A Selection of Cases on the Law of Torts

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Title: A Selection of Cases on the Law of Torts
Author: Smith, Jeremiah, Pound, Roscoe, Ames, James Barr
Language: English
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LAW OF TORTS ***

A SELECTION OF CASES
ON
THE LAW OF TORTS

JAMES BARR AMES AND JEREMIAH SMITH

NEW EDITION BY

ROSCOE POUND
CARTER PROFESSOR OF JURISPRUDENCE IN HARVARD UNIVERSITY

CAMBRIDGE
HARVARD UNIVERSITY PRESS
1919

This edition was first published in four parts. Part I (pp. 1–167)
appeared September 25, 1916; part II (pp. 168–368), December 1, 1916;
part III (pp. 369–618), February 20, 1917, and part IV (pp. 619–1008),
April 23, 1917.

Copyright, 1893 and 1909, by JAMES BARR AMES.
Copyright, 1893 and 1909, by JEREMIAH SMITH.
Copyright, 1910, by RICHARD AMES.
Copyright, 1916 and 1917, by ROSCOE POUND.

PREFACE

The chief occasion for this edition is the change in the first-year
curriculum in Harvard Law School, which assigned to other courses many
things formerly appropriated to the course in the Law of Torts and hence
treated in former editions. Thus causation is now treated in a course on
the Principles of Legal Liability; certain excuses, such as consent and
self-defence, are dealt with in that course, and trespass to land and
conversion, which analytically might well be treated in the first
chapter of this book, have been thought more appropriate to the course
on the Law of Property. But the student should be warned that such
matters of arrangement do not inhere in the law. They are mere matters
of pedagogical expediency. He should bear in mind that the law is a unit
and should be on his guard against thinking of it as made up of separate
water-tight compartments. General principles which are of prime
importance in connection with the subjects treated in this book are
dealt with primarily in the courses on Property and on Criminal Law. Not
the least important task for the student is to seek constantly for these
relations between the subjects studied.

Again, the student should be warned that the arrangement proceeds upon
pedagogical considerations and does not seek to set forth an analytical
system. System is to be derived from study of the cases. The effort of
the student to make one in connection with his summaries for review and
his reading of the systematic discussions referred to in the notes will
do more for him than learning in advance a system laid out by some one
else. Similar reasons have led to omission of subheadings as far as
consistent with convenience, leaving it to the student to systematize
the main headings for himself. For other purposes an index is offered
instead.

In arrangement of the cases advantage has been taken of the experience
of the late Dean Thayer, who had given the matter anxious consideration
for some years. Indeed the instinct of Dean Ames for teachable cases,
the sagacity of Judge Smith in finding significant cases, and the
judgment of Dean Thayer in matters of arrangement left little of moment
for the present editor to do.

ROSCOE POUND

CAMBRIDGE, July 18, 1917

NOTE. The present volume is a reprint of the edition of 1916–17 which
was not stereotyped and was soon exhausted. A few recent decisions have
been added in the notes. Otherwise there is no change.

TABLE OF CONTENTS

PART I
INTERFERENCE WITH THE PERSON OR TANGIBLE PROPERTY

CHAPTER I

INTENTIONAL INTERFERENCE PAGE
Section 1. Assault and Battery 1
Section 2. Imprisonment 19

CHAPTER II

NEGLIGENT INTERFERENCE
Section 1. Negligence as a ground of liability 29
Section 2. Interests secured 45
Section 3. The standard of care 63
Section 4. Proof of negligence 98
Section 5. The Duty of Care—Misfeasance and Nonfeasance 120
Section 6. Liability of occupiers of premises 147
Section 7. Liability to third persons of maker or vendor of a
chattel 228
Section 8. Contributory culpable conduct of plaintiff 263

CHAPTER III

UNINTENDED NON-NEGLIGENT INTERFERENCE
Section 1. Trespass on land by animals 404
Section 2. Injuries by animals 419
Section 3. Dangerous use of land 452
Section 4. Violation of statutory duty 504

PART II
INTERFERENCE WITH GENERAL SUBSTANCE OR INTERESTS IN INTANGIBLE THINGS

CHAPTER IV

DECEIT 521

CHAPTER V

MALICIOUS PROSECUTION AND ABUSE OF PROCESS 620

CHAPTER VI

DEFAMATION 657

CHAPTER VII

INTERFERENCE WITH PRIVACY 797

CHAPTER VIII

INTERFERENCE WITH ADVANTAGEOUS RELATIONS 807

TABLE OF CASES

PAGE
Aiken _v._ Holyoke Street R. Co. 337
Akers _v._ Chicago R. Co. 156
Alden _v._ Wright 595
Aldrich _v._ Scribner 576
Allen _v._ Flood 939
Allsop _v._ Allsop 808
Andrews _v._ Jackson 555

Bachelder _v._ Heagan 496
Banks _v._ Braman 340
Barnes _v._ Campbell 732
Barr _v._ Essex Trades Council 998
Barrows _v._ Bell 729
Beach _v._ Hancock 7
Beals _v._ Thompson 749
Beehler _v._ Daniels 225
Beinhorn _v._ Griswold 415
Bell _v._ Hansley 18
Benedick _v._ Potts 115
Bernina, The 352
Bird _v._ Jones 24
Bisaillon _v._ Blood 370
Black _v._ New York, N. H. & H. R. Co. 129
Blood Balm Co. _v._ Cooper 233
Blyth _v._ Birmingham Waterworks Co. 67
Bolch _v._ Smith 177
Bond _v._ Chapin 655
Bostock-Ferari Amusement Co. _v._ Brocksmith 427
Bosworth _v._ Inhabitants of Swansey 379
Bowen _v._ Hall 884
Box _v._ Jubb 475
Brattleboro _v._ Wait 510
British Columbia Electric R. Co. _v._ Loach 302
Bromage _v._ Prosser 662
Brooker _v._ Coffin 683
Brown _v._ Collins 482
Brown _v._ Kendall 30
Brown _v._ Randall 627
Buch _v._ Amory Mfg. Co. 160
Bugg _v._ Wertheimer-Schwartz Shoe Co. 549
Bullock _v._ Babcock 95
Burrill _v._ Stevens 548
Butterfield _v._ Barber 595
Butterfield _v._ Forrester 274
Butterly _v._ Mayor of Drogheda 301
Byne _v._ Moore 624

Cabot _v._ Christie 584
Campbell _v._ Boyd 183
Campbell _v._ Spottiswoode 769
Carmody _v._ Boston Gas Light Co. 113
Carpenter _v._ Bailey 766
Carr _v._ Hood 772
Carskaddon _v._ Mills 191
Carter _v._ Papineau 757
Chambers _v._ Robinson 624
Chapman _v._ Pickersgill 644
Child _v._ Affleck 738
Cincinnati & Z. R. Co. _v._ Smith 150
Clark _v._ Molyneux 763
Cleveland R. Co. _v._ Klee 327
Cleveland Rolling Mill Co. _v._ Corrigan 88
Cloon _v._ Gerry 632
Clutterbuck _v._ Chaffers 657
Cole _v._ Turner 12
Consolidated Traction Co. _v._ Hone 371
Cooke _v._ Midland G. W. Ry. 173
Cooley on Torts (2 ed.) 398–400 409
Cooper _v._ Seaverns 685
Corcoran _v._ Corcoran 811
Cordiner _v._ Los Angeles Traction Co. 281
Coward _v._ Baddeley 13
Cox _v._ Burbidge 438
Coxhead _v._ Richards 740
Crowley _v._ Groonell 437
Culbertson _v._ Crescent City R. Co. 329

Davies _v._ Gardiner 807
Davies _v._ Mann 275
Davies _v._ Solomon 809
Davis _v._ Shepstone 792
Decker _v._ Gammon 441
DeGray _v._ Murray 434
Delacroix _v._ Thevenot 659
De Marentille _v._ Oliver 15
Deming _v._ Darling 553
Denver Electric Co. _v._ Simpson 77
Depue _v._ Flatau 137
Derry _v._ Peek 563
DeS. _v._ DeS. 1
Dickson _v._ McCoy 440
Dilworth’s Appeal 502
Dolphin _v._ Worcester Street R. Co. 86
Dorr _v._ Cory 551
Doyle _v._ Vance 445
Drown _v._ Northern Ohio Traction Co. 296
Dudley _v._ Briggs 859
Dulieu _v._ White & Sons 50
Dulin _v._ Bailey 852
Dunshee _v._ Standard Oil Co. 923
Dyerson _v._ Union Pacific R. Co. 324

Eager _v._ Grimwood 866
Eastern Trust & Banking Co. _v._ Cunningham 616
Edgington _v._ Fitzmaurice 537
E. Hulton & Co. _v._ Jones 674
England, Maritime Conventions Act, 1911, § 1 274
England, Workmen’s Compensation Act, 1906, § 1 (c) 269
Evans _v._ Walton 868

Fargo Gas & Coke Co. _v._ Fargo Gas & Electric Co. 608
Fechley _v._ Springfield Traction Co. 364
Filburn _v._ People’s Palace & Aquarium Co. 422
Fisher _v._ Bristow 627
Fisher _v._ Feige 938
Fletcher _v._ Rylands 452
Flight _v._ Leman 651
Flint & Walling Mfg. Co. _v._ Beckett 120
Foshay _v._ Ferguson 630
Foss _v._ Hildreth 695
Foster _v._ Charles 588
Fotheringham _v._ Adam Express Co. 23
Fottler _v._ Moseley 599, 601
Freeman _v._ Venner 597
Frost _v._ Eastern R. Co. 170
Fry _v._ Smellie 581
Fuller _v._ Illinois Central R. Co. 299

Gahagan _v._ Boston & Maine R. 317
Galena R. Co. _v._ Jacobs 267
Gallagher _v._ Brunel 539
Gallagher _v._ Humphrey 186
Galveston, H. & S. A. R. Co. _v._ Spinks 495
Garfield Coal Co. _v._ Rockland Lime Co. 202
Garret _v._ Taylor 863
Gautret _v._ Egerton 179
Genner _v._ Sparkes 19
Georgia Pacific R. Co _v._ Lee 343
Giles _v._ Walker 493
Glamorgan Coal Co. _v._ South Wales Miners’ Federation 887
Gorris _v._ Scott 516
Grainger _v._ Hill 653

Haddrick _v._ Heslop 639
Halberstadt _v._ New York Life Insurance Co. 620
Hankinson _v._ Bilby 661
Hanson _v._ Globe Newspaper Co. 665
Hart _v._ Aldridge 864
Hart _v._ Allen 42
Hatchard _v._ Mège 813
Heaven _v._ Pender 156, 243
Heege _v._ Licht 498
Hemming _v._ City of New Haven 398
Herrick _v._ Wixom 149
Hill _v._ Glenwood 71
Holman _v._ Chicago R. I. & P. R. Co. 506
Holmes _v._ Missouri Pacific R. Co. 328
Horan _v._ Byrnes 928
Hughes _v._ McDonough 829
Hughes _v._ Samuels Bros. 831
Hulton & Co. _v._ Jones 674
Hunicke _v._ Meramec Quarry Co. 134
Huset _v._ J. I. Case Threshing Machine Co. 235
Hutchins _v._ Hutchins 847
Hutchinson _v._ St. Louis & M. R. R. Co. 330

Ibottson _v._ Peat 937
Illinois Iron & Metal Co. _v._ Weber 93
Indermaur _v._ Dames 194
Indianapolis Street R. Co. _v._ Dawson 204
Innes _v._ Wylie 13

Jackson _v._ Hopperton 790
J. deS. _v._ W. deS. 1
Jersey City Printing Co. _v._ Cassidy 897
Joannes _v._ Bennett 747
Joannes _v._ Burt 694
Jones _v._ Charleston & W. C. R. Co. 279
Jones _v._ Littler 690

Kearney _v._ London, B. & S. C. R. Co. 102
Keeble _v._ Hickeringill 935
Keffe _v._ Milwaukee & St. P. R. Co. 165
Keith _v._ Worcester Street R. Co. 73
Kellogg _v._ Chicago & N. W. R. Co. 345
Kelly _v._ Metropolitan R. Co. 125
Kidney _v._ Stoddard 561
Klous _v._ Hennessey 846
Knupfle _v._ Knickerbocker Ice Co. 504
Koplitz _v._ City of St. Paul 362
Kuzniak _v._ Kozminski 926

Lake Erie & W. R. Co. _v._ Ford 79
Lary _v._ Cleveland R. Co. 157
Lawless _v._ Anglo-Egyptian Cotton Co. 734
Leathem _v._ Craig 952
Lewis _v._ Corbin 849
Low _v._ Bouverie 580
Luetzke _v._ Roberts 598
Lumby _v._ Allday 687
Lumley _v._ Gye 874

McComb _v._ Brewer Lumber Co. 550
McCord Rubber Co. _v._ St. Joseph Water Co. 493
McNee _v._ Coburn Trolley Track Co. 200
McPherson _v._ Buick Motor Co. 251
McPherson _v._ Daniels 677
Mabardy _v._ McHugh 613
Mack _v._ Sharp 644
Malachy _v._ Soper 816
Marceau _v._ Rutland R. Co. 106
Marks _v._ Baker 755
Marlor _v._ Ball 430
Marshall _v._ Welwood 477
Martell _v._ White 989
Mason _v._ Keeling 433
Maung Kyaw Dun _v._ Ma Kyin 425
Max Morris, The 269
May _v._ Burdett 419
Maynard _v._ Boston & M. R. R. 147
Meredith _v._ Reed 76
Merivale _v._ Carson 775
Metropolitan R. Co. _v._ Jackson 98
Midland Insurance Co. _v._ Smith 841
Milissich _v._ Lloyd’s 731
Miller _v._ David 811
Miners’ Federation _v._ Glamorgan Coal Co. 887
Mitchell _v._ Jenkins 636
Mogul Steamship Co. _v._ McGregor & Co. 906
Morse _v._ Hutchins 604
Munster _v._ Lamb 697

Nash _v._ Minnesota Title & Trust Co. 572
Nashua Iron & Steel Co. _v._ Worcester & N. R. Co. 288
Neal _v._ Gillett 263
Nehring _v._ The Connecticut Co. 308
Newcomb _v._ Boston Protective Dep’t. 391
Newman _v._ Phillipsburg Horse Car Co. 366
Nichols _v._ Marsland 468
Nieboer _v._ Detroit Electric Ry. 295
Nocton _v._ Lord Ashburton 578
Norfolk & W. R. Co. _v._ Dean’s Adm’r 320
Northern P. R. Co. _v._ Jones 278
Note (Y. B. Lib. Assis. f. 104, pl. 85) 19
Noyes _v._ Colby 404

Oates _v._ Metropolitan St. R. Co. 294
Oberlin _v._ Upson 16
O’Keefe _v._ Chicago, R. I. & P. R. Co. 321
Osborn _v._ Veitch 6
Osborne _v._ McMasters 513

Padmore _v._ Lawrence 736
Pasley _v._ Freeman 521
Passaic Print Works _v._ Ely & Walker Dry Goods Co. 913
Payne _v._ Chicago & A. R. Co. 265
Pearson & Son _v._ Lord Mayor of Dublin 617
Peck _v._ Tribune Co. 672
Pickett _v._ Walsh 996
Pickett _v._ Wilmington & W. R. Co. 322
Pierce _v._ Stablemen’s Union 1004
Pike _v._ Hanson 21
Plant _v._ Woods 978
Polhill _v._ Walter 592
Pullman _v._ Walter Hill & Co. 758
Purcell _v._ Sowler 727

Quinn _v._ Leathem 952

Radley _v._ London & Northwestern R. Co. 283
Ratcliffe _v._ Evans 854
Ravenga _v._ Mackintosh 634
Read _v._ Coker 3
Rice _v._ Coolidge 710
Richmond F. & P. R. Co. _v._ Martin’s Adm’r 374
Roberson _v._ Rochester Folding Box Co. 799
Ryalls _v._ Leader 714
Rylands _v._ Fletcher 452

Scott, Collisions at Sea, 13 Law Quart. Rev. 17 273
Scott _v._ Stansfield 695
Schwabacker _v._ Riddle 606
Seaman _v._ Netherclift 703
Secor _v._ Harris 691
Sheehan _v._ St. Paul & D. R. Co. 154
Sheffill _v._ Van Deusen 659
Shultz _v._ Old Colony Street R. Co. 359
Slater Trust Co. _v._ Gardiner 574
Smith _v._ Bolles 605
Smith _v._ Hobson 694
Smith _v._ Land Corporation 560
Snyder _v._ Andrews 658
Southcote _v._ Stanley 222
Southern R. Co. _v._ Grizzle 127
South Wales Miners’ Federation _v._ Glamorgan Coal Co. 887
Spade _v._ Lynn & Boston R. Co. 45
S. Pearson & Son _v._ Lord Mayor of Dublin 617
Stanley _v._ Powell 35
Starkweather _v._ Benjamin 612
State _v._ Gordon 535
Stearns _v._ Sampson 10
Steele _v._ Burkhardt 388
Steinmetz _v._ Kelly 334
Stephens _v._ Myers 2
Stevens _v._ Nichols 214
Stevens _v._ Sampson 761
Steward _v._ Gromett 625
Stiles _v._ Geesey 282
Stone _v._ Carlan 827
Stone _v._ Dry Dock R. Co. 90
Sullivan _v._ Old Colony Street Ry. 41
Sutton _v._ Town of Wauwatosa 381
Sweeny _v._ Old Colony R. Co. 207
Swift _v._ Rounds 542

Tarleton _v._ M’Gawley 864
Thomas _v._ Bradbury, Agnew & Co. 782
Thorley _v._ Lord Kerry 679
Tillett _v._ Ward 406
Tomlinson _v._ Warner 646
Tonawanda R. Co. _v._ Munger 406
Toogood _v._ Spyring 750
Tracy _v._ Wood 83
Troth _v._ Wills 448
Tuberville _v._ Savage 2
Tuttle _v._ Buck 918
Tuttle _v._ Gilbert Mfg. Co. 220

Union Pacific R. Co. _v._ Cappier 131
United States _v._ Richardson 6
U. S. Compiled Statutes, 1913, § 8659 269
Usill _v._ Hales 716

Vanderbilt _v._ Mathis 641
Vaughan _v._ Menlove 63
Vegelahn _v._ Guntner 968

Wagner _v._ Bissell 410
Wason _v._ Walker 720
Watson _v._ Jones 582
Weaver _v._ Ward 29
Webb _v._ Beavan 682
Welch _v._ Wesson 377
Westminister Laundry Co. _v._ Hesse Envelope Co. 838
Wetmore _v._ Mellinger 649
White _v._ Carroll 707
White _v._ Mellin 819
Wilkinson _v._ Downton 58
Williams _v._ State 558
Williamson _v._ Freer 753
Willy _v._ Mulledy 515
Wing _v._ London General Omnibus Co. 111
Winterbottom _v._ Wright 228
Wood _v._ Lane 20
Work _v._ Campbell 533

Yates _v._ South Kirkby Collieries 61
Yerkes _v._ Northern Pacific R. Co. 70

CASES ON TORTS

PART I
INTERFERENCE WITH THE PERSON OR TANGIBLE PROPERTY

CHAPTER I
INTENTIONAL INTERFERENCE

SECTION I
ASSAULT AND BATTERY

I. DE S. AND WIFE _v._ W. DE S.
AT THE ASSIZES, CORAM THORPE, C. J., 1348 OR 1349.
_Reported in Year Book, Liber Assisarum, folio 99, placitum 60._

_I. De S. & M. uxor ejus querunt de W. De S. de eo quod idem W. anno,
&c., vi et armis, &c., apud S., in ipsam M. insultum fecit, et ipsam
verberavit, &c._ And W. pleaded not guilty. And it was found by verdict
of the inquest that the said W. came in the night to the house of the
said I., and would have bought some wine, but the door of the tavern was
closed; and he struck on the door with a hatchet, which he had in his
hand, and the woman plaintiff put her head out at a window and ordered
him to stop; and he perceived her and struck with the hatchet, but did
not touch the woman. Whereupon the inquest said that it seemed to them
that there was no trespass, since there was no harm done. THORPE C. J.
There is harm, and a trespass for which they shall recover damages,
since he made an assault upon the woman, as it is found, although he did
no other harm. Wherefore tax his damages, &c. And they taxed the damages
at half a mark. THORPE, C. J., awarded that they should recover their
damages, &c., and that the other should be taken. _Et sic nota_, that
for an assault one shall recover damages, &c.[1]

TUBERVILLE _v._ SAVAGE
IN THE KING’S BENCH, TRINITY TERM, 1669.
_Reported in 1 Modern Reports, 3._

Action of assault, battery, and wounding.[2] The evidence to prove a
provocation was, that the plaintiff put his hand upon his sword and
said, “If it were not assize-time, I would not take such language from
you.” The question was, if that were an assault? The court agreed that
it was not; for the declaration of the plaintiff was that he would not
assault him, the judges being in town; and the intention as well as the
act makes an assault.[3] Therefore, if one strike another upon the hand
or arm or breast, in discourse, it is no assault, there being no
intention to assault; but if one, intending to assault, strike at
another and miss him, this is an assault: so if he hold up his hand
against another in a threatening manner and say nothing, it is an
assault. In the principal case the plaintiff had judgment.

STEPHENS _v._ MYERS
AT NISI PRIUS, CORAM TINDAL, C. J., JULY 17, 1830.
_Reported in 4 Carrington & Payne, 349._

Assault. The declaration stated that the defendant threatened and
attempted to assault the plaintiff. Plea: Not guilty.

It appeared that the plaintiff was acting as chairman at a parish
meeting, and sat at the head of a table, at which table the defendant
also sat, there being about six or seven persons between him and the
plaintiff. The defendant having, in the course of some angry discussion
which took place, been very vociferous, and interrupted the proceedings
of the meeting, a motion was made that he should be turned out, which
was carried by a very large majority. Upon this the defendant said he
would rather pull the chairman out of the chair than be turned out of
the room, and immediately advanced with his fist clenched toward the
chairman, but was stopped by the churchwarden, who sat next but one to
the chairman, at a time when he was not near enough for any blow he
might have meditated to have reached the chairman, but the witnesses
said that it seemed to them that he was advancing with an intention to
strike the chairman.

_Spankie_, Serjt., for the defendant, upon this evidence, contended that
no assault had been committed, as there was no power in the defendant,
from the situation of the parties, to execute his threat,—there was not
a present ability,—he had not the means of executing his intention at
the time he was stopped.

TINDAL, C. J., in his summing up, said: It is not every threat, when
there is no actual personal violence, that constitutes an assault; there
must, in all cases, be the means of carrying the threat into effect. The
question I shall leave to you will be, whether the defendant was
advancing at the time, in a threatening attitude, to strike the
chairman, so that his blow would almost immediately have reached the
chairman if he had not been stopped; then, though he was not near enough
at the time to have struck him, yet, if he was advancing with that
intent, I think it amounts to an assault in law. If he was so advancing
that, within a second or two of time, he would have reached the
plaintiff, it seems to me it is an assault in law. If you think he was
not advancing to strike the plaintiff, then only can you find your
verdict for the defendant; otherwise you must find it for the plaintiff,
and give him such damages as you think the nature of the case requires.

_Verdict for the plaintiff. Damages, 1s._[4]

READ _v._ COKER
IN THE COMMON PLEAS, JUNE 1, 1853.
_Reported in 13 Common Bench Reports, 850._

Assault and false imprisonment.[5] The first count charged an assault
committed by the defendant on the plaintiff on the 24th of March, 1853,
by thrusting him out of a certain workshop.

Plea: Not guilty “by statute,” upon which issue was joined.

The cause was tried before Talfourd, J., at the first sitting in London
in Easter term last. The facts which appeared in evidence were as
follows: The plaintiff was a paper-stainer, carrying on business in the
City Road, upon premises which he rented of one Molineux, at a rent of
8_s._ per week. In January, 1852, the rent being sixteen weeks in
arrear, the landlord employed one Holliwell to distrain for it.
Holliwell accordingly seized certain presses, lathes, and other trade
fixtures, and, at the plaintiff’s request, advanced him £16 upon the
security of the goods, for the purpose of paying off the rent. The
plaintiff, being unable to redeem his goods, on the 23d of February
applied to the defendant for assistance. The goods were thereupon sold
to the defendant by Holliwell, on the part of Read, for £25 11_s._
6_d._; and it was agreed between the plaintiff and the defendant that
the business should be carried on for their mutual benefit, the
defendant paying the rent of the premises and other outgoings, and
allowing the plaintiff a certain sum weekly.

The defendant, becoming dissatisfied with the speculation, dismissed the
plaintiff on the 22d of March. On the 24th, the plaintiff came to the
premises, and, refusing to leave when ordered by the defendant, the
latter collected together some of his workmen, who mustered round the
plaintiff, tucking up their sleeves and aprons, and threatened to break
his neck if he did not go out; and, fearing that the men would strike
him if he did not do so, the plaintiff went out. This was the assault
complained of in the first count. Upon this evidence the learned judge
left it to the jury to say whether there was an intention on the part of
the defendant to assault the plaintiff, and whether the plaintiff was
apprehensive of personal violence if he did not retire. The jury found
for the plaintiff on this count. Damages, one farthing.

_Byles_, Serjt., on a former day in this term, moved for a rule _nisi_
for a new trial, on the ground of misdirection, and that the verdict was
not warranted by the evidence. That which was proved as to the first
count clearly did not amount to an assault. [JERVIS, C. J. It was as
much an assault as a sheriff’s officer being in a room with a man
against whom he has a writ, and saying to him, “You are my prisoner,” is
an arrest.] To constitute an assault, there must be something more than
a threat of violence. An assault is thus defined in Buller’s Nisi Prius,
p. 15: “An assault is an attempt or offer, by force or violence, to do a
corporal hurt to another, as by pointing a pitchfork at him, when
standing within reach; presenting a gun at him [within shooting
distance]; drawing a sword, and waving it in a menacing manner, &c. The
Queen _v._ Ingram, 1 Salk. 384. But no words can amount to an assault,
though perhaps they may in some cases serve to explain a doubtful
action: 1 Hawk. P. C. 133; as if a man were to lay his hand upon his
sword, and say, ‘If it were not assize-time, he would not take such
language,’—the words would prevent the action from being construed to be
an assault, because they show he had no intent to do him any corporal
hurt at that time: Tuberville _v._ Savage.” So, in Selwyn’s Nisi Prius
(11th ed.), 26, it is said: “An assault is an attempt, with force or
violence, to do a corporal injury to another, as by holding up a fist in
a menacing manner; striking at another with a cane or stick, though the
party striking may miss his aim; drawing a sword or bayonet; throwing a
bottle or glass with intent to wound or strike; presenting a gun at a
person who is within the distance to which the gun will carry; pointing
a pitchfork at a person who is within reach (Genner _v._ Sparks); or by
any other similar act, accompanied with such circumstances as denote at
the time an intention, coupled with a present ability (see Stephens _v._
Myers), of using actual violence against the person of another.” So, in
3 Bl. Comm. 120, an assault is said to be “an attempt or offer to beat
another, without touching him; as if one lifts up his cane or his fist
in a threatening manner at another, or strikes at him but misses him:
this is an assault, _insultus_, which Finch (L. 202) describes to be ‘an
unlawful setting upon one’s person.’” [JERVIS, C. J. If a man comes into
a room, and lays his cane on the table, and says to another, “If you
don’t go out I will knock you on the head,” would not that be an
assault?] Clearly not: it is a mere threat, unaccompanied by any gesture
or action towards carrying it into effect. The direction of the learned
judge as to this point was erroneous. He should have told the jury that
to constitute an assault there must be an attempt, coupled with a
present ability, to do personal violence to the party; instead of
leaving it to them, as he did, to say what the plaintiff thought, and
not what they (the jury) thought was the defendant’s intention. There
must be some act done denoting a present ability and an intention to
assault.

A rule _nisi_ having been granted,

_Allen_, Serjt., and _Charnock_ now showed cause. The first question is,
whether the evidence was sufficient, as to the first count, to justify
the learned judge in putting it to the jury whether or not the defendant
had been guilty of an assault. The evidence was, that the plaintiff was
surrounded by the defendant and his men, who, with their sleeves and
aprons tucked up, threatened to break his neck if he did not quit the
workshop. [MAULE, J. If there can be such a thing as an assault without
an actual beating, this is an assault.]

JERVIS, C. J. I am of opinion that this rule cannot be made absolute to
its full extent; but that, so far as regards the first count of the
declaration, it must be discharged. If anything short of actual striking
will in law constitute an assault, the facts here clearly showed that
the defendant was guilty of an assault. There was a threat of violence
exhibiting an intention to assault, and a present ability to carry the
threat into execution.

MAULE, J., CRESSWELL, J., and TALFOURD, J., concurring.

_Rule discharged as to the first count._[6]

UNITED STATES _v._ RICHARDSON
IN THE UNITED STATES CIRCUIT COURT, DISTRICT OF COLUMBIA, NOVEMBER TERM,
1837.
_Reported in 5 Cranch, Circuit Court Reports, 348._

Indictment for an assault upon one Susan Shelton.

The evidence was that the defendant came into the house where Mrs.
Shelton was sitting at a window. He was armed with a musket and a club;
and raising the club over her head, in an attitude for striking, and
within striking distance, said to her that if she said a word (or if she
opened her mouth) he would strike her; and this without any provocation
on her part.

_Mr. Bradley_ and _Mr. Hoban_, for the defendant, contended that this
was not, in law, an assault; that there can be no assault without a
present intent to strike; and his saying, “if she opened her mouth,”
showed that he had not such a present intent; and they cited the old
case, “if it were not the assizes, I would stab you.”

But the COURT (THURSTON, J., absent) said that he had no right to
restrain her from speaking; and his language showed an intent to strike
upon her violation of a condition which he had no right to impose.
Suppose a stranger comes to my house armed, and raises his club over my
head, within striking distance, and threatens to beat me unless I will
go out of and abandon my house; surely that would be an assault. So, if
a highwayman puts a pistol to my breast, and threatens to shoot me
unless I give him my money; this would be evidence of an assault, and
would be charged as such in the indictment.

_Verdict, guilty; fined ten dollars._[7]

OSBORN _v._ VEITCH
AT NISI PRIUS, CORAM WILLES, J., KENT SUMMER ASSIZES, 1858.
_Reported in 1 Foster & Finlason, 317._

Trespass and assault. Pleas: Not guilty, and _son assault demesne_.
Issue.

The plaintiffs were owners of a field in which the defendants were
walking with loaded guns at half-cock in their hands. The plaintiffs
desired them to withdraw and give their names, and on their refusal
advanced towards them, apparently as if to apprehend them. The
defendants half raised their guns, which they pointed towards them, and
threatened to shoot them. The plaintiffs (one of whom was a constable)
then gave them in charge to a policeman for shooting with intent, and
he, with their assistance, seized and handcuffed them.

_E. James_ submitted that there was no assault; as the guns were only at
half-cock, there was no “present ability” to execute the threat. Read
_v._ Coker.

_Sed per_ WILLES, J. Pointing a loaded gun at a person is in law an
assault. It is immaterial that it is at half-cock; cocking it is an
instantaneous act, and there is a “present ability” of doing the act
threatened, for it can be done in an instant.[8]

_E. James._ The assault was in self-defence; the defendants were only
trespassers, and there was an attempt to apprehend them, and excess is
not even assigned. Broughton _v._ Jackson, 18 Q. B. 378.

WILLES, J. It was not necessary that it should be. To shoot a man is not
a lawful way of repelling an assault. No doubt the charge of shooting
with intent was idle, and the assault was only a misdemeanor. The
handcuffing was utterly unlawful.

_Verdict for the plaintiff. Damages, one farthing._

BEACH _v._ HANCOCK
SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE, DECEMBER TERM, 1853.
_Reported in 27 New Hampshire Reports, 223._

Trespass, for an assault.

Upon the general issue it appeared that, the plaintiff and defendant
being engaged in an angry altercation, the defendant stepped into his
office, which was at hand, and brought out a gun, which he aimed at the
plaintiff in an excited and threatening manner, the plaintiff being
three or four rods distant. The evidence tended to show that the
defendant snapped the gun twice at the plaintiff, and that the plaintiff
did not know whether the gun was loaded or not, and that, in fact, the
gun was not loaded.

The court ruled that the pointing of a gun, in an angry and threatening
manner, at a person three or four rods distant, who was ignorant whether
the gun was loaded or not, was an assault, though it should appear that
the gun was not loaded, and that it made no difference whether the gun
was snapped or not.

The court, among other things, instructed the jury that, in assessing
the damages, it was their right and duty to consider the effect which
the finding of light or trivial damages in actions for breaches of the
peace would have to encourage a disregard of the laws and disturbances
of the public peace.

The defendant excepted to these rulings and instructions.

The jury having found a verdict for the plaintiff, the defendant moved
for a new trial by reason of said exceptions.

_Morrison_ and _Fitch_, for the defendant. The first question arising in
this case is, Is it an assault to point an unloaded gun at a person in a
threatening manner? An assault is defined to be an inchoate violence to
the person of another, with the present means of carrying the intent
into effect. 2 Greenl. Ev. 72. The attempt or offer with violence to do
corporal hurt to another must be coupled with a present ability to
constitute an assault. Roscoe’s Crim. Ev. 287; 1 Russell on Crimes, 750.
It is no assault to point an unloaded gun or pistol at another, &c.
Blake _v._ Barnard, 9 Car. & P. 626; Regina _v._ Baker, 1 Car. & K. 254;
Regina _v._ James, 1 Car. & K. 530. The court erred in instructing the
jury that the pointing of a gun in an angry and threatening manner was
an assault. It is well settled that the intention to do harm is the
essence of an assault, and this intent is to be collected by the jury
from the circumstances of the case. 2 Greenl. Ev. 73.[9]

GILCHRIST, C. J. Several cases have been cited by the counsel of the
defendant to show that the ruling of the court was incorrect. Among them
is the case of Regina _v._ Baker, 1 Car. & K. 254. In that case, the
prisoner was indicted under the statute of 7 Will. IV. and 1 Vict. c.
85, for attempting to discharge a loaded pistol. Rolfe, B., told the
jury that they must consider whether the pistol was in such a state of
loading that, under ordinary circumstances, it would have gone off, and
that the statute under which the prisoner was indicted would then apply.
He says, also, “If presenting a pistol at a person, and pulling the
trigger of it, be an assault at all, certainly, in the case where the
pistol was loaded, it must be taken to be an attempt to discharge the
pistol with intent to do some bodily injury.”

From the manner in which this statement is made, the opinion of the
court must be inferred to be, that presenting a loaded pistol is an
assault. There is nothing in the case favorable to the defendant. The
statute referred to relates to loaded arms.

The case of Regina _v._ James, 1 Car. & K. 530, was an indictment for
attempting to discharge a loaded rifle. It was shown that the priming
was so damp that it would not go off. Tindal, C. J., said: “I am of
opinion that this was not a loaded arm within the statute of 1 Vict. c.
85, and that the prisoner can neither be convicted of the felony nor of
the assault. It is only an assault to point a loaded pistol at any one,
and this rifle is proved not to be so loaded as to be able to be
discharged.” The reason why the prisoner could not be convicted of the
assault is given in the case of Regina _v._ St. George, 9 Car. & P. 483,
where it was held that on an indictment for a felony, which includes an
assault, the prisoner ought not to be convicted of an assault, which is
quite distinct from the felony charged, and on such an indictment the
prisoner ought only to be convicted of an assault, which is involved in
the felony itself. In this case, Parke, B., said: “If a person presents
a pistol which has the appearance of being loaded, and puts the party
into fear and alarm, that is what it is the object of the law to
prevent.” So if a person present a pistol purporting to be a loaded
pistol at another, and so near as to have been dangerous to life if the
pistol had gone off; _semble_, that this is an assault, even though the
pistol were, in fact, not loaded. Ibid.

In the case of Blake _v._ Barnard, 9 Car. & P. 626, which was trespass
for an assault and false imprisonment, the declaration alleged that the
pistol was loaded with gunpowder, ball, and shot, and it was held that
it was incumbent on the plaintiff to make that out. Lord Abinger then
says, “If the pistol was not loaded, it would be no assault,” and the
prisoner would be entitled to an acquittal, which was undoubtedly
correct, under that declaration, for the variance. Regina _v._ Oxford, 9
Car. & P. 525.

One of the most important objects to be attained by the enactment of
laws and the institutions of civilized society is, each of us shall feel
secure against unlawful assaults. Without such security society loses
most of its value. Peace and order and domestic happiness, inexpressibly
more precious than mere forms of government, cannot be enjoyed without
the sense of perfect security. We have a right to live in society
without being put in fear of personal harm. But it must be a reasonable
fear of which we complain. And it surely is not unreasonable for a
person to entertain a fear of personal injury, when a pistol is pointed
at him in a threatening manner, when, for aught he knows, it may be
loaded, and may occasion his immediate death. The business of the world
could not be carried on with comfort, if such things could be done with
impunity.

We think the defendant guilty of an assault, and we perceive no reason
for taking any exception to the remarks of the court. Finding trivial
damages for breaches of the peace—damages incommensurate with the injury
sustained—would certainly lead the ill-disposed to consider an assault
as a thing that might be committed with impunity. But at all events, it
was proper for the jury to consider whether such a result would or would
not be produced. Flanders _v._ Colby, 28 N. H. 34.

_Judgment on the verdict._[10]

STEARNS AND WIFE _v._ SAMPSON
SUPREME JUDICIAL COURT, MAINE, 1871.
_Reported in 59 Maine Reports, 568._

On exceptions, and motion to set aside the verdict as being against law.

Trespass. The writ contained three counts: one for breaking and entering
the plaintiffs’ close and carrying away the household furniture; the
second, for taking and carrying away the household furniture of the
wife; and the third,[11] for assault on the wife.

There was evidence tending to show that after entry and notice to leave,
and refusal by the wife and her mother, with an expressed determination
on their part to hold possession against the defendant, the latter
called in assistants and ordered them to remove the furniture, and they
did remove it from some of the rooms; that upon going to one of the
rooms, the door was fastened, and the assistants opened it; that the
furniture, except bed, was removed from Mrs. Stearns’ sleeping-room.

That the assistants remained there several days and nights.

That the defendant caused the windows to be removed; prevented food from
being carried to the house; that a tenant was let into the L of the
house, and had charge of the defendant’s bloodhound, five months old,
and permitted him to go into the house; that the furniture was removed
into a house near by, and Mrs. Stearns notified of its whereabouts; that
the doors fastened by Mrs. Stearns were removed; that Mrs. Stearns
finally left by compulsion with an officer, and was sick several weeks.

The rulings sufficiently appear in the opinion.

The jury returned a verdict for the plaintiffs, and the defendant
alleged exceptions, and also filed motions to set aside the verdict as
being against law and the weight of evidence.

