R. Co., U. S. 8. C., May 8, 1882, 4 Morr. Trans., 981.

21. REMOVAL OF CAUSES-FEDERAL JURISDICTION. A suit to recover possession of land and damages for detention in which the real parties interested are citizens of the same State, and those defendants who are citizens of different States from the plaintiffs are liable for damages for detention only jointly with the other defendants, and liable, if at all, only in the event of the plaintiffs establishing their title against the other defendants, can not be removed by such non-resident defendants into the Federal court under the act of March 3, 1875. Corbin v. Van Brunt, U. S. S. C., May 8, 1882, 4 Morr. Trans., 818.

A compromise of a pending suit, under Louisiana law, has, between the interested parties, the force of a thing adjudged, and can not be attacked collaterally. Oglesby v. Attrill, U. S. S. C., May 8, 1882, 4 Morr. Trans., 921.

23. UNITED STATES TREASURY LIABILITY OF TREASURY AGENT-PAYMENT UNDER PROTEST OF CHARGES ON SEIZED COTTON.

A New Orleans firm receives from a special treasury agent certain cotton seized under the act of March 12, 1863, and at his request pays certain charges on it. On a subsequent order the firm delivers up the cotton to a claimant of it and collects from him these charges, which are paid under protest. The claimant. before obtaining the cotton, gives a bond to save harmless the government and the treasury agents on account of the seizure and detention of the cotton and of any damages they might sustain by reason of such seizure. The claimant sues the firm for the charges so paid and recovers them back. On suit by one of the firm against the treasury agent: Held, that as the firm had not notified the agent of the pendency of the suit, nor called him in to defend it, he was not liable unless he could not have successfully defended the suit brought by the claimant, and that the court having given a certificate of probaable cause, the bond given by the claimant would have been a perfect protection to the officer, and there could have been no recovery against him. Flanders v. Seelye, U. S. S. C., May 8, 1882, 4 Morr. Trans., 767.

24. WILL-CONSTRUCTION-GIFT FOR LIFE-INTESTACY AS TO REMAINDER.

A testatrix, by her will, in which she appointed neither executor nor residuary legatee, bequeathed the whole of her property to her two sisters, and, in case of the demise of either of them, to the survivor for her sole use and benefit during her or their natural lifetime." Held, that the words only conveyed a life interest, and that the residue, therefore, had not been disposed of. Watson v. Watson, Eng. High Ct., Prob. Div. & Adm. Div., 47 L. T. R., 24.

RECENT LEGAL LITERATURE.

JENNISON'S CHANCERY PRACTICE. A Treatise on the Pleading and Practice of the Court of Chancery. Being a condensed Statement of the General Principles of Equity Pleading and

Practice, and though referring specially to the Statutes of Michigan, yet adapted to any State where Equity Practice Prevails, and especially to the United States Courts. With an Appendix of Precedents, together with the State and Federal Equity Court Rules. In one Volume. By William Jennison. Detroit, 1882: Richmond, Backus & Co.

This work is specially addressed to the needs of the Michigan practitioner, and is one of the attempts, not infrequent of late years, to deal with the questions of practice arising out of the administration of the principles of equity jurisprudence in those States where it has been sought by statute to abolish the distinctions between equity and the common law, and to blend the two jurisdictions into one court. Such a work must, to a certain extent, be both a rehash of the older treatises on Equity Practice and a digest of the more recent decisions of the particular State in question. The thoroughness and fidelity with which the author has explored the labors of the earlier writers, and the accuracy with which he has applied the late adjudications, are the proper tests of the merit of his labors. In the present instance, the work seems well and carefully done. The author frankly admits, in his preface, his obligation to the standard text writers upon that topic, with a candor worthy of imitation.

NOTES.

-Our genial Brother Slayback, of this bar, has been making an address to the Bar Association of Colorado, at Denver, recently, in which he said one of the aptest things we have ever heard concerning the raison d'etre of such organizations. His words, as reported by the local press, were as follows: "The rivalries and contentions of lawyers often give them the appearance of gladiators pitted against each other for the mere purpose of affording savage satisfaction to their spectators by reason of the punishment and pain they inflict upon each other. To the zealous advocate alive to his client's interest and cause, this is a tempt ing trap. But it is a fatal trap for the peace and the prosperity of the profession. There should be some influence hanging, ever over-hanging us, to remind us that our opponent in the argument is personally a brother and a friend, whose sympathies and sufferings, labors and fellowship should not be sacrificed on the foul alter of false advantage. The Bar Association tends to refine the social pleasures and to soothe the angry impulses, and affords a sort of locus pœnitentiae for good fellows to make friends again after they have been temporarily angry with and estranged from each other. Its influence is at once elevating and comforting, and those who stand aloof from such organizations are not full and wellrounded men, but are somewhere deficient,”

The Central Law Journal.

