and done, the court gave to the lease much latitude as to what it fairly embraced. In this there was a sort of contract of agency going somewhat beyond what the law spells out in the relationship between owner and contractor in the making of improvements on property. At bottom, in rejecting what was not done under scope of authority in the lease, the court followed the rule of principal and agent, and to call it that instead of elaborating some theory of "joint proprietorship" a tenancy in common-is better in business understanding.

NOTES OF IMPORTANT DECISIONS.

DAMAGES MENTAL SUFFERING IN PRE-NATAL INJURY.-In Gagnon v. Rhode Island Co., 101 Atl. 104, the Supreme Court of Rhode Island considers elements of damage in a case where a pregnant woman suffered injury to the foetus in her womb and a child being born deformed.

The trial court instructed the jury that the mother was not entitled to compensation for the injury to the child, or for any disappointment and suffering which she, as its mother, might feel during its life by reason of any deformity in the child, but they would be justified in giving compensation which they might find she had endured before the birth from apprehension of deformity to the child, and also for any suffering at the time of birth by disappointment in finding her apprehensions realized.

The court, in discusion, said: "The foetus is a part of the person of a pregnant woman, and if by reason of the nature and circumstances of an injury to her person caused by the negligence of a defendant, she suffers apprehension and anxiety as to the effect of the injury upon the foetus, in accordance with the well-recognized rule, such mental suffering becomes an element of her damage as a natural and proximate result of the negli gence which caused the injury. Furthermore, although she should not be given damages for the child's misfortune during life resulting from an injury to the foetus, nor for her own subsequent mental distress during the lifetime of the child, occasioned by its deformity, the

mother is entitled to damages for her distress and disappointment at the time of the birth, because through the defendant's negligence she has been deprived of the right and

the satisfaction of bearing a sound child, if it be found the child's deformity is due to the injury she received through the defendant's negligence."

The latter paragraph quoted appears at outs with the former, and it would seem, that if any damage for disappointment can survive the foetus ceasing to be a part of the mother,

this could extend to its life of deformity. The rule the court announces is very uncertain. If the disappointment is only for a moment of time, it might be the damage would be very small. If it is extended to a day or two days, it would seem capable of extension to the minority period of a child's existence. If the technical rule the court announces of foetus being a part of the mother is to be enforced, it ought to be enforced in a technical way. Here it is noticed that nothing is said as to the right of the child to recover, but we suppose that would be absolutely cut out by the rule above spoken of.

LANDLORD AND TENANT-RE-LETTING AS ACCEPTANCE OF SURRENDER.-In McGinn v. B. H. Gladding D. G. Co., 101 Atl. 129, decided by Rhode Island Supreme Court, the facts show, that after lease had been executed and possession taken of the premises the lessee mailed the key by registered letter to lessor and afterwards, during the term, lessor let the premises to a third party and demanded rent less the amount received on the re-letting.

The court disposing of questions relating to claimed conditional letting adversely to lessee, and among them that the sending of the key did not amount to a surrender, then discusses the question whether or not an attempted surrender was accepted by the landlord as a complete surrender. Discussing many cases pro and con, the court rules that the re-letting being without any knowledge on lessee's part amounted to an accepted surrender.

Plaintiff cites many cases to the effect that it did not amount to such surrender. See Biggs v. Stueler, 93 Md. 100, 48 Atl. 727; Oldeworte! v. Wiesenfeld, 97 Md. 165, 54 Atl. 969; Alsup v. Banks, 68 Miss. 664, 9 So. 895, 13 L. R. A. 598, 24 Am. St. Rep. 294; Higgins v. Street, 19 Okla. 45, 92 Pac. 153, 13 L. R. A. (N. S.) 398, 14 Ann. Cas. 1086. But these cases are generally distinguished by the court saying there was express refusal to accept the surrender,

and there was no claim for any time except when the property was wholly vacant.

The court summarizes the cases as follows: "In the examination of the many cases cited, we have found some confusion and conflict of authority upon the question whether the reletting by the landlord after abandonment by the tenant amounts to an acceptance of surrender as a matter of law. As above shown w have found only two cases where it has been baldly held that the landlord, after refusing to accept a surrender, can, as a matter of right, without notice to the lessee, or without his assent, either express or implied, re-let the premises for the account and risk of the lessee and can hold the lessee for the loss, if any. In all the other cases cited by plaintiff, above referred to, it either appears that the landlord gave notice of his intention to re-let for account of the lessee or at his risk, or that there was an assent either express or implied on the part of the lessee that such re-letting could be made for his benefit and on his account or at his risk. We find, therefore, that the weight of authority, so far as the facts of the case at bar are concerned, is to the effect that the reletting to a third party by the plaintiff without notice to the defendant, without knowledge on its part or without its assent, operated as an acceptance of the surrender by the defendant trom and after September 1, 1907, and that after that date the defendant was no longer bound by the lease."

