tort furnishes a strong analogy." The first two reasons are weak because they would seem to bar all actions by a child against its parent and the rule is only that personal tort actions are barred.16 Denial of recovery to the wife is supportable on different grounds. At common law, the husband and wife were considered one1 and recovery by the wife would inure to the benefit of the husband.17 The fiction of a single personality, however, has not been applied to the relation of parent or child.18 Nor does the parent have any interest in the child's property.19

It is submitted that the chief social interest in the family, so far as the relation of parent and child is concerned, is in the training of the child to citizenship. The father's right of control is well recognized as one which the law should aim to subserve.20 To permit the child to proceed against the parent for a tort involving the control of the child would mean encouraging the latter to contest the right and the extent of its exercise.21 Obviously, the right would be weakened and disobedience encouraged. This principle would seem adequately to explain the Hewlett22 and McKelvey23 cases, where the question was as to the extent of the father's right to chastise the child. The Roller24 case is more difficult to sustain, for the parent could not possibly defend on the ground of exercise of parental control. Where the child seeks to recover for negligence, it might be urged that while the parent's right of control is not in question, it is more

15The wife could not sue at common law. Schouler, Domestic Relations, (6th ed.) 669, n. 54, and cases. The weight of authority is that the Married Women's Acts do not confer a right to sue the husband for a personal tort. Thompson v. Thompson, 218 U. S. 611 (1910) (Mr. Justice Harlan, Mr. Justice Holmes and Mr. Justice Hughes, dissenting); Peters v. Peters, 156 Cal. 32 (1909); Bandfield v. Bandfield, 117 Mich. 80 (1898); Strom v. Strom, 98 Minn. 427 (1906); Abbe v. Abbe, 22 App. Div. (N. Y.) 483 (1897). There is, however, a growing tendency to construe the Acts more liberally and allow the action. Brown v. Brown, 88 Conn. 42 (1914); Gilman v. Gilman, 78 N. H. 4 (1915); Fielder v. Fielder, 42 Okl. 124 (1914); Ann. Cas. 1918 C 772. See, in general, 30 C. J. 715.

16The weakness of the reason is suggested in Thompson v. Thompson, supra, n. 15, at p. 623, where Mr. Justice Harlan in discussing the right of the wife to sue, argues that there is no basis for distinguishing between one tort action and another. "I cannot believe that it [Congress] intended to permit the wife to sue the husband separately, in tort, for the recovery, including damages for detention, of her property, and at the same time deny her the right to sue him, separately, for a tort committed against her person.”

171 Schouler, Domestic Relations (6th ed.), p. 6.

171⁄2 Idem, pp. 167, 168.

18 Idem, p. 717, n. 49.

19Idem, p. 784. 35 L. R. A. (N. S.) 844.

20Dean Pound has comprehensively stated the right as follows: "Parents may and do claim not merely the society of their children, as ministering a social pleasure, but the custody and control of them, especially while they are of tender years, and the power to dictate their training, prescribe their education and form their religious opinions." Individual Interests in the Domestic Relations, supra, n. 3, at p. 181.

21The distinction is suggested in Reeves, Baron et Femme p. 288 (1816): "The parent ought to be considered as acting in a judicial capacity when he corrects; and, of course, not liable for errors of opinion."

23 Supra, n. 6.

24 Supra, n. 9.

unseemly and more shameful for the child to seek compensation for the parent's carelessness than for wilful injury. But lack of boni mores hardly suffices to deny ordinary individual rights. It should only be done when the social interest in the family threatens to be seriously impaired. The distinction suggested would of course be more difficult to apply than the generalization which the courts now accept but it would seem to be more logical and reasonable. 24a

The other question suggested by the Small case is whether, even if the infant could recover from the parent, it could also sue the insurance company directly. It was unnecessary seriously to discuss the question in this case for the terms of the policy by necessary inference gave an injured person that right.25 In other words, the policy involved here was what the courts would call a "liability" policy. The difference between this kind of policy and an indemnity policy has been obscured by unfortunate terminology. The difference is not between indemnity and liability insurance. It is between two forms of indemnity insurance. In the one case the insurer agrees to indemnify against liability, and in the other against loss. The difference in result is of some importance to the assured but of vastly more importance to the injured party. If the insurer agrees to indemnify against liability, the assured's right to recover arises immediately on occurrence of the injury; and this right is an asset which the injured party can reach by a proceeding in the nature of garnishment against the insurer.26 If, on the other hand, the policy is to indemnify against loss, the injured party is without remedy against the insurer.27 He can only proceed on the right of the assured; and the right of the assured arises only when he has been called upon to pay the loss. If the assured is insolvent, the injured party is without remedy against any one.

