(115 A.)

"That principle of law which holds that no subject or citizen can lawfully do that which has a tendency to be injurious to the public or against the public good." Wakefield v. Van Tassell, 202 Ill. 41, 66 N. E. 830, 65 L. R. A. 511, 95 Am. St. Rep. 207; Consumers' Oil Co. v. Nunnemaker, 142 Ind. 560, 41 N. E. 1048, 51 Am. St. Rep. 193; Brooks v. Cooper, 50 N. J. Eq. 761, 26 Atl. 978, 21 L. R. A. 617, 35 Am. St. Rep. 793.

And this court has stated as a general rule of law:

"That whatever tends to injustice or oppression, restraint of liberty, and natural or legal right, or to the obstruction of justice, or to the violation of a statute, and whatever is against good morals, when made the subject of a contract, is against public policy and void." Tarbell, Adm'r, v. Rutland R. Co., 73 Vt. 347, 51 Atl. 6, 56 L. R. A. 656, 87 Am. St. Rep.

734.

(Supreme Court of Vermont. Washington. Oct. 4, 1921.)

I. Damages 53-Mental anguish held element of damages.

Where plaintiff at the time of the accident was suffering from a malignant disease of a private nature which required a prompt surgical operation if a fatal result was to be averted, and the accident so injured plaintiff's heart as to render the operation impossible of success, and plaintiff, through her physician, learned these facts, her mental anxiety and distress over the fact that the condition of her would otherwise be an available cure was the heart would not admit of an operation which proximate result of her injury, and a proper element of recoverable damages.

667-Supreme Court

Where the record showed that, as respects a certain ruling, an exception was allowed to the plaintiff, defendant cannot show that this was a mistake, and that in fact the exception was allowed to defendant. 3. Damages

95-Jury may consider impaired purchasing power of dollar.

[6] Counsel for plaintiff urges that, in ad-2. Appeal and error dition to establishing that Judge Edgerton's bound by record. conduct was improper and calculated to impair the confidence of the public in the courts, the defendant has the burden of showing that such conduct tended to deprive him of a fair trial. Assuming this burden to be with the defendant, we think he has sustained it. Every man is entitled by law not only to a fair trial of his case, but to one as free as may be from suspicion of partiality or undue influence; and no argument should be necessary to convince one that, when a judge leaves the bench and appears as an attorney er counsel in a cause on trial by jury in his own court, the minds of the jurors, who are accustomed to receive and obey instructions from the court, have by reason thereof been unduly influenced and an impartial trial not had. See Bashford v. People, 24 Mich. 224; Wright v. Boon, 2 G. Greene, 458; Lilly v. State, 7 Okl. Cr. 284, 123 Pac. 575, Ann. Cas. 1914B, 443; Wood v. Keith, 60 Ark. 425, 30

S. W. 756.

We therefore hold that the ruling in question was unsound in law, and constitutes reversible error.

The foregoing question has received our most careful consideration, not wholly because of the case itself, nor because of the manner in which the illegal acts in court were performed the acts of Judge Edgerton in that connection, if proper, could hardly have been more dignified or less objectionable-but because required for the reasonable protection of public and private rights, the great object for which courts with their judges and officers are established and main

tained.

Some other questions were presented in argument, but they are not likely to arise on another trial of the case, and so are not considered.

Judgment reversed and cause remanded.

Without evidence in the case regarding it, the impaired purchasing power of the dollar may be considered by a jury in assessing damages for personal injuries, at least as respects pecuniary losses, loss of time, loss of earning power, expenses and the like.

On Petition for New Trial.

4. New trial 95-Defense not presented not ground for new trial.

Under the rule that a petition, asking á retrial to enable the defeated defendant to take advantage of a defense available at the trial, but not presented through counsel's misapprehension of the law, will be looked on with disfavor, and granted only in exceptional cases, held that defendant telephone and telegraph company's application for new trial in personal injury case to enable it to present the defense that since it was under government control at the time of the accident the action was, in effect, against the government and could not be maintained, would be denied; it appearing that its legal department, if not the local counsel in charge of the case, knew of the availability of the defense at the time of the trial.

