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The agreement must be performed, and fore- can judge of the qualifications of learning and closure then follows as an incident of the legal skill wbich be possesses. Reliance must be ownership. The remedy by foreclosure applies placed upon the assurance given by his license, therefore to a deposit of title deeds, since this is issued by an authority competent to judge in that treated as an agreement to execute a legal mort respect, that he possesses the requisite qualificagage, though, as was held in Carter v. Wake, no tions.' If the defendant in the case at bar obsuch agreement is implied upon a pledge of chat tained his certificate to practice medicine by mistels, and the only remedy is by sale. In that case representation and fraud in palming off upon railway bonds were treated as chattels, and an the State board of health a diploma issued order for foreclosure was refused. In the present by Laval University to another as one that was case of Harrold v. Plenty, Cozens-Hardy, J., bas issued to bimself, he is guilty of conduct likely placed share certificates upon a different footing, to deceive and defraud the public by inducing and has beld that the deposit of such certificates the public to believe that he is lawfully entitled by way of security implies an agreement to exe to practice medicine.by reason of the possession cute a transfer by way of mortgage, and there is of qualifications that would honestly entitle bim consequently the right of foreclosure. It may be to the certificate. That such conduct would be noticed that the nature of the right of foreclosure grossly unprofessional seems to us too plain to was discussed also in Sadler v. Worley, 42 W. R. require argument. The contention that the gross 476 (1894), 2 Ch. 170, wbere it was held to be inci. unprofessional conduct must occur after the dent to a charge on land created in favor of de granting of the certificate to practice bas no apbenture-bolders, though it is not incident to a plication here, for the deception and fraud that charge created by will. Re Owen, 43 W.R. 55 was initiated at the granting of the certificate. (1894), 3 Ch. 320.

was kept up and continued every time he prac

ticed medicine in this State under the pretended CONSITUTIONAL LAW-PHYSICIAN'S LICENSE

authority of a fraudulently obtained certificate. REVOCATION BY STATE BOARD.-The constitu

“The third ground for the motion to quash is tionality of laws establisbing State boards of

because § 5, ch. 105, Gen. Laws R.I., is uncopstihealth, having power to issue and revoke licenses

tutiopal, in that it conflicts with $ 1, art. 10, of for the practice of medicine, are upbeld in a the constitution of the State. Tbat section prostrong opinion by the Supreme Court of Rhode vides that the judicial power of this State shall Island, in the case of State Board of Health v. be vested in one supreme court and in such inRoy, 48 Atl. Rep. 802. In this case the board of ferior courts as the general assembly may, from health revoked the license of a practicing phy.

time to time, ordain and establish; the contention sician for wbat it deemed grossly unprofessional

being that the State board of health is not a conduct. The defendant contested the revoca- |

court, and that the powers granted to it in Gen. tion of his license on the ground, first, that the Laws R. I. cb. 165, § 5, are judicial powers. said board bad no jurisdiction to try defendant Wbile, perhaps, there may be force in the conon said charge. The court said:

tention that the State board of health is not “We do not think the defendant's motion strictly a judicial body, yet we do not deem it should be granted upon this ground. In Dent v. necessary to decide that question here; for, even West Virginia, 129 U. S. 114, 122, 9 Sup. Ct. Rep. if it is not a judicial body, it does not follow, in 231, 32 L. Ed. 623, the court says: Tbe power of our opinion, that the act is unconstitutional. the State to provide for the general welfare of Statutes similar to the one under consideration, its people authorizes it to prescribe all such regu restricting the practice of medicine to persons lations as, in its judgment, will secure or tend to who are able to demonstrate their qualifications, secure them against the consequences of ignor bave been held constitutional, as a proper exerance and incapacity, as well as of deception and cise of the police power of the State, in very many fraud. As one means to this end, it has been States of the Union, as well as in the Supreme the practice of different States from time imme. Court of the United States. See State v. Webmorial to exact in many pursuits a certain degree ster, 150 Ind. 607, 616, 50 N. E. Rep. 750, 41 L. R. of skill and learning upon wbich the community A. 212, where the cases bave been collected. In may confidently rely, their possession being gen this last named case the Supreme Court of erally ascertained upon an examination of parties Indiana, in referring to the State board of medby competent persons, or inferred from a certifi ical registration and examination of that State, cate to them in the form of a diploma or license said (page 621, 150 Ind., page 755, 50 N. E. Rep. from an institution established for instruction on and page 218, 41 L. R. A.): “While in some the subject, scientific or otherwise, with which respects quasi judicial, the action of the board is such pursuits have to do. * * * Few profes not judicial, any more than is the action of a sions require more careful preparation by one county surveyor in fixing a boundary line, or of a who seeks to enter it than that of medicine. * * * county superintendent in giving or refusing a The physician must be able to detect readily the teacher's certificate, or the action of numberless presence of disease, and prescribe appropriate other officers or boards in making investigations remedies for its removal. Every one may have or decisions in matters committed to them. occasion to consult him, but comparatively few | Neither is the circumstance that an appeal is allowed from a decision of the board an indication

