entertainments on Sunday,10 and can forbid the appearance of children on the stage.11

11

Cases involving legislation passed in the interest of "general welfare" are those which have occasioned the greatest difference of opinion. The question necessarily to be asked is: will the advantage to the community at large more than offset the restrictions put upon a certain few? It is into the "general welfare" class that the case of the ticket speculator falls. The earlier cases considered this business not injurious enough to public welfare to sanction its prohibition, while the court in the instant case did consider it sufficiently subject to abuses to sanction regulation.12

The earlier New York ruling in People v. Newman13 is reversed by this decision. There the court, in holding unconstitutional a city ordinance substantially the same as the present statute, relied on the Illinois and California cases, 14 which dealt with the question of prohibition, rather than regulation. Stress was also laid upon the point that the operation of a theater was a private business, and the conclusion drawn that the power of the legislature did not extend to a control of such enterprises.

In those businesses affected with a public interest, it is well recognized that the state can control the prices. 15 Munn v. Illinois 16 is the leading case on this point, where it was held that a state may fix the maximum charges for the storing of grain in elevators. This holding was reaffirmed in Budd v. New York.17 There was some opinion after these decisions that there must be monopolistic conditions to permit such state legislation of private business; but this belief was destroyed by Brass v. North Dakota, 18 which ruled that the state could control a business if it was affected with a public interest. This doctrine was later held to apply to insurance rates, in German Alliance Insurance Co. v. Kansas. 19 In a comparatively recent case, it has been declared that the legislature can regulate rental prices.2 The New York Court of Appeals upheld that new application of the police power, as it has now upheld the later exercise of that power

10People v. Hoym, 20 How. Prac. (N. Y.) 76 (1860).

20

"People v. Meade, 10 N. Y. Supp. 943 (1890); People v. Ewer, 141 N. Y. 129 (1894).

The conditions intended to be remedied by the "scalper" statute had long been complained of by the theater-going public. The "scalpers" held all of the best tickets, and their prices were usually unreasonably higher than the regular price of admission, this monopoly virtually destroying the effect usually achieved by the law of supply and demand. Another unpleasant feature of this business was the tendency of certain managers of theaters to cooperate with the speculators to cause even higher prices.

13 Supra, n. 2.

14 Supra, n. 3.

15 Burdick, The Law of the American Constitution, p. 568.

1694 U. S. 113 (1876).

17143 U. S. 517 (1891).

18153 U. S. 391 (1894).

19233 U. S. 389 (1914).

20People ex. rel. Durham Realty Co. v. LaFetra, 230 N. Y. 429 (1921). Affirmed in Marcus Brown Holding Co. v. Feldman, 256 U. S. 170 (1921).

as applied to the ticket speculator. This present decision goes one step farther than those which preceded it, since it holds that places conducted for the amusement of their patrons may be clothed with a public interest so that the imposition upon them of public service duties, such as serving at reasonable rates, is due process. The conclusion of the court in this case was a reasonably foreseeable step in the modern development of the conception of the police power. A. J. Monahan.

Contract: Payment by note.-In Vollmer v. Automobile Insurance Cc., 207 App. Div. (N. Y.) 67 (1923), the plaintiff had purchased a used automobile for $3,200.00, paying $300.00 in cash and giving his note for the balance. He insured the car with the defendant company; the car burned; and the plaintiff sues on his policy. One ground of defense by the company is misrepresentation by the plaintiff in making no exception to a clause in the policy which reads, "The automobile described is fully paid for by the assured, and is not mortgaged or otherwise encumbered, except as follows: no exceptions.'

The court held that the cash and note constituted full payment, saying, "The word 'pay' means to satisfy by other means than cash. (Cent. Dict.). Under such circumstances it must follow that the representation may be true, for cash and a promissory note to pay the balance satisfied the seller. (1 Pars. Cont. [6th. Ed.] 470). Any other construction would lead to absurdities. If the purchaser had exchanged cars with the seller or given cash and any other property to satisfy the seller the seller would be paid in full. If this were not so it would invalidate insurance upon every car for which the purchaser had given a note in payment who had not noted the exception required by the policy."

