Recent Decisions, 5 Fordham L. Rev. 153 (1936)

CONTRACTS-PERSONAL SATISFACTION CLAUSE.-The plaintiff agreed to print stationery for the defendant's assignor at a price to l.e determined by the actual cost of labor and materials plus an amount of overhead charges satisfactory to the contractee. The defendant objected to the charges on the sole ground that they were unsatisfactory. The trial court found that the determination of overhead was strictly a matter of general business practice to which the "reasonable man" test could be applied, and finding the charges reasonable, rendered judgment for the plaintiff. On appeal from an order affirming the judgment, held, that the terms of the contract clearly indicated that the parties intended the promisor to be the sole judge of his satisfaction. Judgment reversed. Wynkoop Hallenbeck Crawford Co. v. Western U. Tel. Co., 268 N. Y. 108, 196 N. E. 760 (1935).

Where a contract contains a provision that performance is to be satisfactory to the promisor, it is uniformly held that this condition must be fulfilled by the promisee before he can require performance of the promisor.1 However, the courts are far from uniform in their interpretations of the apparent intent of the parties when performance is conditioned upon the satisfaction of one of them. One line of authority, actuated perhaps by a desire to prevent forfeitures, determines the kind of satisfaction contracted for by the nature of the subject-matter of the contract.2 Accordingly, if the goods or services are of a type necessarily involving personal taste and judgment, the promisor must be personally satisfied3 If the element of personal taste is lacking, the condition is deemed performed if a reasonable man would be satisfied.4 In other jurisdictions, if upon construction of the entire contract it clearly appears that the parties intended performance to be to the satisfaction of the promisor,5their intention

1. Campbell Printing Press Co. v. Thorp, 36 Fed. 414 (C. C. E. D. Mich, 1888); McCarren v. McNulty, 73 Mass. 139 (1856); Isbell v. Anderson Carriage Co., 170 Mich. 304, 136 N. W. 457 (1912); see S PAGE, CONTRACTS (1921) § 2617.

2. McCartney v. Badovinac, 62 Colo. 76, 160 Pac. 190 (1919) (employment contract involving judgment); Union League v. Blymyer Ice Mach. Co., 204 111. 117, 68 N. M. 409 (1903) (refrigerating machine need not be only reasonably satisfactory); Miller v. Phillips, 39 R. I. 416, 98 At. 59 (1916) (contract to paint a house) ; see Nicholas, Validity of Defense of Dissatisfaction (1889) 9 YALE L. J. 114.

3. Isbell v. Anderson Carriage Co., 170 Mich. 304, 136 N. W. 457 (1912) (employment of agent); Schmand v. Janidorf, 175 Mich. 88, 140 N. W. 996 (1913) (employment of a candy-maker); Magee v. Scott & Holston Lumber Co., 78 Minn. 11, 80 N. W. 781 (1899) (employment contract); Gwynne v. Hitchner, 66 N. J. L. 97, 48 At]. 571 (1901) (employment of color mixer).

4. Hunt Co. v. Boston Elevated Ry. Co., 199 Mass. 220, 85 N. E. 446 (1908) (erection of coal pocket) ; Fechteler v. Whittemore, 205 Mass. 6, 91 N. E. 155 (1910) (articles of merchandise); Richison v. Mead, 11 S. D. 639, 80 N. W. 131 (1899) (contract to sink a well).

