no

if

because of his failure to discover the peril. Many of the decisions, however that hold the defendant liable in the former case, do not rest upon the doctrine of "last clear chance," but upon the ground that the failure to exercise due care to prevent the accident after discovering the peril amounts to wilfulness or wantonness, against which contributory negligence is never a defence. On the other hand, many of the cases that deny the defendant's liability when the peril was not discovered, are really decided upon the ground that there was duty on the defendant's part to discover the peril. Such cases do not involve a denial of the applicability of the doctrine of "last clear chance" to an omission of a duty to discover the peril, since under the holding of the Court, there was no duty in the premises, and, therefore, no basis for holding the defendant liable, even the doctrine of contributory negligence were to be eliminated. By paying proper attention to the distinction just suggested, many of the cases upon the question as to a railroad company's liability for injuries to trespassers on the track who were chargeable with negligence in the first instance in getting into a position of peril, and who might have been, but were not actually, seen in time to avoid the accident, though diametrically opposed so far as concerns ultimate conclusions reached as to the company's liability, may be reconciled so far as the doctrine of "last clear chance" is concerned. Many of the cases that deny the company's liability under such circumstances do so upon the ground that there was duty on the part of the company to keep a lookout for trespassers, while the cases that hold the company liable, notwithstanding the trespasser's antecedent negligence, take the that the company was bound to keep a lookout for trespassers, including the trespasser in question, and then, by applying the doctrine of "last clear chance," avoid the effect of the doctrine of contributory negligence. Some of the cases that hold that the company is liable to keep a lookout for trespassers, and yet deny its lia

the

no

view

no

bility, may be reconciled with the doctrine of "last clear chance" because they rest upon the ground that, even if the trespasser had been seen in a place of danger, the engineer would have had the right to assume that he would get off the track in time to avoid the accident. Here, too, there is no opportunity or occasion for applying the doctrine, and therefore denial of its applicability to an omission of a duty to discover the peril, because the engineer would not have been chargeable with negligence in acting as he did, even if he had performed his duty to keep a lookout and had discovered the peril, and, therefore, the company would not have been liable even if the trespasser had been entirely free from negligence.

It must be admitted that the doctrine of "last clear chance," in the view of it here suggested, leaves for the solution of the Court, without any assistance from it, a difficult question, namely, the duty of the defendant in the premises; but that is exactly the same question that the Court would have to answer before it could hold the defendant liable if the plaintiff were not chargeable with contributory negligence, even under the unqualified doctrine, or if that doctrine were to be repudiated altogether.

As has already been suggested, in order that there may be an occasion or opportunity for the application of the doctrine of "last clear chance"or, at least, in order that it may be applied favorably to the plaintiff-the defendant's breach of duty must have intervened between the plaintiff's negligence and the accident. To make such a condition possible, it is obvious that the plaintiff's negligence must have ceased at some time before the defendant's. By paying proper attention to this element, some of the cases that, at first impression, seem to involve a denial of the doctrine of "last clear chance" may be reconciled with it. For instance, it is obvious that in many cases where the person injured was walking along a railroad track, or crossing the track at a highway crossing, he could, by the exercise of due care, have seen the approaching train and stepped from

a

the track into a place of safety after the train had reached point at which any effort on the part of the engineer to prevent the accident would have been ineffectual. If it be conceded that the engineer was guilty of negligence in failing sooner to discover the peril, so was the person injured, and it would seem that the latter, if he had used due care, would have had the last clear chance to avoid the accident. In the view most favorable to him, his negligence would be, at least, concurrent with that of the defendant up to the last instant at which the accident could have been avoided, and therefore the indispensable condition of an act of negligence on the defendant's part, intervening between the negligence of the injured person, and the accident is lacking, In many cases in which the conditions have been like those in the case supposed, the Courts have applied the doctrine of contributory negligence upon the assumption that the negligence of both parties was concurrent, without alluding to the doctrine of "last clear chance" or attempting to apply that doctrine in favor of the defendant. While it would not have affected the result at all, it would have promoted clearness if the Courts in such cases had either expressed their disapproval of the doctrine, if they did disapprove of it, or shown that, in the particular case, it did not apply because the negligence of both parties was concurrent, or that it applied against, and not in favor of, the plaintiff because he had the last clear chance. Some of the courts that have adopted the doctrine seem to have paid too little attention to this element of it. By devoting their attention to the existence of the other necessary element, namely, the existence of a duty and breach of duty on defendant's part after the plaintiff's negligence had commenced, to the exclusion of the question whether plaintiff's negligence continued until the very instant of the accident, or at least as long as the defendant's, they have been led to apply the doctrine so as to hold the defendant liable in cases where it would seem that the plaintiff, rather than the defendant, had

