more than there is between B and the bank on which the order check he holds is drawn. A countersigns and B indorses and payment is refused both. Neither A nor B can sue the bank because there is no privity of contract. Let us now suppose that A's countersignature and B's indorsement are forged and payment is made. Both have a right of action in tort for the conversion of their property, demand having been made upon the bank. Hence, if in fact the relation of the correspondent to the defendant in the principal case was as supposed here, the Court is accurate in its statements.

From what has been said it will be seen that it makes no difference under the facts of the principal case whether the countersignature on the check in question be the signature of a drawer or of an indorser. The bank is liable in both cases if it pays when such signature is forged. It is clear, however, that if the first supposition we have made is the real situation in the principal case the holder of the uncountersigned traveler's check is not "in the precise situation of the payee of an order check who holds it still unindorsed."

No authority directly in point can be found, but two decisions noticed are of interest.

The Supreme Court of Michigan refused to allow the plaintiff to recover on a traveler's check where the countersignature had a line drawn through it by the purchaser whose name appeared in the upper space. The Court said, "Checks of a like character to this one have come into very general use, especially by travelers. They are an ingenious, safe, and convenient method by which the traveler may supply himself with funds in almost all parts of the civilized world, without the hazard of carrying the money on his person. The company has the right to refuse to pay the check when it does not bear the countersign agreed upon. The owner of the check also has the right to insist that it shall not be paid when it is not countersigned as agreed. This check was not so countersigned, and for that reason the plaintiff cannot recover."

The Code of California provides that, "One who writes his name on a negotiable instrument other than as maker or acceptor and delivers it with his name thereon to another person is called an indorser and his act is called indorsement." In People v.

995

4 Samberg v. Adams Express Company, 136 Mich. 639, 99 N. W. 879. 5 Civil Code, Sec. 3108.

Prather, which arose under that statute, the information alleged that the defendant feloniously made and forged "a certain indorsement" of a traveler's check "by then and there indorsing thereon the name of A. Thompson." It was proved on trial that the defendant had written the name of A. Thompson on a traveler's check in the lower space left blank for the countersignature of the purchaser. It was held that this was an indorsement and that there was no variance."

PROXIMATE CAUSE IN CIVIL ACTIONS.

When a person has committed a wrongful act he is responsible for all the damage which is the natural and probable consequence of the wrongful act, whether such damage was in fact foreseen or not. All other damage is said to be remote and no liability attaches to the wrongdoer for such other damage, for the reason aptly stated in the case of Hoag v. Lake Shore, etc., Ry. Co., 85 Pa. St. 293, 298, that "a man's responsibility must stop somewhere". Damage is natural and probable when under the same or similar circumstances such a result was to have been reasonably expected by an ordinarily prudent man.2

Some of the courts have attempted to make a distinction between remote and proximate cause dependent upon whether or not the chain of events leading from the wrongful act to the damage complained of was broken by the intervention of some new and independent agency. The better doctrine and that supported by the weight of authority is that no such distinction should be drawn. The only difference which an intervening agency brings into the case is a greater complication in the facts. If the damage would not have resulted but for the new agency, then the original wrongdoer is not responsible unless he should have reasonably anticipated the intervention of such agency and the resulting damage. In other words, if the intervening agency

484;

6 139 Pac. 664.

1 Hill v. Winsor, 118 Mass. 251; Wetmore v. Lyman, 2 Root (Conn.) Randall v. Newson, 2 Q. B. D. 102.

2 Atkinson v. Goodrich Tr. Co., 60 Wis. 141, 50 Am. Rep. 352; Marble v. Worcester, 4 Gray (Mass.) 395.

3 A proximate cause is one which, in natural sequence, undisturbed by any independent cause, produces the result complained of. Behling v. S. W. Penn. Pipe Lines, 160 Pa. St. 359, 28 Atl. 777, 40 Am. St. Rep. 724.

with the resulting damage was a natural and probable outcome of the original wrongful act, the original wrongdoer is liable.*

Whether the damage complained of was a natural and probable consequence of the defendant's act is a question of fact for the jury," but whether there is any reasonable evidence of its being so, to go before the jury, is a preliminary question of law for the judge."

The Illinois Appellate Court for the First District, in the recent case of Hartner v. Boston Store,' held that the sale of a small rifle by the defendant to a boy fifteen years of age, in violation of an ordinance, was not the proximate cause of an injury to the plaintiff resulting from the discharge of the rifle by the boy. The court affirmed the action of the lower court in giving a peremptory instruction in favor of the defendant.

