in the case of Lumley v. Gye,2 which allowed an action for bringing about the breach of a contract for the services of a famous opera singer, thus extending the doctrine from the cases of enticement of servants, based on the English Statutes of Laborers. This holding was later adopted and strengthened both in English and American courts, being extended to cover contractual relations other than those calling for personal services and the majority of American jurisdictions have upheld the rule laid down in Lumley v. Gye. An excellent history of the origin and growth of this doctrine is given by Professor Sayre in an article in the Harvard Law Review.

New York's treatment of this principle has been an interesting one, and, as early as 1828, a New York court stated in a rather vague and hazy manner that recovery could be had for interference with a contract for personal services, where there was knowledge on the part of the defendant of the contractual right violated. In the following year, it was held that it was actionable to secure fraudulently the breach of a contract for the sale of hogs. The court in Woodward v. Washburn,' decided in 1846, declared that the hiring of a person of full age, for wages, by the year, created the relation of master and servant between the parties and would enable the employer to maintain case for the loss of services against a person who unlawfully detained the person employed. A subsequent decisionR held that it was actionable to entice, from the service of another, one who was in the employment of the latter under a contract not fully executed. After the ruling in Lumley v. Gye, New York to some extent affirmed the doctrine established by that decision, but practically limited its application to cases where the breach was induced by fraud or other means in themselves tortious. This view has gradually changed until we now have in this state a close adherence to the rule allowing an action for interference with one's contractual rights, regardless of whether or not the inducement was tortious in its nature.10 The courts have also shown a tendency to enjoin inter

22 El. & Bl. (Eng.) 216 (1853).

9

'Bowen v. Hall, 6 Q. B. D. (Eng.) 333 (1881); Temperton v. Russell, (1893) IQ. B. (Eng.) 715; Allen v. Flood, (1898) A. C. (Eng.) 1; Miners' Federation v. Glamorgan Coal Co., (1905) A. C. (Eng.) 239; Walker v. Cronin, 107 Mass. 555 (1871); for collection of authorities see 36 Har. L. Rev. 671.

436 Har. L. Rev. 663.

Stewart V. Simpson, I Wend. (N. Y.) 378 (1828).

'Benton v. Pratt, 2 Wend (N. Y.) 385 (1829). 73 Denio (N. Y.) 369 (1846).

Haight v. Badgely, 15 Barb. (N. Y.) 499 (1853).

'Caughey v. Smith, 47 N. Y. 244 (1872); Ashley v. Dixon, 48 N. Y. 430 (1872); Rice v. Manley, 66 N. Y. 82 (1876); Johnston Harvester Co. v. Mainhardt, 9 Abb. N. C. (Ñ. Y.) 393 (1880); Rogers v. Evarts, 17 N. Y. Supp. 264 (1891); Curran v. Galen, 152 N. Y. 33 (1897); Daly v. Cornwell, 34 App. Div. (N. Y.) 27 (1898); National Protective Ass. v. Cumming, 170 N. Y. 315 (1902); American Law Book Co. v. Thompson Co., 41 Misc. (N. Y.) 396 (1903); Roseneau v. Empire Circuit Co., 131 App. Div. (N. Y.) 429 (1909); De Jong v. Behrman, 148 App. Div. (N. Y.) 37 (1911); Laskey Feature Play Co. v. Fox Co., 93 Misc. (N. Y.) 364 (1916); Turner v. Fulcher, 165 N. Y. Supp. 282 (1917).

10Posner v. Jackson, 223 N. Y. 325 (1918); Lamb v. Cheney, supra, n. 1; Gonzales v. Kentucky Derby Co., 197 App. Div. (N. Y.)277 (1921).

ference with contractual rights, particularly in cases where the contract involves personal services. This has held true where union officers were attempting to induce their members to break their individual contracts with employers, 12 or where the purpose was to cause employers' customers to break their contracts, 13 or where a strike was called which was not in furtherance of a legitimate trade dispute.1 An idea of the confusion and doubt which has attended the application of this doctrine in New York State may be gained by referring to the case of Guida v. Pontrelli15, decided in 1921, in the Supreme Court for King's County, in which the court held that in order to make the inducement of a breach of contract actionable, the breach must be induced by fraud or other tortious act. The court's language was as follows: "Before discussing the few authorities which have been found, it may be worth while to state the law applicable generally to cases of interference by a third person with the execution of a contract, through inducing one of the parties to break it. The doctrine to which our courts in New York have adhered for many years is that no action will lie in such a case, unless the breach of the contract is brought about by fraud or other tortious act." In light of the decisions in Posner v. Jackson16 and Lamb v. Cheney, 17 the court manifestly erred in its holding. It is of interest to note that recovery for inducing breach of contract of marriage has been denied against parents where the child married when under the age of legal consent, 18 but allowed in a similar case where the age of legal consent had been attained when the marriage occurred.1 The courts have in some instances based the right to recovery upon the principle that the contractual right is in reality a property right and that any unjustified interference with it is wrongful and should be redressed.20

The holding in the principal case seems to be in accord with the general tendency gradually to broaden the original doctrine, and seems to be well founded in principle. The case is also of value in that it clearly defines the "malice" or "malicious motive" upon which most of the courts have laid great stress and about which, in connection with the application of the doctrine inaugurated by Lumley v. Gye, there has been much confusion.