as

the last clear chance to avoid the accident. There is some conflict among the Courts which recognize the inportance of this element, as to the circumstances under which the plaintiff's negligence may be regarded having ceased before the accident. In North Carolina, for instance, it is now held that where a drunken trespasser lies down upon the railroad track his negligence is not to be regarded as continuing up to the instant he is struck by the train, but as culminating at the time he lies down on the track and loses consciousness, while in Texas, if the unconsciousness of the trespasser is due to intoxication, his negligence is regarded as continuing, but if it is due to a sudden paroxysm of disease, it is not so regarded. (Houston R. Co. v. Sympkins, 54 Tex. 615.)

When the doctrine is strictly confined to cases which present both of the elements here insisted upon, namely, the existence of a duty and breach of duty on the defendant's part after the commencement of plaintiff's negligence and the culmination or cessation of plaintiff's negligence before the defendant's, it will be observed that the criticism that is often passed upon the doctrine, that it in effect abrogates the doctrine of contributory negligence, is too sweeping. It is true that the doctrine, in a certain class of cases, operates to make the liability of the defendant the same, whether the perilous position of the person injured was due to his original negligence or not; but in the nature of things, the cases in which the negligence of the person injured may be regarded as having culminated and terminated before the defendant's, are of comparatively rare occurrence. Again, the doctrine of "last clear chance" leaves open to the doctrine of contributory negligence the entire field covered by cases in which the negligence of the plaintiff intervenes after the negligence of the defendant, as, for example, where the negligence charged against a railroad company consists of the failure to give the proper signals on approaching a highway crossing, and the person injured went upon

the track after the train

had passed the point at which the signals should have been given.

There is a decided tendency on the part of the Courts to apply the doctrine of "last clear chance," as herein defined and limited, to all omissions of duty on the defendant's part intervening between the plaintiff's negligence and the accident, whether those omissions of duty occurred before or after the discovery of plain

tiff's peril, and for reasons already stated, there is apparently no logical reason why it should not be so applied, if adopted at all.

In concluding, Mr. Kipling's version of the remarks addressed by Noah, while persuading the prototype of Mr. Davies' donkey to enter the ark, seems appropriate:

"Divil take the ass that bred you, And the greater ass that fed you."

As matter of principle, there is perhaps no good reason why the law should not allow damages for mental suffering caused by a wrongful act, when such suffering is unconnected with bodily injury or physical contact. But by the great weight of authority recovery may not be had in such a case. Freedom from liability does not rest on the theory that no injury has been done, or that such mental disturbance may not follow the act as a probable consequence.

Recovery is denied because distress of mind can be measured only by its physical effects; because it is impossible satisfactorily to administer any other rule. The difficulty last named has been experienced in those jurisdictions which allow recovery for mental anguish caused by negligence in the delivery of telegrams. This doctrine has given rise in those states to a great mass of speculative litigation, and has just been cast aside as impracticable by the Supreme Court of Indiana, which has applied it during the past twelve years. Telegraph Co. v. Ferguson, 60 R. E. 675.

In cases where there is no immediate personal injury, but where bodily illness follows as a result of sudden fright, some of the objections urged against recovery for fright alone fall to the ground. It has often been held that an action may lie for damage done by an animal frightened by a negligent act apart from physical contact. (1 Bevan on Negligence, p. 78.) Yet in the leading case on that point it was held that there could be no recovery where a defendant's negligence

caused reasonable terror and illness ensued. (Railway Co. v. Coultas, 13 App. Cas. 222) (1888.) This decision was handed down by the judicial committee, and hence is not binding on the English courts.