S. Barnett v. Beggs, 208 Fed. 255 (C. C. A. 8th, 1913) (architect's plans and specilcations); Koll v. Bush, 6 Colo. App. 294, 40 Pac. 579 (1895) (employment of chef); Zaleski v. Clark, 44 Conn. 218 (1876); Brown v. Foster, 113 Mass. 136 (1873) (suit of clothes); will be given effect, regardless of the nature of the subject-matter involved.0 On the other hand, if it is impossible clearly to determine the parties' intention from the contract, performance need only be to the satisfaction of the mythical reasonable man.7 The precise approach employed by the New York courts in personal satisfaction cases is an open question.8 The doubt existing is indicated by the holding of the lower courts in the instant case. Disregarding the explicit language of the parties, they held that since the question of overhead charges could be determined by resort to objective standards of business practice, the reasonable man test should be employed. The Court of Appeals, however, deduced from the entire contract an intention that the promisor be actually satisfied with the charges. In reaching this conclusion the court relied upon the fact that the expert testimony in the case dearly showed that the allocation of overhead charges in a particular business was incapable of ascertainment by any objective tests. As a precedent for its decision the court cited Duplex Safety Boiler Co. v. *Garden.*0 This case has usually been regarded as indicating that New York applies only the test of the nature of the subject matter to determine the extent of performance required by a personal satisfaction clause. Whether the court therein applied the reasonable man test on the ground that the successful operation of boilers was susceptible to objective determination, or upon the ground that the parties merely contracted for a satisfactory job according to objective standards is debatable.'0 Several subsequent decisions seem to indicate that the intention of the parties, as disclosed by the terms of the contract, will be given controlling effect.1 In the instant case, the absence of an objective standard for measuring performance allows the result to be explained either upon the basis of the subject-matter theory, or upon the ground of effecting the parties' intention.

Gibson v. Cranage, 39 Mich. 49 (1878) (picture); McClure v. Briggs, 58 VL 82, 2 At. 583 (1886) (organ).

6. Campbell Printing Press Co. v. Thorp, 36 Fed. 414 (C. C. E. D. Mich. 1888) (printing presses); McCormick Harvesting-Machine Co. v. Chesrown, 33 Minn. 32, 21 N. W. 846 (1884) (cord binder); Williams v. Hirshorn, 91 N. J. L. 419, 103 At. 23 (1918) (contract to waterproof walls); Garland v. Keeler, 15 N. D. 548, 103 N. W. 484 (1906) (harvesting machine); Singerly v. Thayer, 108 Pa. 291, 2 Ad. 230 (18S5) (elevator); Seeley v. Welles, 120 Pa. 69, 13 At. 736 (1888) (reaper and binder); Tatum v. Geist, 46 Wash. 226, 89 Pac. 546 (1907) (planing machine).

8. In 1 W=ISTON, CoxN- crs (1920) § 44, it is claimed that as a matter of law, New York imposes the duty onl' of satisfying a reasonable man, unle s the subject matter of the contract involves personal taste. In HELir, CoNTRAcrs (2d ed. 1926) 455, 456, a similar opinion is expressed, but it is there suggested that New York would give effect to the terms of a contract not involving personal taste, provided the terms were clear and unqualified. Contra: WnirxsmE, NEw YORY AronOATioNs To THE STAT=arET OF Co.,"crs (1933) 456.

11. Doll v. Noble, 116 N. Y. 230, 23 N. E. 406, 5 L. R. A. 554 (1889); Crawford v. Mail & Express Pub. Co., 163 N. Y. 404, 57 N. E. 616 (1900); Ginsberg v. Friedman, 144 App. Div. 779, 131 N. Y. Supp. 517 (1st Dep't 1926); Duffy v. Bing, 217 App. Div. 10, 215 N. Y. Supp. 755 (Ist Dep't, 1926).

CRIMINAL LAw-ACCESSORIES-CONVICTION OF ACCESSORY FOR LESSER DEGREE O HOMICIDE CHARGED.-The defendant was indicted as accessory before the fact to the murder of her husband. The perpetrator of the crime confessed, was found guilty of first degree murder and sentenced to life imprisonment. The defendant, upon separate trial, was found guilty as accessory before the fact to manslaughter. She applied to the circuit court for a writ of habeas corpus, contending that the conviction of voluntary manslaughter, on an indictment as accessory before the fact to murder, was illegal. The writ, ordering her discharge, was granted, and the sheriff appealed this ruling. Held, one judge dissenting, that an indictment as accessory before the fact to murder will sustain a conviction of voluntary manslaughter. Moore v. Lowe, 180 S. E. 1 (W. Va., 1935).

