been doubted that commercial intercourse is an element of commerce which comes within the regulating power of congress."

Since the Pensacola Case, interstate messages have consistently been held to be interstate commerce, within the protection of the Federal Constitution, and not subject to legislative control of the states.**

46

The purpose of the adoption of the Interstate Commerce Clause in the Constitution was to make impossible the recurrence of varying state rules and regulations that had so annoyed the confederation and "to provide the necessary basis of national unity by insuring uniformity of regulation against conflicting and discriminating state legislation." In the Croninger Case (supra), the Court referring to the Carmack Amendment said that "neither uniformity of obligation nor of liability was possible until congress should deal with the subject. The situation was well depicted by the Supreme Court of Georgia, in Southern R. Co. vs. Crowsbow, where the Court said: 'Some states allow carriers to exempt themselves from all or a part of the common law liability by rule, regulation or contract, others do not. The Federal Courts sitting in the various states were following the local rule, a carrier being held liable in one Court, when under the same state of facts he would be exempt from liability in another.'" A similar state of affairs with reference to telegraph law confronted congress when the 1910 Amendment was adopted. When that condition is considered along with the importance of Federal control of governmental agencies, the public interest in uniform rules and regulations and nondiscriminating service and rates, and

(43) 9 Wheat. 1. (44) Western Union Tel. Co. v. Texas, 105 U. S. 650; Western Union Tel. Co. v. Pendleton, 122 U. S. 343; Western Union Tel. Co. v. Mass., 125 U. S. 530; LeLoup v. Port of Mobile, 127 U. S. 650; Western Union Tel. Co. v. Seay, 132 U. S. 472; Williams v. City of Talladega, 226 U. S. 404. (45) Houston & Tex. Ry. v. U. S., 234 U. S. 342; Gibbons v. Ogden, 9 Wheat. 1.

(46) 5th Ga. App. 675.

[The principle urged in the foregoing paper was decided recently by the Supreme Court of the United States in Postal Telegraph Company v. Warren-Godwin Lumber Company (251 U. S 27). The head-note of the decision is as follows:

"Under the Act of June 18, 1910, c. 309, 36 Stat. 539, 545, a telegraph company providing one rate for unrepeated interstate messages, and another, higher rate for those repeated, may stipulate for a reasonable limitation of its responsibility when the lower rate is paid; and the validity of such contracts is not determinable by state laws. P. 30. 116 Mississippi 660. reversed." -EDITOR.]

NEGLIGENCE-PROXIMATE CAUSE

POTORIK v. STATE.

Court of Claims of New York, March 8, 1920.

181 N. Y. Supp. 181.

Where a claim is made that the disease which a person contracts after an injury is the result of negligence, the facts establishing such claim cannot be left to conjecture, guess, or speculation; but there must be some evidence connecting the disease with the injury.

MORSCHAUSER, J. The above-named claimant filed a claim and a notice of intention, the claim being filed June 11, 1919, and the notice of intention August 20, 1918, alleging that through the negligence of the state, caused by the overflow of the Mohawk river and its tributaries, which occurred on February 20 and 21, 1918, the premises wherein the parents of the said Florence Potorik resided, No. 18 North street, in the city and county of Schenectady, was flooded, and that by reason thereof an infant, the claimant's intestate, being a little girl of about five months of age, became sick and died, alleging the cause of death to be lobar pneumonia. The evidence produced upon the

trial established the fact that the flood occurred through the negligence of the state arising out of the construction and maintenance of the Barge Canal, that the cellar of the dwelling of the parents of the deceased was flooded and the first floor was covered with water about 10 inches above the floor, that the water receded from the first floor of the dwelling shortly after it occurred, and that the parents of the claimant's intestate and the intestate moved from the first floor to the second floor of the dwelling. The claimant's intestate was a little girl about 5 months of age. About 2 weeks after the flood in March, 1918, the child became ill, and a physician was called, who found her suffering from bronchitis. Later, about April, a physician was called again, and the child was then found to be suffering from pneumonia. The child died, afflicted with lobar pneumonia, April 5, 1918. The claimant now makes a claim alleging that the death of the child was caused by the flood, and filed a claim of $5,000 damages against the state.

While it is a well-settled rule of law that a wrongdoer is responsible for the natural and proximate consequence of his misconduct and also such as might reasonably be supposed to have been apprehended, a wrongdoer is not liable for a remote cause, and he is only liable when the injury resulting follows in direct sequence, without the intervention of a voluntary independent cause.

