addressed, that the stamped signature was that of an officer of the corporation whose name appeared on the letterhead, and that the letter itself referred to the subject matter of the original letter. (National Accident Society v. Spiro, 78 Feb. 774.) In order for this rule to apply, the preliminary proof must actually show that a letter was written and mailed to which the letter offered purports to be an answer. (Consolidated Grocery Co. v. Hammond, 175 Fed. 641, 99 C. C. A. 195.) In this case it is held that the statement in a letter offered in evidence that it is in answer to a letter previously received cannot, of itself, make the letter admissible, since to so hold would make the statement prove the writing and posting of the previous letter and also prove its own genuineness.

In Kvale v. Keane (39 N. Dak. 560, 9 A. L. R. 972), it is held that before the letter, which is claimed to be the answer, can be received in evidence, it must first be proved that the letter previously sent was properly addressed to the addressee at his post office address with sufficient postage thereon, and that thereafter such letter was deposited in the post office or some branch of the postal service authorized to receive and collect mail for transmission, and that until such proof is made concerning the previous letter, there is no foundation laid for the admission in evidence of the purported answer thereto and the same is inadmissible.

The production of the letter, in response to which the letter offered in evidence was written, is not essential to the admission of the letter, the presumption being that the original letter is in the possession of the one to whom it was written. (Dicks v. Jackman, Texas Civ. App. 37 S. W. 344.)

A modern young flapper was Min, She tried every scheme to get thin. In her attempts to reduce, She sipped lemon juice, 'Til she slipped through the straw and fell in.

NOTES OF IMPORTANT DECISIONS

PROOF OF DEFENDANT'S NAME ON TRUCK AS PROOF OF AGENCY OF DRIVER. -The Supreme Court of Missouri, en banc, in Barz v. Fleischmann Yeast Co., 271 S. W. 361, holds that where plaintiff testified that defendant's name was on the truck which ran him down, a prima facie case that the driver was acting for the defendant was established, which was sufficient to take the case to the jury on that question regardless of the testimony to the contrary produced by the defendant. The Court mentions that this was a business vehicle and that the accident occurred during business hours of the day. It has been contended that proof of ownership in the defendant of the offending vehicle is not sufficient to establish that the driver was in the employ of defendant and acting within the scope of his employment, as this would be basing inference on inference. This is erroneous, because there is but one inference that of control of the truck by defendant. Ownership means control-nothing more. Hence, proof of ownership is sufficient proof of control.

The following is part of the Court's opinion: "It is contended by the respondent that it was shown by the respondent's evidence that Faeth was not acting within the scope of his employment, but was bent on his own business at the time of the accident and that, as plaintiff offered no evidence to overcome or put in issue the evidence so introduced by respondent, it was entitled to a directed verdict. This is a misconception. Respondent concedes that plaintiff made a prima facie case. Respondent then took the laboring oar. We will not stop to point out the glaring contradictions in the evidence. The jury, however, was not bound to believe respondent's evidence, even if it had not been contradicted. Diehl v. Fire Brick Co., 299 Mo. 641, 253 S. W. 984 (10).

"In Peterson v. Railroad, 265 Mo. 462, 479, 178 S. W. 182, 187, Judge Woodson said:

"As held in paragraph one of this opinion, the plaintiff having made out a prima facie case, then according to the rule just announced the burden rested upon the defendant to disprove and overcome that case, to the satisfaction of the jury. That, of course, means that the jury and not the court must pass upon the credibility of the witnesses and the weight to be given to their testimony. That is, after a prima facie case has once been made out, the case can never be taken from the jury.'

"This proposition was thus stated in Gannon v. Gas Co, 145 Mo. 502, 517, 46 S. W. 968, 972, 47 S. W. 907, 43 L. R. A. 505:

""The right to judge the weight of evidence and the credibility of witnesses implies of necessity the right to resist the influence of any part of what the witnesses may have testified to-of saying that it wants in the power to convince. If the mere presentation of evidence of a fact is to be called its proof, because undisputed by any other witness or witnesses, then the right to judge the weight of evidence and the credibility of witnesses in such cases means nothing. There must, not only be the presenta tion of the evidence of a fact by a witness or witnesses, but its acceptance by the jury before proof can be said to have been made complete upon any given point, and, if what has been uttered or said by a witness or witnesses fails to convince the mind or intelligence addressed has not been accepted by them, then no sufficient proof has been made, however positive or unqualified the utterance of the witnesses upon which a finding can be predicated. The office of the court in the trial of a case by the jury is not to say when proof has been made sufficient for a verdict, but is limited to instructing when testimony offered tends or does not tend to establish a given fact or facts in issue. Testimony may tend in many instances to prove a given issue that falls far short of convincing proof.