A West Virginia statute provides that every accessory before the fact is "punishable" as a principal in the first degree.' It had been held in a previous case that this statute in effect abolished the common law distinction between principals and accessories.2 On the basis of that decision, the court in the instant case held that since a conviction of a lesser degree than that for which a principal has been indicted will not be set aside where there is no prejudice to the defendant,8the same rule should apply to accessories.

It is universally held that statutes in derogation of the common law will be strictly construed. Since "punish" means to impose a penalty for the commission of a crime,4statutes similar to the West Virginia statuteu were held to be applicable solely to the punishment of an accessory. That is, upon being found guilty of the crime for which he has been 'indicted, the accessory is liable to the same punishment as the principal would receive upon conviction for a similar crime.0 In other jurisdictions, where the distinction between principals and accessories has been abolished by statute, the legislature's have plainly indicated their intent by providing that the offender shall be indicted, tried and punished as a principal.7 It is evident that the court in the principal case has read into the statute a meaning not contemplated by the legislature. Inasmuch as there is no statutory authority in the jurisdiction to uphold a verdict which had been arrived at by applying the general rules governing the trial of principals to accessories, the defendant should

1. W. VA CODE (1931) § 61-11-6. 2. Well v. Black, 76 W. Va. 685, 86 S. E. 666 (1915). But see State v. Powers, 91 W. Va. 737, 746, 113 S. E. 912, 916 (1922) (distinction between principals and accessories still recognized).

3. State v. Young, 67 N. J. L. 223, 51 Ati. 939 (1902); People v. Schlelman, 197 N. Y. 383, 90 N. E. 950 (1910); see State v. Prater, 52 W. Va. 132, 143, 43 S. E. 230, 239 (1903); N. Y. PrNA LAW (1909) § 610; WHARTON, HoaUCImE (3d ed. 1907) § 653.

4. Bradley v. State, 111 Ga. 168, 36 S. E. 630 (1900); see Commonwealth v. Pemberton, 118 Mass. 36, 42 (1875).

5. ME. REV. STAT. (1930) c. 143, § 8; R. I. Gmr. LAWS (1923) § 6251; Wxs. STAr. (1931) § 353.05.

6. If it was intended that accessories could be indicted as principals, there was no need to provide the punishment, inasmuch as the penalty for principals was already set out. State v. Ricker, 29 Me. 84 (1848) ; State v. Shapiro, 29 R. I. 133, 69 AtI. 340 (1908) (statute construed to mean that where an accessory before the fact was accused of a felony, he was to be proceeded against as an accessory and punished as a principal); see Nichols v. State, 35 Wis. 308, 311 (1874).

7. CAL. PEN. CODE (Deering, 1931) § 971; ILL. REv. STAT. (Cahill, 1931) e. 38, § 611; KAY. REv. STAT. AN. (1923) § 21-105; N. Y. PENAL LAW (1909) § 2; N. D. Com'. LAWS ANN. (1913) § 9218; Omrio GEN. CODE AN. (Page, 1926) § 12380; WAsH. REV. STAT. ANN. (Remington, 1932) § 2260; AccEssORIFS AND ABETrORS AcT, 24 & 25 Vicr. c. 94, § 1 (1861). have been entitled to her discharge on principle. The court in the instant case, seeking to justify its stand on the conviction, remarks that the fact that juries, actuated by compassion or otherwise, fail to do their whole duty, and return verdicts of lesser degrees where the elements of higher degrees are present, is no reason why the accused should go free. The court adds that it is necessary in the practical administration of criminal law to uphold these verdicts so that persons guilty of serious crimes will not go unpunished.8 It is submitted that this reasoning is not based upon legal principle; that it is of social value is not denied, but, as such, it is a matter for the legislature and not the courts.