APPLETON, C. J. There is in the declaration a count for an assault and
battery upon the female plaintiff. In reference to this branch of the
case, the following instructions were given: “Was there a trespass
committed upon the female plaintiff? She is the only one who seeks for
damages. Whatever may have been the injury inflicted upon the other
inmates of that house, she can recover on this suit only for that which
was inflicted upon her. In order to constitute an assault, it is not
necessary that the person should be touched, but there should be certain
indignities. In the language of one of the decisions, if the plaintiff
was embarrassed and distressed by the acts of the defendant, it would
amount in law to an assault.” The acts and indignities which from the
charge might constitute an assault were the bursting open a door, which
the defendants had no right to fasten, and the inconveniences resulting
from taking off the doors and taking out the windows, which made it
uncomfortable for the female plaintiff to remain, where remaining, she
was a trespasser. So the bringing a bloodhound by the defendant into his
house, which is proved to have barked, but not to have bitten, and the
making a noise therein, with other similar acts, it was contended, would
amount to an assault and trespass, and of that the jury were to judge.
Now, such is not the law. An assault and battery is clearly defined by
R. S., c. 118, § 28, thus: “Whoever unlawfully attempts to strike, hit,
touch, or do any violence to another, however small, in a wanton,
wilful, angry, or insulting manner, having an intention and existing
ability to do some violence to such person, shall be deemed guilty of an
assault; and if such attempt is carried into effect, he shall be deemed
guilty of an assault and battery.” Now, the removal of a door or
windows, of the owner in possession, would constitute no assault.
Indeed, as has been seen, 6 Allen, 76, the owner would, in attempting
it, have the right to use as much force as was necessary to overcome the
resistance of the unlawfully resisting and trespassing tenant. Acts
which may embarrass and distress do not necessarily amount to an
assault. Indignities may not constitute an assault. Acts aggravating an
assault differ materially from the assault thereby aggravated. Insulting
language or conduct may aggravate an assault, but it, not an
assault.[12] So the acts of the defendant in taking out the windows of
his own house, in a bleak and cold day, might distress one unlawfully
occupying and illegally refusing to quit his premises, but they could in
no sense be regarded as an assault upon her. One may be embarrassed and
distressed by acts done “in a wanton, wilful, angry, or insulting
manner,” where there is no “intention nor existing ability to do some
violence” to the person, and yet there be no assault. The instruction on
this point is equally at variance with the common law and the statute of
the State.[13]

COLE _v._ TURNER
AT NISI PRIUS, CORAM HOLT, C. J., EASTER TERM, 1704.
_Reported in 6 Modern Reports, 149._

HOLT, C. J., upon evidence in trespass for assault and battery
declared,—

First, That the least touching of another in anger[14] is a battery.

Secondly, If two or more meet in a narrow passage, and, without any
violence or design of harm, the one touches the other gently, it will be
no battery.[15]

Thirdly, If any of them use violence against the other, to force his way
in a rude, inordinate manner, it will be a battery; or any struggle
about the passage to that degree as may do hurt will be a battery.

INNES _v._ WYLIE
AT NISI PRIUS, CORAM LORD DENMAN, C. J., FEBRUARY 22, 1844.
_Reported in 1 Carrington & Kirwan, 257._

ASSAULT. Plea:[16] Not guilty.

It further appeared that the plaintiff, on the 30th of November, 1843,
went to a dinner of the society at Radley’s Hotel, and was prevented by
a policeman named Douglas from entering the room; and it was proved by
the policeman that he acted by order of the defendants.

With respect to the alleged assault, the policeman said, “The plaintiff
tried to push by me into the room, and I prevented him;” but some of the
other witnesses stated that the plaintiff tried to enter the room, and
was pushed back.

_Erle_ addressed the jury for the defendant. There is no assault here.
The policeman, who must best know what was done, says that the plaintiff
tried to push into the room, and he prevented him; and preventing a
person from pushing into a room is no assault, the assault, if any,
being rather on the other side.

LORD DENMAN, C. J. (in summing up). You will say, whether, on the
evidence, you think that the policeman committed an assault on the
plaintiff, or was merely passive. If the policeman was entirely passive,
like a door or a wall put to prevent the plaintiff from entering the
room, and simply obstructing the entrance of the plaintiff, no assault
has been committed on the plaintiff, and your verdict will be for the
defendant. The question is, Did the policeman take any active measures
to prevent the plaintiff from entering the room, or did he stand in the
doorway passive, and not move at all?

_Verdict for the plaintiff. Damages, 40s._

COWARD _v._ BADDELEY
IN THE EXCHEQUER, APRIL 19, 1859.
_Reported in 4 Hurlstone & Norman, 478._

Declaration: That the defendant assaulted and beat the plaintiff, gave
him in custody to a policeman, and caused him to be imprisoned in a
police-station for twenty-four hours, and afterwards to be taken in
custody along public streets before metropolitan police magistrates.

Pleas: First, Not guilty; third, That the plaintiff, within the
Metropolitan Police District, assaulted the defendant, and therefore the
defendant gave the plaintiff into custody to a police officer, who had
view of the assault, in order that he might be taken before magistrates
and dealt with according to law, &c.

Whereupon issue was joined.

At the trial before Bramwell, B., at the London sittings in last Hilary
term, the plaintiff proved that, on the night of the 31st of October, he
was passing through High Street, Islington, and stopped to look at a
house which was on fire. The defendant was directing a stream of water
from the hose of an engine on the fire. The plaintiff said, “Don’t you
see you are spreading the flames? Why don’t you pump on the next house?”
He went away, and then came back and repeated these words several times,
but did not touch the defendant. The defendant charged the plaintiff
with assaulting him, and gave him into the custody of a policeman who
was standing near.

The defendant swore that, on being interrupted by the plaintiff, he told
him to get out of the way and mind his own business; that the plaintiff
came up to him again, seized him by the shoulder, violently turned him
round, exposed him to danger, and turned the water off the fire.

The learned judge told the jury that the question was whether an assault
and battery had been committed; and he asked them, first, whether the
plaintiff laid hands on the defendant; and, secondly, whether he did so
hostilely. The jury found that the plaintiff did lay hands on the
defendant, intending to attract his attention. Whereupon the learned
judge ordered the verdict to be entered for the plaintiff, reserving
leave to the defendant to move to enter a verdict for him if the court
should be of opinion that he had wrongly directed the jury in telling
them that, to find the issue on the third plea for the defendant, they
must find that the plaintiff laid his hands upon him with a hostile
intention.

_Shee_, Serjt., in the same term, having obtained a rule _nisi_
accordingly.

_Beasley_ now showed cause. The question is, whether the intention of
the plaintiff is material to be considered in order to determine whether
there was an assault and battery. In Rawlings _v._ Till, 3 M. & W. 28,
Parke, B., referring to Wiffin _v._ Kincard, 2 B. & P. N. R. 471, where
it was held that a touch given by a constable’s staff does not
constitute a battery, pointed out, as the ground of that decision, that
there the touch was merely to engage the plaintiff’s attention. [MARTIN,
B. Suppose two persons were walking near each other, and one turned
round, and in so doing struck the other: surely that would not be a
battery. POLLOCK, C. B. There may be a distinction for civil and
criminal purposes. CHANNELL, B. It was necessary to prove an indictable
assault and battery in order to sustain the plea.] The maxim, _Actus non
facit reum nisi mens sit rea_ applies. He referred also to Pursell _v._
Horn, 8 A. & E. 602; Archbold’s Criminal Law, p. 524 (12th ed.); Scott
_v._ Shepherd, 2 W. Bl. 892.

_Petersdorff_, Serjt., and _Francis_, in support of the rule. The
learned judge’s direction was defective in introducing the word
“hostile.” In order to constitute an assault, it is enough if the act be
done against the will of the party. There are several cases where it has
been held that an assault has been committed where there was no
intention to do the act complained of in a hostile way, as in the case
of a prizefight. Rex _v._ Perkins, 4 Car. & P. 537. So a surgeon
assisting a female patient to remove a portion of her dress. Rex _v._
Rosinski 1 Moody C. C. 19. Here the plaintiff interfered with the
defendant in the execution of his duty. In Hawkins’ Pleas of the Crown,
vol. i. p. 263, it is said, “Any injury whatever, be it never so small,
being actually done to the person of a man in an angry, or revengeful,
or rude, or insolent manner, as by spitting in his face, or any way
touching him in anger, or violently jostling him out of the way, are
batteries in the eye of the law.” [BRAMWELL, B. I think that the
jostling spoken of must mean a voluntary jostling.]

POLLOCK, C. B. I am of opinion that the rule must be discharged. The
jury found that what the plaintiff did was done with the intent to
attract the attention of the defendant, not with violence to justify
giving the plaintiff into custody for an assault. The defendant treated
it as a criminal act, and gave the plaintiff into custody. We are called
on to set aside a verdict for the plaintiff, on the ground that he
touched the defendant.[17] There is no foundation for the application.

MARTIN, B. I am of the same opinion. The assault and battery which the
defendant was bound to establish means such an assault as would justify
the putting in force the criminal law for the purpose of bringing the
plaintiff to justice. It is necessary to show some act which justified
the interference of the police officer. Touching a person so as merely
to call his attention, whether the subject of a civil action or not, is
not the ground of criminal proceeding. It is clear that it is no battery
within the definition given by Hawkins.

CHANNELL, B. I am of the same opinion. Looking at the plea, it is
obvious that it was not proved.

BRAMWELL, B., concurred.

_Rule discharged._

DE MARENTILLE _v._ OLIVER
SUPREME COURT, NEW JERSEY, FEBRUARY TERM, 1808.
_Reported in 1 Pennington, 379._

This was action of trespass, brought by the defendant in this court,
against the plaintiff _in certiorari_. The state of demand charged the
defendant below, that he unlawfully, forcibly, and with great violence,
with a large stick, struck the horse of the plaintiff, on the public
highway, which said horse was then before a carriage, in which the
plaintiff was riding, on the said public highway, to the damage of the
plaintiff fifty dollars. This cause was tried by a jury, and verdict and
judgment for the plaintiff, $15 damages. It was assigned for error that
the suit was brought before the justice to recover damages for an
assault and battery, when, by law, such an action cannot be supported
before a justice of the peace.

PENNINGTON, J.[18] To attack and strike with a club, with violence, the
horse before a carriage, in which a person is riding, strikes me as an
assault on the person;[19] and if so, the justice had no jurisdiction of
the action.

But if this is to be considered as a trespass on the property,
unconnected with an assault on the person, I think that it was incumbent
on the plaintiff below to state an injury done to the horse, whereby the
plaintiff suffered damage; that he was in consequence of the blow
bruised or wounded, and unable to perform service; or that the plaintiff
had been put to expense in curing of him, or the like. All the
precedents of declarations for injuries done to domestic animals, as far
as my recollection goes, are in that way; and I think, with good reason.
Suppose a man, seeing a stranger’s horse in the street, was to strike
him with a whip, or a large stick, if you please, and no injury was to
ensue, could the owner of the horse maintain an action for this act? I
apprehend not. For these reasons, I incline to think, that this judgment
ought to be reversed.

KIRKPATRICK, C. J. Concurred in the reversal.

_Judgment reversed._

OBERLIN _v._ UPSON
SUPREME COURT, OHIO, JANUARY TERM, 1911.
_Reported in 84 Ohio State Reports, 111._

DAVIS, J.[20] Under the common law of England as it has been recognized
and administered in this country, a woman cannot maintain against her
seducer an action for damages arising from her own seduction. This is
frankly admitted by the counsel for the plaintiff in error; but they ask
a reversal of the judgment below upon the ground that the plaintiff was
induced to consent to the solicitations of the defendant by a betrayal
of the love and confidence which had been engendered in her by a period
of courtship and by a promise of marriage made by him. Confessedly this
is not an action _ex contractu_ upon a promise of marriage, in which the
seduction might be pleaded and proved as an aggravation of damages;[21]
but it is clearly an attempt to recover _ex delicto_. There is no
averment of mutual promises or of an agreement to marry; and an analysis
of the amended petition discloses no more than that the defendant’s
promise was one of the blandishments by which he accomplished his
purpose. The case, therefore, presents no exception to the common law
rule; for there is no claim of fraud, violence or artifice other than
mere solicitation.

The theory of the common law is that, since adultery and fornication are
crimes,[22] the woman is _particeps criminis_ and hence that she cannot
be heard to complain of a wrong which she helped to produce. It may be
conceded that some of the arguments adduced here might be fairly
persuasive if addressed to the legislature. Indeed in several of the
states statutes have been enacted authorizing such an action; but a
careful study of the decisions in those states, limiting and construing
those statutes, raises a doubt whether the legislation is a real advance
upon the common law. 8 Ann. Cas. 1115, note. There is, however, no such
statute in this state and the common law rule applies.

The judgment of the circuit court is _Affirmed_.[23]

SPEAR, C. J., SHAUCK, PRICE, and JOHNSON, JJ., concur.

DONAHUE, J., not participating.

BELL _v._ HANSLEY
SUPREME COURT, NORTH CAROLINA, DECEMBER TERM, 1855.
_Reported in 3 Jones, 131._

This was an action of trespass, assault, and battery, tried before
Ellis, Judge, at the fall term, 1855, of New Hanover Superior Court.

The plaintiff proved the assault and battery; and there was evidence
tending to show a mutual affray and fighting by consent.

But his Honor was of opinion, and so advised the jury, that
notwithstanding the fact that the parties had mutually assented to an
affray, the plaintiff was, nevertheless, entitled to recover; but that
the fact relied on as a defence was proper to be considered by the jury
in mitigation of damages. The defendant excepted to these instructions.

_Verdict for the plaintiff. Judgment and appeal._

NASH, C. J. This case presents the question whether, when two men fight
together, thereby committing an affray, either is guilty of an assault
and battery upon the other. Justice Buller, in his Nisi Prius, at page
16, says, each does commit an assault and battery upon the other, and
that each can maintain an action for it. He refers to a case at
Abingdon, Boulter _v._ Clark, when Serjeant Hayward appeared for the
defendant, and offered to prove that the parties fought by consent and
insisted that this, under the maxim _volenti non fit injuria_, applied.
Parker, Chief Baron, denied it, and said, “the fighting being unlawful,
the consent of the plaintiff to fight would be no bar to his action, and
that he was entitled to a verdict.” Mr. Stephens, in his Nisi Prius,
211, lays down the same doctrine: “If two men engage in a boxing match,
an action can be sustained by either of them against the other, if an
assault be made; because the act of boxing is unlawful, and the consent
of the parties to fight cannot excuse the injury.”

_Per Curiam. Judgment affirmed._[24]

SECTION II
IMPRISONMENT
NOTE BY THORPE, C. J., 1348.
_Reported in Year Book, Liber Assisarum, folio 104, placitum 85._

There is said to be an imprisonment in any case where one is arrested by
force and against his will, although it be on the high street or
elsewhere, and not in a house, &c.[25]

GENNER _v._ SPARKES
IN THE KING’S BENCH, TRINITY TERM, 1704.
_Reported in 1 Salkeld, 79._

Genner, a bailiff, having a warrant against Sparkes, went to him in his
yard, and, being at some distance, told him he had a warrant, and said
he arrested him. Sparkes, having a fork in his hand, keeps off the
bailiff from touching him, and retreats into his house. And this was
moved as a contempt. _Et per Curiam._ The bailiff cannot have an
attachment, for here was no arrest nor rescous. Bare words will not make
an arrest; but if the bailiff had touched him, that had been an
arrest,[26] and the retreat a rescous, and the bailiff might have
pursued and broke open the house, or might have had an attachment or a
rescous against him; but as this case is, the bailiff has no remedy, but
an action for the assault; for the holding up of the fork at him when he
was within reach, is good evidence of that.[27]

WOOD _v._ LANE
AT NISI PRIUS, CORAM TINDAL, C. J., DECEMBER 13, 1834.
_Reported in 6 Carrington & Payne, 774._

Trespass and false imprisonment. Pleas: Not guilty; and leave and
license.

It was proved by a member of the plaintiff’s family that he was a
flannel draper in Castle Street, Holborn, and that on the 3d of April he
came home accompanied by the defendants, Cleaton and Lane; and that the
plaintiff said Cleaton had arrested him at Mr. Sanders’s, in Holborn;
that the plaintiff’s wife asked the defendant Lane, who was, in fact,
clerk to Cleaton’s attorney, if he had any authority, and he said he
had; and being asked his name, said, “My name is Selby of Chancery
Lane.” Lane made several inquiries about the plaintiff’s property, and
said he would give him time till eight o’clock in the evening; upon
which the other defendant, Cleaton, said, “How can you do that? I will
not allow you to give him any time at all.” It was proved that, in fact,
Mr. Selby had no bailable process against the plaintiff. A witness was
also called, who proved that, in conversation with the defendant Lane on
the subject, he said it was a foolish piece of business; that Mr.
Cleaton had caused him to do it; that he was very sorry for it, but he
thought Mr. Cleaton would indemnify him. There was some uncertainty in
the evidence of the conversation whether the defendant Lane admitted or
not that he had taken the plaintiff by the arm.

According to the evidence of Mr. Sanders, at whose house the transaction
commenced, the plaintiff was bargaining with him for the sale of some
goods, and had just made out the invoice, which was lying before him,
when the defendant Cleaton came in alone, and asked the plaintiff
several times to pay the amount he owed him, or some money on account.
The plaintiff said he would not; upon which Cleaton went just outside
the door, and returned immediately, followed by the defendant Lane, and
pointing to the plaintiff, said, “This is the gentleman.” The plaintiff
tore up the invoice he had written, and threw it on the fire, and said,
“I suppose I am to go with you.” The answer given was, “Yes.” The
plaintiff and the two defendants went away together.

_Talfourd_, Serjt., for the defendant. No arrest has been proved.
Sanders, who was present, says nothing of the laying hold of the
plaintiff.

TINDAL, C. J. The question is, whether the plaintiff went voluntarily
from Mr. Sanders’s to his own house, or whether he went in consequence
of the acts of the defendants. If you put your hand upon a man, or tell
him he must go with you, and he goes, supposing you to have the power to
enforce him, is not that an arrest? May you not arrest without touching
a man?

_White_ referred to the case of Arrowsmith _v._ Le Mesurier, 2 B. & P.
N. R. 211.

TINDAL, C. J. That is a case which has often been spoken of as going to
the very extreme point; but in that case the jury found that the
plaintiff went voluntarily with the officer. And in this case, if you
can persuade the jury that the plaintiff went voluntarily, you may
succeed.

_Talfourd_, Serjt., then addressed the jury for the defendants. There
was no real compulsion. No writ was produced. It was only an endeavor by
a manœuvre to make the plaintiff do what he ought, but would not, viz.,
pay the money which he owed.

TINDAL, C. J., in summing up, told the jury, that, if the plaintiff was
acting as an unwilling agent, at the time and against his own will when
he went to his own house from that of Sanders, it was just as much an
arrest as if the defendants had forced him along.

_The jury found for the plaintiff. Damages_, £10.[28]

PIKE _v._ HANSON
SUPERIOR COURT OF JUDICATURE, NEW HAMPSHIRE, DECEMBER TERM, 1838.
_Reported in 9 New Hampshire Reports, 491._

Trespass, for an assault and false imprisonment on the 1st day of July,
A.D. 1837. The action was commenced before a justice of the peace. The
defendants pleaded severally the general issue. It appeared in evidence
that the defendants were selectmen of the town of Madbury for the year
1836; that they assessed a list of taxes upon the inhabitants of said
town, among whom was the plaintiff, and committed it to Nathan Brown,
collector of said town, for collection. Brown, after having given due
notice to the plaintiff, being in a room with her, called upon her to
pay the tax, which she declined doing until arrested. He then told her
that he arrested her, but did not lay his hand upon her; and thereupon
she paid the tax.

Upon this evidence the defendants objected that the action could not be
maintained, because there was no assault.

It did not appear that the defendants had been sworn, as directed by the
statute of January 4, 1833. A verdict was taken for the plaintiff,
subject to the opinion of the court.

WILCOX, J.[29] ... But it is contended that in the present case there
has been no assault committed, and no false imprisonment. Bare words
will not make an arrest: there must be an actual touching of the body;
or, what is tantamount, a power of taking immediate possession of the
body, and the party’s submission thereto. Genner _v._ Sparkes, 1 Salk.
79. Where a bailiff, having a writ against a person, met him on
horseback, and said to him, “You are my prisoner,” upon which he turned
back and submitted, this was held to be a good arrest, though the
bailiff never laid hand on him. But if, on the bailiff’s saying those
words, he had fled, it had been no arrest, unless the bailiff had laid
hold of him. Homer _v._ Battyn, Buffer’s N. P. 62. The same doctrine is
held in other cases. Russen _v._ Lucas & al., 1 Car. & P. 153; Chinn
_v._ Morris, 2 Car. & P. 361; Pocock _v._ Moore, Ry. & M. 321; Strout
_v._ Gooch, 8 Greenl. 126; Gold _v._ Bissell, 1 Wend. 210.

Where, upon a magistrate’s warrant being shown to the plaintiff, the
latter voluntarily and without compulsion attended the constable who had
the warrant to the magistrate, it was held there was no sufficient
imprisonment to support an action. Arrowsmith _v._ Le Mesurier, 2 B. &
P. N. R. 211. But in this case there was no declaration of any arrest,
and the warrant was in fact used only as a summons. And if the decision
cannot be sustained upon this distinction, it must be regarded as of
doubtful authority.

Starkie says that in ordinary practice words are sufficient to
constitute an imprisonment, if they impose a restraint upon the person,
and the plaintiff is accordingly restrained; for he is not obliged to
incur the risk of personal violence and insult by resisting, until
actual violence be used. 3 Stark. Ev. 1113. This principle is reasonable
in itself, and is fully sustained by the authorities above cited. Nor
does it seem necessary that there should be any very formal declaration
of an arrest. If the officer goes for the purpose of executing his
warrant; has the party in his presence and power; if the party so
understands it, and in consequence thereof submits, and the officer, in
execution of the warrant, takes the party before a magistrate, or
receives money or property in discharge of his person, we think it is in
law an arrest, although he did not touch any part of the body.

In the case at bar, it clearly appears that the plaintiff did not intend
to pay the tax, unless compelled by an arrest of her person. The
collector was so informed. He then proceeded to enforce the collection
of the tax,—declared that he arrested her,—and she, under that
restraint, paid the money. This is a sufficient arrest and imprisonment
to sustain the action, and there must, therefore, be

_Judgment on the verdict._[30]

FOTHERINGHAM _v._ ADAMS EXPRESS CO.
IN THE UNITED STATES CIRCUIT COURT, EASTERN DISTRICT, MISSOURI,
SEPTEMBER 24, 1888.
_Reported in 36 Federal Reporter, 252._

THAYER, J.[31] With reference to the motion for a new trial which has
been filed in this case and duly considered, it will suffice to say,
that I entertain no doubt that the jury were warranted in finding that
plaintiff was unlawfully restrained of his liberty from about the 27th
or 28th of October until the 10th of November following; that is to say,
for a period of about two weeks. The testimony in the case clearly
showed that during that period he was constantly guarded by detectives
employed by defendant for that purpose; that he was at no time free to
come and go as he pleased; that his movements were at all times subject
to the control and direction of those who had him in charge; that he was
urged by them on several occasions to confess his guilt, and make known
his confederates; and that he was subjected to repeated examinations and
cross-examinations touching the robbery, of such character as clearly to
imply that he was regarded as a criminal, and that force would be used
to detain him if he attempted to assert his liberty. The jury in all
probability found (as they were warranted in doing) that during the time
plaintiff remained in company with the detectives, he was in fact
deprived of all real freedom of action, and that whatever consent he
gave to such restraint was an enforced consent, and did not justify the
detention without a warrant. It is manifest that the court ought not to
disturb the finding on that issue.[32]

BIRD _v._ JONES
IN THE QUEEN’S BENCH, TRINITY VACATION, 1845.
_Reported in 7 Queen’s Bench Reports, 742._

This action was tried before Lord Denman, C. J., at the Middlesex
sittings after Michaelmas term, 1843, when a verdict was found for the
plaintiff.

In Hilary term, 1844, Thesiger obtained a rule _nisi_ for a new trial,
on the ground of misdirection.

In Trinity term, in the same year (June 5), Platt, Humfrey, and Hance
showed cause, and Sir F. Thesiger, Solicitor-General, supported the
rule.

The judgments sufficiently explain the nature of the case.

_Cur. adv. vult._

In this vacation (9th July), there being a difference of opinion on the
bench, the learned judges who heard the argument delivered judgment
_seriatim_.

COLERIDGE, J. In this case, in which we have unfortunately been unable
to agree in our judgment, I am now to pronounce the opinion which I have
formed; and I shall be able to do so very briefly, because, having had
the opportunity of reading a judgment prepared by my Brother Patteson,
and entirely agreeing with it, I may content myself with referring to
the statement he has made in detail of those preliminary points in which
we all, I believe, agree, and which bring the case up to that point upon
which its decision must certainly turn, and with regard to which our
difference exists.

This point is, whether certain facts, which may be taken as clear upon
the evidence, amount to an imprisonment. These facts, stated shortly,
and as I understand them, are in effect as follows:—

A part of a public highway was inclosed, and appropriated for spectators
of a boat-race, paying a price for their seats. The plaintiff was
desirous of entering this part, and was opposed by the defendant; but,
after a struggle, during which no momentary detention of his person took
place, he succeeded in climbing over the inclosure. Two policemen were
then stationed by the defendant to prevent, and they did prevent, him
from passing onwards in the direction in which he declared his wish to
go; but he was allowed to remain unmolested where he was, and was at
liberty to go, and was told that he was so, in the only other direction
by which he could pass. This he refused for some time, and during that
time remained where he had thus placed himself.

These are the facts; and, setting aside those which do not properly bear
on the question now at issue, there will remain these: that the
plaintiff, being in a public highway and desirous of passing along it in
a particular direction, is prevented from doing so by the orders of the
defendant, and that the defendant’s agents for the purpose are
policemen, from whom, indeed, no unnecessary violence was to be
anticipated, or such as they believed unlawful, yet who might be
expected to execute such commands as they deemed lawful with all
necessary force, however resisted. But although thus obstructed, the
plaintiff was at liberty to move his person and go in any other
direction, at his free will and pleasure; and no actual force or
restraint on his person was used, unless the obstruction before
mentioned amounts to so much.

I lay out of consideration the question of right or wrong between these
parties. The acts will amount to imprisonment, neither more nor less,
from their being wrongful or capable of justification.

And I am of opinion that there was no imprisonment. To call it so
appears to me to confound partial obstruction and disturbance with total
obstruction and detention. A prison may have its boundary large or
narrow, visible and tangible, or, though real, still in the conception
only; it may itself be movable or fixed; but a boundary it must have,
and that boundary the party imprisoned must be prevented from passing;
he must be prevented from leaving that place, within the ambit of which
the party imprisoning would confine him, except by prison breach. Some
confusion seems to me to arise from confounding imprisonment of the body
with mere loss of freedom: it is one part of the definition of freedom
to be able to go whithersoever one pleases; but imprisonment is
something more than the mere loss of this power: it includes the notion
of restraint within some limits defined by a will or power exterior to
our own.

In Com. Dig. Imprisonment (G), it is said: “Every restraint of the
liberty of a free man will be an imprisonment.” For this the authorities
cited are 2 Inst. 482; Cro. Car. 209. But when these are referred to, it
will be seen that nothing was intended at all inconsistent with what I
have ventured to lay down above. In both books the object was to point
out that a prison was not necessarily what is commonly so called, a
place locally defined and appointed for the reception of prisoners. Lord
Coke is commenting on the statute of Westminster 2d,[33] _in prisona_,
and says: “Every restraint of the liberty of a freeman is an
imprisonment, although he be not within the walls of any common prison.”
The passage in Cro. Car. 209, is from a curious case of an information
against Sir Miles Hobert and Mr. Stroud for escaping out of the
Gate-house Prison, to which they had been committed by the king. The
question was whether, under the circumstances, they had ever been there
imprisoned. Owing to the sickness in London, and through the favor of
the keeper, these gentlemen had not, except on one occasion, ever been
within the walls of the Gate-house. The occasion is somewhat singularly
expressed in the decision of the court, which was “that their voluntary
retirement to the close stool” in the Gate-house “made them to be
prisoners.” The resolution, however, in question is this: “that the
prison of the King’s Bench is not any local prison confined only to one
place, and that every place where any person is restrained of his
liberty is a prison; as if one take sanctuary and depart thence, he
shall be said to break prison.”

On a case of this sort, which, if there be difficulty in it, is at least
purely elementary, it is not easy nor necessary to enlarge, and I am
unwilling to put any extreme case hypothetically; but I wish to meet one
suggestion, which has been put as avoiding one of the difficulties which
cases of this sort might seem to suggest. If it be said that to hold the
present case to amount to an imprisonment would turn every obstruction
of the exercise of a right of way into an imprisonment, the answer is
that there must be something like personal menace or force accompanying
the act of obstruction, and that, with this, it will amount to
imprisonment. I apprehend that is not so. If, in the course of a night,
both ends of a street were walled up, and there was no egress from the
house but into the street, I should have no difficulty in saying that
the inhabitants were thereby imprisoned; but if only one end were walled
up, and an armed force stationed outside to prevent any scaling of the
wall or passage that way, I should feel equally clear that there was no
imprisonment. If there were, the street would obviously be the prison,
and yet, as obviously, none would be confined to it.

Knowing that my lord has entertained strongly an opinion directly
contrary to this, I am under serious apprehension that I overlook some
difficulty in forming my own; but, if it exists, I have not been able to
discover it, and am therefore bound to state that, according to my view
of the case, the rule should be absolute for a new trial.[34]

LORD DENMAN, C. J. I have not drawn up a formal judgment in this case,
because I hoped to the last that the arguments which my learned brothers
would produce in support of their opinion might alter mine. We have
freely discussed the matter both orally and in written communications;
but, after hearing what they have advanced, I am compelled to say that
my first impression remains. If, as I must believe, it is a wrong one,
it may be in some measure accounted for by the circumstances attending
the case. A company unlawfully obstructed a public way for their own
profit, extorting money from passengers, and hiring policemen to effect
this purpose. The plaintiff, wishing to exercise his right of way, is
stopped by force, and ordered to move in a direction which he wished not
to take. He is told at the same time that a force is at hand ready to
compel his submission. That proceeding appears to me equivalent to being
pulled by the collar out of the one line and into the other.

There is some difficulty, perhaps, in defining imprisonment in the
abstract without reference to its illegality; nor is it necessary for me
to do so, because I consider these acts as amounting to imprisonment.
That word I understand to mean any restraint of the person by force. In
Buller’s Nisi Prius, p. 22, it is said: “Every restraint of a man’s
liberty under the custody of another, either in a gaol, house, stocks,
or in the street, is in law an imprisonment; and whenever it is done
without a proper authority, is false imprisonment, for which the law
gives an action; and this is commonly joined to assault and battery; for
every imprisonment includes a battery, and every battery an assault.” It
appears, therefore, that the technical language has received a very
large construction, and that there need not be any touching of the
person: a locking up would constitute an imprisonment, without touching.
From the language of Thorpe, C. J., which Mr. Selwyn cites from the Book
of Assizes, it appears that, even in very early times, restraint of
liberty by force was understood to be the reasonable definition of
imprisonment.

I had no idea that any person in these times supposed any particular
boundary to be necessary to constitute imprisonment, or that the
restraint of a man’s person from doing what he desires ceases to be an
imprisonment because he may find some means of escape.

It is said that the party here was at liberty to go in another
direction. I am not sure that in fact he was, because the same unlawful
power which prevented him from taking one course might, in case of
acquiescence, have refused him any other. But this liberty to do
something else does not appear to me to affect the question of
imprisonment. As long as I am prevented from doing what I have a right
to do, of what importance is it that I am permitted to do something
else? How does the imposition of an unlawful condition show that I am
not restrained? If I am locked in a room, am I not imprisoned, because I
might effect my escape through a window, or because I might find an exit
dangerous or inconvenient to myself, as by wading through water, or by
taking a route so circuitous that my necessary affairs should suffer by
delay?

It appears to me that this is a total deprivation of liberty with
reference to the purpose for which he lawfully wished to employ his
liberty; and, being effected by force, it is not the mere obstruction of
a way, but a restraint of the person. The case cited as occurring before
Lord Chief Justice Tindal, as I understand it, is much in point. He held
it an imprisonment where the defendant stopped the plaintiff on his road
till he had read a libel to him. Yet he did not prevent his escaping in
another direction.

It is said that if any damage arises from such obstruction, a special
action on the case may be brought. Must I then sue out a new writ
stating that the defendant employed direct force to prevent my going
where my business called me, whereby I sustained loss? And if I do, is
it certain that I shall not be told that I have misconceived my remedy,
for all flows from the false imprisonment, and that should have been the
subject of an action of trespass and assault? For the jury properly
found that the whole of the defendant’s conduct was continuous: it
commenced in illegality; and the plaintiff did right to resist it as an
outrageous violation of the liberty of the subject from the very first.

_Rule absolute._[35]

CHAPTER II
NEGLIGENT INTERFERENCE

SECTION I
NEGLIGENCE AS A GROUND OF LIABILITY

WEAVER _v._ WARD
IN THE KING’S BENCH, EASTER TERM, 1616.
_Reported in Hobart, 134._

Weaver brought an action of trespass of assault and battery against
Ward. The defendant pleaded that he was, amongst others, by the
commandment of the lords of the council, a trained soldier in London, of
the band of one Andrews, captain, and so was the plaintiff: and that
they were skirmishing with their muskets charged with powder for their
exercise _in re militari_ against another captain and his band; and as
they were so skirmishing, the defendant, _casualiter et per infortunium
et contra voluntatem suam_, in discharging his piece, did hurt and wound
the plaintiff; which is the same, &c., _absque hoc_, that he was guilty
_aliter sive alio modo_. And, upon demurrer by the plaintiff, judgment
was given for him; for, though it were agreed that if men tilt or
tourney in the presence of the king, or if two masters of defence
playing their prizes kill one another, that this shall be no felony, or
if a lunatic kill a man, or the like; because felony must be done _animo
felonico_; yet, in trespass, which tends only to give damages according
to hurt or loss, it is not so; and therefore, if a lunatic hurt a man,
he shall be answerable in trespass,[36] and, therefore, no man shall be
excused of a trespass (for this is the nature of an excuse, and not of a
justification, _prout ei bene licuit_), except it may be judged utterly
without his fault; as if a man by force take my hand and strike you, or
if here the defendant had said that the plaintiff ran across his piece
when it was discharging, or had set forth the case with the
circumstances so as it had appeared to the court that it had been
inevitable, and that the defendant had committed no negligence to give
occasion to the hurt.[37]

BROWN _v._ KENDALL
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER TERM, 1850.
_Reported in 6 Cushing, 292._

This was an action of trespass for assault and battery, originally
commenced against George K. Kendall, the defendant, who died pending the
suit, and his executrix was summoned in.

It appeared in evidence, on the trial, which was before Wells, C. J., in
the Court of Common Pleas, that two dogs, belonging to the plaintiff and
the defendant, respectively, were fighting in the presence of their
masters; that the defendant took a stick about four feet long, and
commenced beating the dogs in order to separate them; that the plaintiff
was looking on, at the distance of about a rod, and that he advanced a
step or two towards the dogs. In their struggle, the dogs approached the
place where the plaintiff was standing. The defendant retreated
backwards from before the dogs, striking them as he retreated; and as he
approached the plaintiff, with his back towards him, in raising his
stick over his shoulder, in order to strike the dogs, he accidentally
hit the plaintiff in the eye, inflicting upon him a severe injury.

Whether it was necessary or proper for the defendant to interfere in the
fight between the dogs; whether the interference, if called for was in a
proper manner, and what degree of care was exercised by each party on
the occasion; were the subject of controversy between the parties, upon
all the evidence in the case, of which the foregoing is an outline.

The defendant requested the judge to instruct the jury, that “if both
the plaintiff and defendant at the time of the blow were using ordinary
care, or if at that time the defendant was using ordinary care and the
plaintiff was not, or if at that time both plaintiff and defendant were
not using ordinary care, then the plaintiff could not recover.”

The defendant further requested the judge to instruct the jury, that,
“under the circumstances, if the plaintiff was using ordinary care and
the defendant was not, the plaintiff could not recover, and that the
burden of proof on all these propositions was on the plaintiff.”

The judge declined to give the instructions, as above requested, but
left the case to the jury under the following instructions: “If the
defendant, in beating the dogs, was doing a necessary act, or one which
it was his duty under the circumstances of the case to do, and was doing
it in a proper way; then he was not responsible in this action, provided
he was using ordinary care at the time of the blow. If it was not a
necessary act; if he was not in duty bound to attempt to part the dogs,
but might with propriety interfere or not as he chose; the defendant was
responsible for the consequences of the blow, unless it appeared that he
was in the exercise of extraordinary care, so that the accident was
inevitable, using the word inevitable not in a strict but a popular
sense.”

“If, however, the plaintiff, when he met with the injury, was not in the
exercise of ordinary care, he cannot recover, and this rule applies,
whether the interference of the defendant in the fight of the dogs was
necessary or not. If the jury believe, that it was the duty of the
defendant to interfere, then the burden of proving negligence on the
part of the defendant, and ordinary care on the part of the plaintiff,
is on the plaintiff. If the jury believe, that the act of interference
in the fight was unnecessary, then the burden of proving extraordinary
care on the part of the defendant, or want of ordinary care on the part
of the plaintiff, is on defendant.”

The jury under these instructions returned a verdict for the plaintiff;
whereupon the defendant alleged exceptions.

SHAW, C. J. This is an action of trespass, _vi et armis_, brought by
George Brown against George K. Kendall, for an assault and battery; and
the original defendant having died pending the action, his executrix has
been summoned in. The rule of the common law, by which this action would
abate by the death of either party, is reversed in this Commonwealth by
statute, which provides that actions of trespass for assault and battery
shall survive. Rev. Sts. c. 93, § 7.

The facts set forth in the bill of exceptions preclude the supposition,
that the blow, inflicted by the hand of the defendant upon the person of
the plaintiff, was intentional. The whole case proceeds on the
assumption, that the damage sustained by the plaintiff, from the stick
held by the defendant, was inadvertent and unintentional; and the case
involves the question how far, and under what qualifications, the party
by whose unconscious act the damage was done is responsible for it. We
use the term “unintentional” rather than involuntary, because in some of
the cases, it is stated, that the act of holding and using a weapon or
instrument, the movement of which is the immediate cause of hurt to
another, is a voluntary act, although its particular effect in hitting
and hurting another is not within the purpose or intention of the party
doing the act.