In the matter of Hoey v. Metropolitan Street Railway Co., 70 App. Div. 60, 74 N. Y. Supp. 1113, it was held that where the plaintiff's intestate was injured by the negligence of the defendant, and he thereafter developed a progressive muscular atrophy, but that the immediate cause of death was acute pulmonary tuberculosis, a germ disease, in no way connected with the accident, nor shown to have resulted from the progressive muscular atrophy, a finding that the acute pulmonary tuberculosis resulted in connection will not be sustained, upon the theory unsupported by any evidence, that the intestate was so weakened by his injuries that the progressive muscular atrophy resulting therefrom made him susceptible to tuberculosis, and that by reason thereof he contracted the latter disease.

In the matter of Sallie v. New York City Railway Co., 110 App. Div. 665, 97 N. Y. Supp. 491, it was held that where the plaintiff's intestate, who was in previous good health, was injured by the sudden starting of a car, was

rendered unconscious by the fall, had a rib fractured, and received other injuries from which he grew weaker daily, until at the end of the second week pleurisy set in, followed by tuberculosis, from which the intestate died within 9 weeks from the injury, and there is expert testimony that these ailments followed as a natural consequence of the injury, it was for the jury to say whether the death resulted from the injury, and it was further held that, though a germ causing a disease like tuberculosis must enter through the mouth, that fact will not bar a recovery, if such germ would not have developed, but for a weakened condition resulting from an injury caused by the wrongful act of the defendant.

Similar decisions, holding substantially that where an injury is received through the negligence of another, and the injury so debilitated the injured person that he became afflicted with a germ disease, the defendant would be liable: Hurley v. New York & Brooklyn Brewing Co., 13 App. Div. 167, 43 N. Y. Supp. 259; Purcell v. Lauer, 14 App. Div. 33, 43 N. Y. Supp. 988; Wood v. New. York Central & H. R. R. R. Co., 83 App. Div. 604, 82 N. Y. Supp. 160; affirmed 179 N. Y. 557, 71 N. E. 1142.

In all of these cases the person injured was injured by a blow or direct injury to the person, and evidence was given to show that the result of such injury so weakened such person that a germ disease developed as a natural sequence of the injury. Where a claim is made that the disease which a person contracts after an injury is the result of negligence, the facts establishing such a claim cannot be left to conjecture, guess, or speculation. There must be some evidence connecting the disease with the injury.

In the case on trial there was no evidence which would justify the finding that the infant contracted bronchitis by reason of any condition of the premises flooded by the state. There was some evidence showing that the bronchitis so debilitated the child that in its weakened condition it contracted pneumonia from a pneumonia germ; but there is no evidence in the case which would justify the court in finding that the pneumonia which the child contracted was the direct result of the flooding of its parents' premises. The evidence falls far short of connecting the illness of the child, having bronchitis, with the flooding upon the premises of its parents. There are many conditions, especially in this climate, in the

months of January, February, and March, that may produce and do produce bronchial trouble, pneumonia, and other similar diseases, and they are found amongst various classes of people and under various conditions, and we cannot say from the evidence that the flooding of this dwelling was the cause of the child's illness, and there is no direct evidence to justify such a finding, and no evidence from which an inference can reasonably be drawn to establish the fact the bronchitis from which the child was suffering was in any way attributable to the flood.

The case at bar is somewhat similar in principle to the case recently decided by the Court of Appeals in the matter of Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21, 126 N. E. 254.

The claim should therefore be dismissed.
ACKERSON, J., concurs.

NOTE-Proximate Cause in Malicious Tort.It has been thought that the rule of proximate cause of injury resulting from a merely negligent act covers a much wider field where the act is willful or malicious. Thus in Isham v. Davis, 70Vt. 588, 45 L. R. A. 87, it was ruled that where one unlawfully and maliciously shot and wounded a dog lying near the owner's house, and the dog rushed into the house and threw down the owner's wife, the person so shooting was liable for the injury resulting.

It was claimed by defendant that he did not owe to the wife any legal duty and his act was not the proximate cause of injury to her, but the Court said: "In these circumstances the law treats the act of defendant as the proximate cause of the injury, whether that was or could have been foreseen or not, or was or was not the probable consequence of the act. *** The true principle is said to be that he who does such an act is liable for all the consequences, however remote, because the act is quasi criminal in its character, and the law conclusively presumes that all the consequences were foreseen and intended."

