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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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---lice power, on these facts the same liability sum of $24,000 additional compensation and was imposed upon the city as if it were

the amount of the monthly retainer fixed by business plant.

contract with the trustee. See 270 Fed. 710. The judgment entering a nonsuit must be I think that justice to all concerned would reversed.

require that this statement be made in an

early issue of your publication. Note.--Liability of Municipality in Operation

Yours truly, of Waterworks.-In furnishing water to private

MAX ISAAC. consumers, a city is acting in a private business capacity, and is bound to exercise ordinary care,

Brunswick, Ga.
and for failure to exercise ordinary care, it is
liable for injuries proximately caused thereby to.
the same extent that a private person or corpora-
tion operating a waterworks system would be
liable. State Journal Printing Co. v. Madison,
148 Wis. 396, 134 N. W. 909; Nemet v. Kenosha,

Wis., 172 N. W. 711; Flutmus v. Newport, 175
Ky. 817, 194 S. W. 1039; Murray v. Boston, 219

“My son, you should learn to practice selfMass. 501, 107 N. E. 416; Henry v. Lincoln, 93 Neb. 331, 140 N. W. 664; Coleman v. La

restraint." Grande, 73 Oreg. 521, 144 Pac. 468; Bjork v.

"That's old stuff, Dad. Don't you know that Tacoma, 76 Wash. 225, 135 Pac. 1005.

the reformers are doing all the restraining that "It has been repeatedly held in the application anybody could possibly need."-Judge. of the well-settled distinction between public and private functions, that the establishment and maintenance of a system of water supply in part

A college education was deemed worthy of for the use of inhabitants who pay for the the son of a profiteer, and when he came home necessity thus supplied is a commercial venture, for the holidays he was questioned by his fond and that for negligence in connection therewith the city or town is liable as a private corpora

parents as to the nature of his studies. tion would be in performing a similar service.

"Well, father," said the son, “I've been learn. Pearl v. Revere, 219 Mass. 604, 107 N. E. 417. ing arithmetic." Thus, a waterworks system owned and operated “Yes, well,” said the father impatiently, a by a municipality renders the city liable for negligent mismanagement thereof resulting in in

little disappointed. jury, and this is true, it has been held, where

"And French, German, Euclid," went on the damage resulted from the bursting of a water main due to negligence of the city's servants, “Ah, yes," returned the father joyfully, notwithstanding such main was used for fire protection, where it appeared the fire department

“that's better. Now just tell me the Euclid had no control over the waterworks system. Nor / for 'good morning'.”Exchange. does it change the liability in the least, although a portion of the water is used in part for pub

Maud Muller on a summer's day lic purposes. 8 McQuillin, Mun. Corp., sec. 2680, citing Blake-McFall Co. y. Portland, 68 Oreg.

Went on a strike for higher pay. 126, 135 Pac. 873; Simon v. New York, 82 Misc. So laying down her trusty rake, 454, 143 N. Y. Supp. 1097.

She gave the harvest field the shake.
She showed the boss her union card,

And said that times were getting hard.

The cost of living was so high

That she was hardly getting by.

And, furthermore, the price of hay
TURNED A BANKRUPT BUSINESS IN. Would justify a raise in pay.

And if refused her just demands,

She'd call out all the hired hands. Editor, CENTRAL LAW JOURNAL:

The farmer who in anger roared, There were several errors regarding the Referred her to the Labor Board, amounts of the allowance in your story of the Who passed the buck to Warren G., case of the Yaryan Rosin & Turpentine Com- Who passed it to a committee, pany (92 Cent. L. J. 405). They are traceable Composed of wise and learned men, to the error in the newspaper article I sent Who promptly passed it back again. you.' The trustee in bankruptcy received $15,- Whereat Maud Muller said, "Oh, fudge!". 000, and in addition thereto received, during And got herself elected judge. the administration in bankruptcy, $16,000, mak- And now besides her princely pay ing a total of $31,000. The counsel for the trus- She gets her rake-off every day. tee in bankruptcy (the writer) received the

-L. C. Davis, Post-Dispatch.