In the case

Similar cases have arisen in Iowa and Indiana. Poland v. Earhart, 70 Iowa 285, the defendant in violation of a statute, sold a revolver to the plaintiff's son, fifteen years old. The son by accident shot himself through the hand, and the plaintiff sued for the loss of his services. The defendant demurred to the petition and the court sustained the demurrer, holding as a matter of law that the defendant could not reasonably have anticipated that an accident would result from the handling of the revolver from the fact alone that the person to whom he sold it was a minor. In the case of Binford v. Johnston, 82 Ind. 426, the complaint alleged that the defendant, in violation of a statute, sold to two sons of the plaintiff, aged ten and twelve years, ball cartridges for use in a toy pistol; that the boys left the pistol loaded with one of the cartridges on the floor of their home,

4 Scott v. Shepard, 2 W. B1. 892, the "Squib Case"; Clark v. Chambers, 3 Q. B. D. 327; Lowry v. Manhattan Ry. Co., 99 N. Y. 158, 1 N. E. 608; Lane v. Atlantic Works, 111 Mass. 136; Pittsfield Cottonware Mfg. Co. v. Pittsfield Shoe Co., 72 N. H. 546, 58 Atl. 242.

5 Chapman v. Kirby, 49 Ill. 211; Hill v. Winsor, supra; Ehrgoth v. New York, 96 N. Y. 264 48 Am. Rep. 622.

Hoag v. Lake Shore, etc., Ry. Co., 85 Pa. St. 293; Gudfelder v. Pittsburgh, etc., Ry. Co., 207 Pa. St. 629; Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400; Cooley on Torts, 3rd. Ed., p. 111; Salmond, Law of Torts, p. 114. But see Henry v. St. Louis, etc., Ry. Co., which holds that where the facts are undisputed, the question whether a certain act is the proximate cause of the injury is one of law for the court.

7 No. 18804, March 9, 1914, reported in the 48 National Corporation Reporter, 345.

where a younger child, aged six years, picked it up and discharged it, inflicting a wound on one of the other boys from which he died. The plaintiff sued for loss of services, and expenses incurred in trying to save the wounded boy. The complaint was held good on demurrer, and the court held as a matter of law that the defendant was liable.

The conflict in these decisions, coupled with the fact that the prohibition of such sales by statute shows a realization that accidents are at least of possible occurrence, raises a doubt as to the wisdom of the court in the recent Illinois case and in the Iowa case in withdrawing the matter from the jury 'and deciding as a question of law that an accident is not the natural and probable consequence of such a sale. The very fact that there is a statute prohibiting such sales shows that in the judgment of those who made the statute such sales were so great a source of danger that the public welfare demanded their suppression; and the same question of public welfare would seem to sanction the courts in taking the position that a jury might find that the defendant should have reasonably foreseen such an accident, and the existence of such a statute seems sufficient to make the question one of fact for the jury.

MENTAL SUFFERING AS AN ELEMENT OF DAMAGE FOR BREACH OF

CONTRACT.

In the recent case of McConnell v. United States Express Co., decided by the Supreme Court of Michigan in March, 1914, the following facts were found:1 The plaintiff, a middle-aged woman who was just recovering from a long sickness, had planned to join a party of Cook tourists in New York, and with them to make the trip to Naples, principally for the purpose of restoring her health. She went to the defendant's office in Pontiac, Michigan, and arranged with the defendant's agent, one Burgis, to have her trunk, which contained her entire wardrobe for the trip, transported to the pier in New York, in ample time to catch the boat. Burgis promised to have it there on time, and knew of the character of the trip, and that it was very important that it should arrive, but it did not appear that he knew of plaintiff's recent illness or her specific purpose in making the voyage, or those mental

1 146 N. W. 429.

and physical peculiarities, upon which considerable stress is laid in the opinion. The trunk did not arrive in time, and the plaintiff was found to have suffered considerable physical inconvenience on the voyage over, as well loss of pleasure and mental anxiety and annoyance, as a consequence. The trial court allowed the jury to award damages for this mental suffering, and on appeal its judgment was affirmed by an evenly divided court, four judges voting for affirmance, and four for reversal. The precise point of contention was as to whether or not such damages were in the contemplation of the parties at the time of making the contract, and the judges who voted for affirmance held that they were. In order to appreciate the significance of this holding, a somewhat extended review of the cases becomes necessary.

Any analysis of the elements of damage recoverable in actions for breach of contract must start with the case of Hadley v. Baxendale, which defined the damages to be "such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it", and which has universally been recognized as laying down the proper rule.2 Annoyance, vexation, and mental suffering, however, were at first, with only one exception, never held to have been in the contemplation of the parties. This exception was made in breach of promise cases, and the reason given was that such contracts dealt primarily with the feelings and sensibilities of the parties. Then it began to be felt that certain other classes of contracts also dealt primarily with the feelings, or at least that this element was sufficiently prominent to justify the courts in holding that here, too, mental suffering was fairly within the contemplation of the parties. Chief among these were the so-called "social telegram" cases, where either the sender or sendee was suing ex contractu for breach of duty in failing to transmit a death message with sufficient promptness. It should be noted here that all the cases of this class which are quoted later were cases where the cause of action was treated by the court as contractual, although in some of them the sendee of the message was suing. One or two treated the sender as the agent of the sendee to deal with the company, while others seemed to regard the sendee as the real party in interest, or beneficial plaintiff. In

29 Exch. 341.

3 Coolidge v. Neat, 129 Mass. 146.