It appears to us, that some of the confusion in the cases on this
subject has grown out of the long-vexed question, under the rule of the
common law, whether a party’s remedy, where he has one, should be sought
in an action of the case, or of trespass. This is very distinguishable
from the question, whether in a given case, any action will lie. The
result of these cases is, that if the damage complained of is the
immediate effect of the act of the defendant, trespass _vi et armis_
lies; if consequential only, and not immediate, case is the proper
remedy. Leame _v._ Bray, 3 East, 593; Huggett _v._ Montgomery, 2 B. & P.
N. R. 446, Day’s Ed., and notes.

In these discussions, it is frequently stated by judges, that when one
receives injury from the direct act of another, trespass will lie. But
we think this is said in reference to the question, whether trespass and
not case will lie, assuming that the facts are such, that some action
will lie. These _dicta_ are no authority, we think, for holding, that
damage received by a direct act of force from another will be sufficient
to maintain an action of trespass, whether the act was lawful or
unlawful, and neither wilful, intentional, or careless. In the principal
case cited, Leame _v._ Bray, the damage arose from the act of the
defendant, in driving on the wrong side of the road, in a dark night,
which was clearly negligent, if not unlawful. In the course of the
argument of that case (p. 595), Lawrence, J., said: “There certainly are
cases in the books, where, the injury being direct and immediate,
trespass has been holden to lie, though the injury was not intentional.”
The term “injury” implies something more than damage; but, independently
of that consideration, the proposition may be true, because though the
injury was unintentional, the act may have been unlawful or negligent,
and the cases cited by him are perfectly consistent with that
supposition. So the same learned judge in the same case says (p. 597),
“No doubt trespass lies against one who drives a carriage against
another, whether done wilfully or not.” But he immediately adds,
“Suppose one who is driving a carriage is negligently and heedlessly
looking about him, without attending to the road when persons are
passing, and thereby runs over a child and kills him, is it not
manslaughter? and if so, it must be trespass; for every manslaughter
includes trespass;” showing what he understood by a case not wilful.

We think, as the result of all the authorities, the rule is correctly
stated by Mr. Greenleaf, that the plaintiff must come prepared with
evidence to show either that the _intention_ was unlawful, or that the
defendant was _in fault_; for if the injury was unavoidable, and the
conduct of the defendant was free from blame, he will not be liable. 2
Greenl. Ev. §§ 85–92. Wakeman _v._ Robinson, 1 Bing. 213. If, in the
prosecution of a lawful act, a casualty purely accidental arises, no
action can be supported for an injury arising therefrom. Davis _v._
Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day’s Ed.) and notes;
Vincent _v._ Stinehour, 7 Vt. 62. In applying these rules to the present
case, we can perceive no reason why the instructions asked for by the
defendant ought not to have been given; to this effect, that if both
plaintiff and defendant at the time of the blow were using ordinary
care, or if at that time the defendant was using ordinary care, and the
plaintiff was not, or if at that time, both the plaintiff and defendant
were not using ordinary care, then the plaintiff could not recover.

In using this term, ordinary care, it may be proper to state, that what
constitutes ordinary care will vary with the circumstances of cases. In
general, it means that kind and degree of care, which prudent and
cautious men would use, such as is required by the exigency of the case,
and such as is necessary to guard against probable danger. A man, who
should have occasion to discharge a gun, on an open and extensive marsh,
or in a forest, would be required to use less circumspection and care,
than if he were to do the same thing in an inhabited town, village, or
city. To make an accident, or casualty, or, as the law sometimes states
it, inevitable accident, it must be such an accident as the defendant
could not have avoided by the use of the kind and degree of care
necessary to the exigency, and in the circumstances in which he was
placed.

We are not aware of any circumstances in this case, requiring a
distinction between acts which it was lawful and proper to do, and acts
of legal duty. There are cases, undoubtedly, in which officers are bound
to act under process, for the legality of which they are not
responsible, and perhaps some others in which this distinction would be
important. We can have no doubt that the act of the defendant in
attempting to part the fighting dogs, one of which was his own, and for
the injurious acts of which he might be responsible, was a lawful and
proper act, which he might do by proper and safe means. If, then, in
doing this act, using due care and all proper precautions necessary to
the exigency of the case, to avoid hurt to others, in raising his stick
for that purpose, he accidentally hit the plaintiff in his eye, and
wounded him, this was the result of pure accident, or was involuntary
and unavoidable, and therefore the action would not lie. Of if the
defendant was chargeable with some negligence, and if the plaintiff was
also chargeable with negligence, we think the plaintiff cannot recover
without showing that the damage was caused wholly by the act of the
defendant, and that the plaintiff’s own negligence did not contribute as
an efficient cause to produce it.

The court instructed the jury, that if it was not a necessary act, and
the defendant was not in duty bound to part the dogs, but might with
propriety interfere or not as he chose, the defendant was responsible
for the consequences of the blow, unless it appeared that he was in the
exercise of extraordinary care, so that the accident was inevitable,
using the word not in a strict but a popular sense. This is to be taken
in connection with the charge afterwards given, that if the jury
believed, that the act of interference in the fight was unnecessary
(that is, as before explained, not a duty incumbent on the defendant),
then the burden of proving extraordinary care on the part of the
defendant, or want of ordinary care on the part of plaintiff, was on the
defendant.

The court are of opinion that these directions were not conformable to
law. If the act of hitting the plaintiff was unintentional, on the part
of the defendant, and done in the doing of a lawful act, then the
defendant was not liable, unless it was done in the want of exercise of
due care, adapted to the exigency of the case, and therefore such want
of due care became part of the plaintiff’s case, and the burden of proof
was on the plaintiff to establish it. 2 Greenl. Ev. § 85; Powers _v._
Russell, 13 Pick. 69, 76; Tourtellot _v._ Rosebrook, 11 Met. 460.

Perhaps the learned judge, by the use of the term extraordinary care, in
the above charge, explained as it is by the context, may have intended
nothing more than that increased degree of care and diligence, which the
exigency of particular circumstances might require, and which men of
ordinary care and prudence would use under like circumstances, to guard
against danger. If such was the meaning of this part of the charge, then
it does not differ from our views, as above explained. But we are of
opinion, that the other part of the charge, that the burden of proof was
on the defendant, was incorrect. Those facts which are essential to
enable the plaintiff to recover, he takes the burden of proving. The
evidence may be offered by the plaintiff or by the defendant; the
question of due care, or want of care, may be essentially connected with
the main facts, and arise from the same proof; but the effect of the
rule, as to the burden of proof, is this, that when the proof is all in,
and before the jury, from whatever side it comes, and whether directly
proved, or inferred from circumstances, if it appears that the defendant
was doing a lawful act, and unintentionally hit and hurt the plaintiff,
then unless it also appears to the satisfaction of the jury, that the
defendant is chargeable with some fault, negligence, carelessness, or
want of prudence, the plaintiff fails to sustain the burden of proof,
and is not entitled to recover.

_New trial ordered_[38]

STANLEY _v._ POWELL
IN THE QUEEN’S BENCH DIVISION, NOVEMBER 3, 1890.
_Reported in [1891] 1 Queen’s Bench, 86._

DENMAN, J. This case was tried before me and a special jury at the last
Maidstone Summer Assizes.[39]

In the statement of claim the plaintiff alleged that the defendant had
_negligently and wrongfully and unskilfully_ fired his gun and wounded
the plaintiff in his eye, and that the plaintiff, in consequence, had
lost his sight and suffered other damage. The defendant denied the
negligence alleged. After the evidence on both sides, which was
conflicting, had been heard, I left the three following questions to the
jury: 1. Was the plaintiff injured by a shot from defendant’s gun? 2.
Was the defendant guilty of negligence in firing the charge to which
that shot belonged as he did? 3. Damages.

The undisputed facts were, that on Nov. 29, 1888, the defendant and
several others were pheasant shooting in a party, some being inside and
some outside of a wood which the beaters were beating. The right of
shooting was in one Greenwood, who was of the party. The plaintiff was
employed by Greenwood to carry cartridges and the game which might be
shot. Several beaters were driving the game along a plantation of
saplings towards an open drive. The plaintiff stood just outside a gate
which led into a field outside the plantation, at the end of the drive.
The defendant was walking along in that field a few yards from the hedge
which bounded the plantation. As he was walking along a pheasant rose
inside the plantation; the defendant fired one barrel at this bird, and,
according to the evidence for the defendant, struck it with his first
shot. There was a considerable conflict of evidence as to details; but
the jury must, I think, be taken to have adopted the version of the
facts sworn to by the defendant’s witnesses. They swore that the bird,
when struck by the first shot, began to lower and turn back towards the
beaters, whereupon the defendant fired his second barrel and killed the
bird, but that a shot, glancing from the bough of an oak which was in or
close to the hedge, and, striking the plaintiff, must have caused the
injury complained of. The oak in question, according to the defendant’s
evidence, was partly between the defendant and the bird when the second
barrel was fired, but it was not in a line with the plaintiff, but, on
the contrary, so much out of that line, that the shot must have been
diverted to a considerable extent from the direction in which the gun
must have been pointed in order to hit the plaintiff. The distance
between the plaintiff and the defendant, in a direct line, when the
second barrel was fired, was about thirty yards. The case for the
plaintiff was entirely different; but I think it must be held that the
jury took the defendant’s account of the matter, for they found the
second question left to them in the negative. Before summing up the case
to the jury, I called the attention of the parties to the doctrine which
seemed to have been laid down in some old cases—that, even in the
absence of negligence, an action of trespass might lie; and it was
agreed that I should leave the question of negligence to the jury, but
that, if necessary, the pleadings were deemed to have been amended so as
to raise any case or defence open upon the facts with liberty to the
court to draw inferences of fact, and that the damages should be
assessed contingently. The jury assessed them at £100. I left either
party to move the court for judgment; but it was afterwards agreed that
the case should be argued before myself on further consideration, and
that I should give judgment, notwithstanding that I had left the parties
to move the court, as though I had originally reserved it for further
consideration before myself.

Having heard the arguments, I am of opinion that, by no amendment that
could be made consistently with the finding of the jury could I properly
give judgment for the plaintiff. It was contended on his behalf that
this was a case in which an action of trespass would have lain before
the Judicature Acts; and this contention was mainly founded on certain
_dicta_ which, until considered with reference to those cases in which
they are uttered, seem to support that contention; but no decision was
quoted, nor do I think that any can be found which goes so far as to
hold, that if A. is injured by a shot from a gun fired at a bird by B.,
an action of trespass will necessarily lie, even though B. is proved to
have fired the gun without negligence and without intending to injure
the plaintiff or to shoot in his direction.

The jury having found that there was no negligence on the part of the
defendant, the most favorable way in which it is now possible to put the
case for the plaintiff is to consider the action as brought for a
trespass, and to consider that the defendant has put upon the record a
defence denying negligence, and specifically alleging the facts, sworn
to by his witnesses, which the jury must be considered to have found
proved, and then to consider whether those facts, coupled with the
absence of negligence established by the jury, amount to an excuse in
law.

The earliest case relied upon by the plaintiff was one in the year-book
21 Hen. 7, 28 A., which is referred to by Grose, J., in the course of
the argument in Leame _v._ Bray, 3 East, 593, to be mentioned presently,
in these words: “There is a case put in the year-book, 21 Hen. 7, 28 A.,
that where one shot an arrow at a mark which glanced from it and struck
another, it was holden to be trespass.” Returning to the case in the
year-book, it appears that the passage in question was a mere _dictum_
of Rede, who (see 5 Foss’ Lives of the Judges, p. 230) was at the time
(1506) either a judge of the King’s Bench or C. J. of the Common Pleas,
which he became in October in that year, in a case of a very different
kind from that in question, and it only amounts to a statement that an
action of trespass may lie even where the act done by the defendant is
_unintentional_. The words relied on are, “_Mes ou on tire a les buts et
blesse un home, coment que est incontre sa volonte, il sera dit un
trespassor incontre son entent._” But in that very passage Rede makes
observations which show that he has in his mind cases in which that
which would be _prima facie_ a trespass may be excused. The next case in
order of date relied upon for the plaintiff was Weaver _v._ Ward,
decided in 1607. There is no doubt that that case contains _dicta_ which
_per se_ would be in favor of the plaintiff, but it also contains the
following summing up of the law applicable to cases of unintentional
injury by acts which are _prima facie_ trespasses: “Therefore, no man
shall be excused of a trespass ... except it may be judged utterly
without his fault,” showing clearly that there may be such cases. That
case, after all, only decided that where the plaintiff and defendant
were skirmishing as soldiers of the train-band, and the one,
“_casualiter, et per infortunium, et contra voluntatem suam_” (which
must be translated “accidentally and involuntarily”) shot the other, an
action of trespass would lie, _unless_ he could show that such
involuntary and accidental shooting was done under such circumstances as
utterly to negative negligence. Such cases may easily be supposed, in
which there could be no two opinions about the matter; but other cases
may, as the present case did, involve considerable conflicts of evidence
and opinion which until recently a jury only could dispose of. The case
of Gibbons _v._ Pepper, 4 Mod. 405, decided in 1695, merely decided that
a plea merely showing that an accident caused by a runaway horse was
_inevitable_, was a bad plea in an action of trespass, because, if
_inevitable_, that was a defence under the general issue. It was a mere
decision on the pleading, and laid down nothing as regards the point
raised in the present case. The concluding words of the judgment, which
show clearly the _ratio decidendi_ of that case, are these: “He should
have pleaded the general issue, for if the horse ran away against his
will he would have been found _not guilty_, because in such a case it
cannot be said with any color of reason to be a battery in the rider.”
The more modern cases of Wakeman _v._ Robinson and Hall _v._ Fearnley,
lay down the same rule as regards the pleading point, though the former
case may also be relied upon as an authority by way of _dictum_ in favor
of the plaintiff, and the latter may be fairly relied upon by the
defendant; for Wightman, J., in his judgment explains Wakeman _v._
Robinson thus: “The act of the defendant” (viz., driving the cart at the
very edge of a narrow pavement on which the plaintiff was walking, so as
to knock the plaintiff down) “was _prima facie_ unjustifiable, and
required an excuse to be shown. When the motion in this case was first
made, I had in my recollection the case of Wakeman _v._ Robinson. It was
there agreed that an _involuntary_ act might be a defence on the general
issue. The decision indeed turned on a different point; but the general
proposition is laid down. I think the _omission to plead_ the defence
here deprived the defendant of the benefit of it, and entitled the
plaintiff to recover.”

But in truth neither case decides whether, where an act such as
discharging a gun is voluntary, but the result injurious without
negligence, an action of trespass can nevertheless be supported as
against a plea pleaded and proved, and which the jury find established,
to the effect that there was no negligence on the part of the defendant.

The case of Underwood _v._ Hewson, 1 Str. 596, decided in 1724, was
relied on for the plaintiff. The report is very short. “The defendant
was uncocking a gun, and the plaintiff standing to see it, it went off
and wounded him; and at the trial it was held that the plaintiff might
maintain trespass—Strange _pro defendente_.” The marginal note in
Nolan’s edition of 1795, not necessarily Strange’s own composition, is
this: “Trespass lies for an accidental hurt;” and in that edition there
is a reference to Buller’s N. P., p. 16. On referring to Buller, p. 16,
where he is dealing with Weaver _v._ Ward, I find he writes as follows:
“So (it is no battery) if one soldier hurt another in exercise; but if
he plead it he must set forth the circumstances, so as to make it appear
to the court that it was inevitable, and that he committed no negligence
to give occasion to the hurt, for it is not not enough to say that he
did it _casualiter, et per infortunium, et contra voluntatem suam_; for
no man shall be excused of a trespass, unless it be justified entirely
without his default: Weaver _v._ Ward; and, therefore, it has been
holden that an action lay where the plaintiff standing by to see the
defendant uncock his gun was accidentally wounded: Underwood _v._
Hewson.” On referring back to Weaver _v._ Ward, I can find nothing in
the report to show that the court held, that in order to constitute a
defence in the case of a trespass it is necessary to show that the act
was _inevitable_. If _inevitable_, it would seem that there was a
defence under the general issue; but a distinction is drawn between an
act which is inevitable and an act which is excusable, and what Weaver
_v._ Ward really lays down is that “no man shall be excused of a
trespass except it may be judged utterly without his fault.”

Day _v._ Edwards, D. & E. 5 T. R. 648 (1794), merely decides that where
a man negligently _drives_ a cart against the plaintiff’s carriage, the
injury being committed by the _immediate_ act complained of, the remedy
must be trespass, and not case.

But the case upon which most reliance was placed by the plaintiff’s
counsel was Leame _v._ Bray, 3 East, 593. That was an action of trespass
in which the plaintiff complained that the defendant with force and arms
drove and struck a chaise which he was driving on the highway against
the plaintiff’s curricle, which the plaintiff’s servant was driving, by
means whereof the servant was thrown out, and the horses ran away, and
the plaintiff, who jumped out to save his life, was injured. The facts
stated in the report include a statement that “the accident happened in
a dark night, owing to the defendant driving his carriage on the wrong
side of the road, and the parties not being able to see each other; and
that if the defendant had kept his right side there was ample room for
the carriages to have passed without injury.” The report goes on to
state: “But it did not appear that blame was imputable to the defendant
in any _other_ respect as to the manner of his driving. It was therefore
objected for the defendant, that the injury _having happened from
negligence_ and not wilfully, the proper remedy was by an action on the
case, and not of trespass _vi et armis_; and the plaintiff was thereupon
nonsuited.” On the argument of the rule to set aside the verdict the
whole discussion turned upon the question whether the injury was, as put
by Lawrence, J., at p. 596 of the report, immediate from the defendant’s
act, or consequential only from it, and in the result the nonsuit was
set aside. But it clearly appears from the report that there was
evidence upon which the jury might have found negligence, and indeed the
defendant’s counsel assumed it in the very objection which prevailed
with Lord Ellenborough when he nonsuited the plaintiff. There is nothing
in any of the judgments to show that if in that case a plea had been
pleaded denying any negligence, and the jury had found that the
defendant was not guilty of any negligence, but (for instance) that the
accident happened wholly through the darkness of the night making it
impossible to distinguish one side of the road from the other and
without negligence on either side, the court would have held that the
defendant would have been liable either in trespass or in case.

All the cases to which I have referred were before the Court of
Exchequer in 1875, in the case of Holmes _v._ Mather, and Bramwell, B.,
in giving judgment in that case, dealt with them thus: “As to the cases
cited, most of them are really decisions on the form of action, whether
case or trespass. The result of them is this, and it is intelligible
enough: if the act that does an injury is an act of direct force _vi et
armis_, trespass is the proper remedy (if there is any remedy), where
the act is wrongful either as being wilful or as being the result of
negligence. Where the act is not wrongful for either of these reasons,
no action is maintainable, though trespass would be the proper form of
action if it were wrongful. That is the effect of the decisions.”

This view of the older authorities is in accordance with a passage cited
by Mr. Dickens from Bacon’s Abridgment, Trespass, I., p. 706, with a
marginal reference to Weaver _v._ Ward. In Bacon the word “inevitable”
does not find a place. “If the circumstance which is specially pleaded
in an action of trespass do not make the act complained of lawful” (by
which I understand justifiable even if purposely done to the extent of
purposely inflicting the injury, as, for instance, in a case of
self-defence) “and only make it excusable, it is proper to plead this
circumstance in excuse; and it is in this case necessary for the
defendant to show not only that the act complained of was accidental”
(by which I understand, “that the injury was unintentional”), “but
likewise that it was not owing to neglect or want of due caution.” In
the present case the plaintiff sued in respect of an injury owing to the
defendant’s negligence,—there was no pretence for saying that it was
intentional so far as any injury to the plaintiff was concerned,—and the
jury negatived such negligence. It was argued that nevertheless,
inasmuch as the plaintiff was injured by a shot from the defendant’s
gun, that was an injury owing to an act of force committed by the
defendant, and therefore an action would lie. I am of opinion that this
is not so, and that against any statement of claim which the plaintiff
could suggest the defendant must succeed if he were to plead the facts
sworn to by the witnesses for the defendant in this case, and the jury
believing those facts, as they must now be taken by me to have done,
found the verdict which they have found as regards negligence. In other
words, I am of opinion that if the case is regarded as an action on the
case for an injury by negligence the plaintiff has failed to establish
that which is the very gist of such an action; if, on the other hand, it
is turned into an action for trespass, and the defendant is (as he must
be) supposed to have pleaded a plea denying negligence and establishing
that the injury was accidental in the sense above explained, the verdict
of the jury is equally fatal to the action. I am, therefore, of opinion
that I am bound to give judgment for the defendant. As to costs, they
must follow, unless the defendant foregoes his right.

_Judgment for the defendant._[40]

SULLIVAN _v._ OLD COLONY STREET RAILWAY
SUPREME JUDICIAL COURT, MASSACHUSETTS, NOVEMBER 30, 1908.
_Reported in 200 Massachusetts Reports, 303._

Tort. The first count in the declaration alleged that, while the
plaintiff was a passenger on an electric car of the defendant, the car
was derailed at Tiverton, owing to the defendant’s negligence, “whereby
the plaintiff was jolted and in many ways injured externally and
internally.”

At the trial, plaintiff testified substantially to the same effect as
the allegations in the declaration. As to the derailment, he testified
that it was violent and that he was much thrown about. The evidence for
the defendant tended to show that there was practically no jar when the
car left the rails at Tiverton.

At the close of the evidence plaintiff requested, among others, the
following ruling:—

“1. Upon all the evidence the plaintiff is entitled to recover on the
first count.”

The judge refused to so rule.

The judge instructed the jury, in part, as follows:—

“The only matters, then, of damages for you to consider are these:
First, what was the effect upon the plaintiff of the jolts when the car
was derailed? To what extent did they injure the plaintiff?”

Plaintiff excepted to the charge. Verdict for defendant.[41]

SHELDON, J. No question was made at the trial but that the defendant was
liable for any injury done to the plaintiff by reason of its car having
left the track. But if no injury was caused by this to the plaintiff, if
he suffered no damage whatever from the defendant’s negligence, then he
would not be entitled to recover. Although there has been negligence in
the performance of a legal duty, yet it is only those who have suffered
damage therefrom that may maintain an action therefor. Heaven _v._
Pender, 11 Q. B. D. 503, 507; Farrell _v._ Waterbury Horse Railroad, 60
Conn. 239, 246; Salmon _v._ Delaware, Lackawanna & Western Railroad, 19
Vroom, 5, 11; 2 Cooley on Torts (3d ed.), 791; Wharton on Negligence (2d
ed.), sect. 3. In cases of negligence, there is no such invasion of
rights as to entitle plaintiff to recover at least nominal damages, as
in Hooten _v._ Barnard, 137 Mass. 36, and McAneany _v._ Jewett, 10
Allen, 151.[42] Accordingly, the first and second of the plaintiff’s
requests for rulings could not have been given, and the rulings made
were all that the plaintiff was entitled to.

_Exceptions overruled._[43]

HART _v._ ALLEN
SUPREME COURT, PENNSYLVANIA, OCTOBER TERM, 1833.
_Reported in 2 Watts, 114._

Action on the case against owners of a vessel.[44] Plaintiff put in
evidence a bill of lading of chests of tea shipped on board defendant’s
vessel; “to be delivered in good order, unavoidable accidents and the
dangers of the river excepted....” Plaintiff also proved that the teas
were delivered by defendants in a damaged state, owing to their having
been wet. Defendants gave evidence that the boat, when on her passage up
the river, was driven by a sudden squall of wind and snow sidewise,
whereby the teas were wet and damaged; that she was well fitted for the
voyage; that every exertion was made to save her; and that Samuel
Johnston, the captain, was a man of experience. To rebut this the
plaintiff gave evidence that Samuel Johnston was not an experienced
boatman or pilot.

Judgment below for plaintiff. The original defendants brought error. One
of the errors assigned was as follows:—

The court below erred in charging the jury, that although the accident
in this case resulted from the act of God, and could not have been
prevented by any human prudence or foresight; and although it would, in
this respect, come within the exception that excuses the carrier in case
of loss: still, if the crew of the boat was not sufficient, or if she
was not under the control of a master or pilot sufficiently skilled to
perform the duties corresponding to his station, the carrier cannot
avail himself of the exception, nor excuse himself from responsibility
to the owner, to the extent of the injury done to the goods. And also,
in substance, that if the jury think that the boat was not fit for the
voyage, or the master not competent, or the crew insufficient; they
ought to find a verdict for the plaintiff, whatever might be their
opinion as to the real cause of the upsetting of the boat.

GIBSON, C. J.: Had the judge said no more than that the carrier is bound
to provide a carriage or vessel in all respects adequate to the purpose,
with a conductor or crew of competent skill or ability, and that
“failing in these particulars, though the loss be occasioned by the act
of God, he shall not set up a providential calamity to protect himself
against what _may_ have arisen from his own folly;” there would have
been no room for an exception. But the cause was eventually put to the
jury on a different principle: “though the accident resulted from the
act of God,” it was said, “_and could not have been prevented by any
human prudence or foresight_, and though it would in this respect
otherwise have come within the exception that excuses the carrier in
case of loss: still, if the crew of the office [?] were not sufficient,
or if she were not under the control of a master or pilot sufficiently
skilful to perform the duties correspondent to his station, the carrier
cannot avail himself of the exception.” By this the jury were
instructed, in accordance, as it was supposed, with the principle of
Bell _v._ Reed and Beelor, 4 Binn. 127, that want of seaworthiness has
the peculiar effect of casting every loss, from whatever cause, on the
carrier, as a penalty, I presume, for his original delinquency, and not
for its actual or supposed instrumentality in contributing to the
disaster, which is admitted to have been produced, in this instance, by
causes unconnected with the master or crew, and to have been of a nature
which no human force or sagacity could control.

Does such a penalty necessarily result from the nature of the contract?
A carrier is answerable for the consequences of negligence, not the
abstract existence of it. Where the goods have arrived safe, no action
lies against him for an intervening but inconsequential act of
carelessness; nor can it be set up as a defence against payment of the
freight; and for this plain reason, that the risk from it was all his
own. Why, then, should it, in any other case, subject him to a loss
which it did not contribute to produce, or give an advantage to one who
was not prejudiced by it? It would require much to reconcile to any
principle of policy or justice, a measure of responsibility which would
cast the burthen of the loss on a carrier whose wagon had been snatched
away by a whirlwind in crossing a bridge, merely because it had not been
furnished with a proper cover or tilt to protect the goods from the
weather. Yet the omission to provide such a cover would be gross
negligence, but, like that imputed to the carrier in the case before us,
such as could have had no imaginable effect on the event. A carrier is
an insurer against all losses without regard to degrees of negligence in
the production of them, except such as have been caused by an act of
providence, or the common enemy: and why is he so? Undoubtedly to
subserve the purposes, not of justice in the particular instance, but of
policy and convenience: of policy, by removing from him all temptation
to confederate with robbers or thieves—and of convenience, by relieving
the owner of the goods from the necessity of proving actual negligence,
which, the fact being peculiarly within the knowledge of the carrier or
his servants, could seldom be done. Jones on Bail. 108, 109; 2 Kent, 59,
78. Such are the rule and the reason of it, and such is the exception.
But we should enlarge the rule, or to speak more properly, narrow the
exception far beyond the exigencies of policy or convenience, did we
hold him an insurer against even the acts of providence, as a punishment
for an abstract delinquency, where there was no room for the existence
of a confederacy, or the operation of actual negligence; and to carry a
responsibility, founded in no principle of natural equity beyond the
requirements of necessity, would be gratuitous injustice. A delinquency
which might have contributed to the disaster, such, for instance, as is
imputable to the owner of a ship driven on a lee shore, for a defect in
the rigging or sails, would undoubtedly be attended with different
consequences; for as it would be impossible to ascertain the exact
effect of the delinquency on the event, the loss would have to be borne
by the delinquent on a very common principle, by which any one whose
carelessness has increased the danger of injury from a sudden commotion
of the elements, is chargeable with all the mischief that may ensue: as
in Turberville _v._ Stamp, Skin. 681, where it was adjudged, that the
negligent keeping of fire in a close would subject the party to all the
consequences, though proximately produced by a sudden storm; and the
same principle was held by this court in The Lehigh Bridge Company _v._
The Lehigh Navigation, 4 Rawle, 9. But it would be too much to require
of the carrier to make good a loss from shipwreck, for having omitted to
provide the ship with proper papers, which are a constituent part of
seaworthiness, and the omission of them an undoubted negligence.

* * * * *

The first question, therefore, will be, whether the captain and crew of
the boat had the degree of ability and skill thus indicated; and if it
be found that they had not, then the second question will be, whether
the want of it contributed in any degree to the actual disaster: but if
either of these be found for the carrier, it will be decision
[decisive?] of the cause. It seems, therefore, that ... the cause ought
to be put, on these principles, to another jury.

_Judgment reversed, and a venire de novo awarded_.[45]

SECTION II
INTERESTS SECURED

SPADE _v._ LYNN & BOSTON R. CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 19, 1897.
_Reported in 168 Massachusetts Reports, 285._

Tort, for personal injuries occasioned to the plaintiff by the alleged
negligence of the defendant. The declaration contained three counts.

The third count[46] alleged that while the plaintiff was a passenger in
the defendant’s car, and in the exercise of due care, “one of the
defendant’s agents or servants, in attempting to remove from the said
car a certain person claimed and alleged by said defendant’s agent to be
noisy, turbulent, and unfit to remain as a passenger in said car,
conducted himself with such carelessness, negligence, and with the use
of such unnecessary force, that said agent and servant, acting thus
negligently, created a disorder, disturbance, and quarrel in said car,
and thereby frightened the plaintiff and subjected her to a severe
nervous shock, by which nervous shock the plaintiff was physically
prostrated and suffered, and has continued to suffer, great mental and
physical pain and anguish, and has been put to great expense.”

The defendant’s answer was a general denial.

Trial in the Superior Court, before MASON, C. J.

The plaintiff testified, among other things, that the conductor in
putting off an intoxicated man twitched him in such a way as to push
another intoxicated man over on to the plaintiff. The evidence for the
defendant tended to disprove plaintiff’s claim that either of the
intoxicated persons came in contact with her, or assaulted her.

The defendant requested (_inter alia_) an instruction, that there was no
evidence to warrant a verdict on the third count. This request was
refused.

The judge instructed the jury as follows:—

“Now there is a third count to which attention must be called. If the
jury should find that there was no bodily injury to the plaintiff direct
from the acts of the conductor, that is, no person was thrown against
the plaintiff, if that statement is not accurate, the plaintiff still
contends that if the manner of the removal was such that it occasioned
fright and nervous shock that resulted in bodily injury, that she is
still entitled to recover for that bodily injury. And I have to say to
you as matter of law, that if the wrongful acts of the conductor, on the
occasion of removing the disorderly passenger, did occasion fright and
nervous shock to the plaintiff, by reason of which she sustained bodily
injury, that she can recover compensation for that injury.

“It is settled law in this State that a person cannot recover for mere
fright, fear or mental distress occasioned by the negligence of another,
which does not result in bodily injury.

* * * * *

“But when the fright or fear or nervous shock produces a bodily injury,
then there may be recovery for that bodily injury, and for all the pain,
mental or otherwise, which may arise out of that bodily injury. The
brain and the nervous system are so closely connected with the mind, are
the instruments by which the mind communicates with the body and
operates upon it, that we sometimes deal with the nervous conditions as
if they were mental conditions, and possibly the testimony has to some
extent treated them as one. But for the purpose of the principle which I
am now stating, a clear distinction exists between what is mental and
what is nervous. The nervous system, the brain and the nerve fibres, are
a part of the body, and injury to them is bodily injury. Now if by the
wrongful acts of this defendant or its agents, there was a mental shock,
fright, and it ended with that, there can be no recovery. But if that
mental shock produced a bodily injury, a disturbance of the brain or
nervous system which continued and caused subsequent suffering, there
may be recovery for that bodily injury and all that follows from it.”

To the above instructions, the defendant excepted.

Verdict for plaintiff.

ALLEN, J. This case presents a question which has not heretofore been
determined in this Commonwealth, and in respect to which the decisions
elsewhere have not been uniform. It is this: whether in an action to
recover damages for an injury sustained through the negligence of
another, there can be a recovery for a bodily injury caused by mere
fright and mental disturbance. The jury were instructed that a person
cannot recover for mere fright, fear or mental distress occasioned by
the negligence of another, which does not result in bodily injury,[47]
but that when the fright or fear or nervous shock produces a bodily
injury, there may be a recovery for that bodily injury, and for all the
pain, mental or otherwise, which may arise out of that bodily injury.

In Canning _v._ Williamstown, 1 Cush. 451, it was held, in an action
against a town to recover damages for an injury sustained by the
plaintiff in consequence of a defective bridge, that he could not
recover if he sustained no injury to his person, but merely incurred
risk and peril which caused fright and mental suffering. In Warren _v._
Boston & Maine Railroad, 163 Mass. 484, the evidence tended to show that
the defendant’s train struck the carriage of the plaintiff, thereby
throwing him out upon the ground, and it was held to be a physical
injury to the person to be thrown out of a wagon, or to be compelled to
jump out, even although the harm consists mainly of nervous shock. It
was not therefore a case of mere fright, and resulting nervous shock.

The case calls for a consideration of the real ground upon which the
liability or non-liability of a defendant guilty of negligence in a case
like the present depends. The exemption from liability for mere fright,
terror, alarm, or anxiety does not rest on the assumption that these do
not constitute an actual injury. They do in fact deprive one of
enjoyment and of comfort, cause real suffering, and to a greater or less
extent disqualify one for the time being from doing the duties of life.
If these results flow from a wrongful or negligent act, a recovery
therefor cannot be denied on the ground that the injury is fanciful and
not real. Nor can it be maintained that these results may not be the
direct and immediate consequence of the negligence. Danger excites
alarm. Few people are wholly insensible to the emotions caused by
imminent danger, though some are less affected than others.

It must also be admitted that a timid or sensitive person may suffer not
only in mind, but also in body, from such a cause. Great emotion may and
sometimes does produce physical effects. The action of the heart, the
circulation of the blood, the temperature of the body, as well as the
nerves and the appetite, may all be affected. A physical injury may be
directly traceable to fright, and so may be caused by it. We cannot say,
therefore, that such consequences may not flow proximately from
unintentional negligence, and if compensation in damages may be
recovered for a physical injury so caused, it is hard on principle to
say why there should not also be a recovery for the mere mental
suffering when not accompanied by any perceptible physical effects.

It would seem, therefore, that the real reason for refusing damages
sustained from mere fright must be something different; and it probably
rests on the ground that in practice it is impossible satisfactorily to
administer any other rule. The law must be administered in the courts
according to general rules. Courts will aim to make these rules as just
as possible, bearing in mind that they are to be of general application.
But as the law is a practical science, having to do with the affairs of
life, any rule is unwise if in its general application it will not as a
usual result serve the purposes of justice. A new rule cannot be made
for each case, and there must therefore be a certain generality in rules
of law, which in particular cases may fail to meet what would be
desirable if the single case were alone to be considered.

Rules of law respecting the recovery of damages are framed with
reference to the just rights of both parties; not merely what it might
be right for an injured person to receive, to afford just compensation
for his injury, but also what it is just to compel the other party to
pay. One cannot always look to others to make compensation for injuries
received. Many accidents occur, the consequences of which the sufferer
must bear alone. And in determining the rules of law by which the right
to recover compensation for unintended injury from others is to be
governed, regard must chiefly be paid to such conditions as are usually
found to exist. Not only the transportation of passengers and the
running of trains, but the general conduct of business and of the
ordinary affairs of life, must be done on the assumption that persons
who are liable to be affected thereby are not peculiarly sensitive, and
are of ordinary physical and mental strength. If, for example, a
traveller is sick or infirm, delicate in health, specially nervous or
emotional, liable to be upset by slight causes, and therefore requiring
precautions which are not usual or practicable for travellers in
general, notice should be given, so that, if reasonably practicable,
arrangements may be made accordingly, and extra care be observed.[48]
But, as a general rule, a carrier of passengers is not bound to
anticipate or to guard against an injurious result which would only
happen to a person of peculiar sensitiveness. This limitation of
liability for injury of another description is intimated in Allsop _v._
Allsop, 5 H. & N. 534, 538, 539. One may be held bound to anticipate and
guard against the probable consequences to ordinary people, but to carry
the rule of damages further imposes an undue measure of responsibility
upon those who are guilty only of unintentional negligence. The general
rule limiting damages in such a case to the natural and probable
consequences of the acts done is of wide application, and has often been
expressed and applied. Lombard _v._ Lennox, 155 Mass. 70; White _v._
Dresser, 135 Mass. 150; Fillebrown _v._ Hoar, 124 Mass. 580; Derry _v._
Flitner, 118 Mass. 131; Milwaukee & St. Paul Railway _v._ Kellogg, 94 U.
S. 469, 475; Wyman _v._ Leavitt, 71 Maine, 227; Ellis _v._ Cleveland, 55
Vt. 358; Phillips _v._ Dickerson, 85 Ill. 11; Hampton _v._ Jones, 58
Iowa, 317; Renner _v._ Canfield, 36 Minn. 90; Lynch _v._ Knight, 9 H. L.
Cas. 577, 591, 595, 598; The Notting Hill, 9 P. D. 105; Hobbs _v._
London & Southwestern Railway, L. R. 10 Q. B. 111, 122.

The law of negligence in its special application to cases of accidents
has received great development in recent years. The number of actions
brought is very great. This should lead courts well to consider the
grounds on which claims for compensation properly rest, and the
necessary limitations of the right to recover. We remain satisfied with
the rule that there can be no recovery for fright, terror, alarm,
anxiety, or distress of mind, if these are unaccompanied by some
physical injury; and if this rule is to stand, we think it should also
be held that there can be no recovery for such physical injuries as may
be caused solely by such mental disturbance, where there is no injury to
the person from without. The logical vindication of this rule is, that
it is unreasonable to hold persons who are merely negligent bound to
anticipate and guard against fright and the consequences of fright; and
that this would open a wide door for unjust claims, which could not
successfully be met. These views are supported by the following
decisions: Victorian Railways Commissioners _v._ Coultas, 13 App. Cas.
222; Mitchell _v._ Rochester Railway, 151 N. Y. 107; Ewing _v._
Pittsburg, Cincinnati, Chicago & St. Louis Railway, 147 Penn. St. 40;
Haile _v._ Texas & Pacific Railway, 60 Fed. Rep. 557.

In the following cases, a different view was taken: Bell _v._ Great
Northern Railway, 26 L. R. (Ir.) 428; Purcell _v._ St. Paul City
Railway, 48 Minn. 134; Fitzpatrick _v._ Great Western Railway, 12 U. C.
Q. B. 645. See also Beven, Negligence, 77 _et seq._

It is hardly necessary to add that this decision does not reach those
classes of actions where an intention to cause mental distress or to
hurt the feelings is shown, or is reasonably to be inferred, as for
example, in cases of seduction, slander, malicious prosecution or
arrest, and some others. Nor do we include cases of acts done with gross
carelessness or recklessness, showing utter indifference to such
consequences, when they must have been in the actor’s mind. Lombard _v._
Lennox, and Fillebrown _v._ Hoar, already cited. Meagher _v._ Driscoll,
99 Mass. 281.