Whether the insurer agrees to indemnify against liability or against loss, is obviously a question of construction of the policy, to be gathered from the terms of the whole instrument. If the contracts were different in each case, a general rule would be impossible. But since they are similar, the authorities are fairly well defined. Unless the so called "no action" clause is in the policy, the court will usually hold it to be an agreement to indemnify against liability.28

24a In the latest case on the subject, Smith v. Smith, 142 N. E. (Ind. App.) 128 (Feb. 1924), the court denied recovery to an infant for assault making the distinction suggested. The court observes: "From our knowledge of the social life of today and the tendencies of the unrestrained youth of this generation, there appears to be much reason for the continuance of parental control during the child's minority, and that such control should not be embarrassed by conferring upon the child a right to civil redress* * *." (Italics are writer's)

25The insurer was not to be held liable in an action at the instance of the injured party "unless and until execution against the assured is returned unsatisfied." This limits the right but recognizes it.

26 Anoka Lumber Co. v. Fidelity Co., 63 Minn. 286 (1895); Fritchie v. Miller's Co., 197 Pa. 401 (1900); 7 L. R. A. (N. Š.) 958; Ann. Cas. 1912 C 156.

27 Cayard v. Robertson, 123 Tenn. 382 (1910); collection of cases, 14 R. C. L. 1370, n. II.

2848 L. R. A. (N. S.) 184, collection of authorities. See also, 22 Col. L. Rev.

That clause is usually in the following words: "No action shall lie against the insurer under the policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment." If such a clause is in the policy, the great weight of authority holds the contract to be one of indemnity against loss.29 Some states, relying mainly on another ordinary clause to the effect that the company agrees to defend all suits against the assured, hold that the policy is one to indemnify against liability.30 The theory is that "to defend" means to defend successfully. This view would seem to be erroneous for three reasons: (1) an unnatural and artificial meaning is given to the words "to defend"; (2) the provision is an added right given to the company for its protection; and (3) no effect is given to the "no action" clause which is as definite as language can make it. The intention of these courts seems to be to protect the injured party; but it would seem that they do it by changing the contract of the parties. The legislatures31 of several states, including New York, 32 now either make every contract one of indemnity against liability, or protect the injured party by some other provision. Such legislation has been held constitutional.33

The specific holding in Small v. Morrison will be of extreme interest to automobile owners and insurance companies. It is quite probable that the latter will insure against injuries to infants through parental negligence and of course raise their rates accordingly.

A. E. Gold.

29Employee insurance policies: Allen v. Aetna Life Ins. Co., 145 Fed. 881 (1906); Thacher v. Aetna Ins. Co., 287 Fed. 484 (1923); Frye v. Gas & Electric Co., 97 Me. 241 (1903); Connolly v. Bolster, 187 Mass. 266 (1904); Beyer v. International Co., 115 App. Div. (N. Y.) 853 (1906); Finley v. Ü. S. Časualty Co., 113 Tenn. 592 (1904). Automobile insurance: Goodman v. Georgia Co., 189 Ala. 130 (1914); Luger v. Windell, 199 Pac. (Wash.) 760 (1921).

30Patterson v. Adan, 119 Minn. 308 (1912); Sanders v. Ins. Co., 72 N. H. 485 (1904); Lombard v. Maguire-Pennamen Co., 78 N. H. 110 (1916).

Conn. L. 1919, c. 331, R. I., L. 1921, c. 2094; Ohio L. 1919, S. B. 91. The Rhode Island statute is typical. It provides that liability policies insuring for property damage or personal injury shall contain a provision that the insurer is directly liable to the injured party. The latter must proceed against the assured, but if he cannot be found, may proceed directly against the insurer. If a judg ment against the assured is returned wholly or partly unsatisfied, the insurer is liable for the deficiency up to the face value of the policy, at the suit of the holder of the policy.

32N. Y. L. 1917, c. 524, sec. 109 Insurance Law. It is required that a provision be inserted in the standard liability policy that the insolvency or bankruptcy of the assured shall not release the insurer from the payment of damages for injuries to third persons. The injured person is required to pursue his cause of action against the insured and return execution unsatisfied because of insolvency before he can avail himself of this special right. By Amendment last year (N. Y. L. 1923, c. 434) it was provided that policies issued in violation of this section are to be held valid but are deemed to include all the provisions required by the section. A narrow interpretation was given the law in Schoenfeld v. Ñ. J. Fidelity Co., 203 App. Div. (N. Y.) 796 (1922), where it was held that the insured could bar the injured person's right of action against the insurer by failing to cooperate with him. The case certainly does not seem to accord with the spirit of the law and the evils sought to be remedied by it. See, as to recent legislation on the subject, note in 24 Col. L. Rev. 175 (Feb. 1924).

33 Lorando v. Gethro, 228 Mass. 181 (1917).

Equity: Constructive trust: Remedies of a person defrauded by a life tenant against (1) the administrator and (2) the remainderman.One Palmer died leaving a will by which he devised and bequeathed all his real and personal property to his wife, Rosepha, "for her special use and support during her life," and the remainder, if any, at her death, to certain legatees. The wife was the executrix. She falsely represented to her niece that she had no means of support, thus inducing the niece to take her into her home and support her gratuitously. Upon the death of Rosepha Palmer, the niece discovered that Rosepha had had this estate for her support and brought a suit in equity, praying that the estate be charged with the amount due. These were the facts in Jones v. Stearns, 122 Ail. (Vt.) 116 (1923). It was held that, although the services were rendered gratuitously, there was a case of actionable fraud stated. The court applied the rule that when a person acts for another who accepts the fruits of his fraud, knowing the methods used, the latter must be deemed to have adopted the methods used, for, although innocent of the fraud when it was committed, he may not receive the benefits of the fraud and disclaim the means by which the benefits arose.

