(6) If a court may determine that the Governor is acting willfully in construing the Constitution to require him to protect the Executive Department against invasion by the Judiciary and coerce the Governor, the Governor has an equal right to determine that the court is corruptly and willfully violating the Constitution in ordering hist arrest and may use the militia to coerce the court, or may, when the court makes a decision which does not accord with the views of the Governor, arrest and imprison the judge, because the executive and judicial departments are upon an exact equality with respect to a construction by either of the powers and duties of the other under the Constitution.20

(7) If the Governor can be arrested and put upon trial for an alleged criminal act committed before he was elected, or for an act not involving a malfeasance, misfeasance, high crime or misdemeanor in office, for which he might be impeached, he can, upon the complaint of any private citizen, be arrested and put upon trial for an act of misconduct in office or the most insignificant misdemeanor upon the command of the most insignificant court, or even by a constable. without a warrant for a violation of the law which has, in fact, been committed if the constable has reasonable grounds to believe the Governor committed it.21

It is so apparent that the application of these principles would completely overthrow and destroy the Executive Department and produce anarchy that it would be truly surprising if any unbiased court should sustain the contention of those who insist that a Governor may be arrested and prosecuted for an alleged criminal offense while in office.

BRALEY, J. The only reference to the evidence in the record is the "statement of facts," from which it appears that the plaintiffs, who are husband and wife, were accepted as guests at the Hotel Langham, managed and kept by the defendant George H. Page, and the question whether they had been properly registered, as required by St. 1918, c. 259, § 5, has been answered in the affirmative by the jury. A finding would have been warranted that while in bed in a room assigned to them, to which they had been escorted and given a key, three employees of the defendant entered, followed by the defendant with a police officer, and although ordered to leave the hotel, the plaintiffs refused compliance with the order, and that evidence was offered "of an assault, of false imprisonment, and slander, all incidental to the plaintiffs' right to the quiet enjoyment of their room, but the defendant offered evidence to dispute this." We assume that this summary refers to what took place after the defendant came in and that the jury could find he acted as the proprietor in control of the hotel, and the employees and police officer were present at his direction and solicitation.

The action is in tort or contract. But at the plaintiffs' election by order of the court on motion of the defendant, the cases were submitted to the jury on the counts in contract, and gen. eral verdicts were returned for the plaintiffs. The jury having specially found that the plaintiffs had duly registered, they were rightly in occupation. The defendant's fifth and sixth requests, that if the defendants were violating the law in occupying a room without having been properly registered "that are precluded from recovering for any injury suffered while in the room," and the defendant was "justified in entering the room for the purpose of learning whether the law had been complied with,

and, if the occupants refused to assist him, he is justified in assuming that their presence is unlawful, and can use any reasonable means to remove them," are no longer material. See St. 1918, c. 259, § 5.

The questions raised by the seventh request, whether the defendant was "responsible for the acts of the police officer done by the police officer while in the performance of his lawful duty," and "that the police officer was acting within the scope of his lawful duty in entering the room *** to investigate into the right of their presence there," were for the jury under suitable instructions. Mason v. Jacot, 235 Mass. 521, 127 N. E. 331.

The eighth request, that if the defendant had no intention of frightening the plaintiffs, but merely went to the room to ascertain whether they "had a right to be there," he is not responsible "for her fright, or the consequent injury to her health," is not supported by any legal presumption. The defendant was not justified in assuming the plaintiffs were not registered. The hotel registry disclosed their names, and he could not for this reason intrude upon their privacy. Sampson v. Henry, 11 Pick. 379, 387. It is necessary, however, to ascertain the respective rights of the parties upon which the defendant's remaining requests must rest. The defendant urges that consequential damages for breach of contract are limited to such damages as were within the contemplation of the parties at the time of entering into the agreement. But it was held in Dickinson v. Winchester, 4 Cush. 114, 121 (50 Am. Dec. 760), that a plaintiff who had lost a trunk and its contents while a guest at the defendant's hotel could declare in case of assumpsit.

"The plaintiff may set forth a duty, and aver a fact in violation of it as a tort, or aver an implied promise to perform it, and a failure to perform that promise." Vannah v. Hart Private Hospital, 228 Mass. 132, 117 N. E. 328, L. R. A. 1918A, 1157; Norcross v. Norcross, 53 Me. 163.