In the present case, no such considerations entered into the rulings or
were presented by the facts. The entry therefore must be

_Exceptions sustained._[49]

DULIEU _v._ WHITE AND SONS
KING’S BENCH DIVISION, JUNE 5, 1901.
_Reported in [1901] 2 King’s Bench, 669._

Point of law raised by pleadings.[50]

The statement of claim was as follows:—

“1. The plaintiff is the wife of Arthur David Dulieu, who carries on the
business of a licensed victualler at the Bonner Arms, Bonner Street,
Bethnal Green, in the county of London.

“2. On July 20, 1900, the plaintiff was behind the bar of her husband’s
said public-house, she being then pregnant, when the defendants by their
servant so negligently drove a pair-horse van as to drive it into the
said public-house.

“3. The defendants were also negligent in entrusting the driving of the
said horses and van to their said servant, who had no knowledge or skill
in driving.

“4. The plaintiff in consequence sustained a severe shock, and was and
is seriously ill, and on September 29, 1900, gave premature birth to a
child.

“5. In consequence of the shock sustained by the plaintiff the said
child was born an idiot.

“The plaintiff claims damages in respect of the aforesaid matters.”

The statement of defence, after denying the allegations contained in the
statement of claim proceeded:—

“3. The defendants submit as a matter of law that the damages sought to
be recovered herein are too remote, and that the statement of claim on
the face thereof discloses no cause of action.”

_Cur. adv. vult._

KENNEDY, J. In this case the only question for the judgment of the court
is in the nature of a demurrer.

* * * * *

The head of damage alleged in paragraph 5 was rightly treated by the
plaintiff’s counsel as untenable.

The defendant’s counsel summed up his contention against the legal
validity of the plaintiff’s claim in the statement that no action for
negligence will lie where there is no immediate physical injury
resulting to the plaintiff.

* * * * *

This is an action on the case for negligence—that is to say, for a
breach on the part of the defendant’s servant of the duty to use
reasonable and proper care and skill in the management of the
defendant’s van. In order to succeed, the plaintiff has to prove
resulting damage to herself and “a natural and continuous sequence
uninterruptedly connecting the breach of duty with the damage as cause
and effect.” Shearman and Redfield, Negligence, cited in Beven,
Negligence in Law, 2d ed. p. 7. In regard to the existence of the duty
here, there can, I think, be no question. The driver of a van and horses
in a highway owes a duty to use reasonable and proper care and skill so
as not to injure either persons lawfully using the highway, or property
adjoining the highway, or persons who, like the plaintiff are lawfully
occupying that property. His legal duty towards all appears to me to be
practically identical in character and in degree. I understood the
plaintiff’s counsel to suggest that there might exist a higher degree of
duty towards the plaintiff sitting in a house than would have existed
had she been in the street. I am not satisfied that this is so. The
wayfarer in the street, as it seems to me, has in law as much right of
redress if he is injured in person or in property by the negligence of
another as the man who is lawfully sitting on a side-wall or in an
adjoining house. “The whole law of negligence assumes the principle of
‘Volenti non fit injuria’ not to be applicable,” for reasons which Sir
Frederick Pollock points out (The Law of Torts, by Sir F. Pollock, 6th
ed. pp. 166, 167), in a passage which follows the quotation which I have
just made. The legal obligations of the driver of horses are the same, I
think, towards the man indoors as to the man out of doors; the only
question here is whether there is an actionable breach of those
obligations if the man in either case is made ill in body by such
negligent driving as does not break his ribs but shocks his nerves.

Before proceeding to consider the objections to the maintenance of such
a claim as that of the present plaintiff, it is, I think, desirable for
clearness’ sake to see exactly what are the facts which ought to be
assumed for the purposes of the argument. We must assume in her favor
all that can be assumed consistently with the allegations of the
statement of claim. We must, therefore, take it as proved that the
negligent driving of the defendants’ servant reasonably and naturally
caused a nervous or mental shock to the plaintiff by her reasonable
apprehension of immediate bodily hurt, and that the premature
childbirth, with the physical pain and suffering which accompanied it,
was a natural and a direct consequence of the shock. I may just say in
passing that I use the words “nervous” and “mental” as interchangeable
epithets on the authority of the judgment of the Privy Council in
Victorian Railways Commissioners _v._ Coultas, 13 App. Cas. 222; but I
venture to think “nervous” is probably the more correct epithet where
terror operates through parts of the physical organism to produce bodily
illness as in the present case. The use of the epithet “mental” requires
caution, in view of the undoubted rule that merely mental pain
unaccompanied by any injury to the person cannot sustain an action of
this kind. Beven, Negligence in Law, 2d ed. p. 77.

Now, these being the assumed facts, what are the defendants’ arguments
against the plaintiff’s right to recover damages in this action?

First of all, it is argued, fright caused by negligence is not in itself
a cause of action—ergo, none of its consequences can give a cause of
action. In Mitchell _v._ Rochester Ry. Co., (1896) 151 N. Y. 107, the
point is put thus: “That the result may be nervous disease, blindness,
insanity, or even a miscarriage, in no way changes the principle. These
results merely show the degree of fright or the extent of the damages.
The right of action must still depend upon the question whether a
recovery may be had for fright.” With all respect to the learned judges
who have so held, I feel a difficulty in following this reasoning. No
doubt damage is an essential element in a right of action for
negligence. I cannot successfully sue him who has failed in his duty of
using reasonable skill and care towards me unless I can prove some
material and measurable damage. If his negligence has caused me neither
injury to property nor physical mischief, but only an unpleasant emotion
of more or less transient duration, an essential constituent of a right
of action for negligence is lacking. “Fear,” as Sir Frederick Pollock
has stated (The Law of Torts, 6th ed. p. 51), “taken alone falls short
of being actual damage not because it is a remote or unlikely
consequence, but because it can be proved and measured only by physical
effects.” It may, I conceive, be truly said that, viewed in relation to
an action for negligence, direct bodily impact is, without resulting
damage, as insufficient a ground of legal claim as the infliction of
fright. That fright—where physical injury is directly produced by
it—cannot be a ground of action merely because of the absence of any
accompanying impact appears to me to be a contention both unreasonable
and contrary to the weight of authority.

[The learned judge then cited cases in which an action was held to lie,
where the only physical impact did not accompany but was a consequence
of the fright; also a case where there was nothing in the nature of
impact and yet recovery was allowed.]

If impact be not necessary, and if, as must be assumed here, the fear is
proved to have naturally and directly produced physical effects, so that
the ill results of the negligence which caused the fear are as
measurable in damages as the same results would be if they arose from an
actual impact, why should not an action for those damages lie just as
well as it lies where there has been an actual impact? It is not,
however, to be taken that in my view every nervous shock occasioned by
negligence and producing physical injury to the sufferer gives a cause
of action. There is, I am inclined to think, at least one limitation.
The shock, where it operates through the mind, must be a shock which
arises from a reasonable fear of immediate personal injury to oneself.
A. has, I conceive, no legal duty not to shock B.’s nerves by the
exhibition of negligence towards C., or towards the property of B. or C.
The limitation was applied by Wright and Bruce, JJ., in the unreported
case of Smith _v._ Johnson & Co., referred to by Wright, J., at the
close of his judgment in Wilkinson _v._ Downton, [1897] 2 Q. B. 57, at
p. 61. In Smith _v._ Johnson & Co. (unreported), a man was killed by the
defendant’s negligence in the sight of the plaintiff, and the plaintiff
became ill, not from the shock produced by fear of harm to himself, but
from the shock of seeing another person killed. The court held that this
harm was too remote a consequence of the negligence.[51] I should
myself, as I have already indicated, have been inclined to go a step
further, and to hold upon the facts in Smith _v._ Johnson & Co. that, as
the defendant neither intended to affect the plaintiff injuriously nor
did anything which could reasonably or naturally be expected to affect
him injuriously, there was no evidence of any breach of legal duty
towards the plaintiff or in regard to him of that absence of care
according to the circumstances which Willes, J., in Vaughan _v._ Taff
Vale Ry. Co., (1860) 5 H. & N. 679, at p. 688, gave as a definition of
negligence.

* * * * *

In order to illustrate my meaning in the concrete, I say that I should
not be prepared in the present case to hold that the plaintiff was
entitled to maintain this action if the nervous shock was produced, not
by the fear of bodily injury to herself, but by horror or vexation
arising from the sight of mischief being threatened or done either to
some other person, or to her own or her husband’s property, by the
intrusion of the defendants’ van and horses. The cause of the nervous
shock is one of the things which the jury will have to determine at the
trial.

It remains to consider the second and somewhat different form in which
the defendants’ counsel put his objection to the right of the plaintiff
to maintain this action. He contended that the damages are too remote,
and relied much upon the decision of the Privy Council in Victorian
Railways Commissioners _v._ Coultas, 13 App. Cas. 222.

* * * * *

The principal ground of their judgment is formulated in the following
sentence: “Damages arising from mere sudden terror unaccompanied by any
actual physical injury, but occasioning a nervous or mental shock,
cannot under such circumstances, their Lordships think, be considered a
consequence which, in the ordinary course of things, would flow from the
negligence of the gate-keeper.”

* * * * *

Why is the accompaniment of physical injury essential? For my own part,
I should not like to assume it to be scientifically true that a nervous
shock which causes serious bodily illness is not actually accompanied by
physical injury, although it may be impossible, or at least difficult,
to detect the injury at the time in the living subject. I should not be
surprised if the surgeon or the physiologist told us that nervous shock
is or may be in itself an injurious affection of the physical organism.
Let it be assumed, however, that the physical injury follows the shock,
but that the jury are satisfied upon proper and sufficient medical
evidence that it follows the shock as its direct and natural effect, is
there any legal reason for saying that the damage is less proximate in
the legal sense than damage which arises contemporaneously? “As well
might it be said” (I am quoting from the judgment of Palles, C. B., 26
L. R. Ir. at p. 439) “that a death caused by poison is not to be
attributed to the person who administered it because the mortal effect
is not produced contemporaneously with its administration.” Remoteness
as a legal ground for the exclusion of damage in an action of tort
means, not severance in point of time, but the absence of direct and
natural causal sequence—the inability to trace in regard to the damage
the “propter hoc” in a necessary or natural descent from the wrongful
act. As a matter of experience, I should say that the injury to health
which forms the main ground of damages in actions of negligence, either
in cases of railway accidents or in running-down cases, frequently is
proved, not as a concomitant of the occurrence, but as one of the
sequelæ.

* * * * *

[As to Mitchell _v._ Rochester Ry. Co., 151 N. Y. 107, cited by
defendant.] Shortly, the facts there were that the plaintiff, whilst
waiting for a tram-car, was nearly run over by the negligent management
of the defendant’s servant of a car drawn by a pair of horses, and owing
to terror so caused fainted, lost consciousness, and subsequently had a
miscarriage and consequent illness.

* * * * *

It may be admitted that the plaintiff in this American case would not
have suffered exactly as she did, and probably not to the same extent as
she did, if she had not been pregnant at the time; and no doubt the
driver of the defendant’s horses could not anticipate that she was in
this condition. But what does that fact matter? If a man is negligently
run over or otherwise negligently injured in his body, it is no answer
to the sufferer’s claim for damages that he would have suffered less
injury, or no injury at all, if he had not had an unusually thin skull
or an unusually weak heart.

[After commenting on the opinion in Spade _v._ Lynn & Boston R. R., 168
Mass. 285.]

Naturally one is diffident of one’s opinion when one finds that it is
not in accord with those which have been expressed by such judicial
authorities as those to which I have just referred. But certainly, if,
as is admitted, and I think justly admitted, by the Massachusetts
judgment, a claim for damages for physical injuries naturally and
directly resulting from nervous shock which is due to the negligence of
another in causing fear of immediate bodily hurt is in principle not too
remote to be recoverable in law, I should be sorry to adopt a rule which
would bar all such claims on grounds of policy alone, and in order to
prevent the possible success of unrighteous or groundless actions. Such
a course involves the denial of redress in meritorious cases, and it
necessarily implies a certain degree of distrust, which I do not share,
in the capacity of legal tribunals to get at the truth in this class of
claims. My experience gives me no reason to suppose that a jury would
really have more difficulty in weighing the medical evidence as to the
effects of nervous shock through fright, than in weighing the like
evidence as to the effects of nervous shock through a railway collision
or a carriage accident, where, as often happens, no palpable injury, or
very slight palpable injury, has been occasioned at the time.

I have now, I think, dealt with the authorities and the arguments upon
which the defendants rely, and I have done so at greater length than I
should have wished to do but for the general interest of the points
involved and the difficulties which the conflict of authorities
undoubtedly present. In this conflict I prefer, as I have already
indicated, the two decisions of the Irish courts. They seem to me to
constitute strong and clear authorities for the plaintiff’s contention.
It was suggested on the part of the defendants that the applicability of
the judgment in Bell _v._ Great Northern Company of Ireland, 26 L. R.
Ir. 428, is affected by the fact that the female in that action was a
passenger on the defendant’s railway, and as such had contractual
rights. It appears to me that in the circumstances this fact can make no
practical difference whatever. In the Irish case there was no special
contract, no notice to the railway company, when they accepted her as a
passenger, that she was particularly delicate, or peculiarly nervous or
liable to fright. The contractual duty existed, as it often does exist,
concurrently with the duty apart from contract; but the one is in such
circumstances practically co-extensive with the other in the rights
which it gives and the corresponding liabilities which it imposes.

I hold that, if on the trial of this action the jury find the issues
left to them as the jury found them in Bell _v._ Great Northern Railway
Company of Ireland, 26 L. R. Ir. 428, after the direction of Andrews,
J., which was approved by the Exchequer Division, the plaintiff will
have made out a good cause of action.

PHILLIMORE, J.

* * * * *

I think there may be cases in which A. owes a duty to B. not to inflict
a mental shock on him or her, and that in such a case, if A. does
inflict such a shock upon B.—as by terrifying B.—and physical damage
thereby ensues, B. may have an action for the physical damage, though
the medium through which it has been inflicted is the mind.

* * * * *

I think there is some assistance to be got from the cases where fear of
impending danger has induced a passenger to take means of escape which
have in the result proved injurious to him, and where the carrier has
been held liable for these injuries, as in Jones _v._ Boyce, 1 Stark.
493.

* * * * *

[The learned judge thought it possible that he might have come to the
same conclusion as that arrived at in Victorian Railways Commissioners
_v._ Coultas, though not for the reasons which have prominence in the
judgment. He also thought that he should have come to the same decision
as the Massachusetts court in Spade _v._ Lynn & Boston R. R.; but that
he should not have expressed it in such broad and sweeping language.]

* * * * *

In the case before us the plaintiff, a pregnant woman, was in her house.
It is said that she was not the tenant in possession and could not
maintain trespass _quare clausum fregit_ if this had been a direct act
of the defendant and not of his servant (as it was). This is true: her
husband was in possession. But none the less it was her home, where she
had a right, and on some occasions a duty, to be; and it seems to me
that if the tenant himself could maintain an action, his wife or child
could do likewise. It is averred that by reason of the careless driving
of the defendants’ servant a pair-horse van came some way into the room,
and so frightened her that serious physical consequences thereby befell
her. If these averments be proved, I think that there was a breach of
duty to her for which she can have damages. The difficulty in these
cases is to my mind not one as to the remoteness of the damage, but as
to the uncertainty of there being any duty. Once get the duty and the
physical damage following on the breach of duty, and I hold that the
fact of one link in the chain of causation being mental only makes no
difference. The learned counsel for the plaintiff has put it that every
link is physical in the narrow sense. That may be or may not be. For
myself, it is unimportant.

* * * * *

_Judgment for plaintiff._[52]

WILKINSON _v._ DOWNTON
QUEEN’S BENCH DIVISION, MAY 8, 1897.
_Law Reports, [1897] 2 Queen’s Bench, 57._

WRIGHT, J.[53] In this case the defendant, in the execution of what he
seems to have regarded as a practical joke, represented to the plaintiff
that he was charged by her husband with a message to her to the effect
that her husband was smashed up in an accident, and was lying at The
Elms at Leytonstone with both legs broken, and that she was to go at
once in a cab with two pillows to fetch him home. All this was false.
The effect of the statement on the plaintiff was a violent shock to her
nervous system, producing vomiting and other more serious and permanent
physical consequences at one time threatening her reason, and entailing
weeks of suffering and incapacity to her as well as expense to her
husband for medical attendance. These consequences were not in any way
the result of previous ill-health or weakness of constitution; nor was
there any evidence of predisposition to nervous shock or any other
idiosyncrasy.

In addition to these matters of substance there is a small claim for
1_s._ 10½_d._ for the cost of railway fares of persons sent by the
plaintiff to Leytonstone in obedience to the pretended message. As to
this 1_s._ 10½_d._ expended in railway fares on the faith of the
defendant’s statement, I think the case is clearly within the decision
in Pasley _v._ Freeman, (1789) 3 T. R. 51. The statement was a
misrepresentation intended to be acted on to the damage of the
plaintiff.

The real question is as to the 100_l._, the greatest part of which is
given as compensation for the female plaintiff’s illness and suffering.
It was argued for her that she is entitled to recover this as being
damage caused by fraud, and therefore within the doctrine established by
Pasley _v._ Freeman, (1789) 3 T. R. 51, and Langridge _v._ Levy, (1837)
2 M. & W. 519. I am not sure that this would not be an extension of that
doctrine, the real ground of which appears to be that a person who makes
a false statement intended to be acted on must make good the damage
naturally resulting from its being acted on. Here there is no injuria of
that kind. I think, however, that the verdict may be supported upon
another ground. The defendant has, as I assume for the moment, wilfully
done an act calculated to cause physical harm to the plaintiff—that is
to say, to infringe her legal right to personal safety, and has in fact
thereby caused physical harm to her. That proposition without more
appears to me to state a good cause of action, there being no
justification alleged for the act. This wilful injuria is in law
malicious, although no malicious purpose to cause the harm which was
caused nor any motive of spite is imputed to the defendant.

It remains to consider whether the assumptions involved in the
proposition are made out. One question is whether the defendant’s act
was so plainly calculated to produce some effect of the kind which was
produced that an intention to produce it ought to be imputed to the
defendant, regard being had to the fact that the effect was produced on
a person proved to be in an ordinary state of health and mind. I think
that it was. It is difficult to imagine that such a statement, made
suddenly and with apparent seriousness, could fail to produce grave
effects under the circumstances upon any but an exceptionally
indifferent person, and therefore an intention to produce such an effect
must be imputed, and it is no answer in law to say that more harm was
done than was anticipated, for that is commonly the case with all
wrongs. The other question is whether the effect was, to use the
ordinary phrase, too remote to be in law regarded as a consequence for
which the defendant is answerable. Apart from authority, I should give
the same answer and on the same ground as the last question, and say
that it was not too remote. Whether, as the majority of the House of
Lords thought in Lynch _v._ Knight, (1861) 9. H. L. C. 577, at pp. 592,
596, the criterion is in asking what would be the natural effect on
reasonable persons, or whether, as Lord Wensleydale thought (9 H. L. C.
587, at p. 600), the possible infirmities of human nature ought to be
recognized, it seems to me that the connection between the cause and the
effect is sufficiently close and complete. It is, however, necessary to
consider two authorities which are supposed to have laid down that
illness through mental shock is a too remote or unnatural consequence of
an injuria to entitle the plaintiff to recover in a case where damage is
a necessary part of the cause of action. One is the case of Victorian
Railways Commissioners _v._ Coultas, 13 App. Cas. 222, where it was held
in the Privy Council that illness which was the effect of shock caused
by fright was too remote a consequence of a negligent act which caused
the fright, there being no physical harm immediately caused. That
decision was treated in the Court of Appeal in Pugh _v._ London,
Brighton and South Coast Ry. Co., [1896] 2 Q. B. 248, as open to
question. It is inconsistent with a decision in the Court of Appeal in
Ireland: Bell _v._ Great Northern Ry. Co. of Ireland, (1890) 26 L. R.
Ir. 428, where the Irish Exchequer Division refused to follow it; and it
has been disapproved in the Supreme Court of New York; see Pollock on
Torts, 4th ed. p. 47 (_n_). Nor is it altogether in point, for there was
not in that case any element of wilful wrong; nor perhaps was the
illness so direct and natural a consequence of the defendant’s conduct
as in this case. On these grounds it seems to me that the case of
Victorian Railways Commissioners _v._ Coultas, 13 App. Cas. 222, is not
an authority on which this case ought to be decided.

A more serious difficulty is the decision in Allsop _v._ Allsop, 5 H. &
N. 534, which was approved by the House of Lords in Lynch _v._ Knight, 9
H. L. C. 577. In that case it was held by Pollock, C. B., Martin,
Bramwell, and Wilde, BB., that illness caused by a slanderous imputation
of unchastity in the case of a married woman did not constitute such
special damage as would sustain an action for such a slander. That case,
however, appears to have been decided on the ground that in all the
innumerable actions for slander there were no precedents for alleging
illness to be sufficient special damage, and that it would be of evil
consequence to treat it as sufficient, because such a rule might lead to
an infinity of trumpery or groundless actions. Neither of these reasons
is applicable to the present case. Nor could such a rule be adopted as
of general application without results which it would be difficult or
impossible to defend. Suppose that a person is in a precarious and
dangerous condition, and another person tells him that his physician has
said that he has but a day to live. In such a case, if death ensued from
the shock caused by the false statement, I cannot doubt that at this day
the case might be one of criminal homicide, or that if a serious
aggravation of illness ensued damages might be recovered. I think,
however, that it must be admitted that the present case is without
precedent. Some English decisions—such as Jones _v._ Boyce, (1816) 1
Stark. 493; Wilkins _v._ Day, (1883) 12 Q. B. D. 110; Harris _v._ Mobbs,
(1878) 3 Ex. D. 268—are cited in Beven on Negligence as inconsistent
with the decision in Victorian Railways Commissioners _v._ Coultas, 13
App. Cas. 222. But I think that those cases are to be explained on a
different ground, namely, that the damage which immediately resulted
from the act of the passenger or of the horse was really the result not
of that act, but of a fright which rendered that act involuntary, and
which therefore ought to be regarded as itself the direct and immediate
cause of the damage. In Smith _v._ Johnson & Co. (unreported), decided
in January last, Bruce, J., and I held that where a man was killed in
the sight of the plaintiff by the defendant’s negligence, and the
plaintiff became ill, not from the shock from fear of harm to himself,
but from the shock of seeing another person killed, this harm was too
remote a consequence of the negligence. But that was a very different
case from the present.

There must be judgment for the plaintiff for 100_l._ 1_s._ 10½.

_Judgment for plaintiff._[54]

YATES _v._ SOUTH KIRKBY COLLIERIES
IN THE COURT OF APPEAL, JULY 6, 1910.
_Reported in [1910] 2 King’s Bench, 538._

Appeal against the award of the judge of the county court of Pontefract
sitting as arbitrator under the Workmen’s Compensation Act, 1906.

The question raised by this appeal was whether a nervous shock received
by a workman in the course of his employment was an “accident” which
entitled him to compensation under the Workmen’s Compensation Act, 1906.
The facts as found by the county court judge were as follows:—

In October, 1909, the applicant,—a collier, forty-six years of age, who
had been engaged in coal mining all his life, and for twenty-seven years
had been working at the face of the coal in the pit belonging to the
respondents,—while working as usual, heard a shout for help from the
next working place. He ran around his loose end at once and found a
fellow collier lying full length on the ground, having been knocked down
by a fallen timber prop and some coal; he was bleeding all over his head
and from his ears and eyes. The applicant picked him up in his arms and,
with assistance, carried him away; he was not dead at the time, but died
in a quarter of an hour. The effect on the applicant was such that he
sustained a nervous shock, which incapacitated him from working at the
coal face; he returned to his work on the Saturday, and at the order of
the under-manager on the Monday following, but on neither occasion was
he able to do work, and after describing to the under-manager and the
Government inspector on the Monday the details of what happened on the
Saturday he left the pit; he then consulted his doctor and has been
under his care since. In November he tried again to work, and went to
his old place, but though he stayed the shift he was unable to work, and
his brother, who was his mate, did it for him. In January, 1910, he
asked the under-manager for a by-work job, but the under-manager would
not give him one, and he had not worked since.

Proceedings for compensation having been taken, the county court judge
found as a fact that there was a genuine incapacity to work which was
due to the nervous shock which he sustained in October, 1909, when it
clearly was his duty to his employers to go to the assistance of the
injured collier who shouted for help from the next working place, and
that his doing so arose both “in course of” and “out of” his employment.
The learned county court judge accordingly awarded the applicant
compensation at 19_s._ a week to the date of the award, and 10_s._ a
week till further order.

The respondents appealed.[55]

FARWELL, L. J. I am of the same opinion. It is rightly conceded that it
was part of the man’s duty to go to the assistance of his fellow
workman. Therefore there is no question that the events arose “out of
and in the course of the employment.” The learned county court judge has
found as a fact that there was a genuine incapacity to work, which was
due to the nervous shock which the applicant sustained in October last.
In my opinion nervous shock due to accident which causes personal
incapacity to work is as much “personal injury by accident” as a broken
leg, for the reasons already expressed by this court in the case of
Eaves _v._ Blaenclydach Colliery Co., [1909] 2 K. B. 73. In truth I find
it difficult, when the medical evidence is that as a fact a workman is
suffering from a known complaint arising from nervous shock, to draw any
distinction between that case and the case of a broken limb. I see no
distinction for this purpose between the case of the guard who is not in
fact physically injured by an accident to his train, but who, after
assisting to carry away the wounded and dead, breaks down from nervous
shock, and the case of the guard who in similar circumstances stumbles
over some of the débris and breaks his leg.[56] The difficulty is to
prove the facts so as to avoid the risk of malingering, but when the
facts have been proved, the injury causing incapacity to work arises
from the accident in the one case just as much as in the other. I am,
therefore, of opinion that the judgment of the learned county court
judge must be affirmed.

KENNEDY, L. J. I am of the same opinion. It is beyond question that the
incapacity of the applicant has arisen in the course of and out of the
employment; and when you have a finding of fact by the learned county
court judge that there has been a nervous shock, and that that nervous
shock has produced a genuine condition of neurasthenia, I think myself
the recent authorities show that this judgment ought to be supported.
One knows perfectly well that neurasthenia, although there may be no
outward sign if you merely look at the person, is treated, and
successfully treated in some cases at any rate, by a treatment of the
body. Directly you have that which requires treatment of the body, it
means that a portion of that body (visible or invisible does not matter)
is in a state of ill-health, and, if the condition of neurasthenia
produces incapacity to work which has been brought about by something in
the nature of an accident which arose “out of and in the course of the
employment,” you have a case of “personal injury by accident” which is
within the Act.

_Appeal dismissed._

SECTION III
THE STANDARD OF CARE

VAUGHAN _v._ MENLOVE
IN THE COMMON PLEAS, JANUARY 23, 1837.
_Reported in 3 Bingham’s New Cases, 468._

The declaration alleged, in substance, that plaintiff was the owner of
two cottages; that defendant owned land near to the said cottages; that
defendant had a rick or stack of hay near the boundary of his land which
was liable and likely to ignite, and thereby was dangerous to the
plaintiff’s cottages; that the defendant, well knowing the premises,
wrongfully and negligently kept and continued the rick in the aforesaid
dangerous condition; that the rick did ignite, and that plaintiff’s
cottages were burned by fire communicated from the rick or from certain
buildings of defendant’s which were set on fire by flames from the rick.

Defendant pleaded the general issue; and also several special pleas,
denying negligence.

At the trial it appeared that the rick in question had been made by the
defendant near the boundary of his own premises; that the hay was in
such a state when put together, as to give rise to discussions on the
probability of fire; that though there were conflicting opinions on the
subject, yet during a period of five weeks the defendant was repeatedly
warned of his peril; that his stock was insured; and that upon one
occasion, being advised to take the rick down to avoid all danger, he
said “he would chance it.” He made an aperture or chimney through the
rick; but in spite, or perhaps in consequence of this precaution, the
rick at length burst into flames from the spontaneous heating of its
materials; the flames communicated to the defendant’s barn and stables,
and thence to the plaintiff’s cottages, which were entirely destroyed.

Patteson, J., before whom the cause was tried, told the jury that the
question for them to consider was, whether the fire had been occasioned
by gross negligence on the part of the defendant; adding, that he was
bound to proceed with such reasonable caution as a prudent man would
have exercised under such circumstances.

A verdict having been found for the plaintiff, a rule nisi for a new
trial was obtained, on the ground that the jury should have been
directed to consider, not whether the defendant had been guilty of a
gross negligence with reference to the standard of ordinary prudence, a
standard too uncertain to afford any criterion, but whether he had acted
_bona fide_ to the best of his judgment; if he had, he ought not to be
responsible for the misfortune of not possessing the highest order of
intelligence. The action under such circumstances was of the first
impression.[57]

_Talfourd_, Serjt., and _Whately_, showed cause.

The pleas having expressly raised issues on the negligence of the
defendant, the learned judge could not do otherwise than leave that
question to the jury. The declaration alleges that the defendant knew of
the dangerous state of the rick, and yet negligently and improperly
allowed it to stand. The plea of not guilty, therefore, puts in issue
the scienter, it being of the substance of the issue: Thomas _v._
Morgan, 2 Cr. M. & R. 496. And the action, though new _in specie_, is
founded on a principle fully established, that a man must so use his own
property as not to injure that of others. On the same circuit a
defendant was sued a few years ago for burning weeds so near the
extremity of his own land as to set fire to and destroy his neighbors’
wood. The plaintiff recovered damages, and no motion was made to set
aside the verdict. Then, there were no means of estimating the
defendant’s negligence, except by taking as a standard the conduct of a
man of ordinary prudence: that has been the rule always laid down, and
there is no other that would not be open to much greater uncertainties.

_R. V. Richards_, in support of the rule.

First, there was no duty imposed on the defendant, as there is on
carriers or other bailees, under an implied contract, to be responsible
for the exercise of any given degree of prudence: the defendant had a
right to place his stack as near to the extremity of his own land as he
pleased, Wyatt _v._ Harrison, 3 B. & Adol. 871: under that right, and
subject to no contract, he can only be called on to act _bona fide_ to
the best of his judgment; if he has done that, it is a contradiction in
terms, to inquire whether or not he has been guilty of gross negligence.
At all events what would have been gross negligence ought to be
estimated by the faculties of the individual, and not by those of other
men. The measure of prudence varies so with the varying faculties of
men, that it is impossible to say what is gross negligence with
reference to the standard of what is called ordinary prudence. In Crook
_v._ Jadis, 5 B. & Adol. 910, Patteson, J., says, “I never could
understand what is meant by parties taking a bill under circumstances
which ought to have excited the suspicion of a prudent man;” and
Taunton, J., “I cannot estimate the degree of care which a prudent man
should take.”...

TINDAL, C. J. I agree that this is a case _primæ impressionis_; but I
feel no difficulty in applying to it the principles of law as laid down
in other cases of a similar kind. Undoubtedly this is not a case of
contract, such as a bailment or the like, where the bailee is
responsible in consequence of the remuneration he is to receive: but
there is a rule of law which says you must so enjoy your own property as
not to injure that of another; and according to that rule the defendant
is liable for the consequence of his own neglect: and though the
defendant did not himself light the fire, yet mediately he is as much
the cause of it as if he had himself put a candle to the rick; for it is
well known that hay will ferment and take fire if it be not carefully
stacked. It has been decided that if an occupier burns weeds so near the
boundary of his own land that damage ensues to the property of his
neighbor, he is liable to an action for the amount of injury done,
unless the accident were occasioned by a sudden blast which he could not
foresee. Turberville _v._ Stamp, 1 Salk. 13. But put the case of a
chemist making experiments with ingredients, singly innocent, but when
combined liable to ignite; if he leaves them together, and injury is
thereby occasioned to the property of his neighbor, can any one doubt
that an action on the case would lie?

It is contended, however, that the learned judge was wrong in leaving
this to the jury as a case of gross negligence, and that the question of
negligence was so mixed up with reference to what would be the conduct
of a man of ordinary prudence that the jury might have thought the
latter the rule by which they were to decide; that such a rule would be
too uncertain to act upon; and that the question ought to have been
whether the defendant had acted honestly and _bona fide_ to the best of
his own judgment. That, however, would leave so vague a line as to
afford no rule at all, the degree of judgment belonging to each
individual being infinitely various: and though it has been urged that
the care which a prudent man would take, is not an intelligible
proposition as a rule of law, yet such has always been the rule adopted
in cases of bailment, as laid down in Coggs _v._ Bernard, 2 Ld. Raym.
909. Though in some cases a greater degree of care is exacted than in
others, yet in “the second sort of bailment, viz., _commodatum_ or
lending gratis, the borrower is bound to the strictest care and
diligence to keep the goods so as to restore them back again to the
lender; because the bailee has a benefit by the use of them, so as if
the bailee be guilty of the least neglect he will be answerable; as if a
man should lend another a horse to go westward, or for a month; if the
bailee put this horse in his stable, and he were stolen from thence, the
bailee shall not be answerable for him; but if he or his servant leave
the house or stable doors open, and the thieves take the opportunity of
that, and steal the horse, he will be chargeable, because the neglect
gave the thieves the occasion to steal the horse.” The care taken by a
prudent man has always been the rule laid down; and as to the supposed
difficulty of applying it, a jury has always been able to say, whether,
taking that rule as their guide, there has been negligence on the
occasion in question.

Instead, therefore, of saying that the liability for negligence should
be co-extensive with the judgment of each individual, which would be as
variable as the length of the foot of each individual, we ought rather
to adhere to the rule, which requires in all cases a regard to caution
such as a man of ordinary prudence would observe.[58] That was in
substance the criterion presented to the jury in this case, and
therefore the present rule must be discharged.

[Concurring opinions were delivered by PARK, and VAUGHAN, JJ. GASELEE,
J. concurred in the result.]

_Rule discharged._

BLYTH _v._ BIRMINGHAM WATERWORKS CO.
IN THE EXCHEQUER, FEBRUARY 6, 1856.
_Reported in 11 Exchequer, 781._

This was an appeal by the defendants against the decision of the judge
of the County Court of Birmingham. The case was tried before a jury, and
a verdict found for the plaintiff for the amount claimed by the
particulars. The particulars of the claim alleged, that the plaintiff
sought to recover for damage sustained by the plaintiff by reason of the
negligence of the defendants in not keeping their water-pipes and the
apparatus connected therewith in proper order.

The case stated that the defendants were incorporated by stat. 7 Geo.
IV., c. cix., for the purpose of supplying Birmingham with water.

By the 84th section of their Act it was enacted, that the company
should, upon the laying down of any main-pipe or other pipe in any
street, fix, at the time of laying down such pipe, a proper and
sufficient fire-plug in each such street, and should deliver the key or
keys of such fire-plug to the persons having the care of the
engine-house in or near to the said street, and cause another key to be
hung up in the watch-house in or near to the said street. By sec. 87,
pipes were to be eighteen inches beneath the surface of the soil. By the
89th section, the mains were at all times to be kept charged with water.
The defendants derived no profit from the maintenance of the plugs
distinct from the general profits of the whole business, but such
maintenance was one of the conditions under which they were permitted to
exercise the privileges given by the Act. The main-pipe opposite the
house of the plaintiff was more than eighteen inches below the surface.
The fire-plug was constructed according to the best known system, and
the materials of it were at the time of the accident sound and in good
order. The apparatus connected with the fire-plug was as follows:—

The lower part of a wooden plug was inserted in a neck, which projected
above and formed part of the main. About the neck there was a bed of
brickwork puddled in with clay. The plug was also enclosed in a cast
iron tube, which was placed upon and fixed to the brickwork. The tube
was closed at the top by a movable iron stopper having a hole in it for
the insertion of the key, by which the plug was loosened when occasion
required it.

The plug did not fit tight to the tube, but room was left for it to move
freely. This space was necessarily left for the purpose of easily and
quickly removing the wooden plug to allow the water to flow. On the
removal of the wooden plug the pressure upon the main forced the water
up through the neck and cap to the surface of the street.

On the 24th of February, a large quantity of water, escaping from the
neck of the main, forced its way through the ground into the plaintiff’s
house. The apparatus had been laid down twenty-five years, and had
worked well during that time. The defendants’ engineer stated, that the
water might have forced its way through the brickwork round the neck of
the main, and that the accident might have been caused by the frost,
inasmuch as the expansion of the water would force up the plug out of
the neck, and the stopper being incrusted with ice would not suffer the
plug to ascend. One of the severest frosts on record set in on the 15th
of January, 1855, and continued until after the accident in question. An
incrustation of ice and snow had gathered about the stopper, and in the
street all round, and also for some inches between the stopper and the
plug. The ice had been observed on the surface of the ground for a
considerable time before the accident. A short time after the accident,
the company’s turncock removed the ice from the stopper, took out the
plug, and replaced it.

The judge left it to the jury to consider whether the company had used
proper care to prevent the accident. He thought, that, if the defendants
had taken out the ice adhering to the plug, the accident would not have
happened, and left it to the jury to say whether they ought to have
removed the ice. The jury found a verdict for the plaintiff for the sum
claimed.

_Field_, for the appellant. There was no negligence on the part of the
defendants. The plug was pushed out by the frost, which was one of the
severest ever known.

The Court then called on

_Kennedy_, for the respondent. The company omitted to take sufficient
precautions. The fire-plug is placed in the neck of the main. In
ordinary cases the plug rises and lets the water out; but here there was
an incrustation round the stopper, which prevented the escape of the
water. This might have been easily removed. It will be found, from the
result of the cases, that the company were bound to take every possible
precaution. The fact of premises being fired by sparks from an engine on
a railway is evidence of negligence: Piggott _v._ Eastern Counties
Railway Company, 3 C. B. 229 (E. C. L. R. vol. 54); Aldridge _v._ Great
Western Railway Company, 3 M. & Gr. 515 (Id. 42), 4 Scott, N. R. 156, 1
Dowl. N. S. 247, S. C. [MARTIN, B. I held, in a case tried at Liverpool,
in 1853, that, if locomotives are sent through the country emitting
sparks, the persons doing so incur all the responsibilities of insurers;
that they were liable for all the consequences.[59] I invited counsel to
tender a bill of exceptions to that ruling. Water is a different
matter.] It is the defendants’ water, therefore they are bound to see
that no injury is done to any one by it. An action has been held to lie
for so negligently constructing a hayrick at the extremity of the
owner’s land, that, by reason of its spontaneous ignition, his
neighbor’s house was burnt down: Vaughan _v._ Menlove, 3 Bing. N. C. 468
(E. C. L. R. vol. 32). [BRAMWELL, B. In that case discussions had arisen
as to the probability of fire, and the defendant was repeatedly warned
of the danger, and said he would chance it.] He referred to Wells _v._
Ody, 1 M. & W. 452. [ALDERSON, B. Is it an accident which any man could
have foreseen?] A scientific man could have foreseen it. If no eye could
have seen what was going on, the case might have been different; but the
company’s servants could have seen, and actually did see, the ice which
had collected about the plug. It is of the last importance, that these
plugs, which are fire-plugs, should be kept by the company in working
order. The accident cannot be considered as having been caused by the
act of God: Siordet _v._ Hall, 4 Bing. 607 (Id. 13).

