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though such codefendant was not familiar with the operation of that particular make of car, he was not liable, after having given reasonable instruction as to the operation of the car, for personal injuries to a third person caused by its negligent operation by such codefendant.

And from the opinion of the Supreme Court of Maine in a recent case it seems that one may commit a criminal assault with an automobile. It says: “The plaintiff in error was convicted of assault and battery by 'willfully and unlawfully' striking and wounding one Thomas Mitchell with an automobile, as charged in the indictment.” As to fast driving the Court says: “It requires neither argument nor illustration to show that the excessive rate of speed at which an automobile is driven is a product of the will of its driver and not the result of his mere inattention or negligence. The two cannot be confused any more than the hurling of a baseball bat into a crowd of spectators could be confused with its accidentally slipping from the hand of the batter. If a blow inflicted in the former manner would constitute an assault, so must a blow inflicted by a willful act applied to a much more dangerous agency, since it cannot be that what would be a crime if done with a plaything weighing a few ounces ceases to be a crime if committed with an engine weighing thousands of pounds driven by many horse powers of force. It has often been held that responsibility increases with the likelihood of injury, but never the reverse, that I am aware of. There is therefore no legal reason why the crime of assault and battery may not be committed by driving an automobile on a public highway at a rate of speed that endangers the safety of other persons and actually results in such an injury.''28

WHO ARE “PASSENGERS”-INFANT RIDING FREE.—An interesting decision on this question is found in a recent Indiana case where it was laid down that a woman, who was requested by the conductor of a freight train to accompany and take charge of a person who had been injured in a collision, was a “passenger” on the freight train for that trip, and entitled to care as such.29 The Court says:

"The allegations of the complaint show that appellant's conductor, in charge of the freight train on which the injured people were placed to be taken to a hospital at Terre Haute, requested appellee to accompany them and care for the injured lady; that in pursuance of such request she entered the caboose, sat by the woman and gave her constant attention until the train was suddenly and violently stopped, and appellee was thereby thrown from her chair and injured. Independent of the authority or lack of authority of such conductor under the ordinary conditions of operation to take passengers on such train, in the emergency and under the condi

28 State v. Schutte, 93 A. 112.

29 Vandalia R. Co. v. Darby, 108; N. E. 778.

tions shown by the complaint, when appellee entered the caboose and rode on the train, for the purpose of that trip the relation of carrier and passenger existed, and it became and was the duty of appellant to exercise the highest practical care and diligence in the operation of such train, to avoid injuring appellee and the other persons transported thereon in the caboose as alleged."

In Alabama it is laid down by the Court of Appeals that a child about nine months old, who accompanies her mother, who is a passenger, is a passenger, though riding free, and the carrier owes her the same duty as if fare had been paid. It is therefore decided that where a mother, carrying a child about nine months old, became a passenger and notified the agent collecting the fare from her that she desired to get off at a station, and that she had never been there, the carrier owed the child the duty to give the mother notice that the train had stopped, or was about to stop, at her destination, either by calling the station distinctly, or by personal notice, and to stop the train and afford the mother a safe place and reasonable time to alight, and, where it failed to do so, and carried the child and the other beyond destination, and in returning to the destination the child became ill as a proximate consequence thereof, the child could recover damages. 30

EXCLUSION OF DRAMATIC CRITIC FROM THEATRE-INJUNCTIONREMEDY PRESCRIBED BY STATUTE.—Recently in New York a newspaper writer and dramatic critic asked for an injunction restraining the proprietors of certain theatres in the city from excluding him from their theatres. He alleged that owing to the unfavorable character of some of the criticisms written and printed by him concerning certain plays produced by defendants, the latter have refused to permit him to enter any theatre controlled by them, and threaten so to prevent him in the future. The reason given by defendants for so excluding plaintiff was that his articles were not fair reviews or criticisms of the plays produced or of the productions or of the acting, but were biased and improper and inaccurate. As a theatre is not, according to common law rules, a public place to which any person is entitled to enter on paying the usual charge; the plaintiff's case was based upon the Civil Rights Statute of New York—a law which was passed for the protection of the negroand which provides:

"All persons within the jurisdiction of this State shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation, resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, shall directly or indirectly

30 Southern R. Co. v. Herron, 68 S. 551.

refuse, withhold from or deny to any person any of the accommodations, advantages or privileges thereof, or directly or indirectly publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement to the effect that any of the accommodations, advantages and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, or color, or that the patronage or custom thereat, of any person belonging to or purporting to be of any particular race, creed or color is unwelcome, objectionable or not acceptable, desired or solicited. . . . A place of public accommodation, resort or amusement within the meaning of this article shall be deemed to include an inn, tavern or hotel, whether conducted for the entertainment of transient guests, or for the accommodation of those seeking health, recreation or rest, any restaurant, eatinghouse, public conveyance on land or water, bathhouse, barber shop, theatre and music. hall."