W. F. Monahan.

"Schlesinger v. Quinto, 201 App. Div. (N. Y.) 487 (1922); Best Service Laundry v. Dickson, 201 N. Y. Supp. 173 (1923).

12Cook v. Wilson, 108 Misc. (N. Y.) 438 (1919); Third Ave. Ry. v. Shea, 109 Misc. (N. Y.) 18 (1919); Floersheimer v. Schlesinger, 115 Misc. (Ñ. Y.) 9 (1921). 13Grassi Contracting Co. v. Bennett, 174 App. Div. (N. Y.) 244 (1916). 14Beattie v. Callanan, 82 App. Div. (N. Y.) 7 (1903).

15114 Misc. (N. Y.) 181 (1921).

16 Supra, n. 10.

17 Supra, n. I.

18Wolf v. Wolf, 194 App. Div. (N. Y.) 33 (1920).

19Cochran v. Cochran, 196 N. Y. 86 (1909).

20Lawyer v. Fritcher, 130 N. Y. 239 (1891); Posner v. Jackson, supra, n. 10.

Torts: Liability of State for death caused by impure vaccine.-In Sandel v. State, 119 S. E. (S. C.) 776 (1922), Mr. Justice Cothran says, "That the State in this particular transaction occupied the position of a charitable institution appears too plainly for discussion." On the other hand, Circuit Judge Gary says "In my opinion the acts and conduct of the State in reference to the free distribution of antitoxin are referable to the State under its police power, to promote the health of its citizens, rather than to an intention to assume and occupy the position of a charitable or eleemosynary institution."

In

On July 13, 1915 the family physician of J. O. Sandel vaccinated with anti-typhoid serum, furnished gratuitously by the State of South Carolina, the two Sandel children, who died within 24 hours thereafter. Investigation showed that the vaccine was impure, and that contamination must have occurred in the bottling. În March 1918 the State, by an act of the Legislature, gave its consent to the administrator of Thelma and Minnie Sandel, deceased, to bring suit against the State of South Carolina "for the recovery of such damages as may be proper, if any, on account of the death of the two children.' Separate suits were brought in which it was alleged that the deaths of the two children were due to impure vaccine, and that contamination was the result of negligence on the part of the State in the manufacture or bottling of the vaccine. The answer of the State was a general denial and an affirmative defense of contributory negligence. At the first trial, verdict was rendered for the State; but on appeal1 this was reversed, and a new trial granted. This resulted in a verdict for the plaintiff. On this, the second, appeal the judgment of the circuit court was affirmed. It was held that the State's acts were not those of an eleemosynary corporation within the rule exempting such institutions from liability.

2

We have seen that Judges Cothran and Gary feel that the State should have escaped liability in this case; the former on the narrower ground that it was acting in an eleemosynary capacity: the latter, on the broader ground of exemption, that it was acting under the police power. The terms "eleemosynary" and "charitable" are in the law interchangeable. The California court has indicated rather definitely that "the term eleemosynary *** is not confined to almsgiving or charity shown exclusively to the poor; but the phrase eleemosynary purpose includes in its scope all charitable purposes, including schools as well as asylums, hospitals, and religious institutions; nor can the enforcement of charitable uses be limited to any narrow and stated formula, but it must expand with the advance of civilization, and the increasing needs of men, calling for the establishment of new charitable uses."

'The interesting question of the "effect of statute permitting State to be sued upon the question of its liability for negligence or tort" was amply annotated at 13 L. R. A. 1276 after the first appeal of the case, 104 S. E. 567 (1920), and it was pointed out that "the act by giving consent merely provides a remedy where none existed before."

'10 Am. & Eng. Enc. of Law 895.

'People v. Cogswell, 113 Cal. 129 (1896).

