71

authority to chastise being delegated to the teacher by the parent it follows that if the parent requests that a pupil be excused from a duty, or if the parent forbids the child. from studying certain subjects, and the teacher insists upon the performance of the duty or the study of the forbidden subject and punishes the child for refusal to do as ordered in these matters, the teacher is liable for the punishment. But question might well be raised on this last matter if the power to punish which the teacher has, is given to the teacher by the State and not by the parent. For in that case the state might well demand that certain subjects be studied and taught in the schools and the parent's desires would have to yield to the State's ruling. It is without question that teachers in private schools in England and the United States get their authority from the parents. But where we have a public school system with compulsory school laws and where the teachers are paid by, and are accountable to, the State, the authority, it is submitted, which the teacher has must come from the State. But the author has

been unable to find a case where the point

has been raised and decided.

An interesting case which was decided in Iowa in 1876 is that of State v. Mizner. The facts were that an adult voluntarily attended a school which was meant for children. He was punished by the teacher for an infraction of the rules. It was held that where such a pupil comes to such a school he has waived any privileges he has as an adult and has subjected himself to a like discipline as those for whom the school was intended. The punishment inflicted by the teacher was held to be justified.72

In all these cases the courts are balancing the individual interest in one's physical integrity against the social interest in the individual, and the social interest in the maintenance of educational institutions and where the acts of the parents or teach

(71) Morrow v. Wood, 36 Wis. 59; State v. Mitzner, 50 Iowa 145.

(72) State v. Mizner, 45 Iowa 248. Acc. Stevens v. Fassett, 27 Me. 266.

ers can be buttressed by the social interest the individual interest is sacrificed.

73

Authority Arising Out of Various Relations. A surgeon cannot perform an operation upon a patient without the patient's consent, or unless an emergency exists which necessitates the performance of an operation in order that life might be saved.74 Such consent may be express, or it will be inferred from the fact that the patient voluntarily submits to the operation.75 But where consent is given to operate upon one part of the body, another part of the body cannot be touched, even though the examination, made while the patient is under the anesthetic, discloses a more serious condition in another part of the body than in that part of the body upon which the operation was consented to." Thus if the patient consents to an operation upon her right ear, the surgeon cannot operate upon her left; and if it is agreed that no bone is to be removed in the process of the operation, the surgeon is liable if a bone is removed.78

A physician may advise the removal of a patient to a hospital, but in an ordinary case he cannot order the patient to be removed to a hospital. But a city or state physician may in cases of contagious diseases remove diseased persons to the hospital and destroy personal property if such destruction is necessary to safeguard the public health.80

Where a person has been authorized to practice medicine and surgery he cannot practice dentistry, nor can he practice

81

(73) Rolater v. Strain, 137 Pac. (Okla.) 96; Pratt v. Davis, 204 Ill. 300, 7 L. R. A. (N. S.) 609; Moslander v. Armstrong, 134 N. W. (Neb.) 922.

(74) Luka v. Lowrie, 136 N. W. 1106; Schloendoerff v. Society of N. Y. Hospital, 105 N. E. 92. 52 L. R. A. (N. S.) 505. (75) Moslander V. (Neb.) 922.

Armstrong.

134

N. W.

(76) Rolater v. Strain, 137 Pac. (Okla.) 96: Pratt v. Davis, 224 III. 300, 79 N. E. 562, 7 L. R. A. (N. S.) 609; Mohr v. Williams, 95 Minn. 261. (77) Mohr v. Williams. 95 Minn. 261. (78)

Mohr v. Williams, 95 Minn. 261, Rolater v. Strain, 137 Pac. 96.

Medlin v. Bloom, 119 N. E. 773.

(79) (80)

(81)

Seavey v. Preble, 64 Me. 120. State v. Taylor, 118 N. W. 1912.

surgery if he has been authorized to practice osteopathy.82 If a person has been licensed to practice medicine in one state he cannot by virtue of such license practice. medicine in another state without complying with the second state's requirements.83 Where a druggist is forbidden to sell brandy without a license and he sells brandy upon a physician's prescription he is not liable for the brandy is held to be medicine; but the prescription must be given in the course of administering a cure to the patient or else the prescription is no defense.85

A husband is not justified under any circumstances in striking his wife, either by way of chastisement, or in resentment of a past injury, which consisted in an assault on him or his property;86 and if the wife dies as a result of the beating the husband is guilty of manslaughter. Nor can a man imprison his wife in her home.ss

87

89

88

In connection with this relation a most extraordinary decision is that found in Thompson v. Thompson, recently decided in the United States Supreme Court. The facts were that Congress had passed an act reading:

"Sec. 1155: Power of a Wife to Trade and Sue and be Sued.-Married women shall have the power to engage in any business and to contract whether engaged in business or not, and to sue separately upon their contracts, and also to sue separately for the recovery, security or protection of their property, and for torts committed against them as fully and freely as if they were unmarried.. (Italics mine.)