In Weick v. Lauder, 75 Ill. 93, it was ruled that the doer of an act unlawful in itself will be held responsible though other causes subsequently arise and contribute to produce the injury. In the course of the opinion the celebrated squib case was referred to, and Greenland v. Chaplin, 5 Exch. 343, where it was said by the Court, "If I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury shall be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first."

Where a conductor compelled a boy to give up his seat to another and he is pushed out by other passengers on a street car to the front platform, and there knocked off by a passenger and run over by the car, the proximate cause so far as

the company was concerned was the act of the conductor. Sheridan v. B. C. & N. R. Co., 36 N. Y. 39, 93 Am. Dec. 490.

So where an insured is struck on the head by a husband defending his wife and his death resulted, his death is attributable to his act in violation of law. Bloom v. Ins. Co., 97 Ind. 478, 49 Am. Rep. 469.

Where one willfully turns a hose on a team of horses and they break loose and run against a third person, he is liable to the latter. Forney v. Goldmacher, 75 Mo. 113, 42 Am. Rep. 388.

Where a train has run over a fire hose and water is cut off from a burning building and the fire gains headway so that the building is destroyed, the railroad is liable for its value. M. C. Casting Co. v. R. Co., 109 Mass. 277, 12 Am. Rep. 689.

A case greatly resembling the squib case backward was that of Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267, where injury was suffered by one caught by the arm and swung around violently and then let go. By the impetus he was thrown against a hook and injured. There was liability.

Where one dug into a bank near a dam and thereby undermined some trees and a flood about three weeks later carried away the soil of the owner, it was held that this act of a trespasser caused the water to break through. Dickinson v. Boyle, 17 Pick. (Mass.) 78, 28 Am. Dec. 281.

But some of the courts have placed a limit on the rule, saying that even in willful and malicious torts, liability is limited to probable consequences or those which might have been foreseen. See Drake v. Kieley, 93 Pa. 495; Renner v. Canfield, 36 Minn. 90. Thus take the last cited case, which shows the shooting of a dog about 175 feet from his owner's residence, while his wife was outside, but not seen by the shooter. She was so frightened that her health was seriously affected. It was thought liability could not be predicated on the mere fact that the shooting was unlawful. This seems opposed to Isham v. Dow supra. C.

HUMOR OF THE LAW.

"Of course, you have made some mistakes in your career."

"I decline to admit it,” replied Senator Sorghum. "I have a large corps of stenographers, clerks and political lieutenants whose chief business it is to assume responsibility for any mistakes."-Washington Star.

Nute Killens canfe into town to consult Gen. J. W. Lewis of Paris, Tenn., and asked him, "If your wife was to throw a shovel full of hot embers in your face, what would you do?"

Mr. Lewis told him, "Well, I don't know, Nute. But I expect I'd knock hell out of her."

"Well, Mr. Lewis, that's just what I done."Lawyer and Banker.

2. Bankruptcy · Cross-Examination. Under Bankruptcy Act, § 7, cl. 9 (Comp. St. § 9591), providing for an examination of the bankrupt, which shall not be offered in evidence against him in a criminal proceeding, etc., an accused, on trial for defrauding a national bank, is not subject to be cross-examined regarding his testimony on his bankruptcy examination.-Bain v. U. S., U. S. C. C. A., 262 Fed. 664.

3. Estoppel.-A bank, which as pledgee

Security Co. v. Holcombe, U. S. C. C. A., 262 Fed. 657.

5. Banks and Banking-Trust Fund.-Bank not liable for payment of check without knowledge that deposit is trust fund.-Davis v. Indiana Nat. Bank, Ind., 126 N. E. 489.

6. Set-Off.-A bank is entitled to set-off against a deposit account, the amount of a due note held by it against the depositor; but it is not obligated so to do, under the penalty of having the note considered as paid in favor of the depositor maker.-Bank of California v. Starrett, Wash., 188 Pac. 410.

7. Bills and Notes-Indorsement.-Whether an indorser who after discharge for failure to give him notice of dishonor makes a new promise to pay knew of the failure to present the note as is immaterial, a new promise with knowledge of the fact that no notice of dishonor was given sufficiently manifests the intent to relinquish a known right which makes the waiver complete.-Hurlburt v. Bradley, Conn.. 109 Atl. 171.