Watson, C. J., and Slack, J., dissenting.

Exceptions from Washington County Court; Harrie B. Chase, Judge.

Action of tort for negligence by Catherine M. Halloran against the New England Telephone & Telegraph Company, tried by jury. Verdict and judgment for plaintiff, and defendant excepts and petitions for new trial. Affirmed.

Argued before WATSON, C. J., and POW-153 Vt. 183), but fear, worry, and apprehenERS, TAYLOR, MILES, and SLACK, JJ. sion are typical sorts of it (Egan v. MiddleTheriault & Hunt, of Montpelier, for sex, etc., R. Co. [D. C.] 212 Fed. 562). And it is very properly held that the anxiety must plaintiff.

POWERS, J. The plaintiff secured a verdict in an action predicated upon the defendant's negligence, and the latter seeks a rever-ants had appeared as witnesses, the obvious sal of the judgment rendered thereon. Only three of the exceptions saved at the trial are briefed by the defendant, and these only are considered.

[1] 1. The plaintiff's evidence tended to show that at and before the time of the accident she was suffering from a malignant dis-saying, "I don't believe you better pursue ease of a private nature, which required a prompt surgical operation if a fatal result was to be averted; that the accident had re

(115 A.)

and measures." And by statute enacted by Congress, "the gold coins of the United States shall be legal tender in all payments at their nominal value when not below the standard weight and limit of tolerance provided by law for the single piece, and, when reduced in weight below such standard and tolerance, shall be a legal tender at valuation in proportion to their actual weight." Rev. St. U. S. § 3585 (U. S. Comp. St. § 6572). "The silver coins of the United States shall be a legal tender at their nominal value for any amount not exceeding five dollars in any one payment." Rev. St. § 3586. See Bronson v. Rodes, 7 Wall. 229, 19 L. Ed. 141. In the case United States v. Marigold, 9 How. 560, 13 L. Ed. 257, the federal Supreme Court, through Mr. Justice Daniel, said:

Louisville & N. R. Co. v. Scott's Adm'r, 188, money, regulate the value thereof, and of Ky. 99, 220 S. W. 1066. The question has foreign coin, and fix the standard of weights more often arisen in cases involving the question of excessive verdicts. But the principle is the same, and the decisions are in accord. Noyes v. Des Moines Club, 186 Iowa, 378, 170 N. W. 461, 3 A. L. R. 605, and note; Bowes v. Public Service R. Co. (N. J.) 110 Atl. 699; Melish v. New York Con. R. Co., 108 Misc. Rep. 291, 178 N. Y. Supp. 228; Hance v. United Rys. Co. of St. Louis (Mo. App.) 223 S. W. 123; Duffy v. Kansas City Rys. Co. (Mo. App.) 217 S. W. 883; Hurst v. Chicago, B. & Q. R. Co., 280 Mo. 566, 219 S. W. 566, 10 A. L. R. 174, and note; McCreedy v. Fournier (Wash.) 194 Pac. 398; Standard Oil Co. v. Titus, 187 Ky. 560, 219 S. W. 1077; Illinois Cent. R. Co. v. Johnston, 205 Ala. 1, 87 So. 866. Whether any different rule should be applied to the elements of damages other than pecuniary losses, like physical suffering and mental distress, is a question neither raised nor considered.

Judgment affirmed.

WATSON, C. J. (dissenting). I am unable to agree with the majority of my Associates that there was no error in the ruling below, permitting counsel for plaintiff, when arguing to the jury on the question of damages, to say to them to "consider the value of a dollar to-day, as compared with what it was." And in upholding the charge of the court to the same effect.