Before the death of Mrs. Palmer, the plaintiff could have brought an action in either fraud or quasi-contract. Whether or not these actions survive against her administrator depends upon whether or not she left an estate which was benefitted by her fraud.1

When property was given with a power to dispose of it, a gift over was void at common law because it was said to be inconsistent with the power given.2 If the property so given was personal property, an additional reason for holding it void was the difficulty of determining how much, if any, of the particular personal property was left at the death of the person who had the life use of it. In the absence of statute, therefore, the gift of personal property was void for uncertainty; and it is at least arguable that the words used in the will in the principal case created such an estate in real property that the remainder was void for repugnancy. Consequently, the defrauded person had an action at law against the administrator in which she could have recovered from whatever personal property was left, and possibly from the real property also.

If it is assumed that the personal property, which she received from her husband and which she had an absolute estate, was insufficient to reimburse the plaintiff and the gift over of real property being valid, the estate in it has gone to the remainderman, what remedy has the plaintiff against the remainderman?

The recovery in the principal case is based on the theory that

'Hambly v. Trott, 1 Cowper (Eng.) 371, 376 (1776); Schouler, Wills, Executors and Administrators (6th ed.), sec. 2746.

2Campbell v. Beaumont, 91 N. Y. 464 (1883); Perry v. Merritt, L. R. 18 Eq. (Eng.) 152 (1874).

Watkins v. Williams, 3 MacN. & G. (Eng.) 622, 629 (1851). This rule seems to have been changed in New York by statute, at least as to real property. See Greyston v. Clark, 41 Hun (N. Y.) 125 (1886); Simpson v. French, 6 Dem. (N. Y.) 108 (1888); N. Y. Real Prop. L. secs. 57, 58; N. Y. Personal Prop. L.,

sec. II.

whoever accepts the benefits of a fraud accepts the benefits of it in trust for the person defrauded. The opinion admits that this principle is applied most often in cases where a principal accepts the fruits of the fraud of his agent, but says it applies also to a remainderman who accepts the fruits of fraud committed by a life tenant for the benefit of the estate in remainder, he knowing the facts. No authority is cited for such an application of the principle.

5

***”

The usual applications of the rule are to be found in the cases of principal and agent, and in the cases where the wrongdoer first obtained the property himself and then turned it over to the innocent person. In respect to the latter state of fact it was said in Bridgman v. Green in 1757, "Let the hand receiving it be ever so chaste, yet if it comes through a corrupt polluted channel, the obligation of restitution will follow it ***." The peculiarity of Jones v. Stearns is that the wrong-doer did not receive property and then turn it over to the innocent person, but wrongfully protected the life estate so that a greater amount of property went to the innocent person by operation of law. In this respect the case of Lord Waltham's Will bears much similarity to Jones v. Stearns, and this question, if not decided in it, was at least considered. Although the reports of the case are unsatisfactory, it appears that Lord Waltham, who held an estate in tail, intended to cut off the entail so that the estate would go to his own wife under his will. Luttrell fraudulently prevented him from barring the entail so that the estate would go to his wife as tenant in tail. It was held, however, that the tenant in tail should not take advantage of the iniquitous act, although she was not a party to it, and the estate was to be considered as if a rceovery had been suffered. It is true that in that case the husband would have had a legal interest, the marital estate, if the estate had gone to his wife. That, however, was no reason for taking away his wife's estate as well as his, and the rule to be deduced from that case must be the same one applied in the principal case, that is, that a third party may not receive the benefit of a second person's fraud at the expense of a first person, even though that benefit, having been once created, come to the third person by operation of law and without being first obtained by the wrong-doer and then handed directly to the third person, as is the normal case.

There remains a possibility that the remainderman is liable to the plaintiff in quasi-contract. That raises the question of whether or not it could be legally unconscientious for a man to keep what came to him by the operation of law and without any act upon his

"Graves v. Spier, 58 Barb. (N. Y.) 349 (1870); Green v. des Garets, 210 N. Y. 79 (1913).

"Bank of America v. Pollock, 4 Edw. Ch. (N. Y.) 215 (1843); Newton v. Porter, 69 N. Y. 133 (1877).

"Wilmot's Op. (Eng.) 58 (1757).

"Reported and cited under various names, as follows: as Dixon v. Olmius, 1 Cox Ch. (Eng.) 413 (1787); as Luttrell v. Olmius, in Mestaer v. Gillespie, II Ves. jr. (Eng.) 621, 638 (1805); as Luttrell v. Lord Waltham, in Huguenin v. Basely, 14 Ves. jr. (Eng.) 273, 290 (1807); as Luttrell v. Olmius, in Middleton v. Middleton, I Jac. & W. (Eng.) 94, 96n. (1819).