8. Burglary-Force.-The use of keys to enter a building is the use of sufficient force as applied to it to constitute burglary.-Rippey v. State, Texas, 219 S. W. 463.

9. Carriers of Goods-Bill of Lading. An instrument issued by carrier to consignor, consisting of a receipt for the goods and an agreement to carry them from the place of shipment to destination, is a "bill of lading."-Aman v. Dover & Southbound R. Co., N. C., 102 S. E. 392.

10. -Consignor.-Where a bank acquires title to a draft with bill of lading attached by crediting the amount to consignor's account, and the consignee pays the draft, being compelled to do so before receiving the bill of lading by the United States Food Administration, and the shipment is not as guaranteed, and a judgment is obtained against the consignor, the consignee cannot recover the amount of damages due him in a garnishment against the bank. -F. A. Kadane & Co. v. Security Nat. Bank, Tex., 219 S. W. 506.

11. Damages.-The general rule is that the measure of damages for unreasonable delay in the delivery of goods shipped is the difference between their market value when they should have been delivered and the market value when they were delivered, with interest from the former date, less the freight, if unpaid, and in the absence of a special contract that measure of

vate sale for the amount of its lien, but afterwards received the profit from resales by the purchaser, which it held as its own, held estopped, on an accounting to the trustee, to apply such sum on unsecured indebtedness of bankrupts. Howard v. Mechanics' Bank, U. S. D. C., 262 Fed. 699.

4.Jurisdiction.-An order of a referee, requiring a holder of notes and accounts receivable of a bankrupt to turn the same over to the trustee for collection, transferring the claim of the holder to a lien to the proceeds, and expressly reserving the right to afterwards pass on the validity of the claim, the holder being present by attorney and assenting, held to give the bankruptcy court jurisdiction over the claimant to adjudicate its claim.-Commercial

Co. v. Bunch, Ga., 102 S. E. 462.

12. Carriers of Passengers Baggage.-The carrier's baggage service is only for the convenience of the passenger, and, except in rare cases, is limited to his own personal effects, and does not include those carried by him as a favor to another.-Schuster v. Norfolk & W. Ry. Co., W. Va., 102 S. E. 476.

13. Pass.-A railroad company was liable for an injury sustained by an employe traveling on a pass through its willful or wanton negligence, though the pass contained a release of liability for injuries.-New York Cent. R. Co. v. Mohney, U. S. S. C., 40 Sup. Ct. 287.

14. Champerty and Maintenance-Assignment. -Assignment of cause of action for enticement

16. Commerce Employe.-The Federal Employers' Liability Act, April 22, 1908 (Comp. St. §§ 8657-8665), applies only when both employer and employe are engaged in interstate commerce.-Saxton v. El Paso & S. W. R. Co., Ariz., 188 Pac. 257.

17.-Income Tax. The Oklahoma Income Tax Law does not constitute a burden on interstate commerce, as applied to a non-resident deriving an income from the operation of oil and gas properties, the products of which are shipped in interstate commerce.-Shaffer v. Carter, U. S. S. C., 40 Sup. Ct. 221.

18. Indirect Influence.-While a state may not directly regulate or burden interstate commerce, until Congress acts under its superior authority, it may protect or regulate matters of local interest, though indirectly affecting such commerce.-Pennsylvania Gas Co. V. Public Service Commission, Second Dist., of State of New York, U. S. S. C., 40 Sup. Ct. 279.

19. Constitutional Law-Due Process of Law. -A provision of a charter making water charges a lien on the property to which the water is furnished, though the meters were installed at the request of a tenant, does not deprive the property owner of property without due process of law in violation of Const. U. S. Amend. 14, § 1.-Dunbar v. City of New York, U. S. S. C., 40 Sup. Ct. 250.

20. Free Speech.-Free speech is not an absolute right under the Constitution.-Schaefer v. U. S., U. S. S. C., 40 Sup. Ct. 259.

21. Income Tax.-A discrimination by a state against citizens of adjoining states in imposing an income tax would not be cured, if those states established like discriminations against the citizens of the state in question.Travis v. Yale & Towne Mfg. Co., U. S. S. C., 40 Sup. Ct. 228.

22.