ALDERSON, B. I am of opinion that there was no evidence to be left to
the jury. The case turns upon the question, whether the facts proved
show that the defendants were guilty of negligence. Negligence is the
omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would
not do.[60] The defendants might have been liable for negligence, if,
unintentionally, they omitted to do that which a reasonable person would
have done, or did that which a person taking reasonable precautions
would not have done. A reasonable man would act with reference to the
average circumstances of the temperature in ordinary years. The
defendants had provided against such frosts as experience would have led
men, acting prudently, to provide against; and they are not guilty of
negligence, because their precautions proved insufficient against the
effects of the extreme severity of the frost of 1855, which penetrated
to a greater depth than any which ordinarily occurs south of the polar
regions. Such a state of circumstances constitutes a contingency against
which no reasonable man can provide. The result was an accident for
which the defendants cannot be held liable.

MARTIN, B. I think that the direction was not correct, and that there
was no evidence for the jury. The defendants are not responsible, unless
there was negligence on their part. To hold otherwise would be to make
the company responsible as insurers.

BRAMWELL, B. The Act of Parliament directed the defendants to lay down
pipes, with plugs in them, as safety-valves, to prevent the bursting of
the pipes. The plugs were properly made, and of proper material; but
there was an accumulation of ice about this plug, which prevented it
from acting properly. The defendants were not bound to keep the plugs
clear. It appears to me that the plaintiff was under quite as much
obligation to remove the ice and snow which had accumulated, as the
defendants. However that may be, it appears to me that it would be
monstrous to hold the defendants responsible because they did not
foresee and prevent an accident, the cause of which was so obscure, that
it was not discovered until many months after the accident had happened.

_Verdict to be entered for the defendants._[61]

YERKES _v._ NORTHERN PACIFIC R. CO.
SUPREME COURT, WISCONSIN, NOVEMBER 29, 1901.
_Reported in 112 Wisconsin Reports, 184._

DODGE, J.... Plaintiff assigns as error the definition of the due care
which plaintiff was bound to exercise to avert the charge of
contributory negligence, viz.:—

“The plaintiff cannot recover in this case unless you find that he was
in no manner guilty of any want of ordinary care, or such care as
persons of ordinary care ordinarily use, which contributed to his said
injuries.”[62]

That this was an incorrect and misleading definition of “ordinary care”
has been declared so often by this court as to make further discussion
unnecessary. The rule has been repeatedly laid down that due care is to
be tested by the surrounding circumstances, and that no definition is
complete or correct which does not embody that element.[63] Ordinary
care is the care ordinarily exercised by the great mass of mankind, or
its type, the ordinarily prudent person, under the same or similar
circumstances, and the omission of the last qualification, “under the
same or similar circumstances,” or “under like circumstances,” is error.
Boelter _v._ Ross L. Co., 103 Wis. 324, 330; Dehsoy _v._ Milwaukee E. R.
& L. Co., 110 Wis. 412; Warden _v._ Miller, _ante_, p. 67. The necessity
of the omitted qualification to a correct definition of due care is
especially obvious under the circumstances of this case. What would be
the care of an ordinarily prudent person, standing in safety upon a
stationary platform, or even standing upon the perfect and level
footboard of a moving switch engine, would not be the care to be
expected of one attempting to perform the services of a yard man upon a
bent, declining, and defective footboard such as here presented. The
attention of the jury was not called by this instruction to a very
important element which they must consider in order to decide whether
the plaintiff was or was not guilty of contributory negligence, and the
instruction to them on the subject was therefore misleading and
erroneous.

HILL _v._ GLENWOOD
SUPREME COURT, IOWA, JULY 13, 1904.
_Reported in 124 Iowa Reports, 479._

WEAVER, J.[64] The plaintiff claims to have been injured upon one of the
public walks in the city of Glenwood, and that such injury was
occasioned by reason of the negligence of the city in the maintenance of
the walk at the place of the accident, and without fault on his own part
contributing thereto. From verdict and judgment in his favor for $665,
the city appeals. In this court the appellant makes no claim that the
city was not negligent, but a reversal is sought on other grounds.

* * * * *

It was shown without dispute that plaintiff had been blind for many
years, and this fact is the basis of the criticism upon the charge given
to the jury. In the third paragraph of the charge, the court, defining
negligence, said: “(3) Negligence is defined to be the want of ordinary
care; that is, such care as an ordinary prudent person would exercise
under like circumstances. There is no precise definition of ordinary
care, but it may be said that it is such care as an ordinarily prudent
person would exercise under like circumstances, and should be
proportioned to the danger and peril reasonably to be apprehended from a
lack of proper prudence. This rule applies alike to both parties to this
action, and may be used in determining whether either was negligent.” In
the eighth paragraph, referring to the plaintiff’s duty to exercise care
for his own safety, the following language is used: “(8) It must also
appear from the evidence that the plaintiff did not in any way
contribute to the happening of the accident in question by any
negligence on his part; that is, by his own want of ordinary care. The
plaintiff, on his part, was under obligation to use ordinary care to
prevent injury when passing over any sidewalk; and if he failed so to
do, and his failure in any way contributed to the happening of the
accident in question, then he cannot recover herein. The evidence shows
without dispute that he was blind, and this fact should be considered by
you in determining what ordinary care on his part would require when he
was attempting to pass over one of the sidewalks of this city.” Counsel
for appellant do not deny that the rules here laid down would be a
correct statement of the law of negligence and contributory negligence
as applied to the ordinary case of sidewalk accident, but it is urged
that the conceded fact of plaintiff’s blindness made it the duty of the
court to say to the jury that a blind person who attempts to use the
public street “must exercise a higher degree of care and caution than a
person ordinarily would be expected or required to use had he full
possession of his sense of sight.” We cannot give this proposition our
assent. It is too well established to require argument or citation of
authority that the care which the city is bound to exercise in the
maintenance of its streets is ordinary and reasonable care, the care
which ordinarily marks the conduct of a person of average prudence and
foresight. So, too, it is equally well settled that the care which a
person using the street is bound to exercise on his own part to discover
danger and avoid accident and injury is of precisely the same character,
the ordinary and reasonable care of a person of average prudence and
foresight. The streets are for the use of the general public without
discrimination; for the weak, the lame, the halt and the blind, as well
as for those possessing perfect health, strength, and vision. The law
casts upon one no greater burden of care than upon the other. It is
true, however, that in determining what is reasonable or ordinary care
we must look to the circumstances and surroundings of each particular
case. As said by us in Graham _v._ Oxford, 105 Iowa, 708: “There is no
fixed rule for determining what is ordinary care applicable to all
cases, but each case must be determined according to its own facts.” In
the case before us the plaintiff’s blindness is simply one of the facts
which the jury must give consideration, in finding whether he did or did
not act with the care which a reasonably prudent man would ordinarily
exercise, when burdened by such infirmity. In other words, the measures
which a traveler upon the street must employ for his own protection
depend upon the nature and extent of the peril to which he knows, or in
the exercise of reasonable prudence ought to know, he is exposed. The
greater and more imminent the risk, the more he is required to look out
for and guard against injury to himself; but the care thus exercised is
neither more nor less than ordinary care—the care which men of ordinary
prudence and experience may reasonably be expected to exercise under
like circumstances. See cases cited in 21 Am. & Eng. Enc. Law, (2d ed.)
465, note 1. In the case at bar the plaintiff was rightfully upon the
street, and if he was injured by reason of the negligence of the city,
and without contributory negligence on his part, he was entitled to a
verdict. In determining whether he did exercise due care it was proper
for the jury, as we have already indicated, to consider his blindness,
and in view of that condition, and all the surrounding facts and
circumstances, find whether he exercised ordinary care and prudence. If
he did, he was not guilty of contributory negligence.

This view of the law seems to be fairly embodied in the instructions to
which exception is taken. If the appellant believed, as it now argues,
that the charge should have been more specific, and dwelt with greater
emphasis upon the fact of plaintiff’s blindness as an element for the
consideration of the jury in finding whether he exercised reasonable
care, it had the right to ask an instruction framed to meet its views in
that respect. No such request was made, and the omission of the court to
so amplify the charge on its own motion was not error.[65]

KEITH _v._ WORCESTER STREET R. Co.
SUPREME JUDICIAL COURT, MASSACHUSETTS, NOVEMBER 26, 1907.
_Reported in 196 Massachusetts Reports, 478._

Two Actions of Tort for personal injuries received by the plaintiff’s
intestate caused by her falling when stepping across street railway
rails which were piled by the defendant street railway company on the
highway next to the curbing, and were allowed by the street railway
company and the defendant town to remain there, and which, it was
alleged, constituted an obstruction of the highway.[66]

The accident happened in the daytime. The plaintiff’s intestate was
near-sighted, and could not recognize a friend at a distance of more
than ten or twelve feet.

At the trial in the Superior Court, defendants requested the following
instruction:—

“If the plaintiff’s intestate had defective eyesight, she should take
greater care in walking the street than one of good eyesight; and if she
failed to use this greater degree of care, the verdict must be for the
defendant.”

This request was refused, subject to exception.

In the charge to the jury, the presiding judge stated: “The plaintiff
contends and has got to show by a fair preponderance of the evidence
that Mrs. Keith was injured, and that she was injured while she was
using ... a degree of care that a reasonably prudent and careful person,
acting prudently and carefully at the time, would have exercised and
should have exercised in your judgment under all the circumstances then
surrounding Mrs. Keith. That means not only external circumstances, that
means not only the way in which the rails were placed, the location of
the car, the necessity of action on her part, but it means also with
reference to her personal peculiarities as they were shown to exist upon
the stand. For instance, the conduct of a perfectly sound and healthy
person may be properly regarded as one thing, when the same conduct on
the part of a diseased or infirm person might be regarded as something
very different.

“What might be in your judgment perfectly reasonable and proper and
careful on the part of a sound person might be regarded fairly by you as
improper and careless on the part of an infirm person.

“So, in this case, while I cannot instruct you as a matter of law that
Mrs. Keith, if you find her to be near-sighted, was bound to use a
higher degree of care than a person not near-sighted, I have got to
leave it to you as a matter of fact whether a near-sighted person would
not, in order to be careful, have to exercise a higher degree of care
than a person not near-sighted. In other words, I have got to leave it
to you to determine whether or not a near-sighted person is using due
care if he or she under the particular circumstances acts exactly as a
person who was not near-sighted would have done. In other words, it is a
matter of fact for you to determine whether Mrs. Keith was called on to
do differently from a person in full possession of eyesight rather than
as a matter of law for me to direct you in regard to it.”

The jury found for the plaintiff in both cases.

RUGG, J.... The defendant asked the court to rule that if the person
injured “had defective eyesight, she should take greater care in walking
the street than one of good sight, and if she failed to use this greater
degree of care the verdict must be for the defendant.” This request
properly was refused, for the reason that it directed a verdict upon a
single phase of the testimony, which was not necessarily decisive. In
this respect the prayer differs vitally from the one which in Winn _v._
Lowell, 1 Allen, 177, this court held should have been given.[67] We see
no reason for modifying the decision in Winn _v._ Lowell, nor is it
inconsistent with subsequent cases. The standard of care established by
the law is what the ordinarily prudent and cautious person would do to
protect himself under given conditions. There is no higher or different
standard for one who is aged, feeble, blind, halt, deaf or otherwise
impaired in capacity, than for one in perfect physical condition. It has
frequently, in recent as well as earlier cases, been said, in referring
to one under some impediment, that greater caution or increased
circumspection may be required in view of these adverse conditions. See,
for example, Winn _v._ Lowell, 1 Allen, 177; Hall _v._ West End Street
Railway, 168 Mass. 461; Hilborn _v._ Boston & Northern Street Railway,
191 Mass. 14; Vecchioni _v._ New York Central & Hudson River Railroad,
191 Mass. 9; Hawes _v._ Boston Elevated Railway, 192 Mass. 324; Hamilton
_v._ Boston & Northern Street Railway, 193 Mass. 324. These expressions
mean nothing more than that a person so afflicted must put forth a
greater degree of effort than one not acting under any disabilities, in
order to attain that standard of care which the law has established for
everybody. When looked at from one standpoint, it is incorrect to say
that a blind person must exercise a higher degree of care than one whose
sight is perfect, but in another aspect, a blind person may be obliged
to take precautions, practice vigilance and sharpen other senses,
unnecessary for one of clear vision, in order to attain that degree of
care which the law requires. It may depend in some slight degree upon
how the description of duty begins, where the emphasis may fall at a
given moment, but when the whole proposition is stated, the rights of
the parties are as fully protected in the one way as in the other. It is
perhaps more logical to say that the plaintiff is bound to use ordinary
care, and that in passing upon what ordinary care demands, due
consideration should be given to blindness or other infirmities. This
was the course pursued by the Superior Court. Neff _v._ Wellesley, 148
Mass. 487. Smith _v._ Wildes, 143 Mass. 556. But it is also correct to
say that in the exercise of common prudence one of defective eyesight
must usually as matter of general knowledge take more care and employ
keener watchfulness in walking upon the streets and avoiding
obstructions than the same person with good eyesight, in order to reach
the standard established by the law for all persons alike, whether they
be weak or strong, sound or deficient.

_Exceptions overruled._[68]

MEREDITH _v._ REED
SUPREME COURT, INDIANA, MAY TERM, 1866.
_Reported in 26 Indiana Reports, 334._

GREGORY, C. J. Meredith sued Reed before a justice for an injury done by
a stallion of the latter to the mare of the former, resulting in the
death of the mare. Jury trial, verdict for the defendant; motion for a
new trial overruled and judgment. The evidence is in the record. The
facts are substantially as follows: In May, 1865, the defendant owned a
stallion, which had previously been let to mares, but owing to the
sickness of the owner, was not so let during the spring of 1865. He was
a gentle stallion, and had never been known by the owner to be guilty of
any vicious acts. Not being in use, he had been kept up in a stable for
four or five months. He was secured in the stable by a strong halter and
chain fastened through an iron ring in the manger. The stable door was
securely fastened on the inside by a strong iron hasp, passed over a
staple, and a piece of chain passed two or three times through the
staple over the hasp, and the ends firmly tied together with a strong
cord. It was also fastened on the outside by a piece of timber, one end
of which was planted in the ground, while the other rested against the
door. The horse was thus secured on the day and night the injury
occurred. The gate of the enclosure surrounding the stable was shut and
fastened as usual. About 11 o’clock that night the horse was found loose
on the highway, and did the injury complained of. Early the following
morning the outside gate was found open; the stable door was found open,
with the log prop lying some distance to one side, and the chain which
had been passed through the staple was gone, and the cord with which it
had been tied was found cut and the pieces lying on the floor.

There are forty-two alleged errors assigned, but many of them are not,
in our opinion, so presented as to entitle them to consideration in this
Court. So far as the substantial rights of the appellant are involved,
all the questions properly presented resolve themselves into the inquiry
as to the nature and extent of the liability of the owner of a domestic
animal for injuries done by it to the personal property of another,
disconnected from any trespass to real estate.

It is contended, on the one hand, that ordinary care was all the law
required of the defendant in this case. On the other it is claimed that
the utmost care was necessary to free him from liability. Ordinary care
is all that the law required in the case in judgment. What is ordinary
care in some cases would be carelessness in others. The law regards the
circumstances surrounding each case, and the nature of the animal or
machinery under control. Greater care is required to be taken of a
stallion than of a mare; so in the management of a steam-engine, greater
care is necessary than in the use of a plow. Yet it is all ordinary
care; such care as a prudent, careful man would take under like
circumstances. The degree of care is always in proportion to the danger
to be apprehended. The case at bar was properly sent to the jury, and
the verdict is fully sustained by the evidence.

_The judgment is affirmed, with costs._

DENVER ELECTRIC COMPANY _v._ SIMPSON
SUPREME COURT, COLORADO, APRIL TERM, 1895.
_Reported in 21 Colorado Reports, 371._

Action for damage caused to plaintiff, while passing along a public
alley, by his coming in contact with one of defendants’ wires heavily
charged with electricity, which had become detached from its overhead
fastening, and was hanging down to within about two feet of the ground.
At the trial there was some evidence tending to show that the position
of the wire was due to the negligence of the defendants. Verdict for
plaintiff, and judgment thereon. Defendant appealed; alleging as one
ground the giving of certain instructions as to the care required by
defendant. Those instructions are stated in the opinion.[69]

CAMPBELL, J.... This court does not recognize any degrees of negligence,
such as slight or gross, and logically it ought not to recognize any
degrees in its antithesis, care.[70] The court instructed the jury in
this case that the defendant was not an insurer of the safety of
plaintiff, but that in constructing its line and maintaining the same in
repair, it was held to the utmost degree of care and diligence; that in
this respect it is bound to the highest degree of care, skill, and
diligence in the construction and maintenance of its lines of wire and
other appurtenances, and in carrying on its business, so as to make the
same safe against accidents so far as such safety can, by the use of
such care and diligence, be secured. If it observed such degree of care,
it was not liable; if it failed therein, it was liable for injuries
caused thereby.

We think the court was unfortunate in attempting to draw any
distinctions in the degrees of care or negligence. It would have been
safer and the better practice to instruct the jury,—which ought
hereafter to be observed,—even in cases like the one before us, that the
defendant was bound to exercise that reasonable care and caution which
would be exercised by a reasonably prudent and cautious person under the
same or similar circumstances. In addition to this, the jury should have
been instructed that the care increases as the danger does, and that
where the business in question is attended with great peril to the
public, the care to be exercised by the person conducting the business
is commensurate with the increased danger. But, in effect, this is what
the court did. Under the facts of the case, the law required of the
defendant conducting, as it did, a business so dangerous to the public,
the highest degree of care which skill and foresight can attain
consistent with the practical conduct of its business under the known
methods and the present state of the particular art. This is the measure
of the duty owed by a common carrier to a passenger for hire. Thompson’s
Carriers of Passengers, p. 208, and cases cited. Not for the same
reason, or because the doctrine rests upon the same principle, but with
even greater force should this rule apply to a person or corporation
engaged in the equally, if not more, dangerous business of distributing
electricity throughout a city by means of wires strung over the public
alleys and streets, in so far as concerned its duty to the travelling
public.

In those courts where degrees of negligence are not countenanced,
nevertheless, in cases where the duty of a common carrier of passengers
is laid down, the jury are told that carriers are bound to the utmost
degree of care which human foresight can attain. This is upon the theory
that reasonable or ordinary care in a case of that kind is the highest
care which human ingenuity can practically exercise, and that, as a
matter of law, courts will hold every reasonably prudent and careful man
to the exercise of the utmost care and diligence in protecting the
public from the dangers necessarily incident to the carrying on of a
hazardous business.

Where the facts of a case naturally lead equally intelligent persons
honestly to entertain different views as to the degree of care resting
upon a defendant, the court ought not to lay down a rule prescribing any
particular or specific degree in that case. But where all minds
concur—as they must in a case like the one we are now considering—in
regarding the carrying on of a business as fraught with peril to the
public inherent in the nature of the business itself, the court makes no
mistake in defining the duty of those conducting it as the exercise of
the utmost care. It was, therefore, not prejudicial error for the court
to tell the jury in this case what the law requires of the defendant,
viz., the highest degree of care in conducting its business.

* * * * *

_Judgment affirmed._[71]

LAKE ERIE & WESTERN R. CO. _v._ FORD
SUPREME COURT, INDIANA, OCTOBER 23, 1906.
_Reported in 167 Indiana Reports, 205._

GILLETT, J. Complaint by appellee to recover damages for loss of
property by fire, by reason of the alleged negligence of appellant.
There was a verdict and judgment in favor of appellee.[72]

* * * * *

Appellant complains of appellee’s instructions five and six, which were
given by the court in the order indicated by their numbers. They are as
follows: “(5) It is the duty of a railroad to use all reasonable
precaution in running and operating its trains, and in providing its
engines with proper spark-arresters, so as to prevent injury to the
property of others by sparks or fire emitted or thrown therefrom. (6) If
you believe from all of the evidence and circumstances in the case that
at the time and prior to the destruction of the property of the
plaintiff, as alleged in his complaint, there were a number of wooden
buildings and structures standing on either side of the defendant’s
track and in close proximity thereto, including the barn or stable of
said Melissa McFall in the town of Hobbs, and at such time it was, and
for some time prior thereto it had been, unusually dry, thereby
rendering such wood buildings and structures, including the barn or
stable of said Melissa McFall, and also the property of the plaintiff
herein, unusually dry, inflammable, and easily set on fire by sparks and
coals of fire emitted from defendant’s engines in passing through said
town, and that there was also at the time, and for several hours prior
thereto had been, a strong wind blowing continuously across the
defendant’s track, in the direction of the barn or stable of said
Melissa McFall, and the wooden buildings and structures near the
defendant’s track, including the property of the plaintiff herein, which
greatly and unusually increased the danger and risk of setting fire to
such buildings by sparks and coals of fire emitted or thrown from its
engine in passing through said town, over ordinary times and conditions,
and all of which facts and conditions the defendant knew at the time,
the defendant, under such circumstances, would be required to use a
greater degree of care in operating and running its engines through said
town to prevent injury to such buildings or property by sparks or coals
of fire emitted or thrown from its engine, than it would at ordinary
times and under ordinary conditions.”

Assuming, without deciding, that it was not error for the court, in its
fifth instruction, to use the term “reasonable precaution,” instead of
the preferable one, “ordinary care,”[73] and assuming further, since the
care that the company was required to exercise was, so far as the
element of law was concerned, to be measured by a fixed standard, which
was to be fully complied with (Wharton, Negligence [2d ed.], § 46), that
it was proper to use the expression “all reasonable precaution,” the
question arises whether it is not likely that the jury was misled by the
charge in the next instruction that in the circumstances therein
hypothetically stated “a greater degree of care” was required than in
ordinary conditions. The sixth instruction would have been proper, had
the court charged, after stating to the jury hypothetically the
conditions which existed, leaving it to them to determine whether the
danger was increased, that, in the event they so found, it was their
duty, in determining whether reasonable or ordinary care had been
exercised, to consider the increased danger of fire, yet we cannot say
that this was the fair meaning of the words in which said instruction
was couched.

There has been much discussion in the books concerning the correctness
of the old doctrine as to degrees of negligence. New York Central R. Co.
_v._ Lockwood, (1873) 17 Wall. 357, 21 L. Ed. 627; Steamboat New World
_v._ King, (1853) 16 How. 469, 14 L. Ed. 1019; Ohio, etc., R. Co. _v._
Selby, (1874) 47 Ind. 471, 17 Am. Rep. 719; Pennsylvania Co. _v._
Sinclair, (1878) 62 Ind. 301, 30 Am. Rep. 185; Wharton, Negligence (2d
ed.), § 44; 6 Albany L. J. 313; 2 Ames & Smith, Cases on Torts, 143; 21
Am. and Eng. Ency. Law (2d ed.), 459, and cases cited. While we
apprehend that the adverse opinions which have been expressed concerning
such doctrine were not intended to be understood as militating against
the view that the legal standard of care is not the same in all
relations, or to discountenance the practice of charging the jury in
terms that indicate the extent of care required, as great, ordinary, or
slight (1 Shearman & Redfield, Negligence [5th ed.], § 47), yet the
point which we wish to enforce now is that in all cases negligence
consists simply in a failure to measure up to the legal standard of
care. It was said by Willes, J., in Grill _v._ General Iron Screw, etc.,
Co., (1866) L. R. 1 C. P. 600, 611: “Confusion has arisen from regarding
negligence as a positive instead of a negative word. It is really the
absence of such care as it was the duty of the defendant to use.”

Here we admittedly have a case in which it was the duty of the company
to exercise ordinary care, but what does an instruction mean that
informs the jury that in certain circumstances a greater degree of care
is required, when it has for a background an instruction, which is
applicable to all circumstances, that all reasonable precaution must be
used? We think that in such a case the jury would understand that more
than ordinary care was required, and it is not improbable that the
effect of giving such an instruction, following an instruction like 5,
would be to lead the jury to infer that the defendant’s duty was raised
by the circumstances recited to a pitch of intensity that could not
reasonably have been attained.

It was said by this court in Meredith _v._ Reed, (1866) 26 Ind. 334,
337: “What is ordinary care in some cases, would be carelessness in
others. The law regards the circumstances surrounding each case, and the
nature of the animal or machinery under control. Greater care is
required to be taken of a stallion than of a mare; so in the management
of a steam engine, greater care is necessary than in the use of a
plough. Yet it is all ordinary care.” The legal standard of care
required in a particular relationship is always the same, although the
amount of care thus required depends upon the particular circumstances.
Cleveland, etc., R. Co. _v._ Terry, (1858) 8 Ohio St. 570; Weiser _v._
Broadway, etc., St. R. Co., (1895) 6 Ohio Dec. 215. As has been observed
by a modern writer: “This standard may vary in fact, but not in law.” 2
Jaggard, Torts, p. 819. In an article in 3 [6] Albany, L. J. 314, it is
said: “The ratio, proportion or correspondence of diligence to
circumstances, of care to surroundings, is fixed and identical. And, in
determining a question of diligence or negligence in either case [as
between two cases previously used by way of illustration], it would be
only necessary to apply the same rule to varying circumstances and
persons, to demand the same ratio between varying extremes. And it is
not too much to assert that all the perplexity and misunderstanding on
the subject of diligence and negligence are due to the habit of
confounding the specific acts and circumstances, which must always vary,
with the ratio or relation between them, which remains always the same.”

In 13 Am. and Eng. Ency. Law (2d ed.), 416, it is said: “The very
statement of the general rule that reasonable care is required to
prevent injuries to others from fire, implies that what is reasonable
care must depend upon the circumstances of each particular case. It is,
however, inaccurate to say, as many of the cases do, that the degree of
care varies with the particular circumstances. It is only reasonable
care that is required in any case; but the greater the danger, or the
more likely the communication of fire and the ignition of the property
of others, the more precautions and the closer vigilance reasonable care
requires.” As above suggested, cases can be found in which it is stated
that the degree of care to be used depends upon the danger, but, as has
been observed by this court, it is not every statement of the law as
found in an opinion or text-book, however well and accurately put, which
can properly be embodied in an instruction. Garfield _v._ State, (1881)
74 Ind. 60. The viciousness of the instruction in question lies in its
tendency to lead the jury to infer that the legal standard of ordinary
care was raised by the circumstances recited, thus making possible the
inference that a great but undefined extent of care was required,
whereas all that the law exacted was the ordinary care which the
situation demanded, or such care as it is to be assumed that an
ordinarily prudent man would exercise in the circumstances, were the
risk his own.[74]

In this case the acts and omissions which the complaint charged as
negligent were various, so that the question of what was ordinary care
arose in a number of ways, and we can only conclude, in view of the
misleading character of the instruction under consideration, that
prejudicial error has intervened.

_Judgment reversed, and a new trial ordered._[75]

TRACY _v._ WOOD
UNITED STATES CIRCUIT COURT, DISTRICT OF RHODE ISLAND, NOVEMBER TERM,
1822.
_Reported in 3 Mason (U. S. Circuit Court), 132._

Assumpsit for negligence in losing 764½ doubloons, intrusted to the
defendant to be carried from New York to Boston, as a gratuitous bailee.
The gold was put up in two distinct bags, one within the other, and at
the trial, upon the general issue, it appeared that the defendant, who
was a money broker, brought them on board of the steamboat bound from
New York to Providence; that in the morning while the steamboat lay at
New York, and a short time before sailing, one of the bags was
discovered to be lost, and that the other bag was left by the defendant
on a table in his valise in the cabin, for a few moments only, while he
went on deck to send information of the supposed loss to the plaintiffs,
there being then a large number of passengers on board, and the loss
being publicly known among them. On the defendant’s return the second
bag was also missing and after every search no trace of the manner of
the loss could be ascertained. The valise containing both bags was
brought on board by the defendant on the preceding evening, and put by
him in a berth in the forward cabin. He left it there all night, having
gone in the evening to the theatre, and on his return having slept in
the middle cabin. The defendant had his own money to a considerable
amount in the same valise. There was evidence to show that he made
inquiries on board, if the valise would be safe, and that he was
informed, that if it contained articles of value, it had better be put
into the custody of the captain’s clerk in the bar, under lock and key.
There were many other circumstances in the case. The argument at the
trial turned wholly on the question of gross negligence, and all the
facts were fully commented on by counsel. But as the case is intended
only to present the discussion on the question of law, it is not thought
necessary to recapitulate them.[76]

STORY, J., after summing up the facts, said, I agree to the law as laid
down at the bar, that in cases of bailees without reward, they are
liable only for gross negligence. Such are depositaries, or persons
receiving deposits without reward for their care; and mandataries, or
persons receiving goods to carry from one place to another without
reward. The latter is the predicament of the defendant. He undertook to
carry the gold in question for the plaintiff, gratuitously, from New
York to Providence, and he is not responsible unless he has been guilty
of gross negligence. Nothing in this case arises out of the personal
character of the defendant, as broker. He is not shown to be either more
or less negligent than brokers generally are; nor if he was, is that
fact brought home to the knowledge of the plaintiffs. They confided the
money to him as a broker of ordinary diligence and care, having no other
knowledge of him; and, therefore, no question arises as to what would
have been the case, if the plaintiffs had known him to be a very
careless or a very attentive man. Jones’ Bail. 46. The language of the
books, as to what constitutes gross negligence, or not, is sometimes
loose and inaccurate from the general manner in which propositions are
stated. When it is said, that gross negligence is equivalent to fraud,
it is not meant that it cannot exist without fraud. There may be very
gross negligence in cases where there is no pretence that the party has
been guilty of fraud, though certainly such negligence is often
presumptive of fraud. In determining what is gross negligence, we must
take into consideration what is the nature of the thing bailed. If it be
of little value, less care is required than if it be of great value. If
a bag of apples were left in a street for a short time, without a person
to guard it, it would certainly not be more than ordinary neglect. But
if the bag were of jewels or gold, such conduct would be gross
negligence. In short, care and diligence are to be proportional to the
value of the goods, the temptation and facility of stealing them, and
the danger of losing them. So Sir William Jones lays down the law.
“Diamonds, gold, and precious trinkets,” says he, “ought from their
nature to be kept with peculiar care, under lock and key; it would,
therefore, be gross negligence in a depositary to leave such deposit in
an open antechamber; and _ordinary_ neglect, at least, to let them
remain on the table, where they might possibly tempt his servants.”
Jones’ Bail. 38, 46, 62. So in Smith _v._ Horne, 2 Moore’s R. 18, it was
held to be gross negligence in the case of a carrier, under the usual
notice of not being responsible for goods above £5 in value, to send
goods in a cart with one man, when two were usually sent to see to the
delivery of them. So in Booth _v._ Wilson, 1 Barn. & Ald. 59, it was
held gross negligence in a gratuitous bailee to put a horse into a
dangerous pasture. In Batson _v._ Donovan, 4 Barn. & Ald. 21, the
general doctrine was admitted in the fullest terms. It appears to me
that the true way of considering cases of this nature is, to consider
whether the party has omitted that care which bailees, without hire, or
mandataries of ordinary prudence usually take of property of this
nature. If he has, then it constitutes a case of gross negligence. The
question is not whether he has omitted that care, which very prudent
persons usually take of their own property, for the omission of that
would be but slight negligence; nor whether he has omitted that care
which prudent persons ordinarily take of their own property, for that
would be but ordinary negligence: but whether there be a want of that
care, which men of common sense, however inattentive, usually take, or
ought to be presumed to take of their property, for that is gross
negligence. The contract of bailees without reward is not merely for
good faith, but for such care as persons of common prudence in their
situation usually bestow upon such property. If they omit such care, it
is gross negligence.

The present is a case of a mandatary of money. Such property is by all
persons, negligent as well as prudent, guarded with much greater care
than common property. The defendant is a broker, accustomed to the use
and transportation of money, and it must be presumed he is a person of
ordinary diligence. He kept his own money in the same valise; and took
no better care of it than of the plaintiff’s. Still if the jury are of
opinion that he omitted to take that reasonable care of the gold which
bailees without reward in his situation usually take, or which he
himself usually took of such property, under such circumstances, he has
been guilty of gross negligence.

_Verdict for the plaintiffs for $5700, the amount of one bag of the
gold; for the defendant as to the other bag._[77]

DOLPHIN _v._ WORCESTER STREET R. CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 18, 1905.
_Reported in 189 Massachusetts Reports, 270._

Action of tort under Revised Laws, chapter 111, section 267, for the
death of a passenger on a street railway.[78]

The material portions of the statute are as follows:—

“If a corporation which operates a railroad or a street railway, by
reason of its negligence or by reason of the unfitness or gross
negligence of its agents or servants, while engaged in its business,[79]
causes the death of a passenger, or of a person who is in the exercise
of due care and who is not a passenger or in the employ of such
corporation, it shall be punished by a fine of not less than five
hundred nor more than five thousand dollars, which shall be recovered by
an indictment,” and shall be paid to the executor or administrator, to
the use of the widow and children or the next of kin. “Such corporation
shall also be liable in damages in the sum of not less than five hundred
nor more than five thousand dollars, which shall be assessed with
reference to the degree of culpability of the corporation or of its
servants or agents, and shall be recovered in an action of tort ... by
the executor or administrator of the deceased for the use of the persons
hereinbefore specified in the case of an indictment.... But no executor
or administrator shall, for the same cause, avail himself of more than
one of the remedies given by the provisions of this section.”

At the trial the plaintiff requested the following rulings:—

“6. When the duty of exercising the highest degree of care is incumbent
upon the defendant, any failure upon the part of its servants to
exercise that degree of care is gross negligence.

“7. The term ‘gross’ in the allegation gross negligence, when used with
reference to the degree of care required and not fulfilled, is merely an
expletive, when the degree of care required is the very highest.

“8. There are no degrees of negligence.”

The plaintiff excepted to the refusal of the judge to give the rulings
requested, and to such parts of the charge as were in conflict with
them. The defendant had a verdict, and the case is here on these
exceptions.

LORING, J.... The judge was right in refusing to give the sixth ruling
asked for. A failure to exercise the highest degree of care is slight
negligence.

3. The seventh ruling requested was wrong. The term “gross negligence”
in a case where the degree of care due is the highest degree of care
means that there has been a gross failure to exercise that degree of
care.[80]

4. There are degrees of care in cases under R. L. c. 111, § 267, by
force of that act.[81]

_Exceptions overruled._

CLEVELAND ROLLING MILL CO. _v._ CORRIGAN
SUPREME COURT, OHIO, FEBRUARY 26, 1889.
_Reported in 46 Ohio State Reports, 283._

Error to Circuit Court of Cuyahoga County.

The plaintiff below, John Corrigan, an infant under the age of fourteen,
by his guardian, sued the Rolling Mill Company for damages suffered
while in the defendants’ employ, and which he alleged were caused by
their negligence.

The answer of the defendants alleged, among other defences, that the
injury occurred solely through the plaintiff’s fault.

As to this ground of defence, the Court instructed the jury in part as
follows:—

It was the duty of the plaintiff to use ordinary care and prudence; just
such care and prudence as a boy of his age, of ordinary care and
prudence, would use under like or similar circumstances. You should take
into consideration his age, the judgment and knowledge he possessed.

_Verdict and judgment for plaintiff._

The Company filed its petition in error.[82]

WILLIAMS, J. The only questions presented in this case are those arising
upon the special instructions given by the Court in response to the
request of the jury. These instructions, the plaintiff in error
contends, are erroneous in their entirety and in detail.

1. First, it is claimed that the Court erred in the statement of the
plaintiff’s duty, in the opening proposition of the charge, wherein the
jury were instructed that “it was the duty of the plaintiff to use
ordinary care,” which the Court defined to be “just such care as boys of
that age, of ordinary care and prudence, would use under like
circumstances,” and that the jury “should take into consideration the
age of the plaintiff, and the judgment and knowledge he possessed.” We
have found no decision of this Court upon the subject of the
contributory negligence of infants, or the measure of care required of
them. Elsewhere the decisions are conflicting. Each of three different
rules on the subject has found judicial sanction. One rule requires of
children the same standard of care, judgment, and discretion, in
anticipating and avoiding injury, as adults are bound to exercise.[83]
Another wholly exempts small children from the doctrine of contributory
negligence. Between these extremes a third and more reasonable rule has
grown into favor, and is now supported by the great weight of authority,
which is, that a child is held to no greater care than is usually
possessed by children of the same age. Authors and judges, however, do
not always employ the same language in giving expression to the rule. In
Beach on Contributory Negligence, sec. 46, it is thus expressed: “An
infant plaintiff who, on the one hand, is not so young as to escape
entirely all legal accountability, and on the other hand is not so
mature as to be held to the responsibility of an adult is, of course, in
cases involving the question of negligence, to be held responsible for
ordinary care, and ordinary care must mean, in this connection, that
degree of care and prudence which may reasonably be expected of a
child.” The decisions enforcing this rule, that children are to be held
responsible only for such degree of care and prudence as may reasonably
be expected of them, taking due account of their age and the particular
circumstances, are very numerous. “It is well settled,” says Mr. Justice
Hunt in Railroad Company _v._ Stout, 17 Wall. 657, “that the conduct of
an infant of tender years is not to be judged by the same rule which
governs that of an adult.... The care and caution required of a child is
according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of that case.” In Shearman
& Redfield on Negligence, sec. 73, it is said to be “now settled by the
overwhelming weight of authority that a child is held, as far as he is
personally concerned, only to the exercise of such care and discretion
as is reasonably to be expected from children of his own age.” Another
author says, “A child is only bound to exercise such a degree of care as
children of his particular age may be presumed capable of exercising.”
Whittaker’s Smith on Neg., 411.

This rule appears to rest upon sound reason as well as authority. To
constitute contributory negligence in any case there must be a want of
ordinary care and a proximate connection between such want of care and
the injury complained of; and ordinary care is that degree of care which
persons of ordinary care and prudence are accustomed to use under
similar circumstances. Children constitute a class of persons of less
discretion and judgment than adults, of which all reasonably informed
men are aware. Hence ordinarily prudent men reasonably expect that
children will exercise only the care and prudence of children, and no
greater degree of care should be required of them than is usual under
the circumstances among careful and prudent persons of the class to
which they belong. We think it a sound rule, therefore, that in the
application of the doctrine of contributory negligence to children, in
actions by them or in their behalf for injuries occasioned by the
negligence of others, their conduct should not be judged by the same
rule which governs that of adults, and while it is their duty to
exercise ordinary care to avoid the injuries of which they complain,
ordinary care for them is that degree of care which children of the same
age, of ordinary care and prudence, are accustomed to exercise under
similar circumstances.