ST. LOUIS, SEPTEMBER 29, 1882.

CURRENT TOPICS.

The limits of the implied authority, conferred upon an attorney by his retainer are so indefinite in their character, that notwithstanding the multitude of decisions upon that topic, with which the books abound, the courts are constantly called upon to adjudicate the question anew under some of its protean changes. In Schoregge v. Bishop, recently decided by the Supreme Court of Minnesota, the question was whether the authority of the attorney of non-resident plaintiffs, after judg ment was recovered and execution levied, extended to binding the plaintiffs, in an undertaking under the statute, to indemnify and save harmless the sheriff from all costs, damages, etc., resulting from the enforcement of the execution. The court held that it did, saying: "The effect of the statute which is thus interposed for the sheriff's protection, is quite material in the consideration of this case. As the result of it, when the exigency arises, unless the plaintiff in execution, or some one in his behalf, actively intervenes, he may lose the benefit of a valid levy. The execution of the required instrument of indemnity in this case was, therefore, directly in the line of proceedings for the collection of the judgment, and was doubtless considered by the attorney beneficial to his clients. Under such circumstances, we are of the opinion that his acts in the matter of the execution of the undertaking should not be deemed to be beyond the scope of his employment. Clark v. Randall, 9 Wis. 128; Wharton on Agents, secs. 585-9; Moulton v. Bowker, 115 Mass. 40; s. c., 15 Am. Rep. 72; Weeks on Attorneys, sec 218; Nelson v. Cook, 19 Ill. 453; Gorham v. Gale, 7 Cow. 744; Union Bank v. Geary, 5 Pet. 113; Newberry v. Lee, 3 Hill, 523; Ostrich v. Gilbert, 9 Hun (N. Y), 245; Jenny v. Delesdernier, 20 Me. 191.” This decision is in accord with the distinction make by Mr. Justice Gray, then Chief Justice of Massachusetts, in the case of Moulton v. Bowker, supra. In that case, as usually in his judicial utterances, his opinion is a model of terse precision, that Vol. 15-No. 13.

makes it very refreshing reading after the tedious and platitudinarian elaborations, with which we are so frequently inflicted from the bench. The question was whether an attorney has authority, by virtue of his retainer, to release, before judgment, an attachment of real estate. We quote the opinion entire, except the concluding sentence: "An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of court, necessary or incidental to the prosecution and management of the suit, and which affect the remedy only, and not the cause of action; and we can have no doubt that this includes the power to release an attachment, at least before judgment, which is all this case requires us to consider. Lewis v. Sumner, 13 Met. 269; Shores v. Caswell, 13 Met. 413; Wieland v. White, 109 Mass. 392; Jenney v. Delesdernier, 20 Me. 183; Rice v. Wilkins, 21 Me. 558; Pierce v. Strickland, 2 Story, 292; Levi v. Abbott, 4 Exch. 588."

*

that the

In the case of Clark v. Randall, 9 Wis. 135, cited above, the doctrine, that it is within the implied authority of the attorney of non-resident plaintiffs to indemnify a levying officer, is carried a step further in its logical development In that case the attorneys of plaintiff gave an indemnifying bond in their own names and, after considerable litigation, were compelled to pay it. Suit was brought against their clients for reimbursement. Say the court: "We think defendants in error had an implied authority, by virtue of their employment as attorneys in the suits, to indemnify the marshal, when about to make a levy under the execution; and that their acts in this behalf were binding upon their clients. And if they executed their own indemnifying bond to the officer, and have in consequence suffered from it, it is no more than just and proper that their clients reimburse them for all damages they have sustained thereby." Of course, in

such a case the evidence must show that the attorney acted in good faith and with reasonable prudence and discretion, or he will not be entitled to recover. And, indeed, where he gives the indemnity, in his client's name, he is answerable to his client in damages, if the course of action pursued was not such as prudence, diligence, a knowledge of the law, and the most perfect good faith would dictate.

MENTAL SUFFERING AS AN ELEMENT OF DAMAGES.