Contracts-Implied.-Generally when necessities are supplied to a person who by reason of disability cannot himself make a contract, the law implies an obligation on the part of such persons to pay for such necessities out of his own property.-Snyder v. Nixon, Iowa, 176 N. W. 808.

23. -Public Policy. "Public policy" is that principle of law which holds that no citizen can lawfully do that which has tendency to be injurious to the public or against public good, and is declared by the Constitution and statutes and decisions of the courts.-Spaulding v. Maillet, Mont., 188 Pac. 377.

24. Rescission.-To rescind a contract for intoxication of the maker, the evidence must disclose that he was so intoxicated at the time, so as to be entirely incapable of understanding the nature and effect of the transaction.-Renfeldt v. Brush-McWilliams Co., N. D., 176 N. W. 838.

25. Rescission.-To justify the rescission of a contract because of falsehood, the falsehood

must have been relied upon by the complaining party to his detriment.-Lakeside Forge Co. v. Freedom Oil Works Co., Pa., 109 Atl. 216.

Estoppel.

26. Corporations Corporation, having accepted the benefits of contract entered into by its secretary and general manager, cannot avoid the contract upon the ground that secretary and general manager had no authority to enter into such contract.-Morris v. Basnight, N. C., 102 S. E. 389.

27. Preference.-The president of an insolvent corporation who advanced money to pay its debts cannot prefer himself as a creditor and have transferred to him corporate property in payment of the advancements, even with the formal consent and official action of other corporate officers.-Armstrong v. Ellerslie Planting Co., La., 83 So. 830.

28.

burden is on

Covenants-Breach.-The grantee to prove the value of the portion of the tract conveyed, title to which had failed, before he can recover damages for breach of covenant; there being no presumption that the entire tract is of uniform value per acre.-Lane v. Stitt, Ark., 219 S. W. 340.

29. Building Restrictions.-An apartment is a "residence," within the meaning of a building restriction providing that certain lots should be used for residence purposes only.—Struck v. Kohler, Ky., 219 S. W. 435.

30. Criminal Law-Accomplice.-Slight evidence corroborating the accomplice testimony may be sufficient to authorize the jury to convict.-Thompson v. State, Ga., 102 S. E. 453.

31. Argument of Counsel.-It is improper for counsel for the state in a criminal trial to state to the jury his belief that defendant is guilty. Johnson v. State, Ga., 102 S. E. 439. 32. Character.-In criminal prosecution, where defendant did not put in issue his character and reputation, the state cannot draw such matters in issue.-Wagner v. State, Texas, 219 S. W. 471.

33. Confession.-Confessions of an accused to a deputy sheriff and jailer were not rendered incompetent by reason of the failure of such officers to caution the prisoner that his statements might be used against him, in the absence of a statute requiring such caution or warning. -Carothers v. State, Miss., 83 So. 809.

34. Evidence.-Mere corruptive or compromising efforts, words, or acts of friends or relatives, attempted in behalf of accused, whose own connection therewith does not appear, are not admissible against him.-Nader v. State, Texas, 219 S. W. 474.

35.- -Sentence.-If there has been a lawful verdict of conviction rendered in a criminal case, an error of the judge in imposition of the sentence is no sufficient reason for setting aside the verdict and trying the accused again upon the question of his guilt or innocence.-Davis v. Town of Gibson, Ga., 102 S. E. 466. 36.

Damages-Measure of. The true measure of damages for the burning of grass is its reasonable market value at time of its destruction, but, if the grass has no market value at that point, the owner's measure of recovery would be the reasonable value of the grass to him. considering the use to which he was putting it. -Gulf, C. & S. F. Ry. Co. v. Price, Texas, 219 S. W. 518.

37. -Punitive.-Before the question of punitive damages for injury to land can be submitted to the jury, there must be evidence that the act complained of was committed willfully or maliciously or under circumstances of violence or reckless indifference to the rights of others. -Hoffman v. Berwind-White Coal Mining Co., Pa., 109 Atl. 234.

38.Remoteness.-Where a magazine initiated a circulation contest, offering valuable prizes in various districts for the higher number of votes secured by means of subscriptions procured by contestants, damages to a bona fide contestant from discontinuance of the contest in her district were not too remote to permit recovery by her for the breach of contract.-Wachtel v. National Alfalfa Journal Co., Iowa, 176 N. W. 801.