RESTAURANT PATRON MAY RECOVER FOR "FRIGHT" RESULTING FROM FINDING DEAD MOUSE IN FOOD.-The New Hampshire Supreme Court, in Kenney v. Wong Len, 128 Atl. 343, holds that a restaurant patron is entitled to damages for physical suffering and "fright" resulting from finding dead mouse in food taken into her mouth; "fright" including distress of mind, and lack of external force not barring recovery. The Court further holds that, the fact that the customer is unduly susceptible to fright from mice, makes the damages all the greater. We quote at length from the opinion of the Court:

"The rule invoked has not been passed upon in this state. One sustaining bodily injury through negligence may recover for fear of other results as a form of mental suffering (Walker v. Railroad, 71 N. H. 271, 51 A. 918;

Prescott v. Robinson, 74 N. H. 460, 69 A. 522, 17 L. R. A. [N. S.] 594, 124 Am. St. Rep. 987), but no case is found where the only physical injury comes through fright as the connecting link in the chain of causation. The rule is supported in other jurisdictions on grounds open to critical consideration, and, when recognized, is more or less apologized for. In Massachusetts the rule has been adopted as a policy of practical justice to prevent opening 'a wide door for unjust claims' and on the theory that one is not bound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness.' Spade v. Railroad, 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393. In Ho mans v. Railway, 180 Mass. 456, 62 N. E. 737, 57 L. R. A. 291, 91 Am. St. Rep. 324, the rule is stated to be 'an arbitrary exception, based upon a motion of what is practicable.' In Driscoll v. Gaffey, 207 Mass. 102, 92 N. E. 1010, the doctrine does not apply, but recovery is given for the results of fright, where 'the injury from without is appreciable, even although it be very sl'ght.' And in Conley v. United Drug Co., 218 Miss. 238, 105 N. E. 975, L. R. A. 1915D, 830, the rule was not enforced where the immediate physical injury was sustained in a fall consequent upon a fainting induced by fright. some jurisdictions the rule has been upheld on the ground that, because there can be no recovery for fright in the absence of physical injury, there can be none for its consequences. Mitchell v. Railway, 151 N. Y. 107, 45 N. E. 354, 34 L. R. A. 781, 56 Am. St. Rep. 604; Trigg v. Railway, 74 Mo. 147, 41 Am. Rep. 305. In others an illogical transformation of a question of fact into a rule of law by holding recovery barred by the remoteness of such damage has been made the reason for the rule. Ewing v. Ry. Co., 147 Pr. 40, 23 A. 340, 14 L. R. A. 666, 30 Am. St. Rep. 709; Braun v. Craven, 175 III. 401, 51 N. E. 657, 42 L. R. A. 199. The rule has been forcibly criticized in Simone v. Rhode Island Co., 28 R. I. 186, 66 A. 202, 9 L. R. A. (N. S.) 740, and Dulieu v. White, [1901] L. R. 2 K. B. D. 669. See, also, Sedgwick on Damages (9th Ed.) §§ 43-43e.

In

"The question is here raised only in a limited form so that decision as to the general validity of the rule is not required. The evidence shows conclusively that the plaintiff sustained physical suffering at the time of the injury. Finding the mouse in her mouth made her sick immediately and so as to require the services of a physician. To discriminate between this and an external force such as a blow, cut, break, or wrench would be a legal refinement, wholly arbitrary and unjust. The distinction

between trauma and other contacts pertains to physiology rather than the law. If the mouse has been covered with prickly bristles instead of soft hair, and the plaintiff's mouth had been thereby cut, it would be a remarkable state of the law for such a difference to test liability. It is also an arbitrary and insufficient difference whether the bodily suffering at the time of the injury was or was not induced by fright. In a strict sense it was not fright at what might happen, but horror at what had happened, that affected the plaintiff at the time; but conceding that, as the word is used in this connection, fright includes any distress of mind (Driscoll v. Gaffey, supra), we see no occasion to distinguish between causes where the imme diate injury is and where it is not induced by fright, and the general rule of damages is here applicable, granting there is no liability where immediate physical injury is wholly lacking. Otherwise persons suffering from the negli gence of others would be subject to discrimination based on narrow reasons and contrary to normal principles of justice.