An interesting question is presented in the case as to whether or not there can be an accessory before the fact to manslaughter. At common law it was generally held that there could not be, as voluntary manslaughter involves a killing in the heat of sudden passion and without malice. It would thus be inconsistent with the idea of premeditation which is embodied in the procuring or counseling necessary to constitute one an accessory.9 At common law it was necessary that the principal first be convicted, and then the accessory was charged with being accessory to the identical offense embraced by the conviction.'0 Today the necessity for prior conviction has been abolished by statutes in many jurisdictions." As a result, some jurisdictions now hold that there can be an accessory before the fact to manslaughter.12 They proceed on the theory that as the accessory can be tried before the principal, his offense is now an independent one, and may be treated as such. At common law the crime for which the accessory was indicted was limited to that crime for which the principal was convicted;13 today the crime of the principal must be proved as part of the prosecution's case against the accessory,1 4 but from that point on the crime of the accessory is considered independently. Thus the offense of the accessory is not necessarily of the same grade as that of the principal;25the instigator may act

8. If the conviction of the lesser degree is not sustained, the offender may plead double jeopardy to an attempt to try him again for the higher degree; the jury, by its verdict of the lesser degree, has acquitted the defendant of the higher offense. See N. Y. P'AL LAW (1909) § 32.

9. Bibithe's Case, 4 Co. Rep. 43b, 76 Eng. Reprints 991 (1597); 1 HA=E P. C. 437, 616; State v. O'Shields, 163 S. C. 408, 161 S. E. 692 (1931); Bowman v. State, 20 S. W. 558 (Tex. Crim. App. 1892).

10. Bowen v. State, 25 Fla. 645, 6 So. 459 (1889) (where the principal was tried separately and acquitted, it was held that judgment could not be entered against one found guilty as an accessory) ; People v. Jordan, 244 Ill. 386, 91 N. E. 482 (1910) ; Baron v. People, 1 Park. Cr. Cas. 246 (N. Y. 1851). Where there was a joint trial, and the principal was acquitted, the accessory could not be found guilty as it would have bun absurd to have had a guilty accessory and no principal. 4 Br Coimt.i0 323.

11. CAL. PFm. CODE (Deering, 1931) § 971; IrL. REv. STAT. (Cahill, 1931) c. 38, § 612; A.E. R v. STAT. (1930) c. 143, § 8; MAss. A., N. LAWS (Lawyer's Co-op., 1933) c. 274, § 3; N. Y. PENAL LAW (1909) § 2; W. VA. CODE (1931) § 61-11-7; CnnEAL LAW AcT, 7 Gno. IV, c. 64, § 9 (1826).

12. Thomas v. State, 73 Fla. 115, 74 So. 1 (1917); see State v. Hermann, 117 Mo. 629, 637, 23 S. W. 1071, 1073 (1893); cf. State v. Acay, 47 R. I. 292, 132 At. 436 (1926) (there may be an accessory before the fact to involuntary manslaughter).

15. Klein v. People, 31 N. Y. 229 (1865); 1 WmH o.v, CnR .AL LAw (12th ed., 1932) § 276 in the heat of passion while the perpetrator may act deliberately; the instigator would then be guilty of manslaughter, and the perpetrator of murder. However, in .the jurisdictions which hold that there may be an accessory before the fact to manslaughter, the rulings have been based upon statutes which had completely abolished the distinction between accessories and principals. Where the distinction still exists in any degree, it is submitted that there can be no accessory before the fact to manslaughter.

CRIMINAL LAw-HABITUAL CRIMINAL STATUTES-SUSPENDED SENTENCE AND PARDON AS BASIS FOR INCREASED PENALTY.-The defendant was convicted of burglary in the second degree. Sentence was imposed under the habitual criminal statute' on the basis of three previous convictions. The defendant obtained a writ of habeas corpus and at the hearing contended that the statute was inapplicable because he had received a suspended sentence for one felony and had been pardoned for another. Held, one justice dissenting, that the pardoned offense constituted a conviction, but that the suspended sentence did not. People ex rel. Jobissy v. Murphy, 244 App. Div. 834, 279 N. Y. Supp. 762 (3d Dep't 1935).

