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.3

31

THE STATE AND ITS EDUCATIONAL INSTITUTIONS-GREEK LETTER FRATERNITIES.-In Waugh v. University of Mississippi 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. L. T. 1463.

32 35 S. C. 720.

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 torts on 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 DEATH BY CIRCUMSTANTIAL EVIDENCE.In a recent case in the United States Court of Appeals 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.

when deceased was standing at the rack, and that the road over which his route ran was very rough. As to the force to be given to circumstantial evidence, the Court said:

"A similar situation arises when a man is found dead at a place where a railroad train had just passed, there being no eyewitness of his death. Circumstantial evidence, if convincing, may establish the proposition that he died because the train struck him. Harrington's first indication that he was suffering pain was given immediately after he left his car on July 26, and it seems to us that it was not error to show the condition of things in the car, and its irregular movements on the rough roadbed, as circumstances to be considered by the jury in deciding whether on that day he received an injury through external, violent and accidental means."

LEGISLATION REGULATING EMPLOYMENT AGENCIES.-Among the new laws which the Initiative in the State of Washington has placed upon the statute books is one which after declaring that the system of collecting fees from workers for furnishing them with employment, or with information leading thereto, results frequently in their becoming the victims of imposition and extortion, and is therefore detrimental to the welfare of the State, makes it unlawful for any employment agent to demand or receive from any person seeking employment any remuneration or fee for furnishing such employment, or information leading thereto. An application on the behalf of the agencies to have the law declared unconstitutional was unsuccessful, one of the two judges of the court deciding that a State has the right to adopt any law it pleases which reasonably protects any of its citizens from fraud and extortion, the other holding that it was an unreasonable exercise of that power. The constitutionality of the act will therefore have to be passed upon by a higher court.34a

MANSLAUGHTER BY EX-RAYS.-In a recent case in Minnesota, the defendant was indicted for manslaughter in the second degree for causing the death of a person in the course of taking an X-ray photograph. A demurrer to the indictment was overruled by the District Court, and he appealed to the Minnesota Supreme Court, which affirms the decision below. The indictment sets out, in substance, that the picture was taken on the assurance to the deceased that the exposure to the X-ray would do her no harm; that she relied upon defendant's assurances as a medical man and allowed the photograph to be taken; that the X-ray machine is a dangerous instrument except where skillfully operated, and that defendant placed the tube of the machine unreasonably close to the body of the deceased and failed to give her proper and requisite attention to prevent burning; that her body was so exposed for an unreasonable. time, thus causing what is known as an X-ray burn, from which

she died. The Court takes judicial notice of the fact that X-ray machines sometimes cause serious burns, and holds that, under the statute declaring guilty of manslaughter in the second degree one who causes death by any act, procurement, or culpable negligence, the indictment is not demurrable. The Court, in referring to the term "culpable negligence," says: "Numerous definitions of this term may be found. Culpable negligence-that is, criminal negligence is largely a matter of degree, and, as has been well said, incapable of precise definition. When considered as the basis of a charge of manslaughter against a medical man or person assuming to act as such, culpable negligence exists where he exhibits gross lack of competency or inattention or wantom indifference to the patient's safety, which may arise from his gross ignorance of the science or through gross negligence in either its application or lack of proper skill in the use of instruments.''36

.

37

SLANDEROUS WORDS SPOKEN IN JEST.-The Supreme Court of Wisconsin ruled in a recent case that where in an action for slander there was evidence that the words complained of were spoken by way of a joke, and were so understood by those hearing them, an instruction that, though the words were so spoken, defendant would be liable, and the fact could only be considered in reduction of damages, forming a part of the charge on the amount of damages, was erroneous. The words complained of were spoken to a third person, and charged plaintiff with having been guilty of improper conduct with a woman. Whether the plaintiff also was present at the conversation is not clear; it may be that he was and formed one of a party engaged-according to defendant's contention-in pleasantry and in banter. The trial court charged that the alleged jocose character of the utterance could not entirely shield from liability, though it might go to reduction of damages. In the Appellate Court it is said: "Under the testimony the jury would have been entitled to find that the words were spoken as joking or jesting remarks, and so understood; and, if so spoken and so understood by those who heard them, they would not be actionable."

"Undoubtedly," says the New York Law Journal, "persons actually participating in good-natured raillery should not be subjected to liability for defamation. One party should not, however, be permitted to take advantage of a mild joke at his expense to utter a gross accusation without rendering himself liable to suit. And it would be clearly unjust to hold that a person might be excusable in making charges of immorality and indecency against third persons, men or women, on the ground that he was merely in

36 State v. Lester, 149 N. W. 297. 37 Hauson v. Fenling, 152 N. W.

287.

38 May 24, 1915.