"The character of the rule as exceptional to usual grounds of recovery properly gives it restrictive rather than enlarging application. The reasons for the rule that the results of fright are barred because fright is barred and because they are too remote are so lacking in merit and logic as to be entitled to but slight weight. On the ground of expediency more may perhaps be said in its favor. But, whatever may be the force of the expediency, its scope is not to be extended beyond its reasons and requirements. The argument for the expediency seems to be that, if the exception to the general rule were not made, the courts would be flooded with claims, and that fraudulent ones would be encouraged because of the difficulty of disproof. This implies inability to detect fraud, and means that honest claims should be barred so as to avoid the chance of success of dishonest ones. If judicial policy does go as far as this, it is only in extreme instances, and the necessity for the rule should be more urgent and insistent than appears before extending it to apply to the situation here of immediate physical injury, though without external force. Lack of external force does not warrant a bar to recovery, when immediate physical injury in some form is present. When there is such injury, suspicion is not invited as a legal principle merely because external force is not also shown.

"Immediate physical injury as the result of negligence being shown, whether or not induced by some form of fright, there may be

recovery for subsequent mental or nervous trouble with its attendant bodily effects, whether or not produced by fright in a narrow sense or in a broad one to include emotions of disgust and shame, if negligence is proved as its cause.

"The defendants excepted to the instruction in connection with damages that, if liable, they were liable for the actual effects of this occurrence upon this particular woman, and if the plaintiff was unduly susceptible to fright from mice, the only effect of that is to make the damages all the greater.' Since the plaintiff's damages were to be measured by the effects of injury to her rather than what they would be to a less susceptible or sensitive person, even although the defendants had no notice of her peculiar condition and could not have foreseen the results, the instruction was correct. Whittemore v. Railroad, 77 N. H. 61, 86 A. 824, and cases cited, Guevin v. Railway, 78 N. H. 289, 299, 99 A. 298, L. R. A. 1917C, 410. Whether the susceptibility is bodily, mental, or nervous is immaterial as matter of law."

RIGHT TO OPEN SAFE DEPOSIT BOX IN AID OF ATTACHMENT.-The case of Carples v. Cumberland Coal & Iron Co., 240 N. Y. 187, 148 N. E. 185, holds that sheriff may be author ized, in aid of attachment, to open debtor's safe deposit box, as debtor cannot be allowed to defeat creditors by merely placing securities in his safe deposit box. The safe deposit company is protected as against defendant by the court order and the levy by the sheriff thereon. It is further held that this does not amount to unwarranted search and seizure. We quote from the Court's opinion:

"Coming to the merits, we think that the order complained of was a proper one for the court to make. Under the statute relating to a levy under a warrant of attachment, it be came the duty of the sheriff to take into his custody any property capable of manual delivery such as it is claimed that there was in this case. Under this statutory duty, that officer was authorized to do anything which might be lawfully incidental to its discharge, and it was the duty of the court where necessary to ald him by a proper order. A safe deposit box does not give property placed therein a status which renders it exempt from levy under a warrant of attachment. It is true that there has been much discussion of the relationship between safe deposit companies and their box customers and of the question whether property thus placed is in the possession and control of the safe deposit company or of the customer (Na

