42

est in the individual and the interest in the conservation of social resources by protecting and educating dependents are wel! secured. Then, too, the social interest in the general security is secured by considering the effect upon the health of the child, of the present custodian," be he parent next of kin or stranger;" by preventing self-help18 in the taking of custody of the child, and thus preserving peace and order, and adjudicating quarrels growing out of the custody of the child. Social institutions are protected so far as is possible, in that the factors which go to make up home life are secured to the child and the parent, as where access to the child is allowed that parent from whom custody has been taken." Religious institutions are protected in that the parents are allowed, generally, to dictate what the religious education of the child should be,50 and by awarding the custody of the child, when occasion arose, to religious homes.51 Then, too, in case of a conflict between an undesirable parent and an orphan or foundling asylum, the custody is often given to the asylum, in this way securing the existence of such institutions so long as there is a social need for them.52

The interest of society in the morality of its members is also secured. The character and behavior of the claimants for the custody of the child is closely scrutinized, and if the moral status of the parent or

(42) (43) Richards v. Collins, 45 N. J. Eq. 283, 17 A. 831; McKim v. McKim, 12 R. I. 462; Gardenhire v. Hinds, 1 Head (Tenn.) 402.

Cf. Notes, 27 to 31, and Note 37.

(44) Chapsky v. Wood, 26 Kan. 650. Washaw v. Gimble, 7 S. W. 359.

(45) See note 22a supra.

(46) Ibid.

(47) Ibid.

(48) Ibid. Also, Rex v. Hopkins, 7 East 579; Rex. v. Mosely, 5 East 224, note.

(49) Schamell v. Schammell, 105 Calif. 258; 38 P. 729; Bennett v. Bennett, 43 Conn. 313; Commonwealth v. Addicks, 5 Binn. (Pa.) 520.

(50) F. v. F. (1902) 1 Ch. 688; Blake v. Leigh, Amb. 307; Hawksworth v. Hawksworth, L. R. 6 Ch. A. 539; In re Edwards, 42 L J. Q. B. 99; In re Besant, L. R. 11 Ch. Div. 508, contra.

(51) Hernandez v. Thomas, 39 So. 641; In re Williams, 77 A. 350.

(52) Ibid.

53

guardian is evil the child will be taken from him. This last is not an invariable rule, for a parent will be given the custody of his child even though his character is not unimpeachable, when the court feels that the child will not be brought into contact with the evil associates of the parents.54 But reformation on the part of the parent so that he becomes a model of good conduct will not automatically revest him with the right to the custody of his child.55

It is thus evident that many of the social interests are bound up with and secured by the law of custody. The balancing of the interests involved must be done by the courts; the result is entirely within their discretion,50 and the rights of the parent must yield to this discretion.57 In exercising their discretion the courts will consider the age, sex, surroundings, and possible advantages of the child,57a the wishes of the parents,58 of the guardian," the next of kin, child itself and even of strangers,62 but

the

(57a) Haskell v. Haskell, 24 N. E. 859; Armstrong v. Stone, 9 Grat. (Va.) 102; Lyons v. Blenkin, Jac. 245; Slater v. Slater, 20 S. E. 780.

(58) Sturdevant V. State. 19 N. W. 617; Brooke v. Logan, 13 N. E. 669; Oliver v. Oliver, 24 N. E. 51; Rust v. Vanvacter, 9 W. Va. 600; Lusk v. Lusk. 28 Mo. 91.

(59) McDowles Case, 8 Johns. (N. Y.) 328; Bryan v. Lyon, 3 N. E. 880.

(60) Verser v. Ford, 37 Ark. 27; Burke v. Crutcher, 4 Ky. L. R. Abs. 251; Hoxie v. Potter, 17 Atl. 129; Ex Parte Murphy, 75 Ala. 409; Bentley v. Terry, 59 Ga. 555.