That portion of the charge of the Court under discussion is in
substantial conformity to this conclusion. The care and prudence which a
boy of the plaintiff’s age of ordinary care and prudence “would use
under like and similar circumstances,” as expressed in the charge, is
such care as “is reasonably to be expected from a boy of his age,” or
“which boys of his age usually exercise,” as the books express it. No
different effect is given to the charge of which the plaintiff in error
can complain, by the direction to the jury to take into consideration
the age of the boy “and the judgment and knowledge he possessed.” This
did not diminish the degree of care required by the previous portion of
the instruction.

_Judgment affirmed._[84]

STONE _v._ DRY DOCK R. CO.
COURT OF APPEALS, NEW YORK, JUNE 4, 1889.
_Reported in 115 New York Reports, 104._

Appeal from judgment of the General Term of the Supreme Court in the
first judicial department, entered upon an order made October 26, 1887,
which affirmed a judgment in favor of defendant, entered upon an order
nonsuiting plaintiff on trial.

This was an action to recover damages for the alleged negligence in
causing the death of plaintiff’s intestate, a child of seven years and
three or four months old.

The facts, so far as material, are stated in the opinion.[85]

ANDREWS, J. The nonsuit was placed on the ground that an infant seven
years of age was _sui juris_, and that the act of the child in crossing
the street in front of the approaching car was negligence on her part,
which contributed to her death, and barred a recovery. We think the case
should have been submitted to the jury.

The negligence of the driver of the car is conceded. His conduct in
driving rapidly along Canal Street at its intersection with Orchard
Street, without looking ahead, but with his eyes turned to the inside of
the car, was grossly negligent. Mangam _v._ Brooklyn R. R. Co., 38 N. Y.
455; Railroad Co. _v._ Gladmon, 15 Wall. 401. It cannot be asserted as a
proposition of law that a child just passed seven years of age is _sui
juris_, so as to be chargeable with negligence. The law does not define
when a child becomes _sui juris_. Kunz _v._ City of Troy, 104 N. Y. 344.
Infants under seven years of age are deemed incapable of committing
crime, and by the common law such incapacity presumptively continues
until the age of fourteen. An infant between those ages was regarded as
within the age of possible discretion, but on a criminal charge against
an infant between those years the burden was upon the prosecutor to show
that the defendant had intelligence and maturity of judgment sufficient
to render him capable of harboring a criminal intent. 1 Arch. 11. The
Penal Code preserves the rule of the common law except that it fixes the
age of twelve instead of fourteen as the time when the presumption of
incapacity ceases. Penal Code, §§ 18, 19.

In administering civil remedies the law does not fix any arbitrary
period when an infant is deemed capable of exercising judgment and
discretion. It has been said in one case that an infant three or four
years of age could not be regarded as _sui juris_, and the same was said
in another case of an infant five years of age. Mangam _v._ Brooklyn R.
R., _supra_; Fallon _v._ Central Park, N. & E. R. R. R. Co., 64 N. Y.
13. On the other hand, it was said in Cosgrove _v._ Ogden, 49 N. Y. 255,
that a lad six years of age could not be assumed to be incapable of
protecting himself from danger in streets or roads, and in another case
that a boy of eleven years of age was competent to be trusted in the
streets of a city. McMahon _v._ Mayor, &c., 33 N. Y. 642. From the
nature of the case it is impossible to prescribe a fixed period when a
child becomes _sui juris_. Some children reach the point earlier than
others. It depends upon many things, such as natural capacity, physical
conditions, training, habits of life, and surroundings. These and other
circumstances may enter into the question. It becomes, therefore, a
question of fact for the jury where the inquiry is material unless the
child is of so very tender years that the Court can safely decide the
fact. The trial Court misapprehended the case of Wendell _v._ New York
Central Railroad Company, 91 N. Y. 420, in supposing that it decided, as
a proposition of law, that a child of seven years was capable of
exercising judgment so as to be chargeable with contributory negligence.
It was assumed in that case, both on the trial and on appeal, that the
child whose conduct was in question was capable of understanding, and
did understand the peril of the situation, and the evidence placed it
beyond doubt that he recklessly encountered the danger which resulted in
his death. The boy was familiar with the crossing, and, eluding the
flagman who tried to bar his way, attempted to run across the track in
front of an approaching train in plain sight, and unfortunately slipped
and fell, and was run over and killed. It appeared that he was a bright,
active boy, accustomed to go to school and on errands alone, and
sometimes was intrusted with the duty of driving a horse and wagon, and
that on previous occasions he had been stopped by the flagman while
attempting to cross the track in front of an approaching train, and had
been warned of the danger. The Court held, upon this state of facts,
that the boy was guilty of culpable negligence. But the case does not
decide, as matter of law, that all children of the age of seven years
are _sui juris_.

We are inclined to the opinion that in an action for an injury to a
child of tender years, based on negligence, who may or may not have been
_sui juris_ when the injury happened, and the fact is material as
bearing upon the question of contributory negligence, the burden is upon
the plaintiff to give some evidence that the party injured was not
capable, as matter of fact, of exercising judgment and discretion. This
rule would seem to be consistent with the principle now well settled in
this State, that in an action for a personal injury, based on
negligence, freedom from contributory negligence on the part of the
party injured is an element of the cause of action. In the present case
the only fact before the jury bearing upon the capacity of the child
whose death was in question was that she was a girl seven years and
three months old. This, we think, did not alone justify an inference
that the child was incapable of exercising any degree of care. But,
assuming that the child was chargeable with the exercise of some degree
of care, we think it should have been left to the jury to determine
whether she acted with that degree of prudence which might reasonably be
expected, under the circumstances, of a child of her years. This measure
of care is all that the law exacts in such a case. Thurber _v._ Harlem,
B. M. & F. R. R. Co., 60 N. Y. 335.[86]

_Judgment reversed._

ILLINOIS IRON AND METAL COMPANY _v._ WEBER
SUPREME COURT, ILLINOIS, APRIL 16, 1902.
_Reported in 196 Illinois Reports, 526._

Appeal by original defendants from the decision of the Appellate Court
for the First District; 89 Ill. App. 368.

Plaintiff was a newsboy, between eleven and twelve years old, and his
stand was at Dearborn and Monroe streets in the city of Chicago. He was
going from his home, about four miles distant, to his place of business.
By permission of the driver, he got on a wagon loaded with brick. He
stood up on the rear of the wagon behind the box, and held on to the
hind end-gate of the wagon. The wagon was one of a procession of loaded
teams in a street-car track. The next wagon behind was owned by
defendant. The end of the pole of defendant’s wagon struck the
plaintiff’s leg, inflicting a serious wound. Plaintiff had been in the
paper business since he was nine years old, and had been in the habit of
riding down town on wagons.

Under instructions, the substance of which is stated in the opinion, the
jury found a verdict for plaintiff.[87]

CARTWRIGHT, J.... The first two instructions each directed the jury to
find the defendant guilty, provided they should believe, from the
evidence, the existence of certain facts. One of the essential facts
which the law required to be found was that the plaintiff was in the
exercise of ordinary care for his own safety, and each of those
instructions informed the jury that the fact was proved if he was in the
exercise of ordinary care for a boy of his age. They directed the jury
to return a verdict for the plaintiff if they found he was in the
exercise of ordinary care for a boy of his age and the defendant was
negligent and the injury resulted. That was not a correct rule of law,
since the question of care was not to be determined alone by the
plaintiff’s age, but also from his intelligence, experience, and ability
to understand and comprehend dangers and care for himself. The case was
one in which the defendant was entitled to correct instructions upon
that question. It was a question whether plaintiff was not guilty of
negligence in riding where he did, in a procession of teams, outside of
the box, behind the end-gate of the wagon. The position was a dangerous
one, not provided or used for passengers or intended for such use.
Plaintiff had a right to ride on the wagon with the driver’s consent,
but it was his duty to use reasonable care for his own safety. There was
a string of heavily loaded teams in the car tracks, where it was
difficult, if not impossible, to turn out, and the difficulty and danger
in stopping when one of a procession stops is matter of common
knowledge. Cases cited as to the liability of common carriers of
passengers where a car is full and a passenger rides upon the platform
have no bearing on this question. Passengers are accustomed to be upon
platforms and are sometimes compelled to ride there, and different rules
are applied to a common carrier from those governing parties not in that
relation. There was no necessity whatever for the plaintiff assuming the
position that he did. These facts were not controverted or in dispute,
but are gathered from his own testimony. If the damage to the plaintiff
was caused by his own negligence in assuming such a position, he could
not recover. In determining that question his age was to be taken into
account, but it could not be said, as a matter of law, that he was too
young to exercise any care for his personal safety or that he was
incapable of negligence. Unquestionably, he was capable of exercising
some degree of judgment and discretion and some degree of care for his
own safety. He had lived in the city and had been engaged in business,
and was accustomed to ride on wagons. Judge Thompson, in his
Commentaries on Law of Negligence (vol. I, sect. 309), says: “Two lads
of equal age and natural capacity, one of them raised in the country and
the other in the city, might approach a given danger, and the one would
be perfectly competent to care for himself while the other would be
helpless in the face of it. Therefore, the capacity, the intelligence,
the knowledge, the experience, and the discretion of the child are
always evidentiary circumstances,—circumstances with reference to which
each party has the right to introduce evidence, which evidence is to be
considered by the jury.” The rule established by our own decisions is,
that age is not the only element to be considered, but that
intelligence, capacity, and experience are also to be taken into
account. Weick _v._ Lander, 75 Ill. 93; City of Chicago _v._ Keefe, 114
Id. 222; Illinois Central Railroad Company _v._ Slater, 129 Id. 91.

* * * * *

_Reversed and remanded._[88]

BULLOCK _v._ BABCOCK
SUPREME COURT OF JUDICATURE, NEW YORK, OCTOBER, 1829.
_Reported in 3 Wendell, 391._

This was an action of trespass, assault, and battery.

In 1816, the defendant, then being about twelve years of age, shooting
an arrow from a bow, struck the plaintiff and put out one of his eyes,
the plaintiff being then between nine and ten years of age. The
plaintiff and defendant were schoolmates. The boys attending the school
were assembled near the school-house. One of them had a bow and arrow,
with which he and the defendant had been shooting at a mark. Some remark
was made by the plaintiff, when the defendant said, “I will shoot you,”
and took the bow and arrow from another boy who then held it. The
plaintiff ran into the school-house and hid behind a fire-board standing
before the fire-place in the school-room. The defendant followed to the
door of the school-room, and saying, “See me shoot that basket,”
discharged the arrow. At that moment the plaintiff raised his head above
the fire-board, and the arrow struck him. There was a basket standing on
a desk in the direction that the arrow was aimed. When the arrow was
shot, there were a number of boys in the school-room. There had been no
quarrel between the boys. The plaintiff, however, on entering the
school-house was frightened, and said he was afraid he would be shot.
The plaintiff suffered great pain for two months, became blind of one
eye, and for five years was disabled from attending school in
consequence of the weakness of sight of the other eye. His mother became
a widow; and when the plaintiff was able to attend school, her poverty
prevented his receiving an ordinary education. This suit was commenced
in 1827, within a year after the plaintiff attained his age.

The judge charged the jury that the shooting the arrow in the
school-room where there were a number of boys assembled was an unlawful
act; that it appeared to him to have been, at the least, grossly
negligent and unjustifiable; and that, if the jury thought so, they
ought to find a verdict for the plaintiff, with damages. The defendant
excepted. The jury found for the plaintiff, with $180 damages, and a
motion was now made to set aside the verdict.

BY THE COURT, MARCY, J. It is not, I apprehend, necessary for us to say
whether the judge erred or not in his remark to the jury that, under the
circumstances of the case, the act of the defendant in shooting the
arrow in the school-room, where there were a number of scholars, was not
lawful; for, if the act in itself was lawful, and there was not a proper
care to guard against consequences injurious to others, the actor must
be held responsible for such consequences.

In ordinary cases, if the injury is not the effect of an unavoidable
accident, the person by whom it is inflicted is liable to respond in
damages to the sufferer. Where, in shooting at butts, the archer’s arrow
glanced and struck another, it was holden to be a trespass. Year-Book,
21 H. VII. fol. 28. So where a number of persons were lawfully
exercising themselves at arms, one, whose gun accidentally went off, was
held liable in trespass for the injury occasioned by the accident.
Weaver _v._ Ward. Where, in a dark night, the defendant got on the wrong
side of the road, and an injury ensued to the person of the plaintiff,
trespass for the damage was sustained. Leame _v._ Bray, 3 East, 593. It
is decided in the case of Wakeman _v._ Robinson, if the accident happen
entirely without the fault of the defendant, or any blame being
imputable to him, an action will not lie. In that case, the blame
imputable to the defendant was, that, his horse being young and
spirited, he used him without a curb rein; that in his alarm he probably
pulled the wrong rein; and that he ought to have continued on in a
straight course. The blame fairly imputed to the defendant, it will be
perceived, must have been slight indeed, as it certainly was in the case
of the injury done by the glancing of the arrow when shooting at a mark
(a lawful act), and by the accidental discharge of the musket at a
training; and yet, in each of these cases, an action for the injury was
maintained. Unless a rule is to be applied to this case different from
that applicable to a transaction between adults, the proof was most
abundant to charge the defendant with the consequences of the injury.
Infants, in the same manner as adults, are liable for trespass, slander,
assault, &c.[89] Bing. on Infancy, 110; 8 T. R. 335; 16 Mass. Rep. 389;
2 Inst. 328. Where infants are the actors, that might probably be
considered an unavoidable accident which would not be so considered
where the actors are adults; but such a distinction, if it exists, does
not apply to this case. The liability to answer in damages for trespass
does not depend upon the mind or capacity of the actors; for idiots and
lunatics, as we see by the case reported in Hobart, are responsible in
the action of trespass for injuries inflicted by them. 1 Chit. Pl. 66.

_Motion for a new trial denied._[90]

SECTION IV
PROOF OF NEGLIGENCE[91]

METROPOLITAN RAILWAY COMPANY _v._ JACKSON
IN THE HOUSE OF LORDS, DECEMBER 13, 1877.
_Reported in 3 Appeal Cases, 193._

THE LORD CHANCELLOR (Lord Cairns):[92]—

My Lords, in this case an action was brought by the respondent against
the Metropolitan Railway Company for negligence in not carrying the
respondent safely as a passenger on the railway, and for injuring his
thumb by the act of one of the appellants’ servants in suddenly and
violently closing the door of the railway carriage.

The question is, Was there at the trial any evidence of this negligence
which ought to have been left to the jury? The Court of Common Pleas,
consisting of Lord Coleridge, Mr. Justice Brett, and Mr. Justice Grove,
were of opinion that there was such evidence. The Court of Appeal was
equally divided; the Lord Chief Justice and Lord Justice of Appeal
Amphlett holding that there was evidence, the Lord Chief Baron and Lord
Justice of Appeal Bramwell holding that there was not.

The facts of the case are very short. The respondent in the evening of
the 18th of July, 1872, took a third-class ticket from Moorgate Street
to Westbourne Park, and got into a third-class compartment; the
compartment was gradually filled up, and when it left King’s Cross all
the seats were occupied. At Gower Street Station three persons got in
and were obliged to stand up. There was no evidence to show that the
attention of the company’s servants was drawn to the fact of an extra
number being in the compartment; but there was evidence that the
respondent remonstrated at their getting in with the persons so getting
in, and a witness who travelled in the same compartment stated that he
did not see a guard or porter at Gower Street.

At Portland Road, the next station, the three extra passengers still
remained standing up in the compartment. The door of the compartment was
opened and then shut; but there was no evidence to show by whom either
act was done. Just as the train was starting from Portland Road there
was a rush, and the door of the compartment was opened a second time by
persons trying to get in. The respondent, who had up to this time kept
his seat, partly rose and held up his hand to prevent any more
passengers coming in. After the train had moved, a porter pushed away
the people who were trying to get in, and slammed the door to, just as
the train was entering the tunnel. At that very moment the respondent,
by the motion of the train, fell forward and put his hand upon one of
the hinges of the carriage door to save himself, and at that moment, by
the door being slammed to, the respondent’s thumb was caught and
injured.

The case as to negligence having been left to the jury, the jury found a
verdict for the respondent with £50 damages. There was not, at your
lordships’ bar, any serious controversy as to the principles applicable
to a case of this description. The judge has a certain duty to
discharge, and the jurors have another and a different duty. The judge
has to say whether any facts have been established by evidence from
which negligence _may be_ reasonably inferred; the jurors have to say
whether, from those facts, when submitted to them, negligence _ought to
be_ inferred. It is, in my opinion, of the greatest importance in the
administration of justice that these separate functions should be
maintained, and should be maintained distinct. It would be a serious
inroad on the province of the jury, if, in a case where there are facts
from which negligence may reasonably be inferred, the judge were to
withdraw the case from the jury upon the ground that, in his opinion,
negligence ought not to be inferred; and it would, on the other hand,
place in the hands of the jurors a power which might be exercised in the
most arbitrary manner, if they were at liberty to hold that negligence
might be inferred from any state of facts whatever. To take the instance
of actions against railway companies: a company might be unpopular,
unpunctual, and irregular in its service; badly equipped as to its
staff; unaccommodating to the public; notorious, perhaps for accidents
occurring on the line; and when an action was brought for the
consequences of an accident, jurors, if left to themselves, might, upon
evidence of general carelessness, find a verdict against the company in
a case where the company was really blameless. It may be said that this
would be set right by an application to the court in banc, on the ground
that the verdict was against evidence; but it is to be observed that
such an application, even if successful, would only result in a new
trial; and on a second trial, and even on subsequent trials, the same
thing might happen again.

In the present case I am bound to say that I do not find any evidence
from which, in my opinion, negligence could reasonably be inferred. The
negligence must in some way connect itself, or be connected by evidence,
with the accident. It must be, if I might invent an expression founded
upon a phrase in the civil law, _incuria dans locum injuriae_. In the
present case there was no doubt negligence in the company’s servants, in
allowing more passengers than the proper number to get in at the Gower
Street Station; and it may also have been negligence if they saw these
supernumerary passengers, or if they ought to have seen them, at
Portland Road, not to have then removed them; but there is nothing, in
my opinion, in this negligence which connects itself with the accident
that took place. If, when the train was leaving Portland Road, the
overcrowding had any effect on the movements of the respondent; if it
had any effect on the particular portion of the carriage where he was
sitting, if it made him less a master of his actions when he stood up or
when he fell forward, this ought to have been made matter of evidence;
but no evidence of the kind was given.

As regards what took place at Portland Road, I am equally unable to see
any evidence of negligence connected with the accident, or indeed of any
negligence whatever. The officials cannot, in my opinion, be held bound
to prevent intending passengers on the platform opening a carriage door
with a view of looking or getting into the carriage. They are bound to
have a staff which would be able to prevent such persons getting in
where the carriage was already full, and this staff they had, for the
case finds that the porter pushed away the persons who were attempting
to get in. So also with regard to shutting the door; these persons had
opened the door, and thereupon it was not only proper but necessary that
the door should be shut by the porter; and, as the train was on the
point of passing into a tunnel, he could not shut it otherwise than
quickly or in this sense violently....

LORD BLACKBURN:—

My Lords, I also am of opinion that in this case the judgment should be
reversed, and a nonsuit entered. On a trial by jury it is, I conceive,
undoubted that the facts are for the jury, and the law for the judge. It
is not, however, in many cases practicable completely to sever the law
from the facts.

But I think it has always been considered a question of law to be
determined by the judge, subject, of course, to review whether there is
evidence which, if it is believed, and the counter-evidence, if any, not
believed, would establish the facts in controversy. It is for the jury
to say whether and how far the evidence is to be believed. And if the
facts, as to which evidence is given, are such that from them a farther
inference of fact may legitimately be drawn, it is for the jury to say
whether that inference is to be drawn or not. But it is for the judge to
determine, subject to review, as a matter of law whether from those
facts that farther inference may legitimately be drawn.

My Lords, in delivering the considered judgment of the Exchequer Chamber
in Ryder _v._ Wombwell, Law Rep. 4 Ex. 32, 38, Willes, J., says: “Such a
question is one of mixed law and fact; in so far as it is a question of
fact, it must be determined by a jury, subject no doubt to the control
of the court, who may set aside the verdict, and submit the question to
the decision of another jury; but there is in every case a preliminary
question, which is one of law, viz., whether there is any evidence on
which the jury could properly find the verdict for the party on whom the
_onus_ of proof lies. If there is not, the judge ought to withdraw the
question from the jury, and direct a nonsuit if the _onus_ is on the
plaintiff, or direct a verdict for the plaintiff if the _onus_ is on the
defendant. It was formerly considered necessary in all cases to leave
the question to the jury, if there was any evidence, even a scintilla,
in support of the case; but it is now settled that the question for the
judge (subject, of course, to review), is, as is stated by Maule, J., in
Jewell _v._ Parr, 13 C. B. 909, 916, ‘not whether there is literally no
evidence, but whether there is none that ought reasonably to satisfy the
jury that the fact sought to be proved is established.’”

He afterwards observes, Law Rep. 4 Ex. 42, very truly in my opinion,
“There is no doubt a possibility in all cases where the judges have to
determine whether there is evidence on which the jury may reasonably
find a fact, that the judges may differ in opinion, and it is possible
that the majority may be wrong. Indeed, whenever a decision of the court
below on such a point is reversed, the majority must have been so either
in the court above or the court below. This is an infirmity which must
affect all tribunals.”

I quite agree that this is so, and it is an evil. But I think it a far
slighter evil than it would be to leave in the hands of the jury a power
which might be exercised in the most arbitrary manner....

[The concurring opinions of LORD O’HAGAN and LORD GORDON are omitted.]

_Judgment given for the plaintiff in the court below reversed, and a
nonsuit to be entered._[93]

KEARNEY _v._ LONDON, BRIGHTON & SOUTH COAST R. CO.
IN THE QUEEN’S BENCH, JUNE 15, 1870.
_Reported in Law Reports, 5 Queen’s Bench, 411._

Declaration, that the defendants were possessed of a bridge over a
certain public highway, and it became their duty to maintain and keep in
repair the bridge, so that it should not be injurious to any person
passing under it; yet the defendants so negligently maintained the
bridge, that while the plaintiff was lawfully passing under the bridge a
portion of the materials of the bridge fell down and injured the
plaintiff.

Plea: Not guilty. Issue joined.

At the trial before Hannen, J., at the sittings in Middlesex after
Michaelmas Term, 1869, it appeared, according to the plaintiff’s
evidence, that the plaintiff, on the 20th of January, 1869, was passing
along the Blue Anchor Road, Bermondsey, under the railway bridge of the
defendants, when a brick fell and injured him on the shoulder. A train
had passed just previously, but whether it was a train of the
defendants, or of another company (whose trains also pass over the
bridge), did not appear. The bridge had been built three years, and is
an iron girder bridge resting on iron piers, on one side, and on a
perpendicular brick wall with pilasters, on the other, and the brick
fell from the top of one of the pilasters, where one of the girders
rested on the pilaster.

The defendants called no witnesses,[94] but rested their defence on
there being no evidence of negligence in the defendants; and also on the
ground that the injury to the plaintiff’s shoulder was not really caused
by the falling of the brick.

As to the evidence of negligence, the learned judge told the jury that
if they thought the bare circumstance of a brick falling out was not
evidence of negligence, they would find for the defendants; if they
thought otherwise, for the plaintiff; and the court would determine
whether there was legal evidence of negligence or not, as to which he
should reserve leave to the defendants to move.

The jury found a verdict for the plaintiff for 25_l._

A rule was obtained to enter a nonsuit, on the ground that there was no
evidence of negligence to leave to the jury.[95]

COCKBURN, C. J. As we have had the whole matter carefully brought before
us, with the cases bearing upon the subject, I think we should gain
nothing by taking further time to consider it; and, therefore, although
I regret to say we are not unanimous upon the point, I think it is
better to dispose of the case at once.

My own opinion is, that this is a case to which the principle _res ipsa
loquitur_ is applicable, though it is certainly as weak a case as can
well be conceived in which that maxim could be taken to apply. But I
think the maxim is applicable; and my reason for saying so is this. The
company who have constructed this bridge were bound to construct it in a
proper manner, and to use all reasonable care and diligence in keeping
it in such a state of repair that no damage from its defective condition
should occur to those who passed under it, the public having a right to
pass under it. Now we have the fact that a brick falls out of this
structure, and injures the plaintiff. The proximate cause appears to
have been the looseness of the brick, and the vibration of a train
passing over the bridge, acting upon the defective condition of the
brick. It is clear, therefore, that the structure in reference to this
brick was out of repair. It is clear that it was incumbent on the
defendants to use reasonable care and diligence, and I think the brick
being loose affords, prima facie, a presumption that they had not used
reasonable care and diligence. It is true that it is possible that, from
changes in the temperature, a brick might get into the condition in
which this brickwork appears to have been from causes operating so
speedily as to prevent the possibility of any diligence and care applied
to such a purpose intervening in due time, so as to prevent an accident.
But inasmuch as our experience of these things is, that bricks do not
fall out when brickwork is kept in a proper state of repair, I think
where an accident of this sort happens, the presumption is that it is
not the frost of a single night, or of many nights, that would cause
such a change in the state of this brickwork as that a brick would fall
out in this way; and it must be presumed that there was not that
inspection and that care on the part of the defendants which it was
their duty to apply. On the other hand, I admit most readily that a very
little evidence would have sufficed to rebut the presumption which
arises from the manifestly defective state of this brickwork. It might
have been shown that many causes, over which the defendants had no
control, might cause this defect in so short a time as that it could not
be reasonably expected that they should have inspected it in the
interval. They might, if they were able, have shown that they had
inspected the bridge continually, or that such a state of things could
not be anticipated, and had never been heard of or known before.
Anything which tended to rebut the presumption arising from an accident
caused by the defective condition of the brickwork, which it was their
duty to keep in a proper condition of repair, even if such evidence were
but slight, might have sufficed; but the defendants chose to leave it on
the naked state of facts proved by the plaintiff. Upon that naked state
of facts it is not unimportant to see what might have been the cause of
the defective condition of this brickwork. We have the fact, the datum,
that the brickwork was in a defective condition, and we have it admitted
that it was the defendants’ duty to use reasonable care and diligence to
keep it in a proper condition. Where it is the duty of persons to do
their best to keep premises, or a structure, of whatever kind it may be,
in a proper condition, and we find it out of condition, and an accident
happens therefrom, it is incumbent upon them to show that they used that
reasonable care and diligence which they were bound to use, and the
absence of which it seems to me may fairly be presumed from the fact
that there was the defect from which the accident has arisen. Therefore,
there was some evidence to go to the jury, however slight it may have
been, of this accident having arisen from the negligence of the
defendants; and it was incumbent on the defendants to give evidence
rebutting the inference arising from the undisputed facts; that they
have not done, and I therefore think this rule must be discharged.

[LUSH, J., delivered a concurring opinion. HANNEN, J., delivered a
dissenting opinion.]

_Rule discharged._[96]

MARCEAU _v._ RUTLAND R. CO.
COURT OF APPEALS, NEW YORK, APRIL 28, 1914.
_Reported in 211 New York Reports, 203._

WERNER, J. The question presented by this appeal is whether the case is
one in which it is proper to apply the maxim _res ipsa loquitur_....[97]

The phrase _res ipsa loquitur_, literally translated, means that the
thing or affair speaks for itself. It is merely a short way of saying
that the circumstances attendant upon an accident are themselves of such
a character as to justify the conclusion that the accident was caused by
negligence. The inference of negligence is deducible, not from the mere
happening of the accident, but from the attendant circumstances. “It is
not that, in any case, negligence can be assumed from the mere fact of
an accident and an injury; but in these cases the surrounding
circumstances which are necessarily brought into view by showing how the
accident occurred, contain, without further proof, sufficient evidence
of the defendant’s duty and of his neglect to perform it. The fact of
the casualty and the attendant circumstances may themselves furnish all
the proof of negligence that the injured person is able to offer, or
that it is necessary to offer.” Shearman & Redfield on Negligence, § 59.
This section was quoted with approval by Judge Cullen in writing for
this court in Griffen _v._ Manice, 166 N. Y. 188, 193, and in that
connection he expressed the view that “the application of the principle
depends on the circumstances and character of the occurrence, and not on
the relation between the parties, except indirectly so far as that
relation defines the measure of duty imposed on the defendant.” He
quoted also from the opinion of Judge Danforth in Breen _v._ N. Y. C. &
H. R. R. Co., 109 N. Y. 297, 300, in which the author said “there must
be reasonable evidence of negligence, but when the thing causing the
injury is shown to be under the control of a defendant, and the accident
is such as, in the ordinary course of business, does not happen if
reasonable care is used, it does, in the absence of explanation by the
defendant, afford sufficient evidence that the accident arose from want
of care on its part.” In the Griffen case Judge Cullen followed this
quotation from the Breen case, with the pertinent observation that he
could see no reason “why the rule thus declared is not applicable to all
cases or why the probative force of the evidence depends on the relation
of the parties. Of course, the relation of the parties may determine the
fact to be proved, whether it be want of the highest care or only want
of ordinary care, and, doubtless, circumstantial evidence, like direct
evidence, may be insufficient as a matter of law to establish the want
of ordinary care, though sufficient to prove absence of the highest
degree of diligence. But the question in every case is the same whether
the circumstances surrounding the occurrence are such as to justify the
jury in inferring the fact in issue.” Thus we see that this court is
definitely committed to the view that the application of the maxim _res
ipsa loquitur_ depends, not upon the relation of the injured person to
the person or party who is charged with causing the injury, but upon the
explanatory circumstances which surround the happening of the accident.
The rule thus expressed has been recognized in the recent cases of
Robinson _v._ Consolidated Gas Co., 194 N. Y. 37, 41, and Hardie _v._
Boland Co., 205 N. Y. 336, 341, and has been followed in many cases in
the several Appellate Divisions.[98]

While it is, therefore, the settled law that the maxim is applicable to
any case where the facts warrant its application, it is apparent that
the employee who invokes it against his employer encounters difficulties
that do not hamper the wayfarer in a public place or the passenger in a
common carrier’s conveyance. The man who was lawfully upon the highway
need go no farther in the first instance than to prove that he was hit
by a falling wall (Mullen _v._ St. John, 57 N. Y. 567) or by a flying
missile (Wolf _v._ Am. Tract Soc., 164 N. Y. 30, 33; Hogan _v._ Manh.
Ry. Co., 149 N. Y. 23; Volkmar _v._ Manh. Ry. Co., 134 N. Y. 418), and
that the thing by which he was injured came from the premises of the
defendant. The passenger who was for the time under the protection of a
common carrier needs only to show that the train upon which he was
riding left the track (Seyboldt _v._ N. Y., L. E. & W. R. R. Co., 95 N.
Y. 562, 565) or collided with another car or train (Loudoun _v._ Eighth
Ave. R. R. Co., 162 N. Y. 380) and thus caused his injuries. The reason
for the rule in such cases is not far to seek. The owner of a building
or structure must exercise a high degree of care to so keep it that the
wayfarer on the public streets shall not be injured by falling walls or
missiles. The common carrier is under the strict duty to its passenger
to keep its cars and tracks in a safe condition, and in all such cases
where the plaintiff “has shown a situation which could not have been
produced except by the operation of abnormal causes, the onus then rests
upon the defendant to prove that the injury was caused without his
fault.” Seyboldt _v._ N. Y., L. E. & W. R. R. Co., 95 N. Y. 565, 568.
Ordinarily walls do not fall, missiles do not fly and trains are not
derailed when those in control are in the exercise of the requisite
care, and, therefore, the inference of negligence follows in logical
sequence.

In the nature of things the injured employee who sues his employer must
present a much higher degree of proof than is necessary in the case of a
wayfarer or passenger. It is to be emphasized, however, that the
difference is one of degree and not of kind. This more onerous burden
which is placed upon the employee is the natural concomitant of the
relation of the parties and of their resultant obligations. The employer
is bound merely to the exercise of reasonable care in providing his
employee with a safe place in which to work, with proper and adequate
tools, appliances and machinery, and with fellow-employees competent for
the tasks to which they are assigned. If the injured employee sues at
common law and seeks to invoke the maxim, he must necessarily make proof
of facts and circumstances which, under the common law, exclude every
inference except that of the employer’s negligence. This means that the
employee must himself be free from the imputation of contributory
negligence; that he is not the victim of the negligence of co-employees;
that the injury is not the result of some risk either inherent in the
occupation or voluntarily assumed by the employee; and that the accident
is one which, in the ordinary course of events, could not have happened
if the employer had exercised the degree of care required of him by the
common law. The same rule applies, in a modified degree, where the
employee sues under the Employers’ Liability Act, as the plaintiff in
this case has done. In such a case the plaintiff must establish facts
and circumstances which, under the statute, would entitle him to recover
in the absence of a sufficient explanation by the defendant, absolving
him from the imputation of negligence. The proof must not be conjectural
or speculative, but must consist of evidence which, tested by the
ordinary rules of experience and observation, points to the single
conclusion that the employer’s omission of a duty which he owes to his
employee was the sole efficient cause of the accident. Ferrick _v._
Eidlitz, 195 N. Y. 248, 252.

The next question, in logical progression, is whether the plaintiff has
established his case by facts and circumstances which negative the
existence of any cause for the accident by which he was injured, save
the negligence of the defendant. The plaintiff, as has been stated, was
a locomotive fireman in the employ of the defendant. On the 25th of
March, 1911, he and his engineer left Malone on engine No. 2055 for
Moira to assist in bringing back a train. After arriving at Moira the
engine was turned around and coupled to another engine already attached
to a train, and a start was made for the return to Malone. Suddenly
there occurred an explosion in the fire box of the engine which drove
the doors from their fastenings, and expelled fire and boiling water
into the cab, and burned and scalded the plaintiff, and blew him out of
the cab to the ground with such force as to bruise him. Although this
accident was of an unusual character, it will be assumed for the
purposes of this discussion that it was not such an occurrence as would,
in and of itself, justify the application of the maxim _res ipsa
loquitur_, for the engine was then in the custody and control of the
plaintiff and his engineer. The mere happening of the accident did not
necessarily exclude the inference that it might have been caused by the
negligence of the plaintiff, or without any negligence at all. It was,
therefore, necessary for the plaintiff to supplement the proof of the
accident with evidence tending to show that it resulted from the failure
of the defendant to exercise ordinary care, either in the selection of
the engine or in keeping it in reasonably safe repair. In that behalf
the record discloses a number of facts and circumstances that bear upon
the accident very directly and cogently. It appears that the train crews
employed by the defendant have nothing to do with the care and
inspection of the internal and hidden parts of the engines. That work is
committed to a special corps of employees whose place of duty is in the
hostelry where the engines are housed, made ready for service, and
turned over to the crews designated to take them out. The engineers are
charged with the duty of making a report of each trip which shall
specify any needed repairs that come under their observation. The
engineer Francey, who was on engine 2055 at the time of the accident,
testified that he had used it on various specified dates during the
month preceding the day of the accident, and that he had orally reported
it as leaking, although he had been turning in written reports which
made no mention of the fact. While such a circumstance might ordinarily
affect the credibility of a witness, all doubt upon this subject is
dissipated by the testimony of the defendant’s witnesses showing that
the engine was inspected by the foreman of boiler makers on or about
March 21st, 1911, and found to be in a leaky condition. Several of
defendant’s witnesses testified that the engine had been in the shop at
various times during the month on account of leaking flues, and that the
last repairs in this regard were made two or three days before the
accident.

After the accident an examination of the engine was made which revealed
the probable cause of the trouble. One of the flues, which extend
longitudinally through the boiler from the rear flue sheet to another
flue sheet next the smoke stack, had been pushed or blown out of its
socket in the rear flue sheet so that the forward end of the flue
projected several feet beyond the forward flue sheet; thus leaving an
opening in the rear flue sheet through which the boiling water and steam
were admitted into the fire pot where the explosion was generated. There
were 342 of these flues which were each 1⅞ inches in diameter and about
16 feet in length. These flues are “safe ended” into the flue sheets so
that when they are in perfect condition there can be no leakage through
them from the boiler. The particular flue that was blown or driven out
of its place was in the bottom row of flues where there could be no
inspection without taking out the “brick arch,” and that could be done
only when the boiler was not in steam. There can be no doubt that the
explosion by which the plaintiff was injured was due immediately to the
displacement of the flue; but the cause of the dislodgement of the flue
is not so clear. It is a matter of common knowledge that steam, like
electricity, is a capricious and fickle agency which sometimes causes
unexpected and unexplainable accidents. If the plaintiff’s case were
wholly dependent upon evidence merely showing the happening of this
explosion, it might be necessary to hold that he had not proved enough
to give him the benefit of the maxim which he invokes. The ultimate
question, therefore, is whether he has the support of surrounding
circumstances which show that the accident was of “such a character as
does not ordinarily occur where the party charged with responsibility
has exercised the degree of care and caution required by law to avoid
such a mishap.” Henson _v._ Lehigh Valley R. R. Co., 194 N. Y. 205, 211.
We think he has. The defendant’s foreman testified that if a flue is
loose at both ends it would be liable to move from the pressure, and
that if a flue is loose at one end it is more liable to move than one
that is not loose. It is undisputed that defendant’s chief boiler man
inspected this engine on the 21st or 22d of March and found that a
number of flues, about twenty-five, were leaking. These were repaired,
but the boiler still leaked on the 24th, and the explosion occurred on
the 25th. Since the defendant’s experts had found loose and leaking
flues which they repaired, it is reasonable to infer that the
displacement of another flue within two or three days was attributable
to the same cause. This was not a part of the locomotive over which the
plaintiff had any control, or in respect of which he had, so far as the
record discloses, any duty or knowledge. The work of inspection and
repair was the work of the defendant, and any failure in this regard was
its failure. The almost immediate recurrence of a condition that had led
to inspection and repair was circumstantial evidence which tended to
show that the work had not been thoroughly done. We think, therefore,
that the plaintiff was entitled to rest upon the rule of _res ipsa
loquitur_, and that in the absence of a satisfactory and convincing
explanation by the defendant, the plaintiff was entitled to recover.

Counsel for the defendant contends that such an explanation has been
made. In that regard it appears that the locomotive was of a modern and
standard type; that for several months from January, 1910, it was in the
main shops of the defendant at Rutland, where it was given a thorough
overhauling and sent out in perfect condition; that the complaints of
leakage made in the early part of 1911 were followed by prompt
inspection and complete repair. This was an explanation well calculated
indeed to create a serious issue of fact, but we think it would be going
too far to hold that it was conclusive as matter of law. The limitations
of the rule of _res ipsa loquitur_, and the legal effect of defendant’s
explanation, were well stated in the charge to the jury, and we think
the judgment entered on the verdict must stand.