This ruling at most only declares, that the lessee may be held though the premises are relet, if he be notified that they will be re-let or his account. This seems little enough to require of the lessor, but why could it not be assumed, if the purpose was plain that lessee claimed a surrender, that he could have no objection to a re-letting? Is there not compulsion of a technicality in favor of one plainly attempting to shirk an obligation?

the same effect is Straight v. McKay, 15 Colo. App. 60, 60 Pac. 1106.

Missouri court has held as does the instant case under a statute making the wife's separate property liable "for any debt or liability of her husband created for necessaries for the wife or family."

It appears to us that statutes of this kind apply rather to daily transactions where there is less formality involved than in that between landlord and tenant. This contemplates a long period, often evidenced by solemn instruments and it should be very clear, indeed, that this is contemplated before being carried into this class of statutes. Furthermore, these contracts are frequently required to be secured and where they are not there is election to trust personally the lessee. Furthermore, there particular remedies given lessors and landlords which ordinary creditors do not possess.

are

REASONABLENESS AND LEGAL RIGHT OF THE MINIMUM CHARGE IN PUBLIC UTILITY SERVICES.

The law of public utilities is raising new problems for solution and coining new words and phrases for court construction. In a little booklet by Samuel S. Wyer1 on the subject of this article, the author, a consulting engineer, seeks to enlighten the courts on the two terms now so frequently used, to-wit: "Readiness-to-serve Charge," and "Minimum Charge."

The term, "minimum charge," as used in public utility rate parlance, means, accord

ILY HOME AS CREATING JOINT. LIABILITY.

In Lewis v. France, 163 N. W. 656, decided by Minnesota Supreme Court, the question ruled was whether rental of a house occupied as the family home created joint liability on husband and wife under a statute making them jointly and severally liable "for all necessary household articles and supplies furnished to and used by the family." It was held it did not.

In its opinion the court refers to an Illinois decision where wife was held liable under a statute creating liability for the expenses of the family and of the education of the children." Illingworth v. Hill, 33 Ill. App. 394. To

imum charge made to cover the costs incurred by the utility in holding itself in constant readiness to render service, with out, however, delivering any units of service. The actual units of service (such as kilowatt hours of electric energy, cubic feet of gas, gallons of water, or number of messages) used are paid for by an additional rate schedule."

In other words, a readiness-to-serve charge is made simply for service rendered. The minimum bill charge is a combination charge for service rendered and a certain number of units sold.

The term "meter rental" is another term which needs careful definition. It is to be defined, according to Mr. Wyer, as "rental for equipment which the utility is under obligation to furnish the customer, and the rental is added to the bill regardless of the monthly service consumption. It is wrong in principle and cannot legally be enforced."

It is now admitted in all sciences that progress is simply a matter of exact definitions and accurate distinctions. If that be true, we can well imagine that failure on the part of courts and public service commissions to distinguish accurately between the terms "readiness-to-serve," "minimum charge" and "meter rental," has been the cause of much confusion and some unsound decisions from judicial bodies.

That the public is more familiar with the term "minimum charge" than with the term "readiness-to-serve" is probably due to the public's contact, for many years, with the "minimum weight" and "minimum charge" features in railroad and express company schedules, and more recently on the parcels post. Practically all telephone schedules also are on a minimum charge basis, and this has helped to familiarize the public with this style of charging, rather than the straight readiness-to-serve charge, which is newer.

The term "minimum charge" has been often defined by the courts, probably, how

ever, not always with scientific accuracy. But if the courts have failed to make the distinctions noted by Mr. Wyer, it is probably due to the fact that the courts have never had the benefit of the advice of men specially trained in the regulation of public utility rates.