In law we are compelled to compensate for violated rights in money, and for this purpose to make pecuniary estimates of the value of their violations the possession of money becomes a kind of legal summum bonum. Terry, Principles of Anglo-American Law, sec. 126, p. 99. And since the only compensation which the law can compel is a compensation in money, it must be measured by something which will measure the pecuniary loss, and the measure to be applied must be real and a tangible one. 17 C. J. 166C; The A. A. Raven (D. C.) 222 Fed. 958; S R. C. L. 431, par. 8. Actual pecuniary compensation 's the general rule, whether the action be in contract or in tort (except where exemplary damages are warranted). 8 R. C. L. 431, 8. And damages which may be recovered for injuries resulting from the negligence of another are to be arrived at according to general rules of law, framed with reference to the just rights of both parties: Not merely what it may be right for the injured party to receive as just compensation for his injury, but also what it is just to compel the other party to pay. 8 R. C. L. 434, 8; Spade v. Lynn & B. R. Co., 168 Mass. 285, 47 N. E. 88, 38 L. R. A. 512, 60 Am. St. Rep. 393; Kline v. Kline, 158 Ind. 602, 64 N. E. 9, 58 L. R. A. 397.

By the Constitution of the United States, the Congress shall have power "to coin

"The power of coining money and of regulating its value was delegated to Congress by the Constitution for the very purpose, as assigned by the framers of that instrument, of creating and preserving the uniformity and purity of such a standard of value; and on account of the impossibility which was foreand the confusion necessarily incident to difseen of otherwise preventing the inequalities ferent views of policy, which in different communities would be brought to bear on this subject. The power to coin money being thus given to Congress, founded on public necessity, it must carry with it the correlative power of protecting the creature and object of that power."

Acts were passed by Congress in 1862 (Acts Feb. 25, 1862, § 1; July 11, 1862, § 1) and 1863 (Act March 3, 1863, § 3 [U. S. Comp St. § 6575]), which made United States treasury notes a legal tender in payment of debts, public and private. The constitutionality of these acts being challenged, the question came before the federal Supreme Court in the Legal Tender Cases (Knox v. Lee and Parker v. Davis) 79 U. S. (12 Wall.) 457, 20 L. Ed. 287. The majority opinion (delivered by Mr. Justice Strong) shows that those acts were passed when the Civil War was raging, seriously threatening the overthrow of the government and the destruction of the Constitution itself; that the equipment and support of large armies and navies required the employment of money to an extent beyond the capacity of all ordinary sources of supply; that the public treasury was nearly empty, and the credit of the government nearly exhausted; that moneyed institutions had advanced so largely of their means that they had been compelled to suspend specie payments. An immediate necessity was pressing. The amount then due the soldiers in the field was nearly a score of millions of dollars. The requisitions for supplies exceeded $50,000,000, and the current daily expenditure was over $1,000,000. "The entire amount of coin in the country, including that in private

hands, as well as that în banking institutions, [ Mr. Justice Bradley, writing a concurring was insufficient to supply the need of the opinion (same case) said: government three months, had it all been "The state governments are prohibited from poured into the treasury." Therein Mr. Jus-making money or issuing bills. Uniformity of tice Strong further said:

"The Constitution was intended to frame a government as distinguished from a league or compact, a government supreme in some particulars over states and people. It was designed to provide the same currency, having a uniform legal value in all the states. It was for this reason the power to coin money and regulate its value was conferred upon the federal government, while the same power as well as the power to emit bills of credit was withdrawn from the states. The states can no longer declare what shall be money, or regulate its value. Whatever power there is over the currency is vested in Congress. * The Constitution does not ordain what metals may be coined, or prescribe that the legal value of the metals, when coined, shall correspond at all with their intrinsic value in the market. Nor does it even affirm that Congress may declare anything to be a legal tender for the payment of debts. Confessedly the power to regulate the value of money coined, and of foreign coins, is not exhausted by the first regulation. More than once in our history has the regulation been changed without any denial of the power of Congress to change it, and it seems to have been left to Congress to determine alike what metal shall be coined, its purity, and how far its statutory value, as money, shall correspond, from time to time, with the market value of the

same metal as bullion.

