLARK, C. J. The testimony for the plaintiff presents one of the most singular occurrences that has come to this court. The defendant offered no evidence, and the non-suit was granted on the uncontradicted testimony for the plaintiff as above set out. It is there fore taken as true, with all the inferences from it in the most favorable light to the plaintiff. But, indeed, there seems to be but one that could be drawn from it. The plaintiff, an old and feeble man, went to the water company on receiving a notice sent by it to pay his bill. He handed the clerk the money and she gave him a receipt. A part of the payment was 50 "pennies,” that is, one-cent pieces, wrapped up together. While he was standing there and she was counting the pennies, the manager of the water company came in, knocked the pennies off the counter on the floor, cursed the plaintiff, calling him a “G-4 d-n Jew,” told him to pick up the pennies, struck him, pulled him into another room, struck him repeatedly, interrupted this to admit another patron, and after the latter went out the superintendent resumed his beating of the plaintiff, who offered no resistance and begged to

be turned loose to go home, shook him, choked him, put a towel over his face suffocating him, and finally, when the plaintiff tendered a dollar bill, he told him to take his pennies and to leave and not come back.

The official (Bolton) was indicted in the criminal court and convicted and merely fined. Taking this occurrence to be as stated by the plaintiff, who is not contradicted and who proved a good character, a more brutal and unprovoked assault could not be presented. It was absolutely without justification. The pennies, under the United States statute, were a legal tender to the amount of 25 cents (U. S. Compiled Statutes 1918, $ 6574), and if the clerk had objected the water company could not have been compelled to receive beyond that sum in pennies, but it was no offense to tender a larger sum in cne-cent pieces, and the lady clerk accepted them; and even if the tender of 50 of them was for any reason objectionable (which does not appear), it certainly did not justify the treatment the plaintiff received.

There is no explanation of the conduct of the company's superintendent, and the only provocation given which we can infer from the language used by Bolton is the fact that the plaintiff was a Jew. He made no other charge. The treatment which the plaintiff received is paralleled by that which is portrayed by Scott in Ivanhoe in the treatment of Isaac of York seven centuries ago, and by Shakespeare as meted out to Jews in the Merchant of Venice, also centuries ago. The world has long outlived this treatment of an historic race, except, perhaps, in “darkest Russia" when under the Czars. When Disraeli, later Prime Minister of the British Empire, was reproached in Parliament for being a Jew, he made the memorable reply, “When the ancestors of the right honorable gentleman

painted savages roaming naked in the forests of Germany, my ancestors were princes in Israel and high priests in the temple of Solomon."

Every voter, every witness, and every official takes an oath upon a sacred book, every sentence and word in which was written by a Jew. When the Savior was incarnated after the flesh he was of the tribe of Judah, and His mother, whom a great church holds immaculate, if not divine, has her name borne by millions throughout tie civilized worid. Whatever the shortcomings of any individual, it is strange that in this day of enlightment such prejudices as were shown in this case should survive against the race to which the plaintiff belongs. This plaintiff proved, with

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out contradiction, a good character, and certainly there is no evidence which justified in any degree the brutal assault made upon him, for which no excuse is offered. For some plained reason, the brutal assailant, though convicted, was punished only by a fine. It is to be presumed, however, that the city discharged him from its service.

The ground upon which the nonsuit was asked and allowed, as presented in this court, is that the defendants and the city of Durham are not responsible for the act of its agent, Harvey Bolton, superintendent of the waterworks, or that at least in making the assault he was not within the scope of his authority, in that he had no instructions from the de. fendants to commit such violence. At the time that the assault was made by the said Harvey Bolton he was acting in his capacity as agent. Had he been acting for a water company under private ownership, it could not be contended that the corporation would not be responsible. He was there in the prosecution and further. ance of the duties assigned to him by the de fendant municipality. Roberts v. Railroad, 143 N. C. 179, 55 S. E. 509, 8 L. R. A. (N. S.) 798, 10 Ann. Cas. 375. Indeed, the facts are very similar to those in Bucken v. Railroad, 157 N .C. 443, 73 S. E. 137. "Acting within the scope of employment means while on duty." Cook v. Railroad, 128 N. C. 336, 38 S. E. 926.

In Ange v. Woodman, 173 N. C. 33, 91 S. E. 586, it is said:

“It is now fully established that corporations may be held liable for negligent and malicious torts, and that responsibility will be imputed whenever such wrongs are committed by their employees and agents in the course of their employment and within its scope * in many of the cases, and in reliable text-books * * * 'course of employment is stated and considered as sufficiently inclusive; but, whether the one or the other descriptive term is used, they have the same significance in importing liability on the part of the principal when the agent is engaged in the work that its principal has employed or directed him to do and * * * in the effort to accomplish it. When such conduct comes within the description that constitutes an actionable wrong, the corporation principal, as in other cases of principal and agent, is liable not only for 'the act itself, but for the ways and means employed in the performance thereof.

This court has often held the master liable, even if the agent was willful, provided it was committed in the course of his employment. Jackson v. Tel. Co., 139 N. C. 347, 51 S. E. 1015, 70 L. R. A. 738.

Indeed, the doctrine goes further, and the principal is liable if one coming on the premises in connection with business dealings, or

by invitation, is assaulted by one of its agents. This is settled by the leading case of Daniel v. Railroad, 117 V. C. 592, 23 S. E. 327, 4 L. R. A. (N. S.) 485, and the numerous citations to the case in the Annotated Edition. Indeed, the same ruling has been uniformly made and was reaffirmed at this term in Clark v. Bland, 106 S. E. 491.

Not only is the corporation liable for injuries thus committed by its agents, but "it is the duty of a carrier to protect its passengers from injury, insult, violence, and ill treatment from its servants, other passengers, or third persons.” Seawell v. Railroad, 132 N. C. 859, 44 S. E. 611.

That the corporation is liable for the mistreatment of one invited upon its premises as this plaintiff was, or even if it fails to protect him as far as it can fron violence by others while upon its premises, is beyond controversy. Indeed, the principle is so well settled that it needs no citations of authority.

We apprehend, however, that his honor did not nonsuit the plaintiff upon any views to the contrary, but doubtless upon the ground that the city was not liable. That contention by the defendant is equally untenable.

The distinction is very broad and clear and is settled by all the authorities substantially as follows: Wherever a city is exercising a governmental function or police power, it is not responsible for the torts or negligence of its officers, in the absence of a statute imposing such liability; but when it is acting in its business capacity, as in operating a water or lighting plant, or other business function, it is liable for the conduct of its agents and serv. ants exactly to the same extent that any other business corporation would be liable under the same circumstances. The distinction thus laid down in McIlhenney v. Wilmington has been often cited with approval.

To sum up: The assault upon the plaintiff was of the most brutal and unprovoked nature. Indeed, there is no evidence set up in this case that tends to palliate or mitigate the assault, which, it appears, was entirely unprovoked. There is no question that Bolton was the officer of the corporation and was acting in the discharge of his duty, and that the plaintiff was on the premises at the invitation of the corporation, and, further, it was the duty of the corporation, not only to refrain from assaulting or injuring the plaintiff while there, but to protect him from any violence which it could reasonably have foreseen if offered by others; and, still further, the city operating the water plant in its business capacity and not under its governmental or po

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