Considerable legislation imposing a higher degree of punishment for successive offenses, has recently been enacted throughout the country.2 These habitual criminal statutes have been held constitutional since the subsequent offense commands the greater penalty3 and is in no wise an additional punishment for the earlier transgressions. The purpose and justification of these statutes are two-fold:4 (1) the criminal does not so readily repeat a crime where a subsequent offense commands a much greater penalty; (2) social utility demands permanent incarceration of those who are unresponsive to reformatory treatment. In many of these statutes the term "conviction" or "convicted" occurs without further explanation and the duty of definition devolves upon the court. For some purposes a verdict or plea of guilty standing alone has been held sufficient to spell out a conviction,5 but the true legal meaning requires the presence of a judgment as well.0 Unless otherwise declared by law the court has power to suspend sentence.7 After a verdict or plea of guilty,

3. McDonald v. Massachusetts, 180 U. S. 311 (1901); State v. Jones, 128 Fed. 626 (S. D. Iowa 1904); Smith v. State, 62 Fla. 91, 57 So. 348 (1912); State v. Dowden, 137 Iowa 573, 115 N. W. 211 (1908); Commonwealth v. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256 (1891); Sturtevant v. Commonwealth, 158 Mass. 598, 33 N. E. 648 (1893); In re Miller, 110 Mich. 676, 68 N. W. 990, 34 L. R. A. 256 (1891); People v. Gowasky, 244 N. Y. 451, 155 N. E. 737 (1927); Ex parte Allen, 91 Ohio St. 315, 110 N. E. 535 (1915); see (1927) 11 MNxn. L. Rrv. 561, 561-562.

7. Huggins v. Caldwell, 223 Ky. 468, 3 S. W. (2d) 1101 (1928); Gehrmann v. Osborne, 79 N. J. Eq. 430, 82 Atl. 424 (Ch. 1912); People v. Webster, 14 Misc. 617, 36 N. Y. Supp. 745 (Sup. Ct. 1895). Contra: Ex parte Fisher, 95 W. Va. 397, 121 S. E. 287 (1924). it may postpone the pronouncement of judgment, or when judgment has already been rendered, the court may suspend execution thereof,8that is, withhold the performance of sentence. A suspension of execution does not erase a conviction within the strict construction of the term, but the jurisdictions are in conflict as to whether a suspended sentence is a conviction under habitual criminal statutes The courts have always accorded the accused the benefit of every doubt, and consequently have strictly construed penal statutes.'0 On the basis of this principle, a suspended sentence, since not within the strict definition of a conviction should not constitute a conviction under habitual criminal laws. In somewhat analogous situations, where

privilege or right would be affected by a previous conviction, a suspended sentence will not constitute such a conviction. A suspended sentence will not disqualify a witness" or a voter,1 2 nor invalidate a liquor license,'3nor is it sufficient ground for the removal of an incumbent from office14 or the revocation of a license for the practice of medicine.15 However, this interpretation is not in accord with the spirit of habitual criminal laws. Inasmuch as it is the previous guilt of the prisoner that enhances the criminality of the subsequent offense,1 the fact that no judgment has been passed on his first offense does not mitigate this culpability and should not .affect the consideration of the subsequent misdeed. It is the previous delinquency, and not the formal 'conviction, that augments the criminality of successive offenses.

Decisions are in conflict as to whether a pardoned crime may be considered a previous conviction under an habitual criminal statute.17 In other situations, where

8. Huggins v. Caldwell, 223 Ky. 468, 3 S. W. (2d) 1101 (1928) ; Weber v. State, 58 Ohio St. 616, 51 N. E. 116 (1898). But cf. Woodcock v. Richey, 225 Ky. 318, 8 S. W. (2d) 389 (1928).