(61) Richards v. Collins, 17 A. 831; State v. Bratton, 15 Am. L. Reg. n. s. 359; Hunt v. Wayne Circuit Judges, 105 N. W. 531; Proctor v. Rhodes, 4 Ky. L. R. abs. 453; Green v. Campbell, 14 S. E. 212; Miner v. Miner, 11 Ill. 43: Umlauf v. Umlauf, 21 N. E. 600.

though these wishes will have weight, the controlling factor is the welfare of the child.63. Chancery also has control over the estates of infants so that their welfare may be protected by their property."*

Turning now to some minuter details of the law governing the custody of a child, we find that though the father has a right to the custody of the child which right will be respected by the courts, it is not right which can be passed to another by agreement," nor can it be lost by agreement, written or parole. This is because

65

68

the right grows out of the duties imposed by law upon the father and these duties cannot be shunted to another, excepting, of course, in such jurisdictions which make provision for the apprenticing of minors and their adoptions by strangers with the consent of the parents. But this right can be lost where by agreement with another the child has been placed in a position greatly to its advantage so that to remove the child from there and return it to the custody of the father would be detrimental to the welfare of the child.69 So, too, the right is lost where the father abandons the child, even though at the time of the abandonment the child was in its mother's womb.70 But the right is not lost where the mother takes the children away from the father and the father allows them to remain with her undisturbed." When the

(63) See supra note 37. (64)

Story, Eq. jurisprudence, sec. 1328 ff. (65) Chapsky v. Wood, 26 Kansas 650; State v. Smith, 6 Greenleaf (Me.) 463; Wier v. Marley, 12 S. W. 798; Johnson v. Terry, 34 Conn. 259; Washaw v. Gimble, 7 S. W. 389.

(66) Swift v. Swift, 4 DeGex, J. & S. 710; Shaw v. Natchwey, 43 Iowa, 653; In re Besant, L. R. 11 Ch. Div. 508; Da Costa v. Mellish, West's Rep. 300; Van Sittart v. Van Sittart, 2 DeG. & J. 249.

(67) Bonnett v. Bonnett, 16 N. W. 91; Giles v. Giles, 46 N. W. 916; Flory v. Ostrom, 52 N. W. 1038; Ex parte Schuptrine, 85 S. 494; State v. Libbey, 44 N. H. 321; Brooke v. Logan, 13 N. E. 669; Talbot v. Earl of Shrewsbury, 4 Mylne & Craig, 672; Colston v. Morris, Jac. 257, 37 Eng. Reprint 849.

(68) Cf. cases cited in preceded two notes. (69) Ibid.

Hewitt v. Long, 76 Ill. 399.

(70)

(72) Schamell v. Schammell, 38 Pac. 729.

(73) Bonnett v. Bonnett, 16 N. W. 91; Wadleigh v. Newhall, 136 Fed. 941; Starnes v. Albion Mfg. Co., 61 S. E. 525; In re Ferrier, 103 Ill. 367; Standard Oil Co. v. Mager, 85 S. 186; Cooke v. Bybee, 24 Tex. 278; Armstrong v. Stone, 9 Grat. (Va.) 102; State v. Reuff, 2 S. E. 801; Clark v. Bayer, 32 Oh. State 299; Marshall v. Reams, 14 S. 95; Miner v. Miner, 11 Ill. 43; Hunt v. Wayne Co. Circuit Judges, 105 N. W. 531; Richards v. Collins. 45 N. J. Eq. 283.

(74) Foster v. Denny, 2 Ch. Cases, 237; Darcy v. Lord Holderness, Trin. 1725; In re Edwards, 42 L. J. Q. B. 99; F. v. F. (1902) 1 Ch. 688; Eyre v. Countess of Shaftesbury, 2 P. Will. 103; Da Costa v. Mellish, West's Rep. 300.

(75) Ex parte Wollstonecroft, 4 Johns. Ch. R. (N. Y.) 80; Wilkinson v. Deming, 80 III. 342. (76) In re Carey, 10 Q. B. D. 454; Marshall v. Reams, 14 S. 95.

(77) In re Ferrier, 103 Ill. 367; Brinster v. Compton, 68 Ala. 299.