"Damages," says Greenleaf,1 "are given as a compensation, recompense or satisfaction to the plaintiff for an injury received by him from the defendant. They should be precisely commensurate with the injury, neither more nor less." It is very safe to say, however, that damages are generally "less," and that at best, in a vast majority of cases, the plaintiff pursues what Shylock calls "a losing suit" against the defendant. As Mr. Sedgwick expresses it:2 "In the most ordinary case of a suit on a note of hand, the damages do not amount to compensation. Who pays the counsel fees? Who pays for the time of the plaintiff? Who pays for his annoyance and vexation? The most successful lawsuit is too often a Barmecide feast." And yet it is, no doubt, as well for the peace and comfort of the community that this should be the case; that litigation should not be rendered too alluring; that redress of a grievance or injury in due course of law should remain an evil only less than a total loss, and that a law suit should continue to be, as it has been heretofore, a game at which both players arise from the table losers.

It is not our purpose in this article to discuss the interpretation of legal remedies in general, nor to enter into the controversy which for a number of years past prevailed in the profession, on the subject of compensatory damages and those denominated vindictive, exemplary or punitive. The questions we propose to consider are: When, and under what conditions, damages, either compensatory or exemplary, are awarded for such injuries as result in the mental anguish and suffering of the plaintiff, or of the party injured; how far such suffering may be considered an element in estimating such damages; in what cases the person injured may recover, and when, the party standing in loco parentis; how far damages are recoverable when the injury is also punishable as a criminal offense; when they may be considered vindictive, and when merely compensatory; how far they are modified by the fact that the injury complained of is wilful, or the re

1 2 Greenleaf Ev., sec. 253. Law Reporter, June, 1847.

sult of negligence; what is the general duty of the jury in such cases, and how far its discretion will be controlled by the court.

In almost every instance these cases arise ex delicto. The only notable exception is that for breach of promise of marriage, and this, although in form ex contractu, has all

4

the characteristics of actions founded in tort.3 In cases of this character, the gravemen of the complaint is purely sentimental, being the mental anguish of the plaintiff deserted by her suitor, although the wealth, social position and family connections of the defendant may also be shown in aggravation of damages. The class of actions ex delicto, in which mental anguish is admissible as an element of damages, is large. It comprises actions for seduction, criminal conversation, slander and libel, all varieties of cases arising out of personal violence, false imprisonment and malicious prosecution, and many growing out of injuries caused by negligence. Indeed, it may be said that wherever there is a wrong iniflcted by one person upon another, and any legal redress whatever is afforded by the law, that redress, besides due reparation for the injury done to the plaintiff, includes also a proper compensation for such mental suffering as may have followed, as an immediate consequence, the tortious act.6 To this rule, however, there is at least one notable exception. At common law, no civil action can be maintained for the death of any human being, and no damages of any character suffered by any other person in consequence of such death, can be recovered. As Lord Ellenborough expressed it: "In a civil court, the death of a human being could not be complained of as an injury." This defect of

3 Sedgwick on Damages, 210, 369; Goodall v. Thurman, 1 Head. 209; Wilbur v. Johnson, 58 Mo. 600: Collins v. Mack, 31 Ark. 684; Tobin v. Shaw, 45 Me. 381; Southard V. Rexford, 6 Cow. 254.

4 Lawrence v. Cook, 56 Me. 187; Sprague v. Craig, 51 Ill. 288.

5 Swift v. Dickerman, 31 Conn. 285; Dufort v. Abadie, 23 La. Ann. 280; Hastings v. Stetsen. 130 Mass. 76; but see Prime v. Eastwood, 45 Iowa, 640; Terwelliger v. Wand, 17 N. Y. 54; Wilson v. Goit, 17 N. Y. 442.

6 Harrison v. Swift, 13 Allen, 144; Malone v. Murphy, 2 Kan. 250; Stout v. Sprall, 1 N. J. (Coxe) 79; Hogan v. Cregan, 6 Robt. (N. Y.) 13; West v. Forest, 22 Mo. 344; Pennsylvania Canal Co. v. Graham, 63 Pa. St. 290; Smith v. Overby, 30 Ga. 241; Smith v. Woodfine, 1C. B. N. S. 660; Berry v. Da Costa, 12 Jurist (N.S.), 588.