The contract was not merely for the use of the room and entertainment, but for immunity from rudeness, personal abuse and unjustifiable interference, whether exerted by the defendant or his servants, or those under his control, or acting under his orders. The plaintiffs, having duly registered and been put in possession of a room for their exclusive use, had the right of occupation for all lawful purposes until vacated, subject only to the access of the defendant at reasonable times, and in a proper manner, for such purposes as might be necessary in the general management of the hotel, or upon the happening of some unanticipated.

controlling emergency. Com. v. Power, 7 Metc. 596, 601, 41 Am. Dec. 465; Holden v. Carraher, 195 Mass. 392, 81 N. E. 261, 11 Ann. Cas. 724; De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969; Lehnen v. Hines, 88 Kan. 58, 127 Pac. 612, 42 L. R. A. (N. S.) 830.

If without any sufficient reason appearing in the record, the defendant, who is not shown to have given any previous notice, or made any request for their departure, entered the room for the purpose of compelling them to vacate, he is liable in damages if excessive force, or coercion, or intimidation was used, or his conduct towards the plaintiffs was abusive, insult. ing, and wanting in ordinary respect and decency. And his tenth request, that if as owner of the hotel he entered the room "for the purpose of inspecting the same and seeing that the rules of the hotel, and all statutory regulations were complied with, then he was acting within the scope of his legal right and was not a trespasser," is not supported by the record. The judge's instructions are not stated, and it must be inferred as against the excepting party that they were correct and sufficient. Khron v. Brock, 144 Mass. 516, 519, 11 N. E. 748. The jury could find that after entering the rcom he engaged in the wrongful acts charged without justification or excuse. See Holden v. Carraher, 195 Mass. 392, 81 N. E. 261, 11 Ann. Cas. 724. The general law is well settled. The guest is entitled to respectful and considerate treatment at the hands of the innkeeper and his employees and servants, and this right created an implied obligation that neither the innkeeper nor his servants will abuse or insult the guest, or engage in any conduct or speech which may unreasonably subject him to physical discomfort, or distress of mind, or imperil his safety. Lehnen v. Hines, 88 Kan. 58, 127 Pac. 612, 42 L. R. A. (N. S.) 830; De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969; Morningstar v. Lafayette Hotel Co., 211 N. Y. 465, 105 N. E. 656, 52 L. R. A. (N. S.) 940; McHugh v. Schlosser, 159 Pa. 480, 28 Atl. 291, 23 L. R. A. 514, 39 Am. St. Rep. 699; 13 R. C. L. Innkeepers, §. 11 and notes. And he can recover damages for injury to his feelings resulting from the humiliation to which he has been subjected. Clancy v. Barker, 71 Neb. 83, 98 N. W. 440, 103 N. W. 446, 69 L. R. A. (N. S.) 642, 115 Am. St. Rep. 559, 8 Ann. Cas. 682; Aaron v. Ward, 203 N. Y. 351, 96 N. E. 736, 38 L. R. A. (N. S.) 204; Gillespie v. Brooklyn Heights R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503; De Wolf v. Ford, 193 N. Y. 397, 401, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am.

St. Rep. 969; Head v. Georgia Pacific Railroad, 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep. 434. The plaintiffs are not shown to have annoyed or disturbed other guests, or to have improperly demeaned themselves, or to have violated any rules of the hotel, and under suitable instructions the jury on conflicting evidence could find the defendant had been guilty of assault, false imprisonment and slander, by "words spoken *** imputing crime."

It follows that the plaintiff's four requests, that if they were unlawfully restrained of their liberty, the defendant is liable in damages, and if he incited, encouraged, or countenanced the presence and acts of the officer he is liable therefor, and that damages may be assessed for humiliation and injury to the plaintiff's feelings, as well as for unwarranted disturbance of his right of privacy and exclusive use of the room for himself and wife, and that even if the entry of the defendant arose from scme mistake made by him or his agents "in his records," such mistake would not amount to a justification, were unexceptionable. The defendant's ninth request, that if the plaintiff suffered no physical injury, "she cannot recover for mental suffering." was properly denied. As we have said, he could not treat the plaintiffs with contumely by the use of insolent language concerning them, specifically set forth in the declaration, and referred to, and characterized in the record as "slander," which the jury could say caused the plaintiffs not only physical annoyance and discomfort, but also worry and distress of mind. De Wolf v. Ford, 193 N. Y. 397, 401, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969. The defendant's duty in this respect is analogous to that of a common carrier of passengers. Com. v. Power, 7 Metc. 596, 601, 41 Am. Dec. 465; Jackson v. Old Colony Street Railway, 206 Mass. 477, 485, 92 N. E. 725, 30 L. R. A. (N. S.) 1046, 19 Ann. Cas. 615; Gorman v. Southern Pacific Co., 97 Cal. 1, 31 Pac. 1112, 33 Am. St. Rep. 157. In uttering incriminating words in the presence of his servants and the police officer, the defendant violated his contractual obligation to the plaintiffs as guests, of courtesy and respectful treatment, and freedom from humiliation, contempt and ridicule arising from slanderous verbal attacks.

