from the adopting parent. By adoption he acquires no right to inherit from anyone else than the adopting parent.

In this case,50 the testator devised land to his son, but provided that if his son died leaving no heirs, then the land was to go to other children of the testator. The son died, leaving no children born in lawful wedlock, but left adopted children. When the will was made there was no law in Illinois providing for the adoption of children, The Court held that these adopted children could not have been within the contemplation of the testator, and, therefore, they could not inherit the property devised to their adoptive father.

A testator in a Massachusetts case,51 in his will devised the remainder to the heirsat-law of his said wife. When the wife

died she left no children, born of her body, but she left an adopted son that she had adopted several years after the testator's death. The Court held, that under the adoption statutes in force at the time the adopted child was not an heir-at-law of the wife, within the meaning of the law, and as there was nothing to show that the testator contemplated that his wife might, after his death, adopt a child, it was impossible to say that, in the words of the statute, it plainly appeared to have been the intention of the testator to include in his devise an adopted child of his wife. He was not the natural heir of the wife, and the statutes did not give him all the qualities and rights of an heir, but only certain limited rights. Where a husband and wife adopt a child and the husband dies, and leaves by his will a tract of land to a child of his adopted child, and restricts his widow (the mother of the adopted child) to that portion of his estate to which she was entitled under the statute, which provides that if the intestate leaves issue the widow shall have one-third of the person

(50) Wallace v. Nolan, 246 111. 535. (51) Wyeth v. Stone, 144 Mass. 441.

52

alty, and if no issue, one-half, the Court held, that the adopted child was issue within the meaning of the statute and that the widow was only entitled to one-third of the surplus. "The word 'issue' has always been construed to mean a child or children, or their descendants, born of the marriage, and capable of taking at the death of the intestate; but the statute in question has intervened, and, on the application of both husband and wife, the adopted child is made to inherit in the same manner as if a child in fact."

53

An adopted child can inherit property deeded to his adopting father and his heirs, and not property deeded to his adopting father and his "bodily heirs," because he is not an heir of the body of his adopting father." A testator left a fund to trustees to pay the income, in stated proportions, to children and grandchildren, and upon their death to pay their respective portions to their lawful issue, and, if any of them. should die without leaving lawful issue, then a gift over. A granddaughter died, leaving no issue of her body, but leaving an adopted daughter. The Court held,5 that the word "issue," as used in the will, included all descendants; and as the statute gave to an adopted child the status of descendant, and all the legal consequences and incidents thereof, the same as though he were born in lawful wedlock, and, hence, the same as "lawful issue," he was entitled to take the fund under the bequest.

a

38

ful issue, then to pay the principal sum to his executor or administrator in trust for the use of his heirs-at-law, and the heirsat-law of his mother equally to be divided between them. A subsequently undertook to change the terms of the settlement. In 1865 he adopted a child in pursuance of the laws of the State, and died in 1872. leaving no other child, his mother having died before him.

The Court held, that A had an equit

able life estate and no power to change the

terms of the settlement, and that the adopted child took the remainder of the property as a "child" under the settlement as one of the "legal consequences and incidents of the natural relation of parents and children," by virtue of the statute of adoption.

Conclusion. The law of adoption confers no right upon an adopted child to administer the estate of a deceased adopting parent, or to select an administrator.56 It is held in Pennsylvania," that an adopted child is not exempt from payment of collateral inheritance tax. "It is property devised or descending to children and lineal descendants that is exempt from the tax. If the heirs or devisees are so in fact, they are exempt; all others are subject to the tax. Giving an adopted son a right to inherit does not make him a son in fact. And he is so regarded in law, only to give the right to inherit, and not to change the col lateral inheritance tax law. As against that law, he has no higher merit than collateral blood relations of the deceased, and is not at all to be regarded as a son in fact."

bequests and devises."

If the adopted child is by virtue of its status to be regarded and treated in all respects as the child of the person adopting, and is to have all the rights and be subject to all the duties of the legal relation of parent and child the right to succeed to the estate of the deceased parent must be included. The word "issue" includes all descendants, and as the statute gives to an

adopted child the status of a descendant all the legal consequences and incidents. thereof follow, the same as though the child was born in lawful wedlock. A child is a lineal descendant of its adopting parents; and if, as declared by the civil code, an adopted child is to be "regarded and treated in all respects as the child of the person adopting" and the two "sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation,"

it must follow that the children of such

adopted child take by inheritance as issue of the adopting father. Otherwise, the child adopted and the adopting parent would not sustain towards each other the relation of parent and child. Again, the act under which the taxes were imposed by the Court below in its title relates to "collateral inheritances, bequests and devises" only, and under the provisions of the Constitution its effects must be limited to the

subjects thus described. This would exclude successions or bequests to children and grandchildren, whether adopted, or natural, for clearly they are not collateral, but in direct line.

Jefferson City, Mo.

W. W. HERRON.

(55) Sewall v. Roberts, 115 Mass. 262. (56) Smith's Estate, 225 Pa. St. 630. (57) Commonwealth v. Nancrede, 32 Pa. St.

389.

(58) Estate of Winchester, 140 Cal. 468. (59) Civil Code, sec. 227.

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 therefore 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 "Gd 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 pen

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. nies, 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 were 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 the civilized world. Whatever the shortcomings of any indiv.dual, 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

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 unexplained 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 defendants 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 furtherance 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:

*

** in

"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 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 N. 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 from 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