Page:The Green Bag (1889–1914), Volume 18.pdf/198

 NOTES OF RECENT CASES would establish a justification for dismissal, and the question whether the misconduct that was proved established the right to dismiss, must depend upon facts and was a question of fact. That being so, the question could only be tried by a jury. In cases, however, where a trial must take place in that manner, the judge had impor tant duties to fulfil. He could say whether there was any evidence to submit to the jury in support of a defence of justified dismissal, and if no such evidence had in his opinion been given he should not submit any issue in respect of these allega tions. The judge also might direct guide and assist a jury. Thus he might direct them by informing them of the nature of the acts that in law would justify dismissal; he might guide them by calling their attention to the facts material to the determination of the issues raised, and he might assist them in a manner and to an extent that could not be defined. There had been judges who had exercised the power of addressing a jury in terms of apparent impartiality, and yet of placing before them views which seldom failed to secure the verdict that was desired by the judge. In the case of " Horton v. McMurtry" (5 H. & N. 667), Sir Frederick Pol lock pointed out that it was for the jury to decide whether there was a proper ground of dismissal, but whenever it was a matter of law, his opinion was that the ground of dismissal Hn that case was good. The Court of Appeal held further that the trial judge was correct in submitting that issue of fact to the jury. The case now reported was sent back for a new trial on another ground. MUNICIPAL CORPORATIONS. (License Tax — Telephones.) Wis. — An interesting case, in volving the licensing power of municipal corpo rations, is that of Wisconsin Telephone Company against the City of Milwaukee, 104 Northwestern Reporter, 1009. The statutes of Wisconsin (Rev. St. 1898, § 1778) grant to telephone companies the right to construct and operate lines on the public highways. Under this statute it is held that a city authorized by its charter to control and regulate streets and to prevent the incumbering thereof, has no authority to exact a license irom a telephone company, constructing and maintaining lines in the streets of the city, but is only authorized to impose on the company con ditions within the power expressly granted by the charter and its general police power. Hence an ordinance imposing a license tax upon a tele phone company, providing that the revenues de rived from the license should become a part of the general city fund and containing nothing

to indicate that the license was for supervision, the aggregate amount sought to be collected being greatly in excess of the expense of supervision, was a revenue measure and void. NEGLIGENCE. (Telegraphs — Mental An guish.) If. C. — The North Carolina Supreme Court already committed to the doctrine first announced in Texas that there may be a recovery for mental anguish caused by failure to properly transmit and deliver a telegram, makes further application of the principle in Dayvis v. Western Union Telegraph Co., 51 Southeastern Reporter, 898. Inasmuch as the general principle had been previously settled in this state by a number of cases cited by the court in its opinion, to wit: Young v. Telegraph Co., 107 N. C. 370, n S. E. 1044; Sherrill v. Telegraph Co., 109 N. C. 527, 14 S. E. 94; Kennon v. Telegraph Co., 123 N. C. 232, 35 S. E. 468, the chief interest arises from the precise nature of the message which was de layed. In fact, the difference of opinion among the members of the court grows from the ques tion whether the delay of such a message could cause mental anguish. Plaintiff's wife missed a certain train on which her husband expected her to arrive, and sent a message to him stating that she had missed the train and would arrive on the next day. She informed the operator that she and her two chil dren, who were ill, had missed their train and that her husband was to meet her, and would be worried unless he got the message. The husband testified that he knew that the wife had only money enough to make the trip without delay, and that he suffered great distress and mental anguish by reason of uncertainty as to the where abouts of his family. These facts, the Court decided to be sufficient to sustain a claim for men tal anguish on the part of the husband, and to show that the telegraph company had notice that if the message was not delivered and the husband was thereby left in ignorance of the con dition and of the whereabouts of his wife and children, it might result in actionable suffering and mental anguish The dissenting opinion of Brown, J., is based on the contention that failure to receive the mes sage could not have resulted in mental anguish, and draws a distinction between anguish and mere anxiety, intimating that no recovery can be had for the latter. PERSONS. (Slaves — Legitimacy.) Ala. — An unfortunate but apparently unavoidable deter mination as to the legitimacy of children born of slave parents prior to the war is contained in