As to private charities the South Carolina court' in 1914 said "it would be against public policy to hold a charitable institution responsible for the negligence of its servants, selected with due care," and adds "the defendant is a public charity, but the same principle would apply if it were a private charity." This is one of two authorities on the point cited by Judge Cothran, the other being a 1915 decision which stated that "the exemption of public charities from liability in actions for damages for torts rests not upon the relation of the injured person to the charity, but upon grounds of public policy.*** It is merely an exception to the rule of respondeat superior, which is itself based on reasons of public policy. The injured person has his remedy against the actual wrongdoer." Doubtless Judge Cothran was also familiar with such decisions as Smith v. State of New York and Maia's Adm'r. v. Eastern State Hospital. In fact, "the authorities without exception deny the liability of a charitable or eleemosynary institution supported wholly or in part by the State or a municipality, for personal injuries sustained through negligence or misconduct of an agent or servant of the institution. The authorities refuse to apply the doctrine of respondeat superior in such cases, and base the non-liability on the theory that the functions of such institutions are general in character, and, if the funds appropriated for their maintenance are used to pay damages recovered in actions for personal injuries, the purpose and usefulness of the institutions would be wholly or in part defeated. Care in the selection of the agent or servant by the institutions seems not to have been an element in the consideration of these cases by the courts.”8

If Judge Cothran's opinion is plausible, Judge Gary's is none the Hemenway declares that "the foundation for all the protective operations of government is in that peculiar and widereaching power called Police," and adds,10 more specifically, "all authority in the preservation of public health is derived from that power." Further, as regards compulsory vaccination of school children, in New York" it has been held that the present statute is a proper exercise of the police power of the State. It is by virtue of the police power that the State places restraints of all sorts on persons. 12

There is, however, another group of cases which deal with the liability of the State from a different point of view. The California court13 says merely that the State may still interpose the defense that it was engaged as a state in a public work for the common good.

'Lindler v. Hospital, 98 S. C. 25, at pp. 28 & 30 (1914). "Vermillion v. College, 104 S. Č. 197, at p. 201 (1916).

169 App. Div. 438 (1915).

797 Va. 507 (1899).

Case note 4 L. R. A. (N. S.) 269 (1906), and cases cited.

'Public Health, (1914), sec. 105.

10 Idem, sec. 146.

"Viemeister v. White, 179 N. Y. 235 (1904).

12Freund, Police Power; Immigration and Quarantine, sec. 123: Deprivation of Personal Liberty, sec. 446: Compulsory Vaccination, sec. 447. 13Green v. State, 73 Cal. 29, at p. 33, (1887).

A note in L. R. A. 1916 B at page 918 points out that the Pennsylvania court agrees with the Georgia court 15 that "the municipality is not liable to a citizen who may sustain damage on account of impure vaccine matter administered to him by one of the officers or agents of such corporation; since, in requiring citizens and residents to submit to vaccination, the municipality is exercising a governmental power.

The annotator feels that in the present case the State was acting under the police power and, therefore, on Professor Freund's theoryl that the rule of tort liabilty for damages is a rule of private law, and that States being beyond the sphere of private law must be judged by different standards, the State of South Carolina was not liable for resulting injury. This exemption applies only when the State is acting in a governmental capacity. The Alabama court1 has indicated that where the corporation is exercising a governmental function, this is a ground for not holding the corporation liable on the doctrine of respondeat superior. The New York rule, as announced in the case of Lewis v. State18 is that the State is not liable for the negligence or misfeasance of its agents, unless such liability has been voluntarily assumed by it by legislative enactment. Or, to quote from Professor Freund's article, Private Claims Against the State,19 "The clearer the legal wrong and the more unjustifiable the act complained of, so much more undisputed is the exemption of the government from legal liability. For if the law appears to be well settled on one point, it is that the government, as a matter of principle, is not liable on tort. * * * Where a liability is demanded by justice, it must be created by statute. A tort committed in connection with private relations should give rise to a corresponding civil liability, with such statutory exceptions as may be dictated by public policy. This is not the recognized law, but seems to be demanded on general principles."

Thomas J. McFadden.

Trials: Power of the Court to Direct a Verdict Depending on Time of Exercise; Section 457a of the Civil Practice Act Construed with Sections 459 and 495. The constitutionality of section 457a of the Civil Practice Act is again questioned in the dissenting opinion in Matter of Bennett, 207 App. Div. 388 (1923). All discussions thus far made of this section seem to take it for granted that the only application of the section is to give the trial judge power to direct a verdict when, although there is a conflict of evidence, he would set aside a contrary verdict as against the weight of the evidence; thus, of course, changing the rule announced in the McDonald case1 that

14Howard v. Phila., 250 Pa. St. 184 (1915).

15Wyatt v. Rome, 105 Ga. 312 (1898).

168 Pol. Sc. Quar. 625 (1893).

17White v. Alabama Insane Hospital, 138 Ala. 479 (1903). 1896 N. Y. 71 (1884).

19 Supra, n. 16, at pp. 644 & 652.

'McDonald v. M. S. Ry. Co., 167 N. Y. 66 (1901).