9. People v. Adams, 95 Mich. 541, 55 N. W. 461 (1893) (plea of guilty followed by -void judgment is a conviction); People v. Morlock, 234 Mich. 683, 209 N. W. 110 (1926) (judgment not rendered because of appeal is a conviction); Calloway v. State, 91 Tem. -Cr. App. 504, 240 S. W. 554 (1922); Hall v. State, 92 Tex. Cr. App. 312, 243 S. W. 982 (1922) (suspended sentence is conviction). Contra: Ex pxne Rosencrantz, 211 Cal. 749, 297 Pac. 15 (1931) (suspended sentence not a conviction under fourth offender statute). In this case the court reasoned that since a felony was defined as including sentence in a state prison there could be no conviction of a felony since there was no such Eentence. Singer v. United States, 278 Fed. 415 (C. C. A. 3d, 1922); Williams v. State, 125 Mir--. 347, 87 So. 672 (1921) (verdict without proof of judgment not a conviction).

10. McKay v. Commonwealth, 137 Va. 826, 120 S. E. 138 (1923). See State v. Olson, 200 Iowa 660, 666, 204 N. W. 278, 280 (1925).

11. Bishop v. State, 41 Fla. 522, 26 So. 703 (1899); Marion v. State, 16 Neb. 349, 20 N. W. 289 (1884); Blaufas v. People, 69 N. Y. 107 (1877); Sorrel v. State, 74 Tex. Cr. App. 505, 169 S. W. 299 (1914). But see People v. Ward, 134 Cal. 301, 66 Pac. 372 (1920).

12. People v. Fabian, 192 N. Y. 443, 85 N. E. 672 (1908). 13. Commonwealth v. Kiley, 150 Mass. 325, 23 N. E. 55 (1889). 14. State ex rel. Wilson v. Baird, 36 Ariz. 531, 288 Pac. 1 .(1930); Smith v. Common-wealth, 134 Va. 589, 113 S. E. 707 (1922); cf. In re Riccardi, 182 Cal. 675, 189 Pac. 694 (1920) (suspended sentence will not sustain disbarment proceedings).

15. State Medical Board v. Rodgers, 79 S. W. (2d) 83 (Ark. 1935). 16. Graham v. State, 224 U. S. 616 (1912); Carlesi v. People, 233 U. S. 51 (1914), ,aGfg sub. no., People v. Carlesi, 203 N. Y. 547, 101 N. E. 1114 (1913); Kelly v. People, 115 1l. 583, 4 N. E. 644 (1886); see (1930) 14 M=1nnr. L. REv. 293, 294.

17. The following cases hold that a pardon wipes out a previous conviction under a second offender statute: State v. Lee, 171 La. 744, 132 So. 219 (1931); State v. Martin, 59 Ohio St. 212, 52 N. E. 188 (1898); Sanders v. State, 108 Tex. Cr. App. 467, 1 S. W. (2d) 901 (1928); Scrivnor v. State, 113 Tex. Cr. App. 194, 20 S. W. (2d) 416 (1928). disqualifications and disabilities follow a conviction, the courts have accorded different effects to a pardon depending upon the right or privilege involved. For example a pardon will restore to competency a witness1 8 or a voter,19but on the other hand, a crime, though pardoned, will constitute adequate grounds for the removal of a public officer.20 There have been many attempts to explain this differentiation of rights21but none is satisfactory. When called upon to determine whether a pardoned crime constitutes a ground for disbarment proceedings the jurisdictions have clashed. The majority, holding in the affirmative,22 reasons that where there is a pardon there is an admission of guilt and the pardon does not wipe out this guilt; the minority contends that the pardon will obliterate both the conviction and the guilt.2a The former argument is the more applicable to the habitual criminal cases, since, as previously asserted, it is not the conviction but the fact of former guilt that enhances the criminality of the subsequent offense.