The husband assaulted the wife. She sued him for the tort. It was held, by a divided court, that the statute was not intended to give the wife a right of action as against the husband!

Hughes entered a spirited dissent in which he was joined by Mr. Justice Harlan, and Mr. Justice Holmes.

A master has no authority to chastise his servant no matter how flagrantly the servant may have violated his duty;90 but where the relation of master and apprentice exists, the master has the authority to administer moderate correction to the apprentice," to restrain and coerce him to obtain obedience to his (the master's) commands.92 But the master cannot delegate this authority to another; nor can he whip the apprentice for larceny, nor for obeying the command of a court." Nor can a master compel his apprentice to accompany him in his removal from the commonwealth.90

95

The master is under a duty from the very nature of the relation to provide medical attention for such an apprentice,97 but where the apprentice is not at the house of the master when taken ill and attended, and the master has not called in the physician, the master does not need to pay the doctor's fees.98 Yet, if the master is informed of the illness of his apprentice at another's house, and he does not take care of the apprentice, then the master is liable for the expense of taking care of and curing the apprentice."

Some Miscellaneous Cases. It is the duty of every citizen, when the circumstances warrant it, to give information of a personal nature to an officer of the law

(90) Dix v. Martin, 157 S. W. 133, 171 Mo. Appl. 266; Birmingham Ry. Light and Power Co. v. Norris, 56 So. 739 (Ala. 1911); Tinkle v. Dunivant, 16 Lea (Tenn.) 503.

(91) Mitchell v. Armitage, 10 Most. (O. S.) 38 (La.); Commonwealth v. Baird, 1 Ashm. (Pa.) 267.

McKnight v. Hogg, 3 Brev. (S. C.) 44. (93) People v. Phillips, 1 Wheeler Cr. Cases (N. Y.) 155.

who demands such information. Hence, where the plaintiff was found late at night near the scene of a crime and refused to give his name and business and was arrested for such refusal, it was held that the officer had the authority to make the arrest without a warrant and was not liable for false imprisonment.100

Here the social interest in the detection of crime overrides the individual interest of personality.

Congress has authority to raise and support armies, and to make rules and regulations safeguarding the health and morals of those composing the armies raised by it, and this carries with it the right to delegate the carrying out of the details of these rules to executives. Hence, where there was an act of Congress directing the Secretary of War to prevent and suppress bawdy houses within five miles of any military post, and the plaintiff was indicted under such act, the indictment will stand.101

Here it is the social interest in the general security and the public interest in the maintenance of the integrity of the state which outweighs the individual interest of substance.

Franks v. Smith,102 is a case which shows how the courts will sometimes strain at a gnat and swallow a camel. In this case, the militia had been called out to quiet "night-riding." A sergeant and his squad were stationed at a crossroad by a superior officer. The sergeant was given instructions to stop all suspicious characters who passed that way after ten o'clock at night, to search such persons and if concealed weapons were found on them, to arrest them and bring them into camp. In following out these orders, the sergeant stopped the plaintiffs who were driving by in buggies after ten o'clock at night, and searched them. No weapons were found on the persons of the plaintiffs but pistols were found

on the floor of the buggy. The plaintiffs were arrested and brought to camp. The court held, that as the pistols were not found on the persons of the plaintiffs but on the floor of the buggy the Sergeant was held liable for the arrest and imprisonment of the plaintiff.

Here an individual's interest in personality was allowed to override the social interest in the general security, that is in the protection of life and property, by means of a distinction between tweedledee

dee and tweedledeedum.

A person in charge of a place of amusement is authorized to eject a patron who has been properly asked to leave, and who has improperly refused to do so, and an assault and battery is not committed if no greater force than is necessary is used ejecting such person.103

Here the social interest in the proper management of the recreational institutions of a community override the individual interest of personality of an improperly acting patron.

The owner of a mining claim. has no authority by virtue of his ownership to assault forcibly one who is in peaceable possession of this claim. 104 Here the social interest in peace and order outweighs the individual interest of substance.

