monwealth in the sisterhood of states by refraining from special tolls on anthracite and contenting herself with a non-discriminating tax on the net income from all enterprise within her borders.

Thomas Reed Powell.

University of California,

Berkeley, California.

California Law Review

Published by the Faculty and Students g the School of Jurisprudence of the University of California, and issued Bi-monthly throughout the Year

William Carey Jones, Dean Emeritus of the School of Jurisprudence, died at Pekin, China, October 1st, 1923. The death was not unexpected as his condition had been precarious for the past year and a half. His courage, however, was invincible. He completed his forty-eight years of service as teacher and administrator in the University of California last May and then proceeded to carry out his long-cherished plan of a journey to the Orient.

No words or acts can adequately reward his services to the University or to the School of Jurisprudence but it is fitting that such services should be recognized. The University awarded him the honorary LL.D. degree at the last commencement, and the alumni and students of the School of Jurisprudence have established a scholarship in his honor.

It is the intention in this Review to dedicate one or more of its numbers in the present volume to the late Dean and to include therein articles on the subjects which at various times he taught or on which he wrote. It was a surprise, even to those most closely associated with him, to recall that in the field of law alone he has made substantial contributions in such separated fields as Constitutional Law, International Law, Roman Law, Jurisprudence, Blackstone, Torts, Evidence, School Law, Municipal Corporations and Sales.

1923-24

The enrollment of students in the University of California School of Jurisprudence for the year 1923-24 is as follows:

There are 151 graduate students enrolled and 17 colleges and universities are represented.

NEW TRIALS

In the case of San Joaquin and Kings River Canal and Irrigation Company, incorporated (a corporation) v. James J. Stevinson (a corporation) et. al. (September 26, 1923) 42 California Appellate Decisions, 176, 177, we read as follows:

"On the first trial plaintiff was nonsuited, and on appeal the judgment of nonsuit was reversed (San Joaquin & Kings River Canal & Irrigation Co., Inc. v. Stevinson, 164 Cal. 221). On the second trial the court submitted to the jury the questions of public use and public necessity and the jury found against the plaintiff on the issue of public necessity, and, on appeal, the judgment was reversed on the ground that those issues should have been passed

upon by the court, and not the jury, and for other reasons (San Joaquin & Kings River Canal & Irrigation Co. Inc. v. Stevinson, 26 Cal. App. 274). On the third trial the trial court decided the issues of public use and public necessity in favor of plaintiff (Trans. pp. 21-35), and on the issue of damages the jury awarded the defendant $425,000. The trial judge set this verdict aside as being unsupported by the evidence, and on appeal this order was affirmed (San Joaquin & Kings River Canal & Irrigation Co. Inc. v. Stevinson, 30 Cal. App. 405). The trial court then granted a change of place of trial to Mariposa County, which order was affirmed on appeal (San Joaquin & Kings River Canal & Irrigation Co. Inc. v. Stevinson, 179 Cal. 533). A fourth trial was then held in Mariposa County and resulted in a verdict of $200,000 (Tr. pp. 38-9), to review which this appeal is prosecuted." The case was reversed and a new trial ordered.

In Anderson v. Aronsohn (September 21, 1923) 42 California Appellate Decisions, 142, and in the Estate of Baird (September 20, 1923) 66 California Decisions 371, the cases were reversed and sent back for a fourth trial.

The property involved must be large indeed to stand the overhead of four or five trials. There must be fault somewhere, either with the lawyers, the judges, or the procedure. When it becomes necessary to grant a new trial, it would seem as if the whole controversy should be settled on the second attempt. Perhaps a unified court with a more flexible procedure would enable the reviewing judges to settle the controversy by an investigation of their own or at any rate to shape the issues for the second trial so that no further ground for dispute could arise.

Comment on Cases

AGENCY: PRINCIPAL'S LIABILITY TO THIRD PERSONS: CHAUFFEUR OPERATING TAXICAB IN VIOLATION OF EMPLOYER'S INSTRUCTIONS-In the case of Slater v. Friedman1 a taxicab driver, hired to operate the taxicab for twelve hours per day, nevertheless operated it after hours, in violation of his employer's instructions. While he was so engaged a passenger was injured by reason of his negligent driving. The owner of the taxicab escaped liability, the court resting its decision on the fundamental rule that a principal is

not liable for the torts of his agent when the agent is acting beyond the scope of his authority. That the rule applied by the court is correct is hardly open to dispute. The question arises, however, whether disposition should be made of cases of this character on this pure tort doctrine.

There are at least four possible types of cases to which a situation similar to that involved in the principal case may give rise: disclosed principal, undisclosed principal, independent contractor where there is an ostensible agency, and independent contractor where there is no ostensible agency. Should not the courts, in each of these types of cases, consider the question of liability from the standpoint of contract as well as from that of tort? In every case, the taxicab driver contracts to carry passenger, and his negligence constitutes a breach of his promise to carry carefully to the destination. Should his principal, if any, real or ostensible, be liable?

Frequently cabs are owned and operated by some company or individual other than the driver. If the name of the company appeared plainly on the cab, or if the cab was of a special type or color and there was an advertising campaign on the part of the company with reference thereto, the case would ordinarily be one of disclosed principal. The significance, of course, is that the company is the principal, and that the driver is an agent. In cases of this character the owner should be held responsible for the acts of the driver in his relation to passengers. By giving the operator actual authority to operate the taxicab certain hours during the day, the owner seemingly gives him apparent or ostensible authority to carry passengers at any time when he has charge of one of the cabs. A third person, in becoming a passenger, has a right to rely upon the responsibility of the company, and not only upon that of the driver. The principal is liable to third persons dealing with his agent, where the agent acts within his apparent authority, as well as where he acts within his actual authority. Professor Mechem

Lloyd v. Grace [1911] 2 K. B. 489; British Mut. Banking Co. v. Charnwood Forest R. Co. (1887) 18 Q. B. D. 714; Thiele v. Newman (1897) 116 Cal. 571, 48 Pac. 713; Fogel v. Schmaltz (1891) 92 Cal. 412, 28 Pac. 444; Turner v. North Beach, etc. R. Co. (1868) 34 Cal. 594; Mulligan v. New York, etc. R. Co. (1892) 129 N. Y. 506, 29 N. E. 952, 26 Am. St. Rep. 539, 14 L. R. A. 791.

3 For cases holding that obligation of a company for safe carriage of passengers is one arising from contract, see Farley v. Cincinnati, etc. Co. (1901) 108 Fed. 14; Gardner v. New Haven etc. Co. (1883) 51 Conn. 143, 50 Am. Rep. 12; North Chicago St. R. Co. v. Williams (1894) 140 Ill. 275, 29 N. E. 672; Gennell v. Illinois Cent. R. Co. (1914) 186 Ill. App. 124; Baltimore, etc. R. Co. v. Breinig (1866) 25 Md. 378, 90 Am. Dec. 49; O'Donnell v. Kansas City, etc. R. Co. (1914) 197 Mo. 110, 95 S. W. 196. 4 Of course, if anyone obtained a taxicab through theft there would be no question of apparent authority.

Wisp v. Hazard (1885) 66 Cal. 459, 6 Pac. 91; Leavens v. Pinkham & McKevitt (1912) 164 Cal. 242, 128 Pac. 399; Wiley B. Allen Co. v. Wood (1917) 32 Cal. App. 76, 162 Pac. 121; Aetna Insurance Co. v. Holmes (1910)