The general rule as to the effect of promissory notes as payment is discussed in Williston on Contracts, sec. 1922. "A negotiable bill or note is so far recognized as a specialty, that one who is indebted by simple contract may merge and discharge the debt by his own negotiable instrument for the amount of the debt when the instrument is given and received as full satisfaction. Whether it is so received depends upon the expressed intention of the parties. Generally, no intention is clearly expressed, and the presumption of law is almost universal that absolute payment is not to be inferred simply from taking the debtor's negotiable instrument for a debt. Unless the contrary is clearly indicated, the instrument operates merely as conditional payment; that is, all right of action upon the debt is suspended until the dishonor of the negotiable instrument, but revives upon such dishonor, the instrument thereafter being held as security. When a bill or note is given for a debt contemporaneously

"PAY *** The discharge of a pecuniary obligation by money or what is accepted as the equivalent of a specific sum of money; 'the satisfaction, by or in the name of the debtor, to the creditor, of what is due, with the object to put an end to the obligation.' Century Dict.

'Principal case, at p. 69.

created, there is more difference of opinion; but generally here also it would be held merely conditional payment."

In Dille v. White there is a thorough discussion of this question, and the application of the rule in each state. It is there pointed out that in all states the intention of the parties, as to whether the note shall be taken as payment, is a governing consideration. In Maine, Massachusetts, and Indiana, the presumption is that the note is taken as payment; but in the majority of jurisdictions there is a presumption that it is taken as conditional payment only. In all states, the matter of intention of the parties is a question of fact, though this opinion finds the tendency in the New York courts is to treat it as a question of law where there is a showing of express or implied agreement between the parties.

It may be noted also that in the case of stock subscriptions, full paid stock means that stock upon which the company can make no further demand for payment, thus excluding stock which has been totally or partially paid for by note.

5

It would seem, moreover, that the general understanding of ordinary persons is that a debt is not paid merely by giving a note. The plaintiff's contention "savors of Micawber in Dickens' David Copperfield, who, when pressed by his creditors, with lavish hand gave his multifarious worthless notes of hand, and then gleefully exclaimed: "Thank goodness, that is paid!' "'6

An explanation for the decision reached in the instant case may perhaps be found in the statement of the court that if the defendant's contention is correct "it would invalidate insurance upon every car for which a purchaser had given a note in payment ***.” If that is the reason for the decision, which (in the absence of any showing in the evidence as to the intention of the parties in the exchange of the note) is contrary to the general rule as to the effect of a note as payment, then the court's reasons appear legally inadequate. It would seem harsh to invalidate, in this manner, a great number of policies, but hardly more harsh than that the insurance company should be made to carry an increased risk without a like increase in premiums.

Waid V. D. Clark.

'In Guilford v. Mulkin, 85 Hun. (N. Y.) 489 (1895), the defendant had purchased two colts worth $255.00, giving his note for that amount. On the maturity of the note, it not being honored, the plaintiff instituted this suit on the debt, and it was held that the note was merely conditional payment, suspending the debt, which was revived by the dishonor of the note at maturity.

4132 Iowa 327 (1906).

"Middleton v. Wooster, 184 App. Div. (N. Y.) 165 (1918).

"Green, J., in Page v. Carton, 64 Misc. (N. Y.) 645 (1909). "Under these conditions, alike humiliating to endure, humiliating to contemplate, and humiliating to relate, I have discharged the pecuniary liability contracted at this establishment, by giving a note of hand, made payable fourteen days after date, at my residence, Pentonville, London. When it becomes due, it will not be taken up.' From Micawber's letter, chap. XVII, Dickens, David Copperfield. "It is said that Daniel Webster, when called upon to pay a bill, would give a promissory note for it, with the satisfying remark, 'Well, thank God! that bill's paid!" -Wiggam, "The New Decalogue of Science,"

Domestic Relations: Insurance: Right of injured child to recover from insurer of parent against liability. When filial devotion and family pride are not strong enough to deter an infant from seeking recovery against its parent for a personal tort, should the law itself raise a bar to the action? Small v. Morrison, 118 S. E. (N. C.) 12 (1923), follows the rule adopted in the few cases where the question has been discussed and denies the infant recovery. The able and vigorous dissent of Clark, C. J., constitutes the only contrary voice in judicial opinion.2 The specific holding is that a child, injured by reason of her father's negligence in operating an automobile, could not recover from an insurance company in which the father was insured against liability. The issue of the parent's liability is squarely raised. The insurer agreed to insure against liability. The child's right, if it has one, is derived from the father's right. The father has no right against the insurer unless the father is liable to the child.