Summary: 1. Where the individual interests of A come into conflict with the individual interests of B, and the interests of the latter can be buttressed by a public or social interest, the interests of B will prevail over the interests of A.

2. Where the individual interests of A come into conflict with public or social interests, the interests of A will be sacrificed to secure the public or social interest.

Washington, D. C.

ALBERT LEVITT.

SALES-IMPLIED WARRANTY.

HOYT v. HAINSWORTH MOTOR CO. Supreme Court of Washington. Sept. 13, 1920.

192 Pac. 318.

A dealer does not impliedly warrant, against defects not discoverable by ordinary inspection and tests.

MAIN, J. This is an action for damages for breach of an alleged implied warranty in the sale of an autombile. The case was tried to the court and a jury, and resulted in a verdict for the plaintiff. The defendant at appropriate times challenged the sufficiency of the evidence and moved for a directed verdict. After the verdict was returned, motions for judgment non obstante veredicto and for new trial were served and filed. Both of these motions were overruled, and a judgment was entered upon the verdict, after the plaintiff had elected to accept a judgment for less than the amount for which the verdict was returned. The defendant appeals.

In stating the facts it will be assumed the the evidence of the respondent is true, where there is conflict. The appellant is a corporation organized under the laws of the state of Washington, and is engaged in the business of selling automobiles at Seattle, Wash. On April

5 it sold to the respondent a new 1918 model, six-cylinder Oldsmobile. At the time the car was sold the appellant had on the floor of its showroom this particular car. It did not, however, sell this car, but sold a car of the model described. The respondent saw and looked at the car that was in the showroom. A few days after the respondent had agreed to purchase a car, the appellant delivered to him the car which he looked at in the showroom, and then told him that it was the same car. The respondent operated the car after it was delivered to him for a period of approximately 11 months. The car was defective, in that the pistons were a little too small for the cylinders. The car did not prove to be satisfactory, and after having operated it for the time mentioned the present action was instituted, for the purpose of recovering damages for a breach of implied warranty. It should be noted and kept in mind that the appellant was not the manufacturer of the automobile, but simply a dealer. The theory of the respondent that the sale was not of a particular car, but of a particular model, will be adopted.

The appellant claims that, since it was a dealer, and not a manufacturer, in selling the

car there was no implied warranty against latent defects. The respondent claims that, since he purchased, not a specific car, but a car of a particular model, even though the appellant were a dealer, there would be an implied warranty against latent defects, such as ordi-. nary inspection would not disclose. The defect in this car was latent, and one that ordinary inspection would not disclose. The controlling question is whether, under the facts stated, the appellant as dealer is liable upon an implied warranty; there being no express warranty. Upon the question as to whether the dealer is liable upon an implied warranty for a latent defect in an article sold, the decisions of the various courts that have passed upon the question are divided. In some it is held that there is such an implied warranty. The majority of the courts, however, in this country hold that in the case of the dealer, as distinguished from the manufacturer, there is no such implied warranty. Williston on Sales, § 233. This court, in Hurley-Mason Co. v. Stebbins, Walker & Spinning, 79 Wash. 366, 140 Pac. 381, L. R. A. 1915B, 1131, Ann. Cas. 1916A, 948, has adopted the majority rule; that is, that a dealer does not impliedly warrant against defects not discoverable by ordinary inspection and tests. In the course of the opinion in that case it was said:

"According to the great weight of authority, there is a distinction between executory sales by manufacturers and executory sales by dealers; the rule being that, on a sale by a manufacturer, there is an implied warranty of fitness for the purpose intended, and of freedom from defects not discoverable by ordinary inspection and tests, while, on a sale by a dealer, there is no such implication, in the absence of a specific warranty to that effect. All that is required of a dealer is an exercise of good faith and fair dealing."

Under the undisputed facts in the present case, there was a sale of an automobile of known manufacture. There is a rule collateral to that above referred to as the majority rule, to the effect that where an article of known manufacture is made by one not the vendor, and the vendee knows this fact, there is no implied warranty by the dealer against latent defects. This rule, as stated by the Circuit Court of Appeals of the Eighth Circuit, in Reynolds v. General Electric Co., 141 Fed. 551, 73 C. C. A. 23, is as follows:

"But where such a purchaser buys of a dealer a definite machine of known manufacture, which has been, or is to be, made by a builder, who is not the vendor and the vendee knows this fact, there is no implied warranty by the dealer, either against latent defects or that the machine or article will be suitable for the purposes for which such articles are commonly