7 Baker v. Bolton, 1 Camp. 496.]

the common law has been partially remedied by Lord Campbell's act. It is entitled, "An act for compensating the families of persons killed by accidents ;" and in a well considered case, of a widow for her loss by reason of the death of her husband, caused by the negligence of the defendant, it was held by the Court of Queen's Bench, that the statute made no provision for solacing the wounded feelings of the survivors whom it was designed to compensate for their loss. This statute has been followed by similar enactments in most of the States, which are substantially copies of their English model, and in their construction it has been very uniformly held that no damages can be awarded under them for the mental sufferings of the deceased or of surviving relatives. 10

In Kentucky and Connecticut it has been held that exemplary damages could be recovered under the respective statutes of those States, by the administrator of the person killed; and in California such damages are permitted by the express terms of the statute.11 It should be borne in mind that from the very meaning of the term, exemplary damages include all damages arising from mental suffering. In Iowa it has been held that by the statute of that State, 12 the right of action belongs, and the damages accrue, not to the next of kin, but to the estate of the deceased; and it is left in doubt whether

8.9 & 10 Vic., ch. 93.

9 Blake v. Midland R. Co., 16 Jurist, 561.

10 Duckworth v. Johnson, 4 H. & N. 653; Franklin v. S. E. R. Co., 3 H. & N. 211; Pennsylvania R. Co. v. McCloskey, 23 Pa. St. 526; Whitford v. Pan Handle R. Co., 23 N. Y. 465; N. Pennsylvania R. Co. v. Robinson. 44 Pa. St. 175; State of Maryland v. Baltimore, etc. R. Co., 24 Md. 84; Cleveland, etc. R. Co. v. Rowan, 66 Pa. St. 393; Illinois Central R. Co. v. Baches, 55 Ill. 379; Illinois Central R. Co. v. Weldon, 52 Ill. 290; Pennsylvania R. Co. v. Butler, 57 Pa. St. 335; Chicago, etc. R. Co. v. Swett, 45 Ill. 197; Chicago, etc. R. Co. v. Shannon, 43 Ill. 338; Pennsylvania, etc. R. Co. v. Zebe, 33 Pa. St. 318; Pennsylvania R. Co. v. Kelley, 31 Pa. St. 372; Pennsylvania R. Co. v. Vandever, 36 Pa. St. 298; McIntyre v. New York Central. etc. R. Co. 47 Barb. 515; Chicago v. Major, 18 Ill. 349; Telfer v. Northern, etc. R. Co., 30 N. J. 188; Quin v. Moore, 15 N. Y. 432; Lehman v. Brooklyn, 29 Barb. 234; Conant v. Griffin, 48 Ill 410; Pennsylvania R. Co. v. Heuderson, 51 Pa. St. 315.

11 Gen. Laws of Ky. (1879), p. 551; Hansford v. Payne, 2 Cent. L. J. 722 (1875); Bowler v. Lane, 3 Met. (Ky.) 311; Chiles v. Drake, 2 Id. 116; Rev. Stat. Conn. (18.5), p. 422, ch. 6, sec. 9: Goodsell v. Hartford, etc. R. Co., 29 Conn. 496; California Code, Civ. Pro., sec. 877 (1874).

12 Iowa Code (1873), secs. 1307, 2525, 2526; Sherman v. West. S. Co., 24 lowa, 515.

exemplary damages or damages for the mental anguish either of the deceased or his surviving friends, can be awarded.

For anything short of death, however, the law authorizes, in proper cases, damages for the mental anguish, not of the plaintiff necessarily, but of the party injured; for it is his or her feelings that are to be considered. The only exception to this rule is the case of seduction. In such case the party directly injured can not, at common law, maintain an action for the wrong done to her, 13 and it is to the parent that damages are awarded for lacerated feelings and loss of reputation. 14 Nor is this redress confined to the natural parent of the person injured, but may be awarded to a guardian, master or other person standing in loco parentis. In Ball v. Bruce,15 the plaintiff, George Ball, brought suit for the seduction of his sister-in-law, who was under his care and in his service. It was held that the jury, in assessing damages, might go beyond the consideration of the "service," which was practically nominal, and regard the wounded feelings of the plaintiff and the disgrace brought upon the family.

In the case of Stevenson v. Belknap,16 it was held that the father's right to maintain an action of this character, was not impaired by the fact of his daughter's attaining her majority, nor by the statute of Iowa authorizing a party injured in this manner to maintain an action on her own account. It was further held that the jury might well consider the wounded feelings of the plaintiff, and his anxiety on the account of his other children.17

Except in the case of seduction, the rule is that the person entitled to claim damages for mental anguish is the person directly injured. In Oakland, etc. R. Co. v. Fielding, 18 it was held that a jury could allow nothing to a fatber for his wounded feelings and mental anxiety consequent upon the injury inflicted 13 Sedgwick on Damages, sec. 542; Whitney v. Hitchcock, 4 Denio, 461; Irwin v. Dearman, 11 East,

23.