The question of the parent's liability to the infant for a personal tort seems never to have arisen in England either before or after the Revolution. It seems probable, however, that the common law frowned on such actions, both because of the wide powers accorded the head of the household3 and because of the well known solicitation for the family as a social institution. The question was not raised in this country until as late as 1891, when Hewlett v. Ragsdale' held that a child could not recover from its mother for false imprisonment. The decision is put on grounds of public policy and "the best interests of society." The case was followed without discussion four years later in an Illinois appellate court. The question was again considered in McKelvey v. McKelvey, where a child sought to recover for an assault. In denying recovery on grounds of public policy,

6

"No greater disservice could be rendered any child than to teach its feet to stray from the path of rectitude, or to suffer its mind to be poisoned by ideas of disloyalty and dishonor. *** There are some things that are worth more than money. One of these is the peace of the fireside and the contentment of the home, for such is the kingdom of righteousness. While the family relation of parent and child exists, with its reciprocal rights and obligations the latter should not be taught to 'bite the hand that feeds it' *** we should be slow to encourage or to permit a minor, *** to run the risk of losing a priceless birthright and a rich inheritance in an effort to gain for the moment a mere mess of pottage, or a few pieces of silver." Majority opinion, pp. 15-16.

"There was never a provision of common law or in this state which deprived the child of maintaining its right to recover for its property wasted by the father, or to a support at his hands, or for wrongs inflicted by him, and there is no authority in the courts to create a disability now where none has existed up to this time. Justice should be done to all. The complaints of all should be heard and wrongs, if proven, redressed without distinction of race, of sex or of age. *** The Master said, 'Suffer little children to come unto me and forbid them not.' Certainly justice should not forbid them to plead their wrongs at her altar." At p. 25.

See for historical summary of the development of individual interests in domestic relations, Pound, Individual Interests in the Domestic Relations, 14 Mich. L. Rev. 177, 179-180.

468 Miss. 703 (1891).

'Foley v.

Foley, 61 Ill. App. 577 (1895).

III Tenn. 388 (1903).

the court said: "Whatever redress was afforded in such case was to be found in an appeal to the criminal law and in the remedy furnished by the writ of habeas corpus.'

8

In Taubert v. Taubert, where the action, as in the principal case, was against an insurance company, the doctrine of the Hewlett case was applied to bar recovery for the parent's negligence. The court treats the rule as axiomatic. Apparently no qualification whatever of the doctrine will be permitted. In Roller v. Roller, it was held that a daughter could not recover from her parent for attempted rape. There was very little family interest to subserve, as the father had previously been sentenced to prison for the offense. Pressed with this argument, the court answered that "The principle permitting the action would be the same. The torts would be different only in degree."10 The treatment given the problem by text writers and annotators is inadequate. Those who have discussed it agree with the cases," although Cooley expresses some doubt.12

A review of the authorities will reveal that the rule denying the infant recovery has not always been put on a firm or logical basis. The obvious fact that the problem involves fundamentally a balancing of interests13 has received scant attention. On the one hand, there is, of course, the strong social interest in the family as a social institution. On the other, there is the individual right of redress for wrongs committed to the person. To hold that the latter right must yield to the social interest, strong considerations must appear. Specifically, it must be shown that allowing actions by the infant against the parent will seriously injure the family as a social institution. The reasons ordinarily suggested are too weak and illogical to establish this. The cases have said that such actions would impair the family relation because domestic troubles would be "aired" in court with consequent unsavory publicity; that such actions would create suspicion and ill feeling, particularly unfortunate because the unemancipated child must continue to live with its parents; and that denial of recovery to a wife against her husband for a personal

"At p. 390.

8103 Minn. 247 (1908).

937 Wash. 242 (1905).

1oAt p. 244.

"Schouler, Domestic Relations (6th ed.) p. 718, n. 49; Spencer, Domestic Relations, p. 461; 29 Cyc. 1663. The best statement of the doctrine is in 20 R. C. L. 631.

12"In principle there seems to be no reason why such an action should not be sustained; but the policy of permitting actions that thus invite the child to contest the parent's authority is so questionable, that we may well doubt if the right will ever be sanctioned." I Cooley on Torts, (3d ed.) p. 299.

13It is well recognized that the social interest in the family relation plays an important part in determining what individual interests in such relations are to be secured, how far they are to be secured, and how they are to be secured. Pound, Individual Interests in the Domestic Relations, supra, n. 3.

14The court in Roller v. Roller, supra, n. 9, at p. 245, states another possible reason as follows: "In addition to this, the public has an interest in the financial welfare of other minor members of the family and it would not be the policy of the law to allow the estate, which is to be looked to, for the support of all the minor children to be appropriated by any particular one."