To violate the statute one may be sued by one aggrieved for a penalty and the statute makes one guilty also of a misdemeanor and liable to fine or imprisonment or both. The New York Supreme Court holds that plaintiff is not entitled to resort to equity for relief by injunction, because the Civil Rights Law itself furnishes a remedy in the form of a suit at law for a penalty to be recovered by the person aggrieved, besides rendering the violater of the statute liable to conviction for a misdemeanor, the remedy so provided by statute being, in the opinion of a majority of the Court, adequate. Nor could an injunction be sanctioned on the ground of preventing a multiplicity of suits, as it was not alleged that even one action for a penalty has been begun.21

THE STATE AND ITS EDUCATIONAL INSTITUTIONS-GREEK LETTER FRATERNITIES.-In Waugh v. University of Mississippi32 it is held that a State statute prohibiting the existence of Greek letter fraternities and similar societies in the State's educational institutions and depriving members in them of the right to receive or compete for diplomas, class honors, prizes or medals, does not deny the equal protection of the laws guaranteed by United States Constitution, 14th Amendment, because it is construed by the officials charged with its enforcement not to apply “to students already entered and who conducted themselves with that decorum always expected of Southern gentlemen.” It is further held that the State may require a member of a chapter of a Greek letter fraternity at another college to renounce his allegiance to and affiliation with such fraternity before admitting him as a student to any educational institution supported by the State, without denying him due process of law or his privileges and immunities as a citizen of the United States under United States Constitution, 14th Amendment,

31 Woolcott v. Shubert, 53 N. Y. 32 35 S. C. 720. L. T. 1463.

although the fraternity to which he belongs may be a moral and of itself a disciplinary force.

A City's RESPONSIBILITY FOR A “Vicious POLICEMAN."-Such officers of the law as Policeman Stavanaugh of Waterville, Minnesota, a small city of 1200 souls, are not unknown in larger communities. An inhabitant of Waterville brought a suit against the city and its officers in which he alleged that Stavanaugh, without provocation, violently assaulted him while he was standing on a public street in the city, and repeatedly struck him with a policeman's club, causing severe injuries. Stavanaugh, he alleged, “is a man of savage and vicious propensities, who frequently during the last three years had assaulted, beaten and bruised different persons and violently attacked and beaten divers and sundry persons, including this plaintiff, without provocation, reason, or cause therefor, but solely on account of and by reason of his vicious and savage propensities and violent temper. Defendant city, its servants, agents and employes, were well acquainted with the violent and savage propensities of Stavanaugh long prior to and at the time they furnished him with a policeman's club and invested him with authority to carry it and be upon the public streets. The city neglected to require any bond of Stavanaugh for the faithful performance of his duties, and permitted him to be on the streets in the performance of his duties for the city without his giving any security or bond, though well knowing that Stavanaugh was insolvent and a money judgment against him worthless." After alleging that plaintiff suffered damages to the extent of $5,000 through the assault by Stavanaugh, and that due notice of plaintiff's claim had been given to the city, the complaint concludes with a demand for judgment in that sum against both of the defendants. The city demurs and the Supreme Court sustains it in its defense, holding the municipality not liable, saying:

"It cannot be questioned that a city is liable for the negligence of its officials in creating or permitting to exist dangerous conditions in its streets and sidewalks. But we are unable to apply this doctrine to such a danger as the complaint in this case shows-a policeman who is possessed of vicious propensities. That the city acts in its governmental and not in its proprietary capacity in appointing its officers there can be no doubt. It would seem that its nonliability for negligence or other tortson the part of such officers is too well settled in this State to admit of argument. A wholly different rule applies to individuals and private corporations. They are liable for the torts of their servants committed within the scope of their authority, while a municipal corporation is not, save in excepted cases. We are unable to hold that the presence of Stavanaugh on the streets of Waterville, armed with a policeman's club, constituted a defective condition of the streets, or a danger therein, which would impose a liability on the city, even though the official who placed him there knew of his vicious propensities.”33.

33 Lamont v. Stavanaugh, 162 N. W. 720.

Non LIABILITY OF AGENCY EXERCISING GOVERNMENTAL FUNCTION. -The Supreme Court of Wisconsin34 lays it down in a late case that the giving of a State fair and exhibition through the agency of the State Board of Agriculture is a governmental function; that exhibitions in connection with State fairs which afford entertainment to the public and will attract crowds to view the agricultural exhibits are within the governmental scope of such exhibitions; that the State Board of Agriculture may engage an aviator to give flying exhibitions, but the State Board of Agriculture, although a corporate entity with power to sue and be sued, as it was discharging a governmental function in holding a State fair and engaging an aviator to give flying exhibitions, is not liable for injuries caused by the negligence of its members, agents or officers.

"The giving of the State fair and exhibitions is done by the State through this agency in the discharge of a governmental function to promote the general welfare of the people of the whole State, and no private or local interests are subserved. No benefit is derived by the board in a proprietary capacity, but the benefits are for the governmental and sovereign purposes of the State. Under the statutes of the State appropriations are made by the State to defray the expenses of carrying on fairs, and the revenues derived are applied to reduce or defray, so far as they go, the expense of carrying on the governmental function. Numerous statutes passed from time to time show appropriations and provisions made by the State for the State Board of Agriculture. Various other appropriations have been made by the State for this department dating back to 1852."

PROOF OF ACCIDENTAL DEATII By CIRCUMSTANTIAL EVIDENCE.— In a recent case in the United States Court of Appeals35 it appeared that a railway mail clerk, on leaving his car at the end of a run, gave indications of a severe pain in the abdomen. A few days later he became incapacitated, was taken to a hospital and operated upon, but died from peritonitis. There was a yellow spot of some size of recent origin on the skin over the appendix, and the autopsy developed that there were adhesions beneath such spot. In an action on an accident policy to recover for his death it was shown that he was a young man and had previously been in good health. There was medical testimony that the appendix was split and not perforated, which indicated that the injury was caused by violent external means, causing appendicitis, naturally followed by the peritonitis. Deceased was alone in his car during the run. It was held, affirming a judgment in favor of the beneficiary, that in the absence of admissible direct evidence, it was competent for plaintiff to show, as justifying an inference as to the manner of injury, that there was an iron rack in the car, the corner of which was at about the same height above the floor as the discolored spot would be

34 Morrison' v. McLaren, 152 N. 35 220 F. 622. W. 478.

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