The judgment should be affirmed, with costs.

WILLARD BARTLETT, Ch. J., COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ.,
concur; HORNBLOWER, J., not sitting.

_Judgment affirmed._[99]

WING _v._ LONDON GENERAL OMNIBUS CO.
IN THE COURT OF APPEAL, JULY 16, 1909.
_Reported in [1909] 2 King’s Bench, 652._

FLETCHER MOULTON, L. J., read the following judgment:[100]—This is an
appeal from the judgment delivered by the judge of the county court of
Middlesex held in Clerkenwell in an action in which the plaintiff sued
for damages resulting from an accident which occurred while she was a
passenger in a motor omnibus belonging to the defendants.

The plaintiff’s claim was based on two alternative grounds: (1) that the
defendants’ servants, whilst in charge of the motor omnibus, were guilty
of negligence causing the accident, and (2) that the motor omnibus was
itself a dangerous machine, and that the defendants were liable for
having placed it upon the roadway, thereby creating a nuisance, whereby
the plaintiff suffered damage.

The evidence given at the trial as to the nature and circumstances of
the accident was meagre in the extreme. The plaintiff deposed to nothing
more than that she was a passenger in the omnibus, and that she heard
breaking of glass, and knew that the omnibus had hit something, and that
she heard something fall. She tried to get out, and, in so doing, hurt
her foot. No other witness was called who was present at the time of the
accident, but evidence was given on her behalf by a police constable,
who came up afterwards, and proved that an electric standard had been
broken in the accident, and that the hind step of the motor omnibus had
been slightly bent. No other damage had been caused to the omnibus. He
also proved that the road was in a greasy state at the time by reason of
rain that had fallen during the day. He was asked by the plaintiff’s
counsel as to certain admissions made to him at the time by the driver
and conductor of the omnibus, and proved that they stated to him that
the hind part of the omnibus skidded, when going about five miles an
hour, while the driver was trying to avoid two other vehicles. The
defendants called no evidence except as to the quantum of damage. At the
end of the plaintiff’s case, counsel for the defendants submitted that
there was no evidence, either of negligence or of nuisance, to go to the
jury, and the learned judge gave partial effect to that contention by
withdrawing from the jury the question of negligence in the driving or
management of the car. The plaintiff did not take exception to this by
giving a cross notice of appeal, nor was the point raised before the
Divisional Court, and it is not, in my opinion, open to her counsel to
raise it now. But, apart from this, I am of opinion that the learned
judge was right in so doing. There was no evidence whatever that the
accident was due to negligence on the part of the servants of the
defendants who were in charge of the omnibus, unless the mere occurrence
of the accident amounts to such evidence. In my opinion the mere
occurrence of such an accident is not in itself evidence of negligence.
Without attempting to lay down any exhaustive classification of the
cases in which the principle of _res ipsa loquitur_ applies, it may
generally be said that the principle only applies when the direct cause
of the accident, and so much of the surrounding circumstances as was
essential to its occurrence, were within the sole control and management
of the defendants, or their servants, so that it is not unfair to
attribute to them a _prima facie_ responsibility for what happened. An
accident in the case of traffic on a highway is in marked contrast to
such a condition of things. Every vehicle has to adapt its own behaviour
to the behaviour of other persons using the road, and over their actions
those in charge of the vehicle have no control. Hence the fact that an
accident has happened either to or through a particular vehicle is by
itself no evidence that the fault, if any, which led to it was committed
by those in charge of that vehicle. Exceptional cases may occur in which
the peculiar nature of the accident may throw light upon the question on
whom the responsibility lies, but there is nothing of the kind here. The
collision with the electric standard was due to the omnibus skidding,
and, if we are to give any weight to the admissions made by the
defendants’ servants which were proved in evidence in chief as part of
the plaintiff’s case, that skidding was due to difficulties in avoiding
other vehicles. There is certainly no evidence to negative such a
probable explanation of what actually happened, and it is impossible to
say that this points to negligence, or that it establishes that any
negligent act of the defendants’ servant was the cause of the accident.
I am therefore of opinion that the learned judge acted rightly in
withdrawing from the jury the issue as to the accident being due to
negligence of the defendants’ servants in the driving or management of
the vehicle.[101]

CARMODY _v._ BOSTON GAS LIGHT CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 2, 1895.
_Reported in 162 Massachusetts Reports, 539._

Four actions for damages occasioned to the respective plaintiffs by the
escape of gas were tried together.

Plaintiffs’ evidence tended to show that gas escaped into plaintiffs’
apartments from defendant’s pipes in the street; that plaintiffs inhaled
the gas while asleep; and that the escape was due to the defective
condition of the pipe.

Defendant’s evidence tended to prove that the defect in the pipe and the
consequent escape of gas was due to acts of third persons of which the
defendant had no notice, and not to any negligence of the defendant.

The plaintiffs requested the judge to rule that there was evidence
enough of want of proper care on the part of the defendant to make it
responsible, on the ground that it was bound to conduct its gas in a
proper manner; and that the fact that the gas escaped was _prima facie_
evidence of some neglect on the part of the defendant.

The judge declined so to rule, and instructed the jury as follows:

“The mere fact that a pipe broke and the gas escaped is not of itself
sufficient to establish the liability of the company. It is evidence for
you to consider upon the question of neglect; but there is other
evidence bearing upon this question of neglect, and so it becomes a
matter for you to determine, in view of all the evidence bearing upon
the question, the burden being upon the plaintiffs to satisfy you, as a
result of all the evidence, that there was in fact a neglect by the
defendant, through which, and by means of which, this gas escaped.”

* * * * *

Upon the counsel for the plaintiffs remarking, “Your honor has not given
the requests I asked for, and so I will except to that,” the judge
replied as follows: “Well, you asked me to say that the fact that the
gas escaped is _prima facie_ evidence of some neglect on the part of the
defendant. I do not choose to use that expression ‘_prima facie_
evidence,’ unless the defendant consents to it. I have already told the
jury that it was evidence of neglect, or of negligence, on the
defendant’s part, and evidence the force of which it was for them to
determine in connection with any other evidence in the case bearing upon
the same subject.”

The jury returned a verdict for the defendant; and the plaintiffs
alleged exceptions.[102]

BARKER, J. The plaintiffs asked the court to instruct the jury “that
there was evidence enough of want of proper care on the part of the
defendant to make it responsible, on the ground that it was bound to
conduct its gas in a proper manner, and that the fact that the gas
escaped was _prima facie_ evidence of some neglect on the part of the
defendant.” This request was copied from a ruling given in Smith _v._
Boston Gas Light Co., 129 Mass. 318, where this court said of it that,
as applied to the facts of that case, it could not be said to be wrong.
The presiding justice in the present case declined to give the
instruction, but instructed the jury in other terms, which fully and
correctly dealt with the phases of the cause to which the request was
addressed.

While the ruling requested is sufficiently correct if it be construed as
declaring that there was enough evidence of want of proper care to be
submitted to the jury, it would invade the proper province of the jury
if it was understood by them to mean that there was evidence enough to
require them to find the defendant negligent, and the presiding justice
was not bound to give a ruling which, as applied to the case upon trial,
might have been so understood. Nor was he bound to use the Latin phrase
upon which the plaintiffs insisted, but might well say, in place of it,
that the fact that gas escaped was evidence of neglect “and evidence the
force of which it was for them to determine in connection with any other
evidence in the case bearing on the same subject.”

The plaintiffs’ exception did not go to the charge as given, but merely
to the refusal of the request. They nevertheless argue that the
statement of the charge, that “the mere fact that a pipe broke and the
gas escaped is not of itself sufficient to establish the liability of
the company,” was incorrect. But there was evidence with which the jury
had to deal tending to show that the defendant had used due care to
conduct its gas in a proper manner, and that the escape of gas by which
the plaintiffs were injured was due to the acts of third persons of
which the defendant had no notice, and not to any negligence of the
defendant.

It is apparent, from the situation of the evidence and the context of
the charge, that the sentence to which the plaintiffs now object could
not have been understood by the jury as forbidding them to draw the
inference of negligence from the facts that a pipe broke and that gas
escaped; but that, as there was other evidence bearing upon the question
of negligence, they must consider and weigh it all, and not come to a
conclusion upon two circumstances merely.

The true construction of the ruling asked, as applied to the case at
bar, would be, that, as matter of law, the breaking of a pipe and the
consequent escape of gas prove negligence. The true rule is, that a jury
may find negligence from those circumstances, but it is for them to say
whether they will do so; and, if there are other circumstances bearing
on the question, they must weigh them all.

Instructions that evidence “is sufficient to show,” or “has a tenddency
to show,” or “is enough to show,” or “is _prima facie_ evidence of,” are
not to be understood as meaning that there is a presumption of fact, but
that the jury are at liberty to draw the inference from them.
Commonwealth _v._ Clifford, 145 Mass. 97. Commonwealth _v._ Keenan, 148
Mass. 470. And so the instruction in a case where a number of
circumstances bearing upon a question of fact are in evidence, that a
part of them are not of themselves sufficient to establish the fact,
coupled with explicit instructions that they are to be considered, must
be understood as directing the jury to weigh together all the pertinent
circumstances, and not to draw their inference from a part without
considering all.

_Exceptions overruled._[103]

BENEDICK _v._ POTTS
COURT OF APPEALS, MARYLAND, JUNE 28, 1898.
_Reported in 88 Maryland Reports, 52._

Appeal from Circuit Court, where judgment was entered on a verdict for
defendant, ordered by the court.

Defendant owned and operated, at a pleasure resort, a mimic railway,
which was a wooden structure. Open cars were hoisted up an incline to
the highest point of the railway, and were then run by gravity down and
around a circular track to the ground. The length of the spiral track
was about two thousand feet, and it made three circuits before reaching
the ground. At about the middle of the last circle nearest the ground,
the cars passed through a tunnel which was part of the structure. This
tunnel was one hundred and fifty feet long, and completely incased that
portion of the track, and hid the cars and their occupants from all
observation when passing through it. The cars were provided with handles
for the occupants to grasp during the rapid descent. Plaintiff was the
sole occupant of the rear seat in one of the cars. The car was started
and made the descent; but when it reached the ground at the end of the
track the plaintiff was not in it, though as it entered the tunnel he
was seen to be upon it. Search was at once made, and he was found inside
the tunnel, in an unconscious condition, with a wound upon his head.
After several days he was restored to consciousness. For the damages
thus sustained, this suit was brought.

The car did not leave the track, no part of it was shown to be out of
repair, the track was not defective, and no explanation is given in the
record as to what caused the injury. The plaintiff distinctly stated
that he made no effort to rise as he passed through the tunnel, and that
he did not relax his grasp on the sides of the car. He was in the car
when it passed into the tunnel. He was not in it when it emerged. How he
got off was not shown.

Upon this state of facts the trial court instructed the jury that there
was no legally sufficient evidence to show that the defendant had been
guilty of negligence; and the verdict and judgment were accordingly
entered for defendant. Plaintiff brought up the record by appeal.[104]

MCSHERRY, C. J. This is an action to recover damages for a personal
injury, and the single question which the record presents is whether
there was legally sufficient evidence of the defendant’s imputed
negligence to carry the case to the jury. The facts are few and simple.
[The learned judge then stated the facts.]

It is a perfectly well-settled principle that to entitle a plaintiff to
recover in an action of this kind he must show not only that he has
sustained an injury but that the defendant has been guilty of some
negligence which produced that particular injury. The negligence alleged
and the injury sued for must bear the relation of cause and effect. The
concurrence of both and the _nexus_ between them must exist to
constitute a cause of action. As an injury may occur from causes other
than the negligence of the party sued, it is obvious that before a
liability on account of that injury can be fastened upon a particular
individual, it must be shown, or there must be evidence legally tending
to show, that he is responsible for it; that is, that he has been guilty
of the negligence that produced or occasioned the injury. In no instance
can the bare fact that an injury has happened, of itself and divorced
from all the surrounding circumstances, justify the inference that the
injury was caused by negligence. It is true that direct proof of
negligence is not necessary. Like any other fact, negligence may be
established by the proof of circumstances from which its existence may
be inferred. But this inference must, after all, be a legitimate
inference and not a mere speculation of conjecture. There must be a
logical relation and connection between the circumstances proved and the
conclusion sought to be adduced from them. This principle is never
departed from, and in the very nature of things it never can be
disregarded. There are instances in which the circumstances surrounding
an occurrence and giving a character to it are held, if unexplained, to
indicate the antecedent or coincident existence of negligence as the
efficient cause of an injury complained of. These are the instances
where the doctrine of _res ipsa loquitur_ is applied. This phrase, which
literally translated means that “the thing speaks for itself,” is merely
a short way of saying that the circumstances attendant upon an accident
are themselves of such a character as to justify a jury in inferring
negligence as the cause of that accident; and the doctrine which it
embodies, though correct enough in itself, may be said to be applicable
to two classes of cases only, viz., “first, when the relation of carrier
and passenger exists and the accident arises from some abnormal
condition in the department of actual transportation; second, where the
injury arises from some condition or event that is in its very nature so
obviously destructive of the safety of person or property and is so
tortious in its quality as, in the first instance at least, to permit no
inference save that of negligence on the part of the person in the
control of the injurious agency.” Thomas on Neg. 574. But it is obvious
that in both instances more than the mere isolated, single, segregated
fact that an injury has happened must be known. The injury, without
more, does not necessarily speak or indicate the _cause_ of that
injury—it is colorless; but the act that produced the injury being made
apparent may, in the instances indicated, furnish the ground for a
presumption that negligence set that act in motion. The maxim does not
go to the extent of implying that you may from the mere fact of an
injury infer what physical act produced that injury; but it means that
when the physical act has been shown or is apparent and is not explained
by the defendant, the conclusion that negligence superinduced it may be
drawn as a legitimate deduction of fact. It permits an inference that
the known act which produced the injury was a negligent act, but it does
not permit an inference as to what act did produce the injury.
Negligence manifestly cannot be predicated of any act until you know
what the act is. Until you know _what_ did occasion an injury, you
cannot say that the defendant was guilty of some negligence that
produced that injury. There is, therefore, a difference between
inferring as a conclusion of fact _what_ it was that did the injury; and
inferring from a known or proven act occasioning the injury that there
was negligence in the act that did produce the injury. To the first
category the maxim _res ipsa loquitur_ has no application; it is
confined, when applicable at all, solely to the second. In no case where
the thing which occasioned the injury is unknown has it ever been held
that the maxim applies; because when the thing which produced the injury
is unknown it cannot be said to speak or to indicate the existence of
causative negligence. In all the cases, whether the relation of carrier
and passenger existed or not, the injury alone furnished no evidence of
negligence—something more was required to be shown. For instance: In
Penn. R. R. Co. _v._ MacKinney, 124 Pa. St. 462, it was said: “A
passenger’s leg is broken, while on his passage, in a railroad car. This
mere fact is no evidence of negligence on the part of the carrier until
something further be shown. If the witness who swears to the injury
testifies also that it was caused by a crash in a collision with another
train of cars belonging to the same carrier, the presumption of
negligence immediately arises; not, however, from the fact that the leg
was broken, but from the circumstances attending the fact.” And so in
Byrne _v._ Boadle, 2 Hurl. & Colt. 728, there was proof not only of an
injury but there was evidence to show _how_ the injury happened, and the
presumption of negligence was applied, not because of there being an
injury, but because of the way or manner in which the injury was
produced. And in Howser’s case, 80 Md. 146, the injury was caused by
cross-ties falling from a moving train upon the plaintiff who was
walking by the side of the track, and the presumption of negligence was
allowed, not as an inference deducible from the injury itself, but as a
conclusion resulting from the method in which and the instrumentality by
which the injury had been occasioned. In the recent case of Consolidated
Traction Co. _v._ Thalheimer, Court of Errors and Appeals, N. J., 2
Amer. Neg. Rep. 196,[105] it appeared that the plaintiff was a passenger
of the appellant, and, having been notified by the conductor that the
car was approaching the point where she desired to alight, got up from
her seat and walked to the door while the car was in motion, and, while
going through the doorway, she was thrown into the street by a sudden
lurch and thus injured. The court said: “At all events, the fact that
such a lurch or jerk occurred, as would have been unlikely to occur if
proper care had been exercised, brings the case within the maxim _res
ipsa loquitur_.” The inference of negligence arose not from the injury
to the passenger, but from the _act_ that caused the injury. In B. & O.
R. R. _v._ Worthington, 21 Md. 275, the train was derailed in
consequence of an open switch, and it was held that the injury thus
inflicted on the passenger was presumptive evidence of negligence—not
that the mere injury raised such a presumption, but that the injury
caused in the way and under the circumstances shown indicated actionable
negligence unless satisfactorily explained.

Whether, therefore, there be a contractual relation between the parties
or not, there must be proof of negligence or proof of some circumstances
from which negligence may be inferred, before an action can be
sustained. And whether you characterize that inference an ordinary
presumption of fact, or say of the act that caused the injury, the thing
speaks for itself, you assert merely a rebuttable conclusion deduced
from known and obvious premises. It follows, of course, that when the
_act_ that caused the injury is wholly unknown or undisclosed, it is
simply and essentially impossible to affirm that there was a negligent
act; and neither the doctrine of _res ipsa loquitur_ nor any other
principle of presumption can be invoked to fasten a liability upon the
party charged with having by negligence caused the injury for the
infliction of which a suit has been brought.

Now, in the case at bar there is no evidence that the car on the track
was out of repair. The car went safely to its destination, carrying the
other occupants. There is no evidence that the roof of the tunnel struck
the appellant, or that the fact that a small part of the central plank
of the tunnel roof had been slabbed off had the most remote connection
with the accident. It is a case presenting not a single circumstance
showing _how_ or by what agency the injury occurred, and in which, with
nothing but the isolated fact of the injury having happened, being
proved, it is insisted that the jury shall be allowed to speculate as to
the cause that produced it, and then to _infer_ from the cause thus
assumed but not established, that there was actionable negligence. It is
not an attempt to infer negligence from an apparent cause, but to infer
the cause of the injury from the naked fact of injury, and then to
superadd the further inference that this inferred cause proceeded from
negligence. If in Howser’s case, _supra_, there had been no other
evidence than the mere _fact_ of an injury, it cannot be pretended that
the jury would have been allowed to speculate as to _how_ the injury had
occurred.

The appellant was on the car when it entered the tunnel; he was not on
the car when it emerged, but was found in an unconscious state in the
tunnel. There was no defect in or abnormal condition affecting the means
of actual transportation. The other occupants of the car passed safely
through. What caused the appellant to be out of the car is a matter of
pure conjecture. No one has explained or attempted to explain how he got
where he was found. Indeed, the two persons who occupied the front seat
were ignorant of the appellant’s absence from the car until it had
reached its destination, and the appellant himself distinctly testified
that he did not relax his hold to the car and did not attempt to rise,
but lowered his head as he entered the tunnel. All that is certain is,
that he was injured in _some_ way and he asks that the jury may be
allowed, in the absence of all explanatory evidence, to infer that some
act of a negligent character for which the appellee is responsible,
caused the injury sustained by the appellant. No case has gone to that
extent and no known principle can be cited to sanction such a position.
There has been no circumstance shown which furnishes the foundation for
an inference of negligence; and the circumstances which have been shown
obviously do not bring the case within the doctrine of _res ipsa
loquitur_. There was, consequently, no error in the ruling complained
of, and the judgment of the Circuit Court must be affirmed.

_Judgment affirmed._[106]

SECTION V
THE DUTY OF CARE—MISFEASANCE AND NONFEASANCE

FLINT & WALLING MANUFACTURING CO. _v._ BECKETT
SUPREME COURT, INDIANA, DECEMBER 18, 1906.
_Reported in 167 Indiana Reports, 491._

Beckett brought this action against the Flint & Walling Manufacturing
Company to recover damages for harm done to his barn and the contents
thereof, owing to the fact that the company constructed a windmill
thereon in such an insufficient manner that it fell upon the roof of the
barn.

The complaint contained, in substance, the following statements:—

There was an air-shaft in the centre of the barn, extending from the
bottom to, and projecting through, the roof. Defendant contracted with
plaintiff to erect on the air-shaft a windmill consisting of a wheel,
tower, etc., to be erected in a first-class manner. The defendant
erected the windmill in a negligent manner; especially in the mode of
fastening the tower to the air-shaft. In consequence of this defective
construction, a wind of ordinary velocity caused the windmill to break
and twist the air-shaft and fall about sixty feet on the roof of the
barn.

Trial in the Circuit Court. Verdict for plaintiff and judgment thereon.
Defendant company appealed.[107]

GILLETT, J.

The leading contention of appellant’s counsel is that the duty it owed
to appellee arose out of contract, and that, as appellant was not
engaged in a public employment, its obligation could only be enforced by
an action on the contract for a breach thereof. The latter insistence
cannot be upheld. It is, of course, true that it is not every breach of
contract which can be counted on as a tort, and it may also be granted
that if the making of a contract does not bring the parties into such a
relation that a common-law obligation exists, no action can be
maintained in tort for an omission properly to perform the undertaking.
It by no means follows, however, that this common-law obligation may not
have its inception in contract. If a defendant may be held liable for
the neglect of a duty imposed on him, independently of any contract, by
operation of law, _a fortiori_ ought he to be liable where he has come
under an obligation to use care as the result of an undertaking founded
on a consideration.

Where the duty has its roots in contract, the undertaking to observe due
care may be implied from the relationship, and should it be the fact
that a breach of the agreement also constitutes such a failure to
exercise care as amounts to a tort, the plaintiff may elect, as the
common-law authorities have it, to sue in case or in assumpsit. It is
broadly stated in 1 Comyn’s Digest, Action on the Case for Negligence, A
4, p. 418, that “if a man neglect to do that, which he has undertaken to
do, an action upon the case lies.... But, if there be not any neglect in
the defendant, an action upon the case does not lie against him, though
he do not perform his undertaking.” Professor Pollock says: “One who
enters on the doing of anything attended with risk to the persons or
property of others is held answerable for the use of a certain measure
of caution to guard against that risk. To name one of the commonest
applications, ‘those who go personally or bring property where they know
that they or it may come into collision with the persons or property of
others have by law a duty cast upon them to use reasonable care and
skill to avoid such collision.’... In some cases this ground of
liability may coexist with a liability on contract towards the same
person, and arising (as regards the breach) out of the same facts. Where
a man interferes gratuitously, he is bound to act in a reasonable and
prudent manner according to the circumstances and opportunities of the
case. And this duty is not affected by the fact, if so it be, that he is
acting for reward, in other words, under a contract, and may be liable
on the contract. The two duties are distinct, except so far as the same
party cannot be compensated twice over for the same facts, once for the
breach of contract and again for the wrong. Historically the liability
in tort is older; and indeed it was by special development of this view
that the action of assumpsit, afterwards the common mode of enforcing
simple contracts, was brought into use. ‘If a smith prick my horse with
a nail, etc., I shall have my action upon the case against him, without
any warranty by the smith to do it well.... For it is the duty of every
artificer to exercise his art rightly and truly as he ought.’” Webb’s
Pollock, Torts, 533–536. This general thought also finds expression in
Mr. Street’s valuable work (1 Street, Foundations of Legal Liability,
92). It is there said: “The general doctrine may be laid down thus: In
every situation where a man undertakes to act or to pursue a particular
course he is under an implied legal obligation or duty to act with
reasonable care, to the end that the person or property of others may
not be injured by any force which he sets in operation or by any agent
for which he is responsible. If he fails to exercise the degree of
caution which the law requires in a particular situation, he is held
liable for any damage that results to another just as if he had bound
himself by an obligatory promise to exercise the required degree of
care. In this view, statements so frequently seen in negligence cases,
to the effect that men are bound to act with due and reasonable care,
are really vital and significant expressions. If there had been any
remedial necessity for so declaring, it could obviously have been said
without violence to the principle that men who undertake to act are
subject to a fictitious or implied promise to act with due care.” See
also Howard _v._ Shepherd, (1850) 9 C. B. (67 Eng. Com. Law) 296, 321;
Coy _v._ Indianapolis Gas Co., (1897) 146 Ind. 655, 36 L. R. A. 535;
Parrill _v._ Cleveland, etc., R. Co., (1900) 23 Ind. App. 638; Rich _v._
New York, etc., R. Co., (1882) 87 N. Y. 382; Dean _v._ McLean, (1875) 48
Vt. 412, 21 Am. Rep. 130; Stock _v._ City of Boston, (1889) 149 Mass.
410, 21 N. E. 871, 14 Am. St. 430; Bickford _v._ Richards, (1891) 154
Mass. 163, 27 N. E. 1014, 26 Am. St. 224; Addison, Torts (3d ed.), p.
13; 1 Thompson, Negligence (2d ed.), § 5; 1 Shearman & Redfield,
Negligence (5th ed.), §§ 9, 22; Saunders, Negligence, 55, 121; 6 Cyc.
Law and Proc. 688.

The position in which appellant placed this large and heavy structure,
located, as it was, upon the barn, some seventy feet above the earth,
was such that it was calculated to do great harm to appellee’s property
should it fall. We cannot doubt, in view of the terms of the contract,
construed in the light of the practical construction which the parties
gave to it, to say nothing of the extraneous agreement set forth in the
complaint, that it was the duty of appellant to exercise ordinary care
to secure the tower in such a manner that this heavy and exposed
structure would not, under the action of ordinary winds, weave around
and become detached from the body of the air-shaft. Insecurely fastened,
as the complaint shows that this structure was, appellant was bound to
apprehend that it might fall, and that, if it did, great injury would
thereby be occasioned to appellee. It was also bound to apprehend, from
the very care and skill which it impliedly held itself out as exercising
(a circumstance calculated to throw appellee off his guard), and from
the fact that an examination was difficult, that in all probability the
defects would not be observed in time to avoid the injury. Indeed, as
laid down in Mowbray _v._ Merryweather, [1895] 2 Q. B. 640, and Devlin
_v._ Smith, (1882) 89 N. Y. 470, 42 Am. Rep. 311, appellee owed no duty,
so far as appellant was concerned, to examine the tower. The contrivance
was inherently dangerous, and the circumstances of placing it upon the
barn, as shown, made it calculated to eventuate in harm. This being
true, and as there was no intervening responsible agency between
appellee and the wrong, so that the causal relation remained unbroken,
we can perceive no reason for acquitting appellant of responsibility as
a tort feasor. See Wharton, Negligence (2d ed.), § 438; 1 Beven,
Negligence (2d ed.), 62; Roddy _v._ Missouri Pac. R. Co., (1891) 104 Mo.
234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. 333. It is not necessary
to consider the extent to which contracts may impose obligations to
exercise care for the protection of third persons, for here the relation
is direct and immediate, but we quote, as showing that there is clearly
a liability in tort, in such a case as this, the following general
statements in 1 Shearman & Redfield, Negligence (5th ed.), § 117, with
reference to the liability for selling dangerous goods: “But one who
knowingly sells an article intrinsically dangerous to human life or
health, such as poison, explosive oils or diseased meat, concealing from
the buyer knowledge of that fact, is responsible to any person who,
without fault on the part of himself or any other person, sufficient to
break the chain of causation, is injured thereby. And we see no reason
why the same rule should not apply to articles known to be dangerous to
property.”

* * * * *

A number of questions are argued by appellant’s counsel which are based
upon the contention that the theory of the complaint was that appellant
had committed a breach of contract. The latter insistence is based on
the fact that the contract is set out in full in the complaint. It is
often difficult to determine whether, in the statement of such a cause
of action as the one under consideration, wherein the very breach of the
contract also constitutes negligence, the purpose of the pleader was to
rely upon a breach of contract or to charge negligence in the violation
of the implied duty which was created by the undertaking of the
defendant. It is true that in an action on the case for negligence,
wherein the declaration or complaint is not based on mere nonfeasance it
is not necessary to plead a consideration, and, therefore, where the
action is based on the manner in which an undertaking was performed, or,
in other words, on some misfeasance or malfeasance, the allegation of a
consideration may be regarded as one of the markings of an action _ex
contractu_. But we do not understand that this is a controlling
consideration; on the contrary, it does not appear to admit of question
that if the contract or consideration be set out as a matter of
inducement only, the plaintiff’s action may be regarded as one in case
for a violation of the common-law duty which the circumstances had
imposed upon the defendant. 1 Chitty, Pleading, *135; Dickson _v._
Clifton, 2 Wils. 319; Watson, Damages for Per. Inj., § 570; 21 Ency. Pl.
and Pr., 913. We are especially impressed with the view that in code
pleading, which was designed preëminently to be a system of fact
pleading, a plaintiff, in suing in tort, may properly set out his
contract, as constituting the underlying fact, instead of charging the
defendant’s undertaking in general terms, and that the plaintiff does
not thereby necessarily commit himself to the theory that his action is
for breach of contract. Leeds _v._ City of Richmond, (1885) 102 Ind.
372; Parrill _v._ Cleveland, etc., R. Co., _supra_; McMurtry _v._
Kentucky Cent. R. Co., (1886) 84 Ky. 462, 1 S. W. 815; Watson, Damages
for Per. Inj., § 570. In the complaint before us appellee not only sets
out the written contract, but he pleads a supplemental or subsidiary
agreement as well, so that it can hardly be said that he relied on the
written contract as the foundation of the action. He charges no breach
of the contract except as it can be implied from the allegations of
negligence; he alleges damages “by reason of the defendant’s negligence,
carelessness, imprudence, and unskilfulness in erecting, constructing,
and fastening said steel tower to said air-shaft as aforesaid;” he
charges, in setting forth the total amount of his damages, that they
were occasioned “by reason of the defendant’s negligence and failure of
duty as herein alleged,” and he avers that he “had no notice or
knowledge of the faulty, negligent, and unskilful erection of said
mill,” and that he himself was without fault or negligence in the
premises. In view of the general structure of the complaint, and
applying to it the rule that a construction of a pleading which will
give effect to all of its material allegations is to be preferred, where
reasonably possible (Monnett _v._ Turpie, [1892] 133 Ind. 424), it
appears to us that it must be held that the action was for the tort.
But, admitting that there is room for doubt on this subject, the fact
that the court below, as the record plainly shows, tried the cause on
the theory that it was an action _ex delicto_, must settle the question
against the contention of appellant. Lake Erie, etc., R. Co. _v._ Acres,
(1886) 108 Ind. 548; Diggs _v._ Way, (1899) 22 Ind. App. 617.

* * * * *

_Judgment affirmed._[108]

KELLY _v._ METROPOLITAN R. CO.
IN THE COURT OF APPEAL, APRIL 24, 1895.
_Reported in [1895] 1 Queen’s Bench, 944._

Appeal from an order of a judge at chambers affirming an order of a
master directing that the plaintiff’s bill of costs should be referred
back to be drawn on the county court scale.

The action was brought to recover damages for personal injuries to the
plaintiff while a passenger on the defendants’ railway. The statement of
claim alleged an agreement by the defendants to carry the plaintiff
safely, and a breach of that agreement in negligently and improperly
managing the train in which he was, so that it ran into the wall at
Baker Street Station, whereby the plaintiff sustained injury. It was
admitted by the defendants that the accident occurred by the negligence
of the engine-driver in not turning off steam in time to prevent the
train running into the dead-end at the station. A sum of 20_l._ was paid
into court, and the jury returned a verdict for the plaintiff for 25_l._

When the plaintiff’s costs were taken in to be taxed, the master was of
opinion that, on the authority of Taylor _v._ Manchester, Sheffield, and
Lincolnshire Ry. Co., [1895] 1 Q. B. 134, the act of the engine-driver
being one of omission, the action was founded on contract, and that
therefore the plaintiff was only entitled to costs on the county court
scale. On appeal, this decision was affirmed by Day, J.

The plaintiff appealed.

_Kemp, Q. C._, and _Cagney_, for the plaintiff, submitted that the
action was in fact an action of tort, and was tried as such, and that
the plaintiff was entitled to costs on the High Court scale.

_Lawson Walton, Q. C._, and _George Elliott_, for the defendants. The
duty of the defendants was contractual, and they were bound to take due
care not to injure the plaintiff. The act which caused the injury was an
omission to turn off steam, and amounted to a nonfeasance. It was not an
act of commission or misfeasance, and the defendants were not liable in
tort. The distinction is dealt with in the judgment of Lindley, L. J.,
and A. L. Smith, L. J., in Taylor _v._ Manchester, Sheffield, and
Lincolnshire Ry. Co., [1895] 1 Q. B. 134, and the present case comes
within that authority.

[They also cited Foulkes _v._ Metropolitan District Ry. Co., 4 C. P. D.
267; 5 C. P. D. 157.]

A. L. SMITH, L. J., read the following judgment:[109] There appears to
have been some misapprehension as to what was decided in the case of
Taylor _v._ Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q.
B. 134, to which I was a party.

The plaintiff in the present case was a passenger on the defendants’
railway, and whilst lawfully riding in one of their carriages was
injured by its being negligently run into a dead-end by the defendants’
driver.

It has been thought by the master, and also by Day, J., that, because
the negligence was that the driver omitted to turn off steam, this
constituted a nonfeasance or omission within what was said in the
above-mentioned case, and that as the plaintiff had recovered 25_l._ and
no more he was only entitled to county court costs. I am clearly of
opinion that this is not what was decided, nor is any such statement to
be found in that judgment.

The distinction between acts of commission or misfeasance, and acts of
omission or nonfeasance, does not depend on whether a driver or
signalman of a defendant company has negligently turned on steam or
negligently hoisted a signal, or whether he has negligently omitted to
do the one or the other. The distinction is this, if the cause of
complaint be for an act of omission or nonfeasance which without proof
of a contract to do what has been left undone would not give rise to any
cause of action (because no duty apart from contract to do what is
complained of exists), then the action is founded upon contract and not
upon tort. If, on the other hand, the relation of the plaintiff and the
defendants be such that a duty arises from that relationship,
irrespective of contract, to take due care, and the defendants are
negligent, then the action is one of tort, and as regards the County
Court Acts and costs this is what was laid down in the above-mentioned
case. The appeal should be allowed with costs here and below.

RIGBY, L. J. I entirely agree. It appears to me that the attempt to
dissect the act of the defendants’ servant, and to treat the mere
omission to turn off steam as a nonfeasance within the meaning of the
cases referred to, altogether fails. An engine-driver is in charge of
the train, and a passenger is in that train, independently of contract,
with the permission of the defendants. That passenger is injured in
consequence of the train being negligently brought into collision with
the dead-end. The proper description of what was done is that it was a
negligent act in so managing the train as to allow it to come into
contact with the dead-end and so cause the accident. It is a case in
which the company by their servant neglected a duty which they owed to
the plaintiff—that is to say, it was a case in which an action of tort
could be brought.

_Appeal allowed._[110]

SOUTHERN RAILWAY COMPANY _v._ GRIZZLE
SUPREME COURT, GEORGIA, JANUARY 13, 1906.
_Reported in 124 Georgia Reports, 735._

Action by Mrs. Grizzle against the Southern Railway Company and T. A.
O’Neal.

The petition alleged, in substance, that the petitioner’s husband was
killed by the negligence of the railway company, and of O’Neal, who was
the engineer in charge of the train, while the train was being operated
over a public-road crossing. It was alleged, _inter alia_, that no bell
was rung nor whistle sounded, nor the speed of the train checked, and
that the requirements of the blow-post law[111] were entirely
disregarded by the engineer. To this petition O’Neal demurred on several
grounds. The demurrer was overruled, and O’Neal excepted.[112]

COBB, P. J. 1. An agent is not ordinarily liable to third persons for
mere nonfeasance. Kimbrough _v._ Boswell, 119 Ga. 210. An agent is,
however, liable to third persons for misfeasance.[113] Nonfeasance is
the total omission or failure of the agent to enter upon the performance
of some distinct duty or undertaking which he has agreed with his
principal to do. Misfeasance means the improper doing of an act which
the agent might lawfully do; or, in other words, it is the performing of
his duty to his principal in such a manner as to infringe upon the
rights and privileges of third persons. Where an agent fails to use
reasonable care or diligence in the performance of his duty, he will be
personally responsible to a third person who is injured by such
misfeasance. The agent’s liability in such cases is not based upon the
ground of his agency, but upon the ground that he is a wrong-doer, and
as such he is responsible for any injury he may cause. When once he
enters upon the performance of his contract with his principal, and in
doing so omits, or fails to take reasonable care in the commission of,
some act which he should do in its performance, whereby some third
person is injured, he is responsible therefor to the same extent as if
he had committed the wrong in his own behalf. See 2 Clark & Skyles on
Agency, 1297 _et seq._ Misfeasance may involve also to some extent the
idea of not doing; as where an agent engaged in the performance of his
undertaking does not do something which it is his duty to do under the
circumstances, or does not take that precaution or does not exercise
that care which a due regard to the rights of others requires. All this
is not doing, but it is not the not doing of that which is imposed upon
the agent merely by virtue of his relation, but of that which is imposed
upon him by law as a responsible individual in common with all other
members of society. It is the same not doing which constitutes
actionable negligence in any relation. Mechem on Ag. § 572. As was said
by Gray, C. J., in Obsorne _v._ Morgan, 130 Mass. 102 (39 Am. Rep. 439):
“If the agent once actually undertakes and enters upon the execution of
a particular work, it is his duty to use reasonable care in the manner
of executing it, so as not to cause any injury to third persons which
may be the natural consequence of his acts; and he cannot, by abandoning
its execution midway and leaving things in a dangerous condition, exempt
himself from liability to any person who suffers injury by reason of his
having so left them without proper safeguards. This is not nonfeasance
or doing nothing, but it is misfeasance, doing improperly.” In that case
the agent was held liable by the fall of a tackle-block and chains from
an iron rail suspended from the ceiling of a room, which fell for the
reason that the agent had suffered them to remain in such a manner and
so unprotected that they fell upon and injured the plaintiff. In Bell
_v._ Josselyn, 3 Gray, 309 (63 Am. Dec. 742), Metcalf, J., said:
“Assuming that he was a mere agent, yet the injury for which this action
was brought was not caused by his nonfeasance, but by his misfeasance.
Nonfeasance is the omission of an act which a person ought to do;
misfeasance is the improper doing of an act which a person might
lawfully do.... The defendant’s omission to examine the state of the
pipes, ... before causing the water to be let on, was a nonfeasance. But
if he had not caused the water to be let on, that nonfeasance would not
have injured the plaintiff.”