tract was due to unforseen accidents to the that its action is judicial. The right of appeal

company's lines, or to a rule requiring mesfrom the action of boards in tbeir administrative character," it was said by this court in

sages to be transmitted in the order of their Board v. Heaston, 144 Ind. 583, 41 N. E. Rep. receipt.3 Where, however, the dispatch upon 457, 43 N. E. Rep. 651, 55 Am. St. Rep. 192, "is its face indicates that it is a commercial mesfrequently conferred by statute. The appeal in

sage, that serious loss may result through such cases is not permitted because the action of

failure of prompt transmission, and the comthe board is considered judicial, but it is granted as a metbod of getting the matter involved before a

pany is so informed, it is liable for any damcourt that it may be determined judicially.""' Even age that may result by reason of negligent if the State board of health is only an administra delay in sending the message. But the tive board, and not a court, we see nothing ob sender must furnish such information to the jectionable, on constitutional grounds, to the

telegraph company, it is not sufficient that it method provided in said chapter 165, for getting

be furnished by the addressee. Wbere ibe the matter involved before a court that it may be determined judicially. The way provided to

face of the message does not indicate that determine, in the first instance, whether a trial delay may result in loss to the sender, and before the appellate division of the supreme such information is not furnished to the telcourt is desired, is speedy and inexpensive. He

egraph company by the sender, only nominal whose application for a license has been re

damages may be recovered for failure of fused, or whose license is proposed to be revoked, can have a judicial trial without terms or condi

prompt transmission. Where no pecuniary tion, by taking an appeal, which is practically

loss results from the failure of the telegraph for the asking, and then bis case is tried in full company to fully and properly perform its before the highest court in the State. If the

contract, but the injury sustained is purely State board of bealth decides in his favor he

mental, quite another question is presented, gets all he asks, with little trouble and expense.

and the cases evidence two distinct lines of If the decision is not in his favor he gets for the asking a trial before the highest tribunal in

decision. Shearman and Redfield in the work the commonwealth. It is difficult to see how upon Negligeable lay down the following his rights could be better protected."

rüle: “In case of delay or total failure of

delivery of messages relating to matters not LIABILITY OF TELEGRAPH COM. connected with business, such as personal or PANIES FOR ERROR OR DELAY IN

domestic matters, we do not think that the TRANSMISSION OR DELIVERY.

company at fault ought to escape with mere

nominal damages on account of the want of It may be laid down as a general rule that strict commercial value in such messages. the highest degree of care is not required of Delay in the announcement of a death, an a telegraph company in the transmission and arrival, the straying or recovery of a child, delivery of telegraphic messages. It is, how. and the like, may often be productive of an ever, essential that ordinary care be exercised injury to the feelings which cannot be easily by its agents, operators and employees.1 estimated in money, but for wbich a jury The engagement of a telegraph company with should be at liberty to award fair damages. its customers is that each message shall be | Yet in such cases the damages ought not to transmitted and delivered with reasonable be enhanced by evidence of circumstances care and dispatch under the existing circum which could not reasonably have been anticstances of the particular case;? and unless a ipated as probable from the language of the special contract securing insurance is se message.” cured, those using the telegraph must accept Out of this statement grew the Texas rule losses sustained by reason of error, delay, or as to the liability of telegraph companies in even total failure of transmission and deliv damages for mental pain occasioned by failery arising from such accidents or obstruc ure or delay in the transmission and delivery tions as telegraph lines may be subjected to. of telegraphic messages. Briefly stated, the So a prima facie case of negligence may be

3 Dorgan v. Tel. Co., 1 Am. L, T. (N. S.) 406. rebutted by proof that the delay or failure of 4 Dorgan v. Tel. Co., supra. the telegraph company to perform its con