We are therefore of opinion that the cases come within the doctrine of Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311, and kindred decisions, and the plaintiffs can recover in contract, as fully as if they had sued in tort. The final request, that they "could not recover on their counts in contract for any damages resulting from words spoken, the slander, the false imprisonment, assault and battery, or for the

humiliation, but could only recover for the value of the room," even when read in connection with the special answers of the jury to ques tions propounded by the defendant and submitted at his request, is covered by what has been said, and the defendant having failed to show reversible error, the exceptions should be overruled.

So ordered.

NOTE.-Liability of Innkeeper for Invasion of Guest's Right of Privacy.-The business of an innkeeper is quasi public, and he is bound to respect the convenience, privacy, safety and comfort of his guests, and to courtesy and respectful treatment. Hurd v. Hotel Astor Co., 182 App. Div. 49, 169 N. Y. Supp. 359.

The right of a guest to the use and possession of his room is subject to such emergent and occasional entries as the innkeeper and his servants may find it necessary to make in the reasonable discharge of their duties. De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527.

In the last cited case the Court said: "As a guest for hire in the inn of the defendants, the plaintiff was entitled to the exclusive and peaceable possession of the room assigned to her, subject only to such proper intrusions by the defendants and their servants as may have been necessary in the regular and orderly conduct of the inn, or under some commanding emergency. But for all other purposes, 'their occasional or regular entries into the plaintiff's room were subject to the fundamental consideration that it was, for the time being, her room, and that she was entitled to respectful and considerate treatment at their hands. Such treatment necessarily implied an observance by the defendants of the proprieties as to the time and manner of entering the plaintiff's room, and of civil deportment towards her when such an entry was either necessary or proper."

Where the servant of an innkeeper forcibly entered a guest's room, insulted her, etc., the guest may recover either on the theory of a tort or breach of contract. Boyce v. Greeley, Square Hotel Co., 228 N. Y. 106, 126 N. E. 647, affg. 168 N. Y. Supp. 191.

BOOK REVIEW.

BERRY ON AUTOMOBILES-THIRD

EDITION.

No subject of the law has grown faster in the last few years than the law relating to automobile traffic. To the student of legal history this phenomenon is interesting as he sees passing before his very eyes that which occurred in analogous cases hundreds of years ago. The development of the law merchant, of master and servant, of railroads. of electricity, etc., were in the same way the application of old principles to new situations created by the advancement of commerce, art

and invention, as well as changes in the mode of living. The common law is so elastic that it is able to fit any new situation in society and if the fiction that it constitutes a reservoir of principles to fit every possible situation which it is the duty of the court to discover has been exploded, yet the action of the judges in applying old principles to new situations is not conscious judicial legislation. There is always the attempt on the part of the judges to weave the new law into the warp and woor of the old, so that the law still shall be as it always has been considered to be, one homologous structure.

The law relating to automobiles is the application of principles of negligence, agency and master and servant to the motor-driven vehicle. There have necessarily been some pulling and stretching to make the old principles to fit the new situations, but the variations have not been as great or as numerous as one would be led to suppose.

These reflections have been prompted by examination we have just made of the third edition of Mr. C. P. Berry's work on Automobiles, which has just come from the press. Mr. Berry's second edition was a very good book, but the third edition has been revised so carefully and the scope so greatly enlarged that we are now prepared to say that from the practitioner's standpoint, it is the best work on the subject of automobiles which we have examined.

Besides being entirely rewritten, completely revised and brought up to date, this new edition contains six more chapters than the previous edition, and double the amount of material. The work is exhaustive and complete, covering the whole field of Automobile Law in its entirety. All the new phases of the law, such as Filling Stations, Jitneys, Insurance, etc., have been exhaustively dealt with.