Weekly Digest of Important Opinions of the

State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

Alabama Arkansas Georgia Illinois. Iowa Kansas. Kentucky Maine.. Michigan. Mississippi. Missouri. Montana.. New York, North Dakota. Ohio Oregon Pennsylvania. South Carolina South Dakota. Texas... United States C. C. A. United States D. C.. Utah Washington. Wisconsin

.4, 12, 32, 55, 63

2 .9, 22, 31, 47 .44, 45, 64

........18 -5, 29, 51

...20, 50

.23, 37, 66 .11, 13, 25, 38, 56

..7, 24 -21, 30, 52

...10, 39 .8, 14, 16, 35, 36, 41, 61


46 ....6, 54 42, 65

60 -53, 62

..15, 33, 49 .1, 19, 26, 28, 43, 48

.34, 59

.40 -57, 58 .17, 27

not in the nature of a penalty, and it is competent for contracting parties, not only to stipulate for a reasonable attorney's fees to be paid by the maker of a note in the event of collection by an attorney after default, but to fix the amount of the reasonableness of such fee; the prima facie presumption being that an amount fixed by them is reasonable.--Vinyard v. Republic Iron & Steel Co., Ala., 87 So. 552.

5.-Corporate Note.-A stockholder who is also an officer and director in a Missouri corporation, and who, without receiving any direct consideration therefor and without

any language of qualification, signs his name on the back of a note given in Missouri by the corporation to itself to be negotiated for the purpose of procuring money for the corporation, is liable under the Missouri Negotiable Instruments Law as an indorser, and is entitled to notice of dishonor on non-payment of the note. -Crane v. Downs, Kans., 196 Pac. 600.

6. Purchaser Before Maturity.-If a note did not contain an acceleration clause, and had not matured because of failure to pay accrued interest, a purchaser thereof in good faith for value was a purchaser before maturity for value.-Taylor v. Buckner, Ore., 196 Pac. 839.

7. Brokers — Expenses. While no commissions are recoverable by a broker, where they are based on the amount received for the land by the owner, and the sale has failed through no fault of the owner, the broker may nevertheless recover expenses incurred by the owner's authority in securing options to cancel leases to enable the owner to deliver possession to the prospective buyer.-Lee v. Greenwood Agency Co., Miss., 87 So. 485.

8. Carriers of Passengers--Loss of Baggage. --Where a passenger, about to enter a Pullman car, was detained about two minutes outside to have his ticket examined, while a station porter carrying his hand bag entered the car, the carrier cannot be held liable, his bag not having been found, on the theory that its servants should have kept their eyes on it, for such vigilance is not required of the carrier.-Sneddon v. Payne, N. Y., 187 N. Y. S. 185.

9.- Pullman Conductor not a "Passenger" or “Employee."-One in the employ of the Pullman Company as conductor, under a contract whereby he ratified a contract between his employer and the railroad company and agreed that he should not have the rights of a passenger, and that it should not be liable for any injuries sustained by him, was not an "employee" or a "passenger" of the railroad company, but sustained a special contractual relation; the liability for injuries to the Pullman company's employees, not pertaining to the public duty resting on the railroad company as a common carrier, but arising solely from the contract.Cato v. Southern Ry, Co., Ga., 106 S. E. 272.

10. Res Ipsa Loquitur.-Where passenger's injury resulted from slipping on a small piece of ice on the step box on which she stepped when alighting from the car, the doctrine of res ipsa loquitur did not apply to throw the burden of showing freedom from negligence on the carrier, no contention being made that the step box was defective, and it appearing by plaintiff's own witness that there was no ice on the box when it was placed on the platform. -Heck v. Northern Pac. Ry. Co., Mont., 196 Pac. 521.

11.- -Schedule of Rates. The filing of a proposed schedule of rates with the Railroad commission by a road prior to enactment of Pub. Acts 1919. No. 382, did not authorize an increase of rates in excess of those fixed in the franchise in view of Pub. Acts 1909, No. 300, $ 3, subd. (c), 2 Comp. Laws 1915, § 8109 et seq., declaring that it does not authorize the Commission to impair any existing franchise.-Humphrey v. Detroit, M. & T. S. L. Ry., Mich., 181 N. W. 975.