One of the earliest decisions sustaining a minimum charge was that of the Missouri Appellate Court in 1889, in the case of State ex rel. v. Sedalia Gas Light Company, in which case the court said:

"The evident purpose of this rule was to exact fair compensation from those requiring gas connection, and gas furnished at hand, though the amount consumed should be very small, almost nominal. We think it is not unjust or unreasonable. It is a matter of common knowledge, that to furnish gas at hand for a very small or nominal consumer, requires the same outlay in the way of a meter, periodical inspection and repairs, with weekly or monthly visitations, that is required of very large consumers. The same investment, and the same care and oversight, is required where the gas monthly consumed shall not exceed 10 cubic feet, or even 1 cubic foot, or where the amount used may be 10,000 cubic feet. At the rate then charged in Sedalia *** the gas company would be required to invest and expend, for the benefit of this merely nominal consumer, more dollars than cents received. *** We hold, then that the rule or regulation in question, *** is not as a matter of law unreasonable."

In a more recent decision by the New York Supreme Court in the case of Gould v. Edison Electric Illuminating Co.,3 it was said:

"The law does not contemplate that the defendant shall do business at a loss. It is expected that it will, and it is entitled to, make a reasonable profit on its venture, and the sole question in such a case as this is whether the charge made is unreasonable, considering all that the defendant is required to do, to meet each customer's demand. *** The customer does not bind himself to use any particular amount of light, so the return to the company, based on actual consumption, would rest entirely

In this connection it should be borne in mind, as Mr. Wyer suggests, that the terms "small consumer" and "poor man" are frequently erroneously used synonymously.

One difficulty in fixing a minimum charge is in distributing the actual cost to the company of being in readiness-to-serve, and the amount of service used within the minimum charge. Accurately speaking, the public utility, like an electric light company, for instance, should charge a fixed amount as a readiness-to-serve charge and then charge also for whatever electricity is used, be it great or small. But the companies prefer to combine the charge for minimum service with a readiness-to-serve charge, and this practice, for practical purposes, is now generally allowed by public service commissions. The New Hampshire Public Service Commission in a recent case approving this method of ratemaking, said:

"Either the minimum bill must be made sufficiently large to cover the use of gas through meters affected by the minimum bill, or the utilities must charge for gas used in addition to the minimum charge. This latter course is not deemed practicable. Accordingly, we have aimed to construct a schedule of minimum charges which shall recognize the varying investment in meters and services, and shall be sufficient to pay the consumer costs shown in the above tables, and to pay as well for the average quantity of gas used by meters affected by the minimum."

The case of the transient "summer cot

two or three months out of the year, he utility commissions. Using his property tager" gives much trouble to the public charge for the other nine months. But the public service commissions usually give him the option of paying the minimum charge or of discontinuing and paying annually a recurring connecting charge. A case of this kind came before the California Commission on an application by the West Coast Gas Company for the establishment

(5) Pillsbury v. People's Gas Light Co., N. H. P. S. C., p. 445.

of a minimum rate for gas furnished to summer cottages at Newport Beach. In an opinion favoring the application, filed September 10, 1914, the Commission said:

"It appears that in a portion of the territory served by applicant, particularly at Newport Beach, a large proportion of applicant's customers own cottages, which are occupied during two or three months in the summer, and that during the remaining portion of the year they are occupied only occasionally or not at all. The owners of these cottages object to paying a minimum of $1.00 during the entire twelve months.

"However, applicant's plant must be maintained in readiness to serve during the entire year, and applicant's investment is tied up and its system depreciates during the entire twelve months. Hence it seems only fair that as long as applicant's customers remained connected to applicant's system that they should pay a reasonable minimum monthly. Applicant must be ready to serve at a moment's notice every customer who is connected to system, and a proper proportion of the depreciation is fairly chargeable to each customer. sum of $1.00 per month is a usual minimum charge for gas. I see no reason why it should not apply to applicant, provided that its customers understand that they have the right to have their service disconfurther payment of any minimum until the tinued at any time and thus avoid the premises are again connected. A fee of $1.00 is reasonable for again making the service connection."

The

The object of the minimum charge is therefore not arbitrary, but reasonable, and is intended to cover expense that in the ordinary rate schedules cannot be covered in any other way. Its main purpose is

rather to make it certain that each customer bears his share of the expenses incurred in supplying service. It is not a penalty for a failure to use service, "but is properly to be regarded as compensation for that part of the service which is at all times being rendered rendered in the maintenance of the apparatus and connection through which the service is made available."

St. Louis, Mo.

ALEXANDER H. ROBBINS.