tional Safe Deposit Co. v. Stead, 232 U. S. 58, 67, 34 S. Ct. 209, 58 L. Ed. 504), and very possibly different answers may be made to this quest'on on a consideration of the circumstances under which it arises and of the purposes for which it is being asked. We do not deem it necessary to determine it with exactness in this case. There is no doubt that the Safe Deposit Company has a general and surrounding control and possession of the box. It owns the building and the vault in which the box is located, and makes rules for the customer's access to the box which generally require the assistance of the company in opening it. This possession and control, however, is exercised for the purpose of securing a greater safety for the customer rather than of asserting possession as against him of the contents of the box to which, under proper rules and regulations, he has unquestioned and unqualified access. While the status of the Safe Deposit Company is therefore in some aspects that of a bailee, the customer's control and possession of his box is not much different than would be the control and possession by a tenant of property in an office which he had rented from the owner of the building. National Safe Deposit Co. v. Stead, supra; Moller v. Lincoln Safe Deposit Co., 174 App. Div. 458, 161 N. Y. S. 171; People v. Mercantile Safe Deposit Co., 159 App. Div. 98, 101, 102, 143 N. Y. S. 849.

"But, however we may estimate the relative rights and possession of Safe Deposit Company and customer as between themselves, it was perfectly proper for the court, so far as this aspect is concerned, to make the order in question. If the property in the box is to be regarded as in the possession of the customer, the order was perfectly right. And if, on the other hand, we regard the Safe Deposit Company as in some respects a bailee and having possession of the box, it was still proper for the court to make the order which it did, and which, with the levy of the sheriff thereunder, will be ample protection to the company as against the defendant. Bliven v. Hudson River R. R. Co., 36 N. Y. 403; Scranton v. Farmers' & Mechanics' Bank of Rochester, 24 N. Y. 424, 427; MacDonnell v. Buffalo Loan, Trust & Safe Deposit Co., 193 N. Y. 92, 106, 85 N. E. 801; Roberts v. Stuyvesant Safe Deposit Co., 123 N. Y. 57, 25 N. E. 294, 9 L. R. A. 438, 20 Am. St. Rep. 718; Stief v. Hart, 1 N. Y. 20; U. S. v. Graff, 67 Barb. 304; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145.

"Finally it is urged that the order authorizes an unconstitutional and unwarranted 'search and seizure,' and in amplification of this contention appellant seeks to draw some analogy

between a man's house and a safe deposit box. We are unable to see any pertinent analogy between a man's home which is protected by Constitution and decisions from invasion for the purpose of serving civil process, and a disconnected depository in which he has stored his property, whether a barn, a warehouse, or a safe deposit box. Furthermore, the order complained of does not provide for any such exploration and search as were condemned in the cases cited by appellant. As we have stated, the affidavits justified the court in finding that there was in this box property which was subject to levy and, the defendant not enlightening the court as to what these articles of property were, the order was made permitting the sheriff to take and keep such property as was subject to levy under attachment, and to return all papers and correspondence to the defendant. The provisions of the statute specify the property which is subject to levy, and the order did not authorize the sheriff even to keep such papers as might relate to such leviable property. With the least intrusion possible, a levy was authorized, and it was not an authorization of an unreasonable search that the sheriff was incidentally permitted or required to make such examination of the contents of the box as would enable him to separate leviable property from the remaining contents. It would be unfortunate if a court could not authorize and the sheriff perform such acts as these. If a debtor could withdraw his property from the reach of creditors by simply placing it in a safe deposit vault, avoidance of responsibility for obliga tions would be made easy, and a broad and easily accessible highway opened for escape from an effective administration of the law."

An Idaho man was fishing in Lake Crescent recently. He caught a big northern pike; the biggest he had ever landed in his long and busy life. He was elated. He was crazed with joy, and he telegraphed his wife: "I've got one; weighs seven pounds and it is a beauty."

The following was the answer he got: "So have I; weighs ten pounds. Not a beautylooks like you. Come home."

An intoxicated man was brought into court. "Name?"

"Gunn, your Honor."

"Gunn, you're loaded."

"It won't happen again, your Honor." "Suspended sentence. Gunn, you're discharged."

And the report was in the papers the next day.