12. Chattel Mortgages--Annulment of Sale.Where the mortgage gave no authority to the mortgagee to purchase at his own sale, a foreclosure sale at which the mortgagee was the

1. Bankruptcy-Petition to Revise.-A petition to revise opens only questions of law, and the appellate court cannot review the decision of the District Court on a question of fact. Yaryan Rosin & Turpentine Co. v. Isaac, U. S. C. C. A., 270 Fed. 710.

2. Banks and Banking-Forged Check. If a depositor is guilty of negligence in not discovering and giving notice of a forgery, then the bank might thereby be prejudiced because it is prevented from taking steps, by the arrest of the criminal, or by attachment of his property, or any other form of proceedings, to compel restitution; and it is for the jury to say whether the bank has been deprived of or delayed in the exercise of any rights, the practical effect of which will enable it to protect itself.-Bank of Black Rock v. B. Johnson & Son Tie Co., Ark., 229 S. W. 1.

3.--Status Apart From State.-Pursuant to constitutional and statutory enactments, the Bank of North Dakota, as an agency of the sovereign power, engaged in the banking business, has a distinct status separate and apart from that of the state itself. This status permits it to function as a distinct and separate agency of the sovereign power.-Sargent County State, N. D., 182 N. W. 270.

Bills and Notes--Attorney's Fee-A stipulation for payment of a reasonable attorney's fee, if the obligee in a contract should employ an attorney to enforce or defend his rights thereunder by reason of the obligor's breach, is purchaser, and at which much of the mortgaged property was not present, some of it being in the adjoining county, and at which all the property was sold en masse for a lump sum, was properly set aside and annulled, and the mortgagor allowed to exercise his equity of redemption.-Chenault v. Milan, Ala., 87 So. 537.

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13. Commerce -- Liquor Transportation. - By the Reed Amendment, Congress reassumed exclusive jurisdiction over regulation of interstate liquor transportation.-People v. Keeley, Mich., 181 N. W. 990.

14. Contracts-Pawnbroker.- Where plaintiff seller intrusted a prospective purchaser with possession of a watch for the purpose of making a sale, the purchaser must be deemed the true owner thereof, to the extent that her contract of pledge with a pawnbroker is binding on the seller. --Kupchick v. Levy, N. Y., 187 N. Y. S. 192.

15.- Test of Water Well.--In view of Acts 36th Leg. (1919) c. 130, where plaintiff contracted to bore for defendant a water well yielding sufficient water to fill 30 barrels each day, the word "barrel" as used in the contract meant a barrel of 31'2 gallons, the standard United States measure except as to barrels of petroleum, and the provisions of the contract giving defendant right to test the capacity of the well for not exceeding 90 days did not give her absolute power to determine unappealably whether there was insufficient water.–Pope v. Joschke, Tex., 228 S. W. 986.

16. ('orporations-Certificate to do Business. -General Corporation Law, § 15, requiring foreign corporations to procure a certificate authorizing the doing of business in the state, is repugnant to the commerce clause of the Federal Constitution, and void as applied to transactions in interstate commerce. ---Publicker Commercial Alcohol ('o. v. Roberts, N. Y., 187 N. Y. S. 178.

17. -Provision of Charter. Under St. 1919, $ 1776, providing that the directors of stock corporations shall choose a president and such other officers as the corporate articles and bylaws require, all officers designated by the articles or by-laws are to be elected by the directors, and a provision of the corporation's charter for their election by the stockholders is in conflict with the statute which governs the election-State v. Rosenow, Wis., 182 N. W. 324.

18. -Rescission of Contract-Stock subscriber, by demanding stock and advertising it for sale, did not waive the right to annul notes given for a portion of the purchase price retained by the corporations which failed to issue the stock or return notes for the balance of the purchase price, where suit to rescind was brought within five days after the corporation had returned another of his notes.---Lynch ti Des Moines Life Finance Co., Iowa., 182 N. W. 21.

ultimate grantees had legal right to sue the first grantor on his covenants of warranty to his grantee, or to sue such grantee, their own grantor, on the covenants contained in his deed to them.-Martin v. Jones, Mo., 228 S. W. 1051.