(78) Commonwealth v. Addicks, 5 Binn. (Pa.) 520; Anonymous, 55 Ala. 428; Schammell v. Schammell, 38 P. 829; Bryan v. Lyon, 3 N. E 880; Umlauf v. Umlauf, 21 N. E. 600; Oliver v. Oliver, 24 N. E. 51; Lusk v. Lusk, 28 Mo. 91; Bennett v. Bennett, 43 Conn. 313; Welch v. Welch,

TO SUBMIT TO OPERATION.

It would seem, therefore, that the courts, when presented with problem of awarding the custody of a child, are presented with and must consider a group of varying and conflicting interests, and in deciding this problem they use the welfare of the child as the criterion by which to determine which of these conflicting shall be secured and which sacrificed. That is, the psychological aspects of life are intimately concerned with the legal aspects of a given case, and the legal decision cannot be arrived at unless the psychological factors are rigorously delimited and carefully considered. The law of the custody of a child is not a bit of legal mechanism but is a section of vital human experience. It is the glory of this section of the law that rigidity of rule has always given way to flexible response to human needs.

Washington, D. C.

ALBERT LEVITT.

13 Wis. 534; Messenger v. Messenger, 56 Mo. 829; Klein v. Klein,. 11 N. W. 367; Cowles v. Cowles, 3 Glim. (Ill.) 435; Kentzler v. Kentzler, 28 P. 370; In re Bort, 25 Kan. 308; Smith v. Smith, 84 So. 870; Coleman v. Coleman, 73 S. 473; Draper v. Draper, 68 Ill. 17; Scoggins v. Scoggins, 80 N. C. 319; Schichtl v. Schichtl, 55 N. W. 309; Steward v. Steward, 180 P. 165; Griffin v. Griffin, 187 P. 598; Chandler v. Chandler, 24 Mich. 176; Luck v. Luck, 28 P. 787; Hernandez v. Thomas, 39 S. 641; Adams v. Adams, 1 Duv. (Ky.) 167; Hewitt v. Long, 76 Ill. 399; Flory v. Ostrom, 52 N. W. 1038; Giles v. Giles, 46 N. W. 916; Van Sittart v. Van Sittart, 2 DeG. & J. 249; Johnson v. Terry, 34 Conn. 259; Miner v. Miner, 11 Ill. 43; Wilkinson v. Deming, 80 Ill. 342; Ex parte Wollstonecroft, 4 Johns. Ch. R. (N. Y.) 80. (79) Ex parte Murphy, 75 Ala. 409; State v. Barney, 14 R. I. 62; State v. Stigall, 22 N. J. L 286; McKimm v. McKimm, 12 R. I. 462; Corrie v. Corrie, 4 N. W. 213; Slater v. Slater, 20 S. E. 780; State v. Flint, 65 N. W. 272; McShan v. McShan, 56 Miss. 413; State v. Baird, 21 N. J. Eq. 884; State v. Paine, 4 Humph. (Tenn.) 523; Carr v. Carr, 22 Grat (Va.) 168; Dumain v. Gwynne, 10 Allen (Mass.) 270; Swift v. Swift, 4 DeGex J. & S. 710; Chapsky v. Wood, 26 Kan. 650; State v. Smith, 6 Green. (Me.) 463; Clark v. Bayer, 32 Oh. St. 299; State v. Reuff, 2 S. E 801.

(80) Swift v. Swift, 4 DeGex, J. & S. 710. Ex parte Schuptrine, 85 Ala. 495; McDonald Short, 125 N. E. 451.

V.

SCHILLER v. BALTIMORE & O. R. CO.

Court of Appeals of Maryland, Dec. 2, 1920.

112 Atl. 272.

In proceedings under Workmen's Compensation Act for compensation for hernia involving issue as to whether employee was justified in refusing to submit to an operation, physician's opinion as to effect of the treatment which employee had testified he was giving himself held admissible.

The third, fourth, ninth, tenth and eleventh exceptions relating to the ruling on evidence are apparently based on the theory that the safety of an operation for hernia and its probable effect in removing the disability of claimant had no bearing on the merits of the case, and that such questions were therefore irrelevant.