The doctrine announced has been repudiated in Ireland (Bell v. G. N. Railway Co., 26 L. R. Ir. 428 (1890), and has not been followed in the Queen's Bench Division. (Wilkinson v. Dounton (1897), 2 Q. B. 57.) In 1896 the rule of the Coultas case was adopted in New York, the court declaring that such injuries were too remote to be the subject of compensation. (Mitchell v. Rochester Ry., 151 N.Y. 107.) But inasmuch as the illness was directly traceable to the fright caused by defendant's act, the reason given is not wholly satisfactory.

In Massachusetts, where damages for mental distress have been allowed in the case of a trespass upon a burying ground (Meagher v. Driscoll), 99 Mass. 281 (1868), or of an illegal eviction from leased premises, Fillebrown v. Hoar, 124 Mass. 580 (1878), the Mitchell case has been followed, the court limiting the application of the doctrine to cases of negligence, (Spade v. Lynn Rwy., 168 Mass. 285 4897). So in two recent New York cases the Appellate Division has held that the Mitchell case does not apply to wilful torts, and has given damages accordingly. Preiser v. Weilandt. 48 App. Div. 569; Williams v. Underhill, 63 App. Div. 224.

The soundness of this alleged distinction is not apparent. Whether a

wrong be wilful or only negligent, the wrongdoer is liable for such injuries as flow naturally from his act. If damages for the results of mental distress caused by him are too remote in the one case, they must be so in the other. Moreover, if it is inconvenient to award damages for injuries resulting from shock or fright caused

by a negligent act, it must be equally inconvenient when the act is wilful. The objection as to the encouragement of speculative litigation applies to both classes of cases. It may be that the disposition to give punitive damages has misled the courts and brought this confusion into their decisions.

F. P. Walton,

The Scots Law and the Droit Civil Français are to a great extent derived from the same sources. It is not surprising, therefore, that there are many resemblances between them. Of direct borrowing by the one from the other there is little evidence. If we turn over Morison's Dictionary of Decisions-our great storehouse of old cases-we find an occasional reference to the French civilians. But far more frequent are the names of the great Dutchmen, Vinnius and John Voet. Their ponderous tomes were always at the elbow of the old Scots advocates. Leyden, where each of those worthies had in his day prelected, was a favorite resort of Scots students in the 17th and 18th centuries. Probably not a few of those who cited from Voet in the Scots court had themselves listened to his Latin lectures in Holland.

are

Pothier is, I suppose, the only French writer whose works are cited with any approach to frequency in our courts today. A witty judge to whom Balfour's Practicks was cited, is unofficially reported to have ejaculated, "Balfour's Practicks! Balfour's Fiddlesticks ! Equally scant respect would be shown to a citation from a French writer of that age. The modern French civilians altogether neglected in Scotland. This is partly because since the Union the authority of decided cases has become SO much greater than that of text-writers. It is partly also from a rather mistaken impression that a commentary on the French code wonld turn too much on the interpretation of particular words to be applicable to us. This is really not the case. The French commentators have never treated their codes as we treat statutes. The commentary is not a paraphrase to explain the literal meaning of the article. It is a historical account of

*This paper was read before the International Law Association at Glasgow, August, 1901.

the law upon the point, showing what was the intention of the codifiers. In some classes of cases useful suggestions for argument might be found in such admirable works as the commentaries of Messieurs Aubry and Rau or Monsieur Huc, to mention two out of many.

But, after all, considering that the Scots lawyer, nowadays, has by the aid of Digests and Indices to ransack the reports of more than three centuries, he may reasonably claim to be excused from finding out the views of modern continental writers. If the question has two sides the civilians will be divided. even though for once they were unanimous, the Scots court would not be relieved from the duty of making up its own mind upon the point.

And

The Scots law has long ceased to be a system of civil law in the same sense as the law of France, Germany or Italy. It is, first and foremost, a system of case law. I am aware that this statement rather shocks the Scots lawyer. It is true that in our institutional writers we have a large body of law which does not depend upon precedent. And the Lord Advocate at the discussion in Glasgow expressed the opinion that Scots lawyers were still more willing than their English brethren to argue cases upon principle, without regard to previous decisions. But I hardly think that his Lordship would dispute that the tendency is now and has long been in the other direction. The mass of cases is so great that some precedents can generally be hunted up, and the great majority of arguments upon questions of law now consist mainly in expounding the bearing of previous decisions.