* * *

* *

money was one of the objects of the Constitution. The coinage of money and regulation of its value is conferred upon the general government exclusively. That government has also the power to issue bills. It follows, as a matter of necessity, as a consequence of these various provisions, that it is specially the duty of the general government to provide a national currency. The states cannot do it, except by the charter of local banks, and that remedy, if strictly legitimate and constitutional, is inadequate, fluctuating, uncertain, and insecure, and operates with all the partiality to local interests, which it was the very object of the Constitution to avoid. But regarded as a duty of the general government, it is strictly in accordance with the spirit of the Constitution, as well as in line with the national necessities."

In an earlier case it was held that Congress having undertaken to provide a currency for the whole country, it could secure the benefit of it to the people by appropriate legislation; that to this end Congress could restrain, by suitable enactments, the circulation as money of any notes not issued under its own authority. Veazie Bank v. Fenno, 8 Wall. 533, 19 L. Ed. 482. And for the undoubted purpose of destroying the use of such notes as money, Congress enacted in 1867 (15 Stat. 6):

"Every national banking association, state bank, or banker, or asociation, shall pay a tax of ten per centum on the amount of notes of any town, city, or municipal corporation paid out by them."

"But the obligation of a contract to pay money is to pay that which the law shall recognize as money when the payment is to be made. If there is anything settled by decision it is this, and we do not understand it to be controverted. No one ever doubted that a debt of $1,000, contracted before 1834, could be paid by 100 eagles coined after that year, though they contained no more gold than 94 eagles such as were coined when the contract was made, and this, not because of the intrinsic value of the coin, but because of its legal value. The eagles coined after 1834 were not money until they were authorized by law, and had they been coined before, without a law fixing their legal value, they could no more have paid a debt than uncoined bullion, or cotton, or wheat. Every contract for the payment of money, simply, power to destroy such use. Much to the same is necessarily subject to the constitutional pow-effect is Juilliard v. Greenman, 110 U. S. 421, er of the government over the currency, whatever that power may be, and the obligation of the parties is therefore assumed with reference to that power.

"We have been asked whether Congress can

declare that a contract to deliver a quantity of grain may be satisfied by the tender of a less quantity. Undoubtedly not. But this is a false analogy. There is a wide distinction between a tender of quantities, or of specific articles, and a tender of legal values. Contracts for the delivery of specific articles belong exclusively to the domain of state legislation, while contracts for the payment of money are subject to the authority of Congress, at least so far as relates to the means of payment. They are engagements to pay with lawful money of the United States, and Congress is empowered

In Merchants' National Bank v. United States, 101 U. S. 1, 25 L. Ed. 979, the action was brought by the United States to recover such a tax. It was held that, as against the United States, a state municipality has no right to put its notes in circulation as money; that such use is against the policy of the United States; and that Congress had the

4. Sup. Ct. 122, 28 L. Ed. 204. And by an act of 1875 (Act Feb. 8, 1875, § 19 [U. S. Comp. St. § 6289]) state banks and state banking associations were required to pay a

like tax on the amount of their own notes used for circulation and paid out by them. Hollister v. Mercantile Institution, 111 U. S. 62, 4 Sup. Ct. 263, 28 L. Ed. 352. By reason of such taxation state banks of circulation ceased to exist in this state. State v. Franklin County Sav. B. & Tr. Co., 74 Vt. 246, 52

Atl. 1069.

After the enactments of 1862 and 1863, making treasury notes legal tender for the payment of debts, the federal Supreme Court, speaking through Mr. Chief Justice Chase,

(115 A.)

There were "two descriptions of lawful money, United States. The holdings in that case in use under the acts of Congress, in either of were followed in Bissell v. Heyward, 96 which damages for nonperformance of con- U. S. 580, 24 L. Ed. 678, and in Rives v. tracts, whether made before or since the pas-Duke, 105 U. S. 132, 26 L. Ed. 1031. sage of the Currency Acts, may be properly as sessed, in the absence of any different understanding or agreement between the parties. * When, therefore, it appears to be the clear intent of a contract that payment or satisfaction shall be made in gold and silver (coin), damages should be assessed and judgment rendered accordingly." Bronson v. Rodes, 7 Wall. 229, 19 L. Ed. 141; Butler v. Horwitz, 7 Wall. 258, 19 L. Ed. 149; Dewing v. Sears, 11 Wall. 379, 20 L. Ed. 189.