5 Belun v. W. U. Tel. Co., supra.

6 Shearman & Redfield, Neg. sec. 605. i White v. W. U. Tel. Co., 14 Fed. Rep. 710.

7 Chapman y. W. U. Tel. Co. (Tex.), 13 S. W. Rep. 2 Belun v. W. U. Tel. Co., 4 Cin. L. Bul, 334.

| 880.


rule may be said to be as follows: Mental is certainly policy to restrict in so far as posanguish or pain may constitute an element of sible actions, the losses of which are in such actual damage, in an action against a tele- a measure shadowy and uncertain. If suits graph company for failure to deliver a mes. of this nature be recognized who shall define sage, for which compensation may be recov the limits of their existence? Granted that ered upon breach of contract, where such in actions ex delicto the wrongdoer is liable anguish is the direct and natural result of for the natural and probable consequences such breach, and provided the defendant of his wrongful act, but in such cases as was put upon inquiry as to the likelihood of these by what standard are the damages to such mental anguish resulting from failure be measured ? or delay in the performance of the contract. As to the right of the sender to recover But such damages are to be strictly compen damages for mental suffering occasioned by satory, and exemplary damages will lie only reason of the failure of a telegraph company in cases where the breach of contract com- | to promptly transmit and deliver his mesplained of is willful, wanton or malicious.' sage, where the Texas rule is followed no So following this rule it bas been held that doubt can exist. In Alabama it has been where the dispatch delivered for transmis held that where the face of the dispatch sion sets the telegraph company upon inquiry plainly suggests the necessity for prompt deas to the near relationship of the persons to livery, the sender's mental anguish is an elewhom it referred, and to whom it was ad ment for which he may recover damages in dressed, it is sufficient to apprise the com an action against a telegraph company for pany tbat mental suffering is likely to result the delay in the delivery of such telegraphic. from a failure to transmit the message with message.12 Until recently the Indiana courts diligence, and the telegraph company will be permitted such recovery, not because of the liable in damages for mental pain and anguish mere breach of contract, but because of the resultant upon its failure to promptly per failure of the telegraph company to perform form its contract.10 While some cases may a duty which rests upon it as a servant of be found permitting the addressee in such the people.13 But in the case of the W. U. cases to recover damages against the tele- Tel. Co. v. Ferguson, 14 this decision has graph company for mental suffering in an been overruled, the court holding that the action in tort independent of the right of the principle upon which it was based was sender to sue in contract," a more conserva totally foreign to the law. In Illinois the tive reading of this line of decisions would courts while evincing a leaning toward the seem to indicate that upon this point some Texas rule have inclined to a more condoubt exists. It is questionable whetber the servative view, and have held tbat the sender tort is not merged into the breach of contract of a telegraphic message may recover nomor at least so closely resultant upon it that it inal damages at least for the mental sufferforms a part thereof. Certainly there can be ing sustained by reason of the failure of the no privity of contract between the telegraph telegraph company to promptly deliver such company and the addressee, and it would message.15 The primary objection to perseem that, apart from the duty it owes the mitting recovery in damages for injuries of general public in its churacter of quasi-pub this kind must lie in the fact that the wrong lic servant, it is under no obligation to the sustained is necessarily of such a nature as addressee to properly and promptly transmit to be, to a certain extent at least, shadowy and deliver the dispatch, hence is no way and uncertain. The grief of the one man liable in damages to the sendee for mental cannot be measured by that of another. It pain consequent upon its failure to do so. It is indeed questionable whether the damages

sustained can properly be assessed, or their 8 Loper v. Tel. Co., 70 Tex. 689; Tel. Co. v. Simp monetary value estimated. It is obvious son, 73 Tex. 422. 9 Relle v. Tel. Co., 55 Tex. 308; Tel. Co. v. Cooper,

that there can exist no true legal basis for 71 Tex. 507; Tel. Co. v. Broesche, 72 Tex. 422.

10 Tel. Co. v. Moore, 76 Tex. 66; Tel. Co. V. Adams, 13 W. U. Tel. Co. v. Henderson, 89 Ala. 510.
75 Tex. 531; Tel. Co. v. Feegles, 75 Tex. 537; Tel. Co. 13 Reese v. W. U. Tel. Co., 123 Ind. 294,
v, Kirkpatrick, 76 Tex. 217.

14 59 N. E. Rep. 416. Il Stewart v. W. U. Tel. Co., 66 Tex. 580.