The New York courts have held that both a suspended sentence24and a pardon28 are previous convictions under the second offender statute.20 It is to be observed that the second offender statute expressly defines a conviction as inclusive of a suspended sentence,27but as to the fourth offender statute the courts, in the absence of express statutory provision, have held that a conviction does not comprehend a suspended sentence.28 The result is that with respect to a second or third offense,

Contra: Herndon v. Commonwealth, 105 Ky. 197, 48 S. W. 989 (1899) (statute sets mandatory life sentence for a third offense) ; State v. Edelstein, 146 Wash. 221, 262 Pac. 622 (1927) (second offender statute) ; see (1930) 78 U. oF PA. L. Rlv. 561.

18. Boyd v. United States, 142 U. S. 450 (1892); Logan v. United States, 144 U. S. 263 (1892) ; Singleton v. State, 38 Fla. 297, 21 So. 21 (1896) ; cf. Blakely v. Bearden, 139 Okla. 237, 281 Pac. 952 (1929) (statute makes pardon ineffective as to witnesses in certain cases).

19. Cowan v. Prowse, 93 Ky. 156, 19 S. W. 407 (1892); Puryear v. Commonwealth, 83 Va. 51, 1 S. E. 512 (1887); see State ex rel. Collins v. Lewis, 111 La. 693, 35 So. 816 (1904) (a pardon will restore a person to competency as a juror). But a crime although pardoned will form adequate basis for the refusal of a driving license. Bald! v. Gilehrist, 204 App. Div. 425, 198 N. Y. Supp. 493 (1st Dep't 1923).

20. State v. Irby, 81 S. W. (2d) 419 (Ark. 1935); State ex rel. Webb v. Parks, 122 Tenn. 230, 122 S. W. 977 (1909).

21. See Williston, Does a Pardon Blot Out Guilt? (1915) 28 HIAv. L. Rv. 647, 653. 22. Nelson v. Commonwealth, 128 Ky. 779, 109 S. W. 337 (1908); In the Matter of

, an Attorney, 86 N. Y. 563 (1881).**

23. Ex parte Garland, 71 U. S. 333 (1886) ; Ex parte Crisler, 159 Miss. 247, 132 So. 103 (1931); Scott v. State, 6 Tex. Civ. App. 343, 25 S. W. 337 (1894).

24. People ex rel. Cohen v. Rattigan, 157 N. Y. Supp. 1003 (Co. Ct. 1915), afl'd, 172 App. Div. 957, 157 N. Y. Supp. 1140 (1st Dep't 1916).

*

*

The court in the present case, in holding that a suspended sentence does not constitute a previous conviction merely followed the New York authority. However, in holding that a pardoned crime is within the scope of "conviction" under the Baumes Law the court manifested an evident intent not to extend further the realm of technical exceptions.

DA.IAGES-NEGLIGENCE-RECO-VERY YoR PHYsIcAL CONSEQUENCES Or FRIGHT WITHOUT Ia.PAcr.-A truck was negligently parked on a hill by the defendant and as a consequence it rolled backward. After careening off the side of a street car it finally came to rest on the embankment fronting the plaintiff's property. She, while seated at the window of her home, saw the onrushing truck and feared for the safety both of herself and her child who was ascending the steps leading to the house. As a consequence of the fright the plaintiff suffered a miscarriage and other physical injuries for which suit was brought and judgment recovered. On appeal, held, one judge dissenting, that an immediate and unavoidable physical invasion of personal security, though unaccompanied by impact, gives a right of action for the physical consequences of fright. Judgment affirmed. Frazee et ux. v. Western Dairy Products, 47 P. (2d) 1037 (Wash. 1935).

The instant case lends credence to the view that the weight of authority no longer subscribes to the impact rule.' For many years the majority of jurisdictions had favored the proposition that there could be no recovery for the physical consequences of fright in the absence of immediate physical injury.2 This much criticized doctrine has been overruled in England and often repudiated in this country.4 Even

1. AIcCon cx, DAmAGEs (1935) 321; Bohlen and Poilkoff, Liability in New Yorh for the Physical Consequences of Emotional Disturbances (1932) 32 CoL.. L. Riv. 409, n. 2.