It was vigorously contended by appellant that one should not, as a condition precedent to continued compensation during disability, be required to submit to an operation the result of which might be fatal even if such result is so unlikely as to make the danger practically negligible. To support this contention he has cited but three authorities, all being New Jersey cases: Newbaker v. New York, Susq. & W. R. R. Co., 38 N. J. Law 175; McNally v. Railroad Co., 87 N. J. Law 455, 95 Atl. 122; Feldman v. Braunstein, 87 N. J. Law 20, 93 Atl. 679.

The overwhelming weight of authority is opposed to this view, holding that a man cannot continue to receive compensation and at the same time refuse to submit to proper medical or surgical treatment such as an ordinarily reasonable man would submit to in like circumstances. Donnelly v. Baird (1908) Sess. Cas. 536; Warncken v. Moreland (1909), 1 K. B. 184; Walsh v. Lock (1914), 110 Law Times Rep. 452; Tutton v. The Majestic (1909), 2 K. B. 54; Lesh v. Illinois Steel Co., 163 Wis. 124, 157 N. W. 539, L. R. A. 1916E, 105; Floccher's Case, 221 Mass. 54, 108 N. E. 1032; Donovan v. N. O. Ry. & Lt. Co., 132 La. 239, 61 South 216, 48 L. R. A. (N. S.) 109; Bradbury's Workmen's Compensation Cases, 851; O'Brien v. Albert A. Albrecht Co., 206 Mich. 101, 172 N. W. 601, 6 A. L. R. 1257. The same principle is recognized in United Railways & Electric Co. v. Dean, 117 Md. 686, 84 Atl. 75.

There was no error in the rulings of the trial court on these exceptions.

Judgment reversed, and new trial ordered, with costs to appellant.

NOTE-Effect of Refusal of Employee to Undergo Operation on Right to Compensation.-In addition to the cases cited in the reported case, the following important cases are here given.

The general rule covering this subject has been stated as follows: "An injured employee seeking compensation must submit to an operation when so advised by his attending physician when not attended with danger to life or health or extraordinary suffering, and, if as a result of such refusal on his part he suffers a permanent impairment, the employer will not be required to compensate him for the resulting permanent impairment." Enterprise Fence & Foundry Co. v. Majors, Ind. App., 121 N. E. 6.

If the operation involves little or no danger and is recommended by physicians as a cure, and the employee arbitrarily, for no good reason, refuses to submit, he is not entitled to compensation for incapacity resulting from the condition which the operation would remedy. In such case incapacity is held to be due to his unreasonable refusal and not to the original injury. Kricinovich v. American Car & Fdy. Co., 192 Mich. 687, 159 N. W. 362; Lesh v. Illinois Steel Co., 163 Wis. 124, 157 N. W. 539; Joliet Motor Co. v. Industrial Board, 280 Ill. 148, 117 N. E. 423, 15 N. C. C. A. 75.

On the other hand, if the result of the operation is problematical or in doubt, or involves intense suffering, the employee is justified in refusing to submit to it. Marshall v. Ransome Concrete Co., Cal. App., 166 Pac. 846, 15 N. C. C. A. 82.

An employee suffered an injury to the index finger of his right hand, and there was evidence that the attending physician advised amputation of the finger, but that the employee objected and insisted on an attempt to save his finger. The physician stated at the time that he had saved fingers as badly injured as that of the employee. and it was agreed to attempt to save the finger. Infection set in which involved practically the entire hand, and the finger was then amputated at the middle joint. The infection developed because of the delay in amputating the finger. It was held that the employee's conduct was not wilful nor unreasonable to the extent that it would prejudice additional compensation, which was allowed. Enterprise Fence & Foundry Co. v. Majors, Ind. App. 121 N. E. 6, 18 N. C. C. A. 669.

Where the evidence as to the benefit and dangers of an operation was conflicting; some tending to show that the request came too late, that decedent's condition was such as to render the operation dangerous, and that a recovery therefrom would have been doubtful and uncertain, the Court held that whether there had been misconduct with reference to the refusal of an operation was clearly open to more than one inference by reasonable men, and, hence, was a question of fact, which, when determined by the Industrial Board, could not be disturbed by the appellate tribunal. Vonnegut Hardware Co. v. Rose, Ind. App., 120 N. E. 608, 18 N. C. C. A. 307.