A list of the chapter headings will give some idea of the wide range of the questions discussed in this treatise. They are as follows: 1, Definition and History; 2, Legal Status; 3, State Police Regulations; 4, Municipal or Local Police Regulations; 5, State License Laws; 6, Municipal or Local License Laws; 7, Federal Laws Affecting the Automobile; 8, Rights and Duties on the Highway Generally; 9, Regulation and Licensing-Failure to Comply with Law; 10, Regulatory Terms Defined; 11, Injuries to Pedestrians; 12, Injuries to Persons Boarding and Alighting from Street Cars; 13, Injuries to Children; 14, Injuries to Persons Employed in Streets; 15, Injuries to Occupant of Automobile; 16, Frightening Horses; 17,

Collisions with Street Cars; 18, Collisions with Railroads; 19, Collisions Between Automobiles; 20, Collisions of Automobiles with Other Vehicles and with Animals; 21, Injuries from Defective Highways; 22, Measure of Recovery for Damage to Automobile; 23, Evidence of Speed and as to Stopping; 24, The Chauffeur; 25, Liability of Owner When Automobile is Operated by Another; 26, Liability of Owner When Automobile is Operated by Member of Family or Guest; 27, Liability of Owner for Injuries to Chauffeur; 28, The Garage; 29, Filling Stations; 30, The Garage Man and the Repair Man; 31, Sales; 32, The Agent and the Manufacturer; 33, Liability of Manufacturer for Injuries Caused by Defective Automobile; 34, Automobile in Public Service; 35, Violation of Police Regulations and Prosecution Therefor; 36, Insurance.

The feature of the earlier editions maintained in the new is that the classification is according to the facts in each case. The section sub-headings are frequent and subdivide the facts minutely so that it is often possible for an attorney to get a case on "all fours" with his own.

Printed in one large volume of 1625 pages, on very thin paper and bound in a red flexible binding.

ITEMS OF PROFESSIONAL

INTEREST.

CARNEGIE FOUNDATION BULLETIN ON

LEGAL EDUCATION

publication,

Announcement is made of the August 27th, of Bulletin Number Fifteen, entitled “Training for the Public Profession of the Law;" subtitle, "Historical Development and Principal Contemporary Problems of Legal Education in the United States, with some Account of Conditions in England and Canada," by Alfred Zantzinger Reed; 469 pages 8 vo. and Index.

This volume is an outcome of a study of legal education and cognate problems, undertaken some years ago at the request of the Committee on Legal Education of the American Bar Association. The Foundation will be glad to distribute copies gratuitously as promptly as labor difficulties permit, on written application to its Division of Educational Enquiry, 522 Fifth Avenue, New York City.

CORRESPONDENCE.

COMPETENCY OF COURTS TO DECIDE SCIENTIFIC QUESTIONS

Editor, Central Law Journal:

Your issue of August 12th, on page 96, quotes a statement of Dean Roscoe Pound, of Harvard: "There is a growing disposition on the part of every, learned profession to question the competency of the lawyer to determine scientific problems." Is it a growing disposition or a known fact?

Relative to resistance of materials the Federal Reporter furnishes ample evidence that the knowledge of the geography of strain possessed by the Federal Judge presents the same lack of precision evidenced by the college freshman's definition of longitude as the distance East and West of the Equator.

The mental dead reckoning of longitude by this definition leaves us somewhere in the regions of nowhere, just as do our court decisions on the engineering phases of the patent case. Thus, in the Third Circuit we have four judges holding that all the engineer does in designing concrete is to put steel in where strains come in defiance of the law of rigidities and least work. We find in the Eighth Circuit a confusion of applied shear force with shear strain. In comparing two cases where the applied forces are the same, in one the shear strain is zero next to the support (proportional to the sum of the moment areas) and in the other a maximum at the support for the same reason because the bending moments are the same sign throughout in the latter case and in the former they are of opposite signs over and between the supports. Yet, the court held that the shear strains were greatest at the support where they are zero and the two cases alike; in other words, that nothing equals something. The maximum shear strain in one case would be about one-fifth as great as in the other and the maximum value which occurs at different places was held by the court to occur at the same place. In the Third Circuit we have the finding that circular and radial strains in all directions are equivalent. The latter measures deflection-the former is related to it about as closely as the distance East or West of the Equator is to longitude.

The expressed amazement of an entire Court of Appeals at the statement that a floor bends or deflects under load disclosed a mental grasp of the subject of resistance of materials far inferior to that possessed years before the Christian Era.

1

In general the blunders of the Federal Courts on such elementary matters result from heedlessness in the reversal of the deliberate opinion of the trained engineer examiners of the Patent Office upon engineering questions which the examiners are conversant with while the courts as now constituted are not.

Should the builder erect concrete buildings on the pseudo equitable principle enunciated by the 8th C. C. A., i. e., putting the steel in the top of a floor is the plain mechanical equiva lent of putting it in the bottom, would not the public insist upon re-enactment of the old Building Code Law of Hamurabi to the effect that, if a builder constructs a house and the work be not firm and it falls and kills the owner thereof, then shall the builder's life be forfeited therefor.

And yet the lawyer would have the layman believe that we now have a practical system for the encouragement of all the scientific arts! Yours very truly,