14 Andrews v. Askey, 8 C. & P. 7; Ball v. Bruce, 21 Ill. 161; Stout v. Prall, 1 N. J. (Coxe) 179; Stevenson v. Belknap, 6 Iowa, 97; Morgan v. Ross, 74 Mo. 318 (1881); Hatch v. Fuller, 131 Mass. 584 (1881).

15 21 Ill. 161.

16 6 Iowa, 97.

17 Tulledge v. Wade, 3 Wils. 18; Ingersoll v. Jones, 5 Barb. 661.

18 48 Pa. St. 320. See, also, Pennsylvania R. Co. v.. Kelley, 31 Pa. St. 372.

upon his son by the negligence of the defendant. The same rule was followed in New York in the case of Whitney v. Hitchcock, 19 a case of very aggravated assault upon a young girl. It was held to be error for the trial court to instruct the jury that they could give exemplary damages to the father, who was the plaintiff. "The young female," the court properly observed, "can herself maintein an action in which her damages may be assessed according to to the rule laid down at the trial; and if the father could likewise recover them in this action, they could be twice claimed in civil actions, and the defendant would also be liable to indictment."

In the foregoing case it will be observed that the court, in limiting the parent's damages to actual loss of service, meant to include under the head of exemplary damages, such as grow out of mental suffering; and this is one of the many cases in which confusion of meaning and ambiguity of expression have grown out of the habit of regarding a certain proportion of the damages as compensation for the injury, and a further amount to be paid to the plaintiff, in excess of his deserts, as a punishment of the defendant. Personal violence, under any circumstances, is a very fruitful source of mental anguish. The remedy by civil action for injuries of this character is not precluded by the fact that the defendant has been, or may he, legally punished for the offense against the law, nor does this fact deprive the plaintiff in the civil suit of his right to damages for outraged feelings. There is, however, some confusion in the authorities which grows chiefly out of the indefinite manner in which damages are characterized by the courts as compensatory, or exemplary, or vindictive. Boyer v. Barr,20 was an action for assault and battery, and the court permitting the jury to compensate the plaintiff for mental suffering as well as physical pain forbade damages of a punitive or exemplary character, the court evidently regarding damages for mental anguish as compensatory, not as exemplary. To the same effect are the cases of Lucas v. Flinn, 21 Taleer v. Hutson,2 22 Nossamer v.

Rechert,23 Humphries v. Johnson 24 and Strubles v. Nodwift.25 In all these cases the exclusion of exemplary damages was based upon the ground that the defendant was liable to be punished criminally, and all concur in allowing damages for mental suffering as compensatory. In like manner in a libel case, 26 it was held that, libel being punishable by indictment, exemplary damages were not permissible in the civil suit, but the jury were instructed that they should include in compensation the injury to the plaintiff in feelings and repuation.

On the other hand, it has been held 27 that vindictive damages may be given for assaults and the like offenses which are punishable by indictment. In Brown v. Swineford,28 it was further held that an award of punitive damages for a tort which has already been punished as a crime, is not a violation of the constitutional provision that no person for the same offense shall be twice put in jeopardy of punishment. The cases of McWilliams v. Bragg 29 and Barnes v. Martin,30 are to the same effect.

It is, however, practically immaterial whether damages for mental suffering be called compensatory or exemplary, if they are permitted at all, they will be given in proper cases as freely under one name as the other. A striking illustration of this remark is the case of Bass v. Chicago, etc. R. Co.,31 being an action by a passenger ejected from a "ladies' car" by a too zealous brakeman, which was thrice tried in two different coun ties, twice on instructions allowing exemplary damages and once on instructions forbidding them, and the same liberal verdict ($4,500 damages) was given on each trial. The pas senger in this case was roughly handled by the brakeman, and the railway company paid roundly for the outrage. In a much milder case, the mortification of a public expulsion from the cars was avenged by a verdict of

23 18 Ind. 350. 24 20 Ind. 190. 25 11 Ind. 64.

26 Austin v. Wilson, 4 Cush. 273. 27 Reeder v. Purdy, 48 Ill. 261. 28 44 Wis. 282.

29 3 Wis. 424.

30 15 Wis. 240 See also Cook v. Ellis, 6 Hill (N. Y.) 466; Louder v. Hinson, 4 Jones, (N. C.) 390; and Slater v. Sherman, 5 Bush. (Ky.) 206.

31 36 Wis. 450; s. c., 39 Id. 636; s. C., 42 Id. 654. 32 Smith v. Pittsburg, etc. R. Co., 23 Ohio, 10.