Like the laws of Lower Canada and of Louisiana, the Scots law has been profoundly modified by the contact with the English common law. They have all borrowed from England the guiding rule of the authority of judicial precedents. A little observation of the working of both systems will convince one of the

The

great gulf which this at once creates between our law and the French or the German. Scotland, Quebec and Louisiana all have, if I may speak very roughly, a body of English commercial law, and all stand now midway between the common law system of England and America and the civil-law systems of Europe. Union with England changed the current of the history of our law. As Professor Dove-Wilson says, "It is free for Scottish lawyer to speculate that, had there been no Union, Scottish law would have gone on to incorporate more and more of Roman law, after continental models, and would have ended as they have done, by this time, in codification." ]

the

No

The Scots law and the French law were more like each other in the 17th century than they are now, because since then the Scots law has become a system of case law, and under the influence of English cases has undergone and is still undergoing a slow assimilation with English law. Since the 17th century the French law also has undergone a much more sudden change which makes it less like our old Scots law. It has passed through the Revolution. That overwhelming deluge submerged forever many of the ancient landmarks of France. inconsiderable part of the old law disappeared with the ancien regime. The Code Napoléon was a great work of construction--the most permanent constructive work of the revolutionary period. In some important branches of law, such as obligations, there are no vital changes, but other parts are transformed almost beyond recognition. The land-law and the law of succession have been recast. Feudalism is swept away. Entails are prohibited. No trace is left of primogeniture. Even the harmless term

a

personal servitude" is thought too suggestive of tyranny. The unlearned man might suppose that the res serviens was a person and not a house or a farm. Irregular marriages had been done away with in France for two centuries ever since the Council of Trent. But a good deal of the canon-law of marriage survived until the Revolution, when it went by the board. E. g., the French law still recognized a large number of impedimenta dirimentia any one of which was a ground for getting a marriage annulled. At the Revolution the long string of impediments was cut down to a minimum. France got civil marriage, and, for a few years, divorce by mutual consent.

I Reception of Roman Law in Scotland, Juridical Review, 1897, p. 393.

Between 1789 and 1804, more radical changes were made in the French law than have been made in ours by the legislation of three centuries. Between the law as we find it in Pothier and the law of the Code Napoléon there is a great gulf. In comparing the French and Scots laws we must not forget that the two laws have been drifting apart since the middle of the 18th century. Since then, the Scots law has come under English influence, and the French law has been recast and defeudalized.

Having glanced at the reason of their modern divergence, I turn to notice the reasons of their similarity, which is still great though it was anciently much greater.

The two laws resemble each other because both are drawn mainly from the following four sources:

1. The customs of the Germanic tribes which overran the Empire.

2. The Roman Law. 3. Feudalism.

4. The Canon Law.

The

1. From the customs of the barbarians, both countries have taken the peculiar rules which limit the freedom of a man to dispose of his estate by will. surviving husband or wife as the case may be has certain rights and the children have a certain right. And these are not mere rights of succession for they override any contrary disposition by will. In Scotland, the widow is entitled to her jus relicta, i. e., to one-third of the moveable estate of her husband, or one-half if there are no children. Further she is entitled to terce, i. e., to the life rent of one-third of his immoveables. The widower is entitled to courtesy, i. e., to the life-rent of all the wife's immoveables, but his right is subject to a condition to which I shall refer in a moment. And, since the Married Women's Property Act, 1881, he is entitled to one-half or one-third of his wife's moveables. Before that Act, as her moveables all passed to him at the marriage, this jus relicti was not needed. In their turn, a man's children are entitled to legitim. i. e., to an equal share of one-half his moveable estate if there is no widow or of one-third if there is.

All this is in marked contrast to the law of England. There, as we all know, a millionaire who dies leaving a widow and ten children may bequeath his whole estate to a Dog's Home. But it is often forgotten that this liberty did not always exist. In Henry the Second's time, according to Glanvill, the English law to legitim and jus relicta was the same as the Scots law is to-day. And in certain parts of England these rights

as