Page:The Green Bag (1889–1914), Volume 06.pdf/118

 Rh who carries his merchandise with him, and disposes of and delivers it as he travels. A peddler is one who travels about with merchandise for the purpose of selling it; but a person in the service of a resident business establishment, who goes about the city carrying samples of goods kept for sale by his employer, and solicits orders to be filled by his employer, is not a peddler, and is not subject to punish ment as a peddler, under a city ordinance requiring ped dlers to take out licenses (City of Davenport v. Rice, 75 Iowa, 74). A commercial traveler, who simply exhibits samples of goods kept for sale by his principal, and takes orders for such goods, to be delivered by his principal, to whom payment is to be made, is not a peddler (City of Kansas v. Collins, 34 Kan. 434). The Supreme Court of Illinois held in Emmos v. City of I<ewistown (122 Ill. 380; 22 Am. St. Rep. 540), that a book canvasser, who solicits subscriptions for books for future delivery, is not a peddler, and cannot be required to take license, under authority given to the town to license hawkers and peddlers. One who goes about a village, conveying samples and taking orders for a non-resident firm, is not a hawker or peddler (Supreme Court of Illinois, in Village of Cerro Gordo v. kawlings, 25 N. E. Rep. 4006). A person who has a store, and travels through the adjoining country, soliciting orders, which he afterwards fills, is not a peddler, within the meaning of the statute prohibiting sales without a license by a hawker, peddler, or traveling merchant (Supreme Court of Pennsylvania, in Com. v. Eichenburg, 21 Atl. Rep. 258). The rule to be drawn from the reported cases is, that to subject a person to the penalties denounced against unlicensed hawkers, peddlers and itinerant vendors of merchandise, it must be shown that he carries his goods with him for sale, or has them sent from place to place, and disposes of them as he travels. That, in my judgment, is necessary to constitute a hawker, peddler or itinerant ven dor, within the meaning of our statute. In Com. v. Ober, 12 Cush. 493, Chief Justice Shaw said, that to bring the acts of the defendant within the prohibition of the statute, there must be the essential characteristics of carrying goods about for sale, offering them to purchasers, fixing the prices, or receiving payment." This decision is sustained by Ex parte Taylor, 58 Miss. 498; 38 Am. Rep. 336, and in Higgins v. Rinker, 47 Tex. 402, it was held essential to a "peddler" that he carry his goods about with him. Hut in Graffty v. City of Rushville, 107 Ind. 502; 57 Am. Rep. 128, it was held that one who goes about from house to house soliciting orders for the purchase of goods to be delivered in the future, is a "hawker or peddler." See note, 57 Am. Rep. 136.

Assault by Milkman. — That case of the milk man who entered his customer's bedroom and woke him up to dun him for a milk bill, which has been so much quoted in the newspapers, is Richmond v. Fiske, in the Massachusetts Supreme Court, in October last. The following was the agreed state ment of facts : —

97

"Plaintiff was in the rightful possession of a tenement on the second floor of No. 152 Hancock Street, Spring field. His tenement was reached by a flight of stairs, at the head of which was a door opening into a hall twelve or fifteen feet long, at one end of which a door opened into the kitchen, and at the other end a door opened into plaintiff's sleeping room. The hallway was part of the plaintiff's premises, and the outer entrance was about midway of its length. Defendant was a milkman, in the employ of the Springfield Milk Association, and he de livered milk to plaintiff at an early hour every morning. The hall and kitchen doors were left unlocked, so that defendant could enter, and leave the milk in the kitchen. For some time prior to the act complained of, defendant had, with plaintiff's permission, occasionally entered plaintiff's sleeping room, through the door from the hall, for the purpose of collecting the milk bills. Prior to the alleged trespass, plaintiff had forbidden defendant entering the sleeping room any more, and requested him to keep out. On the morning in question, after a night of suffer ing from sick headache, the plaintiff had dropped off into sleep, when defendant, entering the sleeping room from the hall, after having left the milk in the kitchen as usual, and finding plaintiff asleep, took hold of his arm and shoulders, and used sufficient force to awaken the plaintiff for the purpose of presenting a milk bill. If upon these facts defendant was guilty of a trespass, as alleged, plain tiff is to be awarded such sum for damages as to the Court shall seem just : otherwise, judgment is to be for defend ant."

The Court said : — "The declaration contains two counts — one for an assault and battery upon the plaintiff, and the other for forcibly entering the plaintiff's close. The agreed facts show that the defendant entered the plaintiff's close by his permission. The fact that after the defendant entered, by permission, through the outer door into the hall, he went, against the commands of the plaintiff, into the plaintilt's sleeping room, does not constitute a trespass upon the close (Smith v. Pierce, 110 Mass. 35). But the facts show a trespass upon the person of the plaintiff (Com. v. Clark, 2 Mete. Mass. 23). On the facts agreed, it must be taken that the defendant, against the express commands of the plaintiff, entered the plaintiff's sleeping room, and ' tuok hold of his arm and shoulders, and used sufficient force to awaken the plaintiff, for the purpose of presenting a milk bill.' If there were any circumstances which would justify this, they do not appear in the agreed statement of facts. Although the trespass is slight, the damages are not necessarily nominal, and they should be left to be assessed by the Superior Court. The judgment should be reversed, and, in accordance with the agreed statement, the plaintiff's damages should be assessed under the first count."

Negligence — Contributory — Riding in Show Car. — In Blake v. Burlington, C. R. & N. R. Co., Iowa Supreme Court (21 Lawy. Rep. Ann. 559), it was held that a member of a theatrical troupe, riding in the show car, does not, as a matter of law, assume