Judge Blank is fond of relating how he put one over on the barber who wished to make a sale. The man had just shaved him, and wanted to sell him a lotion to use on his face when he shaved himself.

"Is this what you use on your customers?" asked the judge.

"No," replied the barber, "It's so expensive I cannot afford it."

"If you can't afford it when you get 20 cents for shaving a man," returned the judge, "how do you expect me to afford it when I shave myself for nothing?"

The barber was nonplussed and gave up trying to make the sale.-Boston Transcript.

Going down the Chesapeake Bay, when the wind was fresh and the white caps tumultuous, Judge Hall of North Carolina, became sea sick and spent much of his time leaning over the bulwarks. "My dear Hall," said Chief Justice White who was one of the party, and who was as comfortable as any old sea dog, "can I do anything for you? Just suggest what you wish."

"I wish," groaned the sea sick jurist, "that Your Honor would overrule this motion."— Lawyer and Banker.

There was a little lady,
Who had a little leg,
She sat upon the jury,
And this is what she said:

"Good Judge, it is quite certain,
We need an ankle curtain,
For the lawyers keep a'flirtin',
"Til I'm really quite afraid,"

There was a grumpy Judge,
Who to the lady said,-
"The flirtation of the lawyer
Is mostly in his head;

That there should be a curtain,
Is probably quite true,

But who is doing the flirtin',
The lawyer-man, or you?"

-Ohio Law Bulletin.

sale of the lumber, to pay claimant $3 per 1,000 feet from the proceeds as stumpage, held to give claimant an equitable lien on the lumber or its proceeds in the hands of the trustee.-Walton Land & Timber Co. v. Runyan, U. S. C. C. A., 269 Fed. 128.

5. Waiver of Tort.-If a bankrupt has become unjustly enriched by his embezzlement, larceny, or conversion of the goods of another, the owner may waive any action of tort and prove a claim against the bankrupt's estate on the implied contractual obligation of bankrupt to pay for the goods; but, if he elects to disavow any contract, as he may do, and claim damages for the tort, his claim is not a provable debt, under Bankruptcy Act, § 63a (4) (Comp. St. § 9647a [4]).-Stalick v. Slack, U. S. C. C. A., 269 Fed. 123.

7.

Bills and Notes-Failure of Consideration. -Where, to enable sale of property to be made, the notes which are to be executed for the purchase price are to be delivered, not to the vendor, but to the holder of mortgage on the property, to induce him to cancel it, the consideration of the notes as between such mortgagee and their maker, the purchaser of the property, is the cancellation of the mortgage, so that, as between the mortgagee and the maker, the consideration of the notes does not fail, if the maker is evicted from the property by foreclosure of another mortgage priming the title of the vendor.-Commercial-Germania Trust & Savings Bank v. Russell, La., 86 So. 831.

6. Banks and Banking Purchase by Telegram. Where bank was induced to purchase check given for purchase price of land by telegram from drawee promising to pay check, but where drawee thereafter refused payment, misrepresentations inducing purchase of the land were no defense in bank's action against drawee on such promise.-Midwest Nat. Bank & Trust Co. v. Niles & Watters Savings Bank, Iowa, 180

a

8. Brokers-Right to Commission.-When broker has procured a customer able, ready, and willing to buy, sell, or exchange land on terms state by the broker's principal, the broker is entitled to his commission, though no contract was actually made, because the principal repudiated his offer afterwards.-McCarthy v. Reid, Mass., 129 N. E. 675.

9.Sale to Customer's Agent.-Where plaintiff stockholder was solicited to sell stock by a customer, and did so to defendant's agent, selling the customer's stock and not his own, he cannot recover from defendant the price of the stock because he advanced the price less his commission to his customer, plaintiff broker not having purchased his customer's stock the doctrine applying that in an action by an agent for an undisclosed principal on a contract, made by an agent in his own name, any defense good against the principal is available against the agent.-Wooley v. Loose, Utah, 194 Pac. 908.

10. Volunteer.-A broker taking a prospective purchaser to owner of land, with no authority from the owner, was not entitled to a commission where a sale was agreed on, but none consummated.-Meachem v. Baker, Mo., 226 S. W. 967.