THE LEGAL RESPONSIBILITY OF

PUBLIC ACCOUNTANTS

Long before actions either for breach of contract or for negligence were permitted action for injuries caused by the careless or unskillful performance of undertakings were common.1 In the typical case the plaintiff, relying on the promise or representation of the defendant or on the skill usual to his calling, permitted the defendant to deal with his person or property. This permission, in the eyes of the law at that ancient day, absolved the defendant from responsibility for the results of his act-the dealing with the plaintiff's person or property. But the permission was given by the plaintiff only in reliance on the false representation of the defendant as to the services to be rendered. Thus the damage was related to the misleading representation of the defendant. The remedy allowed was an action on the case for a misfeasance. Such actions were not for breach of contract; they could not be grounded on a mere nonfeasance, and consideration in its modern sense was no part of the plaintiff's case. They were closely related to actions for deceit on a warranty of goods-in fact, they were substantially actions on warranty of careful and skillful service. In the same group was the action against a bailee. In all, the gist of the wrong was the misleading of the plaintiff to his harm.+

3

(1) Ames, Lectures on Legal History (1913). 129 et seq. Holmes, The Common Law (1881), 183, 275. (2) Elsee v. Gatward (1793, K. B., 5 Durnf. & E., 143, 150); Hyde v. Moffatt (1844, 16 Vt., 271).

(3) A person holding himself out to do certain work impliedly warrants his possession of skill reasonably competent for its performance" (2 Beven, Negligence in Law, 3d ed.. 1908, 1127).

(4) Ames (loc. cit. supra, note 1). ...A neglect is a deceit to the bailor. For when he intrusts the bailee upon his undertaking to be careful he has put a fraud upon the plaintiff by being negligent, his pretense of care being the persuasion that induced the plaintiff to trust him" (Lord Holt, C.J., in Coggs v. Bernard, 1703, Q. B., 2 Ld. Raym., 909, 919). Needless to say. Lord Holt does not refer to deceit in the limited sense in which it is now understood. "Deceit" formerly had a much wider significance. "In all those employments where peculiar skill is requisite if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud upon every man who employs him in reliance on his public profession" (2 Cooley, Torts, 3d ed., 1906, 1386, 777).

Actions on warranties of goods are nowadays usually regarded as contractual in their nature, but a delictual theory of recovery is frequently insisted upon, the gist of which is still the misleading of the plaintiff.5 In cases of imperfect, performance of service contracts the action is sometimes treated as sounding in contract and sometimes as in tort for negligent injury. It is believed that a comparatively small number of modern misperformance cases are cases of proper negligences and that these are the ones that would have supported the old writ of trespass on the case for a misfeasance-those, in other words, where the misfeasance involves an affirmative dealing with the plaintiff's person or property. And even these, it is submitted, are more profitably treated as cases of breach of contract unless the familiar doctrines of negligence are recast to give the fact of contract and its disarming effect on the promisee full operative value. The old misfeasance action had at least the merit-which the modern negligence action has not-of stressing what is the most important element of the situation -the misleading of the plaintiff to his harm.

A recent case (Craig v. Anyon, 1925, 1st Dept.. 212 App. Div., 55, 208 N. Y. Supp., 259) presents such a situation. The plaintiffs, stock and commodity brokers, had in their employ one X, who is variously described in the opinion as a

(5) 1 Williston, Sales (2d ed., 1924). 369; Carter v. Glass (1880, 44 Mich., 154).

(6) ***** Where the action is not maintainable without pleading or proving the contract-where the gist of the action is the breach of the contract, either by malfeasance or nonfeasance-it is in substance, whatever may be the form of the pleading. an action on the contract ・・" (Mitchel, J., in Whitaker v. Collins, 1885. 34 Minn., 299. 300, 25 N. W., 632, 633-action for malpractice; Ward v. St. Vincent's Hospital, 1899, 1st Dept., 39 App. Div.. 624 57 N. Y. Supp., 784-contract to provide a skillful nurse; Masters v. Stratton, 1845, N. Y. Sup. Ct.. 7 Hill.. 101-contract to operate farm and care for live stock; Cook v. Haggarty, 1859, 36 Pa., 67the same).

(7) For example, an attorney may be sued in tort for negligence in the performance of services for his client (Watson v. Calvert Bldg. Ass'n (1900. 91 Md., 25, 45 Atl., 879); cf. treatment of actions for malpractice in Geiselman v. Scott (1874, 25 Ohlo. 86); Baird v. Morford (1870, 29 Iowa, 531); cf. also Armelio v. Whitman (1908, 127 Mo. App., 698negligence in raising building).

(8) That is to say, cases in which the duty of care exists regardless of contract.