Specie payment was suspended by banks and by the United States Treasury, December 30, 1861. The first legal tender act was passed February 25, 1862, followed by others of similar import the same year and the next. Under the conditions existing then and thenceforth during the war period and for some years thereafter, paper currency was at a discount in gold, ranging from $97.68 in 1862, to $35.09 (the lowest), July But, as already observed, if a contract be 11, 1864. Although from the latter date onfor the payment of money, without any stipu- ward its valuation was in a state of fluctualation as to the kind of money, it is an engage- tion, the general trend was upward, resulting ment to pay with lawful money of the United in an act of Congress, passed in 1875, proStates, and may always be satisfied by pay-viding for the payment of treasury notes in ment with legal tender notes. This distinc-coin after January 1, 1879. With the retion is made in one of our own cases, in sumption of specie payment had accordingly, which is the further holding that in cases in- depreciation of paper currency ceased, and volving these different kinds of money and ever since that time such currency has been their use under the laws of the United States convertible into gold and silver at the will the decisions of the federal Supreme Court of the holder, its specie value being the same. are binding in authority upon this court. Townsend v. Jennison, 44 Vt. 315.

In The Steamship Telegraph v. Gordon, and the Propeller Mary J. Vaughn v. Gordon, In Thorington v. Smith, 8 Wall. 1, 19 L. 14 Wall. 258, 20 L. Ed., 807, an appeal in adEd. 361, the contract was for the payment miralty from the decree of a United States of Confederate notes, made during the Civil Circuit Court (decided in 1872), the libel War, the parties residing within the so- was for the loss of a large quantity of barley called Confederate States. It was held that by the negligence of the persons navigating this currency must be considered in courts the said propeller, or by the negligence of of law in the same light as if it had been the persons navigating the said steamboat, issued by a foreign government, temporarily or by their joint negligence. The barley was occupying a part of the territory of the shipped from a certain port in Canada. The United States; that contracts stipulating for estimate of the damages was made in the payment in such currency could not be re- currency of Canada, which was equivalent garded for that reason only as made in aid in value to the gold coin of the United of the war, and so should be enforced in States. It was admitted that the decree was the courts of the United States, after the solvable in legal tender notes, which were restoration of peace, to the extent of their then largely depreciated, but it was held by just obligation; that it is quite clear that the District Court, in which the suit was a contract to pay dollars, made between citi-brought, that this was an incident of the zens of any state of the Union, while main-suit in the forum where it was brought, taining its constitutional relations with the and the result was unavoidable. In the national government, is a contract to pay circuit court the same rule of damages was lawful money of the United States, and can- applied, but the decree gave the value of the not be modified or explained by parol evi- Canada currencey in legal tender notes. The dence; but that it is equally clear, if in any Supreme Court held that upon the rule of other country, coins or notes denominated damages applied by both courts as respects dollars should be authorized of different the kind of currency in which the value of value from the coins or notes which are cur- the barley was estimated, the libelants were rent here under that name, that in a suit entitled to be paid in specie or its equivalent; upon a contract to pay dollars, made in that that the decree under consideration presentcountry, evidence would be admissible to ed the same question which was decided in prove what kind of dollars was intended, and Knox v. Lee, one of the Legal Tender Cases, should it turn out that foreign dollars were where the court below instructed the jury meant, to prove their equivalent value in that in assessing the damages they might money of the United States; that the court take into account the fact that the judgment was clearly of the opinion that such evidence could be paid in legal tender notes, the corshould be received in respect to such con- rectness of which instruction was affirmed tracts, in order that justice be done between upon error. The suit of Knox v. Lee (decided the parties, and that the party entitled to be in 1871) was brought in the court below by paid in the Confederate dollars can recover the defendant in error, to recover the value their actual value at the time and place of certain sheep, confiscated as the property