22. Criminal Law— Disorderly Conduct.-It was "disorderly conduct” for one, called to the door of her home at night by police officers making inquiry about matters in their line of duty, to curse them, slam the door, and order them away.-Whitten v. Mayor and Aldermen of Savannah, Ga., 106 S. E. 302.

23. Damages-Mental Anguish.—Defendant's carelessness and negligence, in publishing a picture of plaintiff's son in connection with a report of the death of a person having the same name, gave no right of action for the mental pain and anguish suffered by plaintiff from the supposed death of her son, where the publication of the picture was not done wantonly or from wrong motives or in willful disregard of plaintiff's parental feelings.--Herrick v. Evening Express Pub. Co., Me., 113 Atl. 16.

24. Divorce- - Alimony. - Alimony may be awarded the wife in a divorce proceeding, although the husband is without property and must support himself and pay the alimony out of his future earnings.--Ramsay V. Ramsay, Miss.. 87 So. 491. 25.

-Clean Hands.—Where the court found that plaintiff was guilty of the same misconduct she had charged against defendant, a dismissal of the bill for divorce was proper; a divorce not being granted under a rule of comparative rectitude or turpitude.-Hatfield v. Hatfield, Mich., 181 N. W. 968.

26. Fish-Ownership.- Rev. St. Mo. 1909, $ 6508, providing that "the ownership of and title to all birds, fish and game * not now held by private ownership, legally acquired, is hereby declared to be in the state, and no fish, birds or game shall be caught, taken or killed, or had in possession, except the person so catching, taking, killing or having in possession shali consent that the title of said birds, fish and game shall be and remain in the state of Missouri for the purpose of regulating and controlling the use and disposition of the same after such catching," etc., is a statute of regulation oniy, and leaves private ownership unimpaired, tacept as to the right of the state to prescribe the seasons and conditions under which fish and wild game may be taken, used, and disposed of. ---Gratz v. M'Kee, U. S. C. C. A., 270 Fed. 713.

Fixtures -- Removal. Where buildings were placed on the leased premises by the tentant and continuously assessed as personalty and the taxes paid by the tenant, who kept the buildings insured the structures erected and the machinery contained in the buildings being suitable for and devoted to a business purpose, the tenant without express stipulation in the lease, had the right to remove all of such fixtures and the machinery contained in them at or before lawful expiration of his term.----Dougan v. H, J, Grell Co., Wis., 182 N. W. 350.

28. Injunction - Violation of Contract. Equity has jurisdiction to enjoin violation of a contract relating to personalty, where special circumstances ate alleged showing that the remedy at law is not adequate.--Hawaiian Pineapple Co. v. Saito, l'. S. C. C. A., 270 Fed. 749.

29. Insurance Default of Mortgagee. Where a mortgagee was made a defendant but defaulted and it appeared that a prospective purchaser had paid two-thirds of the mortgage, the insurer cannot defeat recovery

the ground that payment should be made to the mortgagee.-Ellis v. Home Ins. Co., Kan., 196 Pac. 598.

-Liability for Payment by Insured.Where plaintiff partnership, carrying liability insurance with defendant surety company, had contracted to indemnify the mining company, whose mine the partnership leased, against loss, damages, or negligence, and the mining company, having settled suits against it for deaths of miners resulting from the operation of the mine by the partnership, sued and recovered

19.-- Valid Obligations.-- Where the treasurer of a coal company contracted for the purchase of all of its stock, and pursuant to the contract took over the management of its business on behalf of himself and his associates in the purchase, but owing to default in payment the contract was not carried out, notes given by him in the name of the company, without authority of the directions for money advanced by one of his associates, which was not used in the business of the company, but was paid for stock under the contract, held not to be valid obligations of the corporation. -Murray v. Shipman Koal ('o., U. S. C. C. A., 270 Fed. 740.

Counter-Road Bond Issue.-Where the fiscal court of a county, in calling an election on a road bond issue, directed that the proceeds of the bonds to be voted should be used to construct or reconstruct roads. bridges were necessarily included.--Crick v. Rash, Ky., 229 S. W. 63.

21. Covenants-Warranty.–Where land conveyed twice with a deficiency in acreage, the





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