15 Logan v. Tel. Co., 84 III. 468.

an action ex contractu by the addressee, in course of things—from such breach of consuch cases; in an action ex delicto, if the tract itself, or such as may reasonably be damages be by reason of their nature, not supposed to bave been in the contemplation assessable public policy, it would seem of both parties at the time they made the should probibit recovery. The sender's | contract, as the probable result of the breach remedy is properly in an action for the of it. Now, if the special circumstances breach of the contract, where the mental under which the contract was actually made pain might be adduced in evidence to en. were communicated by the plaintiffs to the hance the measure of damages. It is, how. defendants, and thus known to both parties, ever, essential in such cases, that the tele the damages resulting from the breach of such graph company be notified, or at least put contract which they would reasonably contemupon such inquiry as would constitute pre plate, would be the amount of injury wbich sumptive knowledge, that damages of this would ordinarily follow from a breach of concharacter are likely to result from its failure tract under these special circumstances so to properly and promptly transmit and de- known and communicated. But, on the other liver such message. If this be not the case, hand, if these special circumstances were no true construction of the law of contracts wholly unknown to the party breaking the can permit the injured party to introduce in contract, he, at the most, could only be supevidence injury to the feelings, for the purpose posed to have had in his contemplation the of enhancing the award of damages, in an amount which would arise generally, and in action for the breach of a simple contract. The the great multitude of cases not affected by Texas rule, in some insta with certain any special circumstances from such breach modifications, has been followed by the tri of contract.” A ruling that has been so bunals of South Carolina, 16 Tennessee?? and generally followed by our own courts that it Kentucky ;18 and expressly dissented from by constitutes an integral part of our telegraph those of Kansas,19 Dakota 20 Mississippi, 21 law. 29 In Indiana, a statutory penalty for failMissouri, 22 Florida, 23 Wisconsin,24 Minne ure of prompt transmission and delivery bas sota25 and by the Federal Courts of Arkan. been enacted, and it has been beld that a telesas28 and Georgia.27

graph company cannot defend such an action The true rule for the recovery of damages on the grounds that the contents of the teleby the sender against a telegraph company, gram related to an apparently illegal transacfor the latter's failure of prompt and accu- tion, provided it was not designed to promote rate transmision and delivery, is that laid the commission of a crime or a tort.30 down by Baron Alderson in the well-known The liability of a telegraph company for the case of Hadley V. Baxendale:28 “Where delivery of an altered telegraphic message pretwo parties have made a contract which one sents several questions of interest, the decisof them has broken, the damages which the ions being, in a measure, in conflict. The other party ought to receive in respect of | English rule would seem to be that damages such breach should be such as may fairly can be obtained by the sender alone and that, and reasonably be considered either arising since the injury is one growing out of the naturally, i. e., according to the natural breach of contract, damages can be awarded

only in an action ex contractu.si Where this 16 Young v. Tel. Co., 107 N. Car, 370; Sherill v. Tel.

view is taken it is obvious that all recovery Co. (N. Car.), 14 S. W. Rep. 94. 17 Wadsworth v. Tel. Co., 86 Tenn. 695.

by the addressee is barred, since there can be 18 Chapman v. Tel. Co. (Ky.), 13 S. W. Rep. 880. no privity of contract between the telegraph 19 West v. Tel. Co., 39 Kan. 93.

company and the sendee.32 At least one 20 Russell v. Tel. Co., 3 Dak. 315. 21 Tel. Co. v. Rogers, 68 Miss. 748. 22 Connell v. W. U. Tel. Co., 37 Cent. L. J. 61.

29 Tel. Co. v. Hall, 124 U, S. 444; Tel. Co. v. Gilder. 23 International Ocean Tel. Co. v. Sanders, 14 South. sleve, 29 Ind. 232; Baldwin v. Tel. Co., 45 N. Y. 744, Rep. 148.

et seq.; Hart v. Cable Co., 86 N. Y. 633. 24 Summerfield v. W. U. Tel. Co., 57 N. W. Rep. 30 Grey v. W. U. Tel. Co., 13 S. E. Rep. 562; Tel. 973.

Co, v. Ferguson, 57 Ind. 495. 25 Francis v. W. U. Tel. Co., 39 Cent. L. J. 355.

31 Playford v. Tel. Co., Allen Tel. Cas. 437; Henkal 26 Crawson v. Tel.Co., 47 Fed. Rep. 544.

v. Pape, Id. 567. 27 Chase v. Tel. Co., 44 Fed. Rep. 554.