3. Dulieu v. White & Sons [1901] 2 K. B. 669; Hambrook v. Stokes [1925] 1 K. B. 141 (recovery for injuries resulting from fear for another).

4. Central of Ga. Ry. Co. v. Kimber, 212 Ala. 102, 101 So. 827 (1924); Lindley v. Knowlton, 179 Cal. 298, 176 Pac. 440 (1918); Clemm v. Atchison, Topekm, etc., Ry. Co., 126 Kan. 181, 268 Pac. 103 (1928) ; Bowman v. Williams, 164 Md. 397, 165 At. 182 (1933); Purcell v. St. Paul City R. R. Co., 48 Minn. 134, 50 N. W. 1034 (1892); Cashln v. Northern Pac. Ry. Co., 96 Mont. 92, 28 P. (2d) 862 (1934); Hanford v. Omaha Ry. Co., 113 Neb. 423, 203 N. W. 643 (1925); Simone v. Rhode Island Co., 28 R. L 186, 66 At.

FORDHAM LAW REVIEW [Vol, 5

in jurisdictions which have adopted it the slightest impact, causing or accompanying the fright will found an action.5 The most forceful argument advanced by the proponents of the impact rule is that public policy dictates a denial of recovery in situations so amenable to spurious claims.6 This contention is weak when, in point of time, the injury is directly consequent upon the fright. In such a case courts committed to the impact rule sometimes show leniency.7 The contention assumes more formidable proportions in instances where an appreciable length of time has elapsed between the alleged fright and injury, for here, undoubtedly, an invitation is extended to recover for injuries resulting from purely extraneous causes.8 In counterbalance is the consideration that just, provable claims should not be defeated because spurious ones may be asserted. Justice would seem to require either a qualification of the impact rule by the admission of well recognized exceptions,0 or its displacement by a provision for clear and convincing proof of causality. In committing itself to a more liberal view than precedent required'0 the court, in the principal case, rejected any distinction between injuries immediate and remote in point of time, thereby serving notice that in the absence of the arbitrary impact rule the usual principles of negligence apply. Since it was the defendant who appealed the higher court was not called upon to consider the interesting question raised by the trial court's charge that there could be no recovery for injuries consequent upon fear for the safety of another. The weight of American authority would seem to be in accord.'" The trend away from the impact rule accentuates the necessity for some agreement as to fundamental negligence concepts; for emotional disturbance cases push these principles to the limit. Is the existence of a duty determined by

202 (1907); Colsher v. Tennessee Electric Power Co., 84 S. W. (2d) 117 (Tenn. 1935); Sundquist v. Madison Rys. Co., 197 Wis. 83, 221 N. W. 392 (1928).

5. Homans v. Boston Elevated Co., 180 Mass. 456, 62 N. E. 737 (1902); Porter v. Delaware, L. & W. Ry. Co., 73 N. J. L. 405, 63 At]. 860 (1906); Comstock v. Wilson, 257 N. Y. 231, 177 N. E. 431 (1931).

6. Two other arguments adduced in support of the rule are: (1) that damages are not recoverable for negligent acts causing mere fright, and therefore the physical consequences of fright are not actionable; (2) that the resultant injuries are not proximately caused by the act. The former is clearly a non sequitur for an immediate consequent injury eliminates the speculation that prevents recovery for fright alone. The latter fails because the human experience that cautions the prudent man to break bad news softly testifies to illness caused by emotional disturbances. See Bohlen, Right to Recover for Injury Resulting from Negligence Without Impact (1902) 41 Am. L REo. (. s.) 141.

7. Conley v. United Drug Co., 218 Mass. 238, 105 N. E. 975 (1914), L. R. A. 1915D 830; Cohn v. Ansonia Realty Co., 162 App. Div. 791, 148 N. Y. Supp. 39 (1st Dep't 1914).

8. E.g., a miscarriage, in which instance a fall or any one of many other causes, either unknown to the plaintiff or peculiarly within her knowledge might well have caused the injury in question. Cf. Jones v. Pierce, 162 So. 214 (La. 1935).