82 Grey Com, Tel., sec. 68, 104 et seq.: Pepper v. 28 9 Exch. 354, 355.

Tel, Co., 87 Tenn. 554; Bigelow, Torts, pp. 621-626.

case, however, is to be found wherein it is company the agent of either sender or ad. beld that the party interested in the dis dressee, its liability to either, or both, is patch, whether sender or sendee, is the real solely as pincipal.36 The question is not contracting party, and such person may re- one concerning the equitable rights of the cover against a telegraph company when it parties, but rather demands the proper conbas delivered an altered message to his detri sideration of well known and applicable ment.35 In still another decision, the court rules of law. beld the telegraph company to be Chicago. G. C. Hamilton, LL. M. agent of both sender and addressee and permitted both to recover in con 36 Sbingleur v. W. U. Tel. Co. (Miss.), 18 S. W. tract for the delivery of an altered mes.

Rep. 425; Tel. Co. v. Brown (Ind.), 8 N. E. Rep. 171;

Tel. Co. v. Hope, 11 III App. 289; Cooley, Torts, pp. sage.34 Another line of decisions permits

103, 104; Rich v. R. R. Co., 87 N. Y. 382. the addressee to recover damages in an action in tort, against a telegraph company for the wrongful injury to him and the conse

CONTRACT-CONSIDERATION-FORBEARquent loss sustained by reason of the deliv

ANCE. ery of an altered telegraphic message, be PRICE v. FIRST NAT. BANK OF ATCHISON. cause of the public duty which a telegraph

Supreme Court of Kansas, April 6, 1901. company owes to any one beneficially interested in the message.36 The entire question

1. An agreement to forbear and forbearance to is.

sue execution upon a judgment wbich clearly bas no is full of extremely interesting possibilities. legal existence, and upon which no execution could Many cases may arise where the sender of a lawfully issue, is not a sufficient consideration for a telegraphic message suffers absolutely Do

new promise on the part of a supposed judgment

debtor. injury, no material loss, by reason of altera

2. In such case, an assignment, as collateral se. tions in a telegraphic dispatch which he bas curity, of an insurance policy upon the life of a hus. originated, the entire damage being to the

band, made through a mistake of the law by the wife, addressee; still others may be presented,

the beneficiary therein, cannot be upheld, when the

assignment, in legal effect, provides that the prowhere the error, or negligence, of the tele ceeds of the policy shall be applied to the payment of graph company's agents or operators entails the amount justly due upon such judgment. The injury to both sender and sendee, in equal

judgment having been extinguished, nothing is due

upon it, and the insurance money cannot be applied or varying proportions. Where the sender

by the assignee in substantial compliance with the alone is damaged, the question presents terms of the contract. little or no difficulty ; what may, however, It appears by the record that, in 1890, John M. be considered the true rule governing all Price and his wife were indebted to the First cases of this nature? A conservative view National Bank in about the sum of $10,000. On of the decisions would seem to indicate that

July 10th of that year Price and wife executed to

the bank two renewal notes therefor, and cona telegraphic company is liable for damages

veyed by deed to David Auld, in trust for the sustained by reason of the delivery of an

bank to secure said renewal notes, several paraltered telegraphic message: 1. To the cels of real estate in the city of Atcbison and sender, either for breach of contract or in an vicinity. In the fall of 1893 the bomestead prop-' action in tort, there can be do such merger

erty of Price and wife, wbich was not included

in said deed, had been sold for delinquent taxes, of the tort unto the contract as to inbibit

amounting at that time to about $1,200, on which recovery ex delicto and compel recovery ex

sale a deed was due in September, 1893. Price contractu: 2. To the addressee in tort for went to the bank to borrow money to pay off the the injury sustained. The failure of the debts against said homestead. The bank finally telegraph company to perform a duty owed

offered to loan bim $3.200 in cash, and thereafter to the public forms no true part of the ques

to loan him $600 more upon condition that be

should include the homestead, which was worth tion at issue provided no statutory liability

about $10,000, to the security for the new loan, is imposed. In no case is the telegraph and should also make said homestead liable for

the old loan, and in addition thereto should as33 De Rutte v. Tel. Co., 30 How. Pr. 403.

sign to the bank the policy in controversy in this 34 Dryburg's Case, 35 Pa. St. 298.

action. Tbat assignment was made and the pol85 Rose's Case, Allen Tel. Cas. p. 340; Allen's Case,

icy was delivered to the bank by John M. Price 66 Miss. 549; Thompson Elec., secs. 427-8; Grey Com.

on the 19th day of January, 1894, at which time Tel., sec. 78.

I the bank paid to Price the $3,200, less the amount

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