In the present case the failure of the engineer to comply with the
requirements of the blow-post law was not doing, but the running of the
train over the crossing at a high rate of speed without giving the
signals required by law was a positive act, and the violation of a duty
which both the engineer and the railroad company owed to travelers upon
the highway. The engineer having once undertaken in behalf of the
principal to run the train, it was incumbent upon him to run it in the
manner prescribed by law; and a failure to comply with the law, although
it involved an act of omission, was not an act of mere nonfeasance, but
was an act of misfeasance. This view is strengthened by the fact that
the blow-post law renders the engineer indictable for failure to comply
with its provisions. The allegations of the petition were therefore
sufficient to charge O’Neal with a positive tort, for which the
plaintiff would be entitled to bring her action against him.[114]

BLACK _v._ NEW YORK, NEW HAVEN, AND HARTFORD R. CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 2, 1907.
_Reported in 193 Massachusetts Reports, 448._

Tort for personal injuries alleged to have been caused by the negligence
of the servants of the defendant on February 7, 1903, while the
plaintiff was a passenger of the defendant. Writ dated March 20, 1903.

At the trial in the Superior Court, Wait, J., at the close of the
plaintiff’s evidence ordered a verdict for the defendant; and the
plaintiff alleged exceptions. The material evidence is described or
quoted in the opinion.

KNOWLTON, C. J. This action was brought to recover for an injury alleged
to have been caused by the negligence of the defendant’s servants. The
plaintiff was a passenger on the defendant’s train, which ran from
Boston through Ashmont on the evening of February 7, 1903. He testified
to having become so intoxicated that he had no recollection of anything
that occurred after leaving a cigar store in Boston, until he awoke in
the Boston City Hospital, about four o’clock the next day. One Thompson
testified “that he took the 9.23 train on the evening of February 7,
1903, at the South Station in Boston for Ashmont, and occupied a seat
near the rear of the last car of the train; that there were about twenty
passengers in the car, and he noticed Black sitting in the seat
opposite, very erect, with his eyes closed. When the conductor came
through, Mr. Black went through his pockets as if he were looking for a
ticket, and not being able to find it, tendered a fifty-cent piece in
payment for his fare. The conductor began to name off the stations from
Field’s Corner first and then Ashmont and when he said ‘Ashmont,’ Mr.
Black nodded his head. The conductor gave him his change and his rebate
check. At Ashmont, where the train stops, there is a gravelled walk,
running the whole length, as a platform, then there is a flight of
steps, ten or twelve, that leads up to the asphalt walk around the
station, so when you go up from the steps you have to walk along this
walk. The conductor and brakeman took Black out of the car, with one on
each side. The distance from the steps of the car to the steps that lead
up to the station was twenty-five feet. As they went along the platform,
the conductor and trainman were on each side of him. They tried to stand
him up, but his legs would sink away from him. They sort of helped him
up and carried him to the bottom of the steps. When they went to the
bottom of the steps, they continued, one on each side of him. Then one
of the men got on one side with his arm around him and the other back of
him sort of pushing him, and they took him up about the fifth or sixth
step, and after they got him up there, they turned right around and left
him and went down the steps. Mr. Black sort of balanced himself there
just a minute and then fell completely backward. He turned a complete
somersault and struck on the back of his head. The railroad men just had
time to get down to the foot of the steps. There was a railing that led
up those steps and the steps were about ten feet wide. Mr. Black was
upon the right-hand side going up and he was left right near the
railing. When he fell, he did not seize hold of anything, his arms were
at his side.”

On this testimony the jury might find that the plaintiff was so
intoxicated as to be incapable of standing, or walking, or caring for
himself in any way, and that the defendant’s servants, knowing his
condition, left him halfway up the steps where they knew, or ought to
have known, that he was in great danger of falling and being seriously
injured. They were under no obligation to remove him from the car, or to
provide for his safety after he left the car. But they voluntarily
undertook to help him from the car, and they were bound to use ordinary
care in what they did that might affect his safety. Not only in the act
of removal, but in the place where they left him, it was their duty to
have reasonable regard for his safety in view of his manifest condition.
The jury might have found that they were negligent in leaving him on the
steps, where a fall would be likely to do him much harm. Moody _v._
Boston & Maine Railroad, 189 Mass. 277.

The defence rests principally upon the fact that the plaintiff was
intoxicated, and was incapable of caring for himself after he was taken
from the train, and therefore was not in the exercise of due care. If
his voluntary intoxication was a direct and proximate cause of the
injury, he cannot recover. The plaintiff contends that it was not a
cause, but a mere condition, well known to the defendant’s servants, and
that their act was the direct and proximate cause of the injury, with
which no other act or omission had any causal connection. The
distinction here referred to is well recognized in law....

We are of opinion that the jury in the present case might have found
that the plaintiff was free from any negligence that was a direct and
proximate cause of the injury.

_Exceptions sustained._[115]

UNION PACIFIC RAILWAY COMPANY _v._ CAPPIER
SUPREME COURT, KANSAS, APRIL 11, 1903.
_Reported in 66 Kansas Reports, 649._

ERROR from Wyandotte District Court.

SMITH, J. This was an action brought by Adeline Cappier, the mother of
Irvin Ezelle, to recover damages resulting to her by reason of the loss
of her son, who was run over by a car of plaintiff in error, and died
from the injuries received. The trial court, at the close of the
evidence introduced to support a recovery by plaintiff below, held that
no careless act of the railway company’s servants in the operation of
the car was shown, and refused to permit the case to be considered by
the jury on the allegations and attempted proof of such negligence. The
petition, however, contained an averment that the injured person had one
leg and an arm cut off by the car-wheels, and that the servants of the
railway company failed to call a surgeon, or to render him any
assistance after the accident, but permitted him to remain by the side
of the tracks and bleed to death. Under this charge of negligence a
recovery was had.

While attempting to cross the railway tracks Ezelle was struck by a
moving freight-car pushed by an engine. A yardmaster in charge of the
switching operations was riding on the end of the car nearest to the
deceased and gave warning by shouting to him. The warning was either too
late or no heed was given to it. The engine was stopped. After the
injured man was clear of the track, the yardmaster signalled the
engineer to move ahead, fearing, as he testified, that a passenger train
then about due would come upon them. The locomotive and car went forward
over a bridge, where the general yardmaster was informed of the accident
and an ambulance was summoned by telephone. The yardmaster then went
back where the injured man was lying and found three Union Pacific
switchmen binding up the wounded limbs and doing what they could to stop
the flow of blood. The ambulance arrived about thirty minutes later and
Ezelle was taken to a hospital, where he died a few hours afterward.

In answer to particular questions of fact, the jury found that the
accident occurred at 5.35 P. M.; that immediately one of the railway
employees telephoned to police headquarters for help for the injured
man; that the ambulance started at 6.05 P. M. and reached the nearest
hospital with Ezelle at 6.20 P. M., where he received proper medical and
surgical treatment. Judgment against the railway company was based on
the following question and answer:—

“Ques. Did not defendant’s employees bind up Ezelle’s wounds and try to
stop the flow of blood as soon as they could after the accident
happened? Ans. No.”

The lack of diligence in the respect stated was intended, no doubt, to
apply to the yardmaster, engineer, and fireman in charge of the car and
engine.

These facts bring us to a consideration of the legal duty of these
employees toward the injured man after his condition became known.
Counsel for defendant in error quotes the language found in Beach on
Contributory Negligence (3d ed.), § 215, as follows:—

“Under certain circumstances, the railroad may owe a duty to a
trespasser after the injury. When a trespasser has been run down, it is
the plain duty of the railway company to render whatever service is
possible to mitigate the severity of the injury. The train that has
occasioned the harm must be stopped, and the injured person looked
after; and, when it seems necessary, removed to a place of safety, and
carefully nursed, until other relief can be brought to the disabled
person.”

The principal authority cited in support of this doctrine is Northern
Central Railway Co. _v._ The State, use of Price et al, 29 Md. 420, 96
Am. Dec. 545. The court in that case first held that there was evidence
enough to justify the jury in finding that the operatives of the train
were negligent in running it too fast over a road-crossing without
sounding the whistle, and that the number of brakemen was insufficient
to check its speed. Such negligence was held sufficient to uphold the
verdict, and would seem to be all that was necessary to be said. The
court, however, proceeded to state that, from whatever cause the
collision occurred, it was the duty of the servants of the company, when
the man was found on the pilot of the engine in a helpless and
insensible condition, to remove him, and to do it with proper regard to
his safety and the laws of humanity. In that case the injured person was
taken in charge by the servants of the railway company and, being
apparently dead, without notice to his family, or sending for a
physician to ascertain his condition, he was moved to defendant’s
warehouse, laid on a plank and locked up for the night. The next
morning, when the warehouse was opened, it was found that during the
night the man had revived from his stunned condition and moved some
paces from the spot where he had been laid, and was found in a stooping
posture, dead but still warm, having died from hemorrhage of the
arteries of one leg, which was crushed at and above the knee. It had
been proposed to place him in the defendant’s station-house, which was a
comfortable building, but the telegraph operator objected, and directed
him to be taken into the warehouse, a place used for the deposit of old
barrels and other rubbish.

The Maryland case does not support what is so broadly stated in Beach on
Contributory Negligence. It is cited by Judge Cooley, in his work on
Torts, in a note to a chapter devoted to the negligence of bailees (ch.
xx.), indicating that the learned author understood the reasoning of the
decision to apply where the duty began after the railway employees had
taken charge of the injured person.

After the trespasser on the track of a railway company has been injured
in collision with a train, and the servants of the company have assumed
to take charge of him, the duty arises to exercise such care in his
treatment as the circumstances will allow. We are unable, however, to
approve the doctrine that when the acts of a trespasser himself result
in his injury, where his own negligent conduct is alone the cause, those
in charge of the instrument which inflicted the hurt, being innocent of
wrong-doing, are nevertheless blamable in law if they neglect to
administer to the sufferings of him whose wounds we might say were
self-imposed. With the humane side of the question courts are not
concerned. It is the omission or negligent discharge of legal duties
only which come within the sphere of judicial cognizance. For
withholding relief from the suffering, for failing to respond to the
calls of worthy charity, or for faltering in the bestowment of brotherly
love on the unfortunate, penalties are found not in the laws of men, but
in that higher law, the violation of which is condemned by the voice of
conscience, whose sentence of punishment for the recreant act is swift
and sure. In the law of contracts it is now well understood that a
promise founded on a moral obligation will not be enforced in the
courts. Bishop states that some of the older authorities recognize a
moral obligation as valid, and says:—

“Such a doctrine, carried to its legitimate results, would release the
tribunals from the duty to administer the law of the land; and put, in
the place of law, the varying ideas of morals which the changing
incumbents of the bench might from time to time entertain.” (Bish. Cont.
§ 44.)

Ezelle’s injuries were inflicted, as the court below held, without the
fault of the yardmaster, engineer, or fireman in charge of the car and
locomotive. The railway company was no more responsible than it would
have been had the deceased been run down by the cars of another railroad
company on a track parallel with that of plaintiff in error. If no duty
was imposed on the servants of defendant below to take charge of, and
care for, the wounded man in such a case, how could a duty arise under
the circumstances of the case at bar? In Barrows on Negligence, page 4,
it is said:—

“The duty must be owing from the defendant to the plaintiff, otherwise
there can be no negligence, so far as the plaintiff is concerned; ...
and the duty must be owing to plaintiff in an individual capacity, and
not merely as one of the general public.

“This excludes from actionable negligence all failures to observe the
obligations imposed by charity, gratitude, generosity, and the kindred
virtues. The moral law would obligate an attempt to rescue a person in a
perilous position,—as a drowning child,—but the law of the land does not
require it, no matter how little personal risk it might involve,
provided that the person who declines to act is not responsible for the
peril.” (See, also, Kenney _v._ The Hannibal & St. Joseph Railroad
Company, 70 Mo. 252, 257.)

In the several cases cited in the brief of counsel for defendant in
error to sustain the judgment of the trial court, it will be found that
the negligence on which recoveries were based occurred after the time
when the person injured was in the custody and care of those who were at
fault in failing to give him proper treatment.

The judgment of the court below will be reversed, with directions to
enter judgment on the findings of the jury in favor of the railway
company.

All the justices concurring.[116]

HUNICKE _v._ MERAMEC QUARRY COMPANY
SUPREME COURT OF MISSOURI, DECEMBER 19, 1914.
_Reported in 262 Missouri Reports, 560._

WOODSON, P. J.... I do not understand counsel for plaintiff to make the
broad claim that, in the absence of the question of _emergency_,
presented in this case, it would have been the duty of the defendant to
have furnished medical or surgical treatment for the injured man, upon
the occasion mentioned; but I do understand counsel to contend, and
which I believe is the law, that when an employee is engaged in any
dangerous business for the master, and while in the performance of his
duties, as such, he is so badly injured that he is thereby rendered
physically or mentally incapable of procuring medical assistance for
himself, then that duty, as a matter of law, is devolved upon the
master, and that he must perform that duty with reasonable diligence and
in a reasonable manner, through the agency of such of his employees as
may be present at the time.

In other words, without trying to state the law in detail governing the
masters duties in all cases of this character, that duty is put in
operation whenever, under the facts and circumstances of the case, the
employee is thereby so injured that he or she is incapacitated from
caring for himself or herself, as the case may be.

The uncontradicted evidence in this case shows that the deceased was so
badly injured that he was physically incapacitated to care for himself
or to engage medical or surgical treatment; also, that the character of
his injuries was such as required immediate surgical attention, for it
was apparent to all present that his leg was frightfully crushed, and
that his life’s blood was freely flowing from his body. So obvious was
this that several of those present, at the time of the accident, tried
by their crude methods, to stop its flow. But the highest officer of the
company present, the superintendent, thought none of their remedies were
worthy of trial and told them their proposed treatment would do no good.
He then telephoned to Dr. Kirk, at Kimswick, the condition of the
injured man, Hunicke, and requested him to come to Wicks and treat the
injured man; but the doctor being previously engaged in a serious case,
could not leave it. The doctor, however, telephoned the superintendent
to bring the injured party to Kimswick, some two miles distant, and that
he would there treat him.

The evidence shows that both Wicks and Kimswick were on the railroad and
that a hand-car was present which could have been used in conveying
Hunicke from the former to the latter place for treatment.

For some reason not made clear, the superintendent declined to take the
injured man to Kimswick for treatment, but telephoned the facts of the
injury to the manager of the company at St. Louis, some twelve or
fourteen miles distant, who telephoned back to the superintendent to
place the injured man on the next train and send him to St. Louis. This
was done; and some three or four hours later, the train arrived in the
city; and upon the arrival of the train Hunicke was speedily taken to
the hospital where his limb was amputated; but in the meantime
practically all of the blood of his body had flowed therefrom, and he
died shortly thereafter.

In the statement of the case we have set out much of the evidence
tending to show the negligence of the defendant in not procuring
surgical treatment for Hunicke more promptly, and that he would not have
died had he received prompt treatment. That evidence tended to show that
Kimswick was only two miles distant from the place of injury and that
the injured man could have been taken there on a hand-car in a very
_few_ minutes, probably from fifteen to twenty, at the outside. Had this
been done, in all probability the flow of blood would have been stanched
several hours before it was finally stopped in the city of St. Louis.

It is true that there was some evidence which tended to show that such a
trip on a hand-car would have been rough and jolting, and thereby might
have aggravated the flow of the blood, but conceding that to be true, it
could not have caused more waste of blood than did the constant flow
during the hours that passed while he was waiting for the train and
being conveyed to the city of St. Louis thereon. And it seems to me that
common sense would teach us that a trip on a hand-car to Kimswick would
not have caused the blood to flow more freely than the trip on the train
to St. Louis, six or seven times as far, would have done.

But be that as it may, when we consider those facts in connection with
all the other facts and circumstances shown by the evidence, we have
reached the conclusion that this, as well as the question of negligence
in delaying the procurement of a surgeon, was for the jury, and that the
evidence introduced was sufficient to make out a _prima facie_ case for
the plaintiff.

In other words, we are of the opinion that the evidence tended to show
that the company was guilty of negligence in not using more diligence in
procuring medical and surgical treatment for this party; also that it
tended to show that said negligence was the proximate cause of his
death.

* * * * *

In my opinion there is no possibility of doubt but what the law is that,
whenever one person employs another to perform dangerous work, and while
performing that work he is so badly injured as to incapacitate him from
caring for himself, then the duty of providing medical treatment for him
is devolved upon the employer; and that duty in my opinion, grows out of
the fact that when we get down to the real facts in all such cases,
there is an unexpressed humane and natural understanding existing
between them to the effect that whenever any one in such a case is so
injured that he cannot care for himself, then the employer will furnish
him medical or surgical treatment as the case may be.

This is common knowledge. There is not an industrial institution in this
country, great or small, where that practice is not being carried on
to-day; and that has been the custom and usage among men from the dawn
of civilization down to the present day, and will continue to be
practised in the future, just so long as the human heart beats in
sympathy for the unfortunate, and desires to aid suffering humanity. The
same principle underlies all other avocations of life. Even armies while
engaged in actual warfare observe and obey this rule when possible. The
soldier who refuses to render surgical or medical aid to the victim of
his own sword, is eschewed by all decent men; while upon the other hand,
all who administer to the wants and necessities of the sick and wounded
are considered as God’s noblemen and as princes among men. So
universally true and deep-seated is this humane feeling among men, and
so universally recognized and practised among them, that it has become a
world-wide rule of moral conduct among men, brothers, friends and foes;
and it says to one and all, You must exercise all reasonable efforts and
means at hand to alleviate the pain and suffering and save the lives and
limbs of those who have been stricken in your presence. For the
violation of this rule of moral conduct there is no penalty attached
save the condemnation of God and the scorn of all good men and women.

But seeing the wisdom, goodness and justice of this moral law, the law
of the land laid its strong hand upon it, the same as it did upon many
other good and useful customs of England, and breathed into it a living
rule of legal conduct among men. It says unto all who employ labor that,
because of this universally practised custom of men to furnish medical
and surgical aid for those who are stricken in their presence, you must
furnish the employee with such services when he is so badly injured that
he is incapacitated from caring for himself.

This is but the application or extension of the common-law rule which
requires the master to furnish his servant with a safe place in which to
work, and safe instrumentalities with which to perform that labor.

That law grew out of the old customs and usages of the English people,
of furnishing their servants with a safe place in which to work and safe
instrumentalities with which to labor. So universally true was that
custom that the law read into all contracts of labor an implied promise
on the part of the master to furnish those safeguards to his servants.
There is no statutory or written law upon the subject. It is simply what
is called the unwritten or common law of England, which has been adopted
by statutes in this and many other States of the Union.

So in like manner into the universal custom of employers furnishing his
employees with medical aid when so badly injured that they could not
care for themselves, the common law, as in the cases of the safety
appliances before mentioned, breathed an implied agreement or duty on
the part of the former to furnish the latter medical or surgical aid
whenever he was so badly injured that he could not care for himself.

This law, like the one previously mentioned, has no statutory origin,
but has ripened into a law from wise and humane usages and customs that
are so old that the memory of man runneth not to the contrary, and will
continue so long as the conduct of man is prompted and governed by love
and humane sentiments.

As previously stated, I am firmly of the opinion that the petition
stated a good cause of action against the defendant, and that the
evidence was sufficient to make a case for the jury; and so believing, I
think the action of the trial court in granting a new trial to the
plaintiff for the first and second reasons assigned by counsel for
defendant, was not erroneous, but proper.[117]

DEPUE _v._ FLATAU
SUPREME COURT, MINNESOTA, MARCH 15, 1907.
_Reported in 100 Minnesota Reports, 299._

Action in the District Court for Watonwan County to recover $5000 for
personal injuries. The case was tried before Lorin Cray, J., who, at the
conclusion of plaintiff’s testimony, dismissed the action. From an order
denying a motion for a new trial, plaintiff appealed. Reversed.

BROWN, J. The facts in this somewhat unusual case are as follows:
Plaintiff was a cattle buyer, and accustomed to drive through the
country in the pursuit of his business, buying cattle, hides, and furs
from the farmers. On the evening of January 23, 1905, about five or 5.30
o’clock, after having been out a day or two in the country, he called at
the house of defendants, about seven miles from Madelia, where he
resided. His object was to inspect some cattle which Flatau, Sr., had
for sale, and if arrangements could be made to purchase the same. It was
dark at the time of his arrival, but he inspected the cattle in the
barn, and suggested to defendant that, being unable to determine their
value by reason of the darkness, he was not prepared to make an offer
for the cattle, and requested the privilege of remaining over night, to
the end that a bargain might be made understandingly in the morning. His
request was not granted. Plaintiff then bought some furs from other
members of defendants’ family, and Flatau, Sr., invited him to remain
for supper. Under this invitation plaintiff entered the house, paid for
the furs, and was given supper with the family. After the evening meal,
plaintiff and both defendants repaired to the sitting-room of the house,
and plaintiff made preparation to depart for his home. His team had not
been unhitched from the cutter, but was tied to a hitching post near the
house. The testimony from this point leaves the facts in some doubt.
Plaintiff testified that soon after reaching the sitting-room he was
taken with a fainting spell and fell to the floor. He remembers very
little of what occurred after that, though he does recall that, after
fainting, he again requested permission to remain at defendants’ over
night, and that his request was refused. Defendants both deny that this
request was made, and testified, when called for cross-examination on
the trial, that plaintiff put on his overshoes and buffalo coat unaided,
and that, while adjusting a shawl about his neck, he stumbled against a
partition between the dining-room and the sitting-room, but that he did
not fall to the floor. Defendant Flatau, Jr., assisted him in arranging
his shawl, and the evidence tends to show that he conducted him from the
house out of doors and assisted him into his cutter, adjusting the robes
about him and attending to other details preparatory to starting the
team on its journey. Though the evidence is somewhat in doubt as to the
cause of plaintiff’s condition while in defendants’ home, it is clear
that he was seriously ill and too weak to take care of himself. He was
in this condition when Flatau, Jr., assisted him into the cutter. He was
unable to hold the reins to guide his team, and young Flatau threw them
over his shoulders and started the team towards home, going a short
distance, as he testified, for the purpose of seeing that the horses
took the right road to Madelia. Plaintiff was found early next morning
by the roadside, about three quarters of a mile from defendants’ home,
nearly frozen to death. He had been taken with another fainting spell
soon after leaving defendants’ premises, and had fallen from his cutter,
where he remained the entire night. He was discovered by a passing
farmer, taken to his home, and revived. The result of his experience
necessitated the amputation of several of his fingers, and he was
otherwise physically injured and his health impaired. Plaintiff
thereafter brought this action against defendants, father and son, on
the theory that his injuries were occasioned solely by their negligent
and wrongful conduct in refusing him accommodations for the night, and,
knowing his weak physical condition, or at least having reasonable
grounds for knowing it, by reason of which he was unable to care for
himself, in sending him out unattended to make his way to Madelia the
best he could. At the conclusion of plaintiff’s case, the trial court
dismissed the action, on the ground that the evidence was insufficient
to justify a recovery. Plaintiff appealed from an order denying a new
trial.

Two questions are presented for consideration: (1) Whether, under the
facts stated, defendants owed any duty to plaintiff which they
negligently violated; and (2) whether the evidence is sufficient to take
the case to the jury upon the question whether defendants knew, or under
the circumstances disclosed ought to have known, of his weak physical
condition, and that it would endanger his life to send him home
unattended.

The case is an unusual one on its facts, and “all-four” precedents are
difficult to find in the books. In fact, after considerable research, we
have found no case whose facts are identical with those at bar. It is
insisted by defendants that they owed plaintiff no duty to entertain him
during the night in question, and were not guilty of any negligent
misconduct in refusing him accommodations, or in sending him home under
the circumstances disclosed. Reliance is had for support of this
contention upon the general rule as stated in note to Union Pacific _v._
Cappier, [66 Kan. 649, 72 Pac. 281] 69 L. R. A. 513, where it is said:
“Those duties which are dictated merely by good morals or by humane
considerations are not within the domain of the law. Feelings of
kindliness and sympathy may move the Good Samaritan to minister to the
needs of the sick and wounded at the roadside, but the law imposes no
such obligation; and suffering humanity has no legal complaint against
those who pass by on the other side.... Unless, therefore, the relation
existing between the sick, helpless, or injured and those who witness
their distress is such that the law imposes the duty of providing the
necessary relief, there is neither obligation to minister on the one
hand, nor cause for legal complaint on the other.” This is no doubt a
correct statement of the general rule applicable to the Good Samaritan,
but it by no means controls a case like that at bar.

The facts of this case bring it within the more comprehensive principle
that whenever a person is placed in such a position with regard to
another that it is obvious that, if he does not use due care in his own
conduct, he will cause injury to that person, the duty at once arises to
exercise care commensurate with the situation in which he thus finds
himself, and with which he is confronted, to avoid such danger; and a
negligent failure to perform the duty renders him liable for the
consequences of his neglect.

This principle applies to varied situations arising from non-contract
relations. It protects the trespasser from wanton or wilful injury. Its
extends to the licensee, and requires the exercise of reasonable care to
avoid an unnecessary injury to him. It imposes upon the owner of
premises, which he expressly or impliedly invites persons to visit,
whether for the transaction of business or otherwise, the obligation to
keep the same in reasonably safe condition for use, though it does not
embrace those sentimental or social duties often prompting human action.
21 Am. & Eng. Enc. (2d ed.) 471; Barrows, Neg. 3. Those entering the
premises of another by invitation are entitled to a higher degree of
care than those who are present by mere sufferance. Barrows, Neg. 304.
The rule stated is supported by a long list of authorities both in
England and this country, and is expressed in the familiar maxim, “_Sic
utere tuo_,” etc. They will be found collected in the works above cited,
and also in 1 Thompson, Neg. (2d ed.), § 694. It is thus stated in
Heaven _v._ Pender, L. R. 11 Q. B. Div. 503: “The proposition which
these recognized cases suggest, and which is, therefore, to be deduced
from them, is that, whenever one person is by circumstances placed in
such a position with regard to another that every one of ordinary sense
who did think would at once recognize that if he did not use ordinary
care and skill in his own conduct with regard to those circumstances he
would cause danger of injury to the person or property of the other, a
duty arises to use ordinary care and skill to avoid such danger.” It
applies with greater strictness to conduct towards persons under
disability, and imposes the obligation as a matter of law, not mere
sentiment, at least to refrain from any affirmative action that might
result in injury to them. A valuable note to Union Pacific _v._ Cappier,
69 L. R. A. 513, discusses at length the character of the duty and
obligation of those coming into relation with sick and disabled persons,
and numerous analogous cases are collected and analyzed.

In the case at bar defendants were under no contract obligation to
minister to plaintiff in his distress; but humanity demanded that they
do so, if they understood and appreciated his condition. And, though
those acts which humanity demands are not always legal obligations, the
rule to which we have adverted applied to the relation existing between
these parties on this occasion and protected plaintiff from acts at
their hands that would expose him to personal harm. He was not a
trespasser upon their premises, but, on the contrary, was there by the
express invitation of Flatau, Sr. He was taken suddenly ill while their
guest, and the law, as well as humanity, required that he be not exposed
in his helpless condition to the merciless elements.

The case, in its substantial facts, is not unlike that of Cincinnati
_v._ Marrs’ Adm’x, 27 Ky. Law, 388, 85 S. W. 188, 70 L. R. A. 291. In
that case it appears that one Marrs was found asleep in the yards of the
railway company in an intoxicated condition. The yard employees
discovered him, aroused him from his stupor, and ordered him off the
tracks. They knew that he was intoxicated, and that he had left a train
recently arrived at the station, and he appeared to them dazed and lost.
About forty minutes later, while the yard employees were engaged in
switching, they ran over him and killed him. He had again fallen asleep
on one of the tracks. The court held the railway company liable; that,
under the circumstances disclosed, it was the duty of the yard employees
to see that Marrs was safely out of the yards, or, in default of that,
to exercise ordinary care to avoid injuring him; and that it was
reasonable to require them to anticipate his probable continued presence
in the yards. The case at bar is much stronger, for here plaintiff was
not intoxicated, nor a trespasser, but, on the contrary, was in
defendants’ house as their guest, and was there taken suddenly ill in
their presence, and, if his physical condition was known and
appreciated, they must have known that to compel him to leave their home
unattended would expose him to serious danger.

We understand from the record that the learned trial court held in
harmony with the view of the law here expressed, but dismissed the
action for the reason, as stated in the memorandum denying a new trial,
that there was no evidence that either of the defendants knew, or in the
exercise of ordinary care should have known, plaintiff’s physical
condition, or that allowing him to proceed on his journey would expose
him to danger. Of course, to make the act of defendants a violation of
their duty in the premises, it should appear that they knew and
appreciated his serious condition. The evidence on this feature of the
case is not so clear as might be desired, but a majority of the court
are of opinion that it is sufficient to charge both defendants with
knowledge of plaintiff’s condition—at least, that the question should
have been submitted to the jury.

Defendant Flatau, Sr., testified that he was in the room at all times
while plaintiff was in the house and observed his demeanor, and, though
he denied that plaintiff fell to the floor in a faint or otherwise, yet
the fact that plaintiff was seriously ill cannot be questioned. Flatau,
Jr., conducted him to his cutter, assisted him in, observed that he was
incapable of holding the reins to guide his team, and for that reason
threw them over his shoulders. If defendants knew and appreciated his
condition, their act in sending him out to make his way to Madelia the
best he could was wrongful and rendered them liable in damages. We do
not wish to be understood as holding that defendants were under absolute
duty to entertain plaintiff during the night. Whether they could
conveniently do so does not appear. What they should or could have done
in the premises can only be determined from a full view of the evidence
disclosing their situation, and their facilities for communicating his
condition to his friends, or near neighbors, if any there were. All
these facts will enable the jury to determine whether, within the rules
of negligence applicable to the case, defendants neglected any duty they
owed plaintiff.

_Order reversed._[118]

DUTCH PENAL CODE, ART. 450. One who, witnessing the danger of death
with which another is suddenly threatened, neglects to give or furnish
him such assistance as he can give or procure without reasonable fear
of danger to himself or to others, is to be punished, if the death of
the person in distress follows, by a detention of three months at most
and an amende of three hundred florins at most.

GERMAN CIVIL CODE, SECTION 826. One who wilfully brings about damage
to another in a manner running counter to good morals is bound to make
reparation to the other for the damage.

STAMMLER, LEHRE VON DEM RICHTIGEN RECHTE, 489–490. “I am walking along
the bank of a river,” says Liszt in his stimulating discussion of this
subject, “and I see a man fall in the water and struggle with the
waves. I am able to rescue him without any peril to myself; I neglect
to do so although other help is not at hand and I foresee that he must
drown. In my opinion, liability under section 826 cannot be denied.”
[Liszt, Die Deliktsobligationen des B. G. B., 72.] Surely not.

PLANCK, BÜRGERLICHES GESETZBUCH (3d ed.), II, 995 (§ 826, note _e_).
The duty to make reparation for damage under section 826 may also be
grounded upon an omission. But it is presupposed that the act which
was omitted must be regarded, under the circumstances of the case, as
commanded by good morals and that the omission took place with the
purpose of bringing about injury to the other. If one holds fast to
this, the consequences which result from the foregoing principle are
not as doubtful as Liszt (p. 72) seems to assume.

BENTHAM, COMPLETE WORKS (Bowring’s ed.) I, 164.

There is simple corporal injury, when, without lawful cause, an
individual, seeing another in danger, abstains from helping him, and
the evil happens in consequence.

Explanations:—_Abstains from helping him_.

Every man is bound to assist those who have need of assistance, if he
can do it without exposing himself to sensible inconvenience. This
obligation is stronger in proportion as the danger is the greater for
the one, and the trouble of preserving him the less for the other.
Such would be the case of a man sleeping near the fire, and an
individual seeing the clothes of the first catch fire, and doing
nothing towards extinguishing them: the crime would be greater if he
refrained from acting not simply from idleness, but from malice or
some pecuniary interest.

BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION, chap. xix, sec. 1, Par.
xix (Clarendon Press reprint, pp. 322–323).

As to the rules of beneficence, these, as far as concerns matters of
detail, must necessarily be abandoned in great measure to the
jurisdiction of private ethics....

The limits of the law on this head seem, however, to be capable of
being extended a good deal farther than they seem ever to have been
extended hitherto. In particular, in cases where the person is in
danger, why should it not be made the duty of every man to save
another from mischief, when it can be done without prejudicing
himself, as well as to abstain from bringing it on him. This
accordingly is the idea pursued in the body of the work.[119]

BENTHAM, THEORY OF LEGISLATION, transl. by Hildreth (5th ed.), pp.
65–66.

As to beneficence, some distinctions are necessary. The law may be
extended to general objects, such as the care of the poor; but, for
details, it is necessary to depend upon private morality....

However, instead of having done too much in this respect, legislators
have not done enough. They ought to erect into an offence the refusal
or the omission of a service of humanity when it would be easy to
render it, and when some distinct ill clearly results from the
refusal; such, for example, as abandoning a wounded man in a solitary
road without seeking any assistance for him; not giving information to
a man who is negligently meddling with poisons; not reaching out the
hand to one who has fallen into a ditch from which he cannot extricate
himself; in these, and other similar cases, could any fault be found
with a punishment, exposing the delinquent to a certain degree of
shame, or subjecting him to a pecuniary responsibility for the evil
which he might have prevented?

LIVINGSTON, DRAFT CODE OF CRIMES AND PUNISHMENTS FOR THE STATE OF
LOUISIANA. Livingston, Complete Works on Criminal Jurisprudence, II,
126–127.

Article 484. Homicide by omission only, is committed by voluntarily
permitting another to do an act that must, in the natural course of
things, cause his death, without apprising him of his danger, if the
act be involuntary, or endeavoring to prevent it if it be voluntary.
He shall be presumed to have permitted it voluntarily who omits the
necessary means of preventing the death, when he knows the danger, and
can cause it to be avoided, without danger of personal injury or
pecuniary loss. This rule may be illustrated by the examples put in
the last preceding article: if the blind man is seen walking to the
precipice by one who knows the danger, can easily apprise him of it,
but does not; or if one who knows that a glass contains poison, sees
him about to drink it, either by mistake or with intent to destroy
himself, and makes no attempt to prevent him: in these cases the
omission amounts to homicide.[120]

MACAULAY, NOTES TO DRAFT OF INDIAN PENAL CODE. Penal Code Prepared by
the Indian Law Commissioners.[121] Chapter xviii [page 76]. Of
Offences Affecting the Human Body. Of Offences Affecting Life.

294. Whoever does any act or omits what he is legally bound to do,
with the intention of thereby causing, or with the knowledge that he
is likely thereby to cause, the death of any person, and does by such
act or omission cause the death of any person, is said to commit the
offence of “voluntary culpable homicide.”

NOTE M.[122] _On Offences Against the Body._ Notes to Draft of Penal
Code, 53–56; Macaulay’s Complete Works (English ed., 1875), vol. VII,
pp. 493–497; Morgan and McPherson, Indian Penal Code, 225, 226, notes.

The first class of offences against the body consists of those
offences which affect human life; and highest in this first class
stand those offences which fall under the definition of voluntary
culpable homicide.

This important part of the law appears to us to require fuller
explanation than almost any other.

The first point to which we wish to call the attention of his Lordship
in Council is the expression “omits what he is legally bound to do,”
in the definition of voluntary culpable homicide. These words, or
other words tantamount in effect, frequently recur in the Code. We
think this the most convenient place for explaining the reason which
has led us so often to employ them. For if that reason shall appear to
be sufficient in cases in which human life is concerned, it will _a
fortiori_ be sufficient in other cases.

Early in the progress of the Code it became necessary for us to
consider the following question: When acts are made punishable on the
ground that those acts produce, or are intended to produce, or are
known to be likely to produce certain evil effects, to what extent
ought omissions which produce, which are intended to produce, or which
are known to be likely to produce the same evil effects to be made
punishable?

Two things we take to be evident: first, that some of these omissions
ought to be punished in exactly the same manner in which acts are
punished: secondly, that all these omissions ought not to be punished.
It will hardly be disputed that a jailer who voluntarily causes the
death of a prisoner by omitting to supply that prisoner with food, or
a nurse who voluntarily causes the death of an infant intrusted to her
care by omitting to take it out of a tub of water into which it has
fallen, ought to be treated as guilty of murder. On the other hand, it
will hardly be maintained that a man should be punished as a murderer
because he omitted to relieve a beggar, even though there might be the
clearest proof that the death of the beggar was the result of the
omission, and that the man who omitted to give the alms knew that the
death of the beggar was likely to be the effect of the omission. It
will hardly be maintained that a surgeon ought to be treated as a
murderer for refusing to go from Calcutta to Meerut to perform an
operation, although it should be absolutely certain that this surgeon
was the only person in India who could perform it, and that if it were
not performed the person who required it would die. It is difficult to
say whether a Penal Code which should put no omissions on the same
footing with acts, or a Penal Code which should put all omissions on
the same footing with acts would produce consequences more absurd and
revolting. There is no country in which either of these principles is
adopted. Indeed, it is hard to conceive how, if either were adopted,
society could be held together.

It is plain, therefore, that a middle course must be taken. But it is
not easy to determine what that middle course ought to be. The
absurdity of the two extremes is obvious. But there are innumerable
intermediate points; and wherever the line of demarcation may be drawn
it will, we fear, include some cases which we might wish to exempt,
and will exempt some which we might wish to include.

Mr. Livingston’s Code provides that a person shall be considered as
guilty of homicide who omits to save life, which he could save
“without personal danger or pecuniary loss.” This rule appears to us
to be open to serious objection. There may be extreme inconvenience
without the smallest personal danger, or the smallest risk of
pecuniary loss; as in the case which we lately put of a surgeon
summoned from Calcutta to Meerut to perform an operation. He may be
offered such a fee that he would be a gainer by going. He may have no
ground to apprehend that he should run any greater personal risk by
journeying to the Upper Provinces than by continuing to reside in
Bengal. But he is about to proceed to Europe immediately, or he
expects some members of his family by the next ship, and wishes to be
at the presidency to receive them. He, therefore, refuses to go.
Surely, he ought not, for so refusing, to be treated as a murderer. It
would be somewhat inconsistent to punish one man for not staying three
months in India to save the life of another, and to leave wholly
unpunished a man who, enjoying ample wealth, should refuse to disburse
an anna to save the life of another. Again, it appears to us that it
may be fit to punish a person as a murderer for causing death by
omitting an act which cannot be performed without personal danger or
pecuniary loss. A parent may be unable to procure food for an infant
without money. Yet the parent, if he has the means, is bound to
furnish the infant with food, and if by omitting to do so he
voluntarily causes its death, he may with propriety be treated as a
murderer. A nurse hired to attend a person suffering from an
infectious disease cannot perform her duty without running some risk
of infection. Yet if she deserts the sick person, and thus voluntarily
causes his death, we should be disposed to treat her as a murderer.

We pronounce with confidence, therefore, that the line ought not to be
drawn where Mr. Livingston has drawn it. But it is with great
diffidence that we bring forward our own proposition. It is open to
objections: cases may be put in which it will operate too severely,
and cases in which it will operate too leniently; but we are unable to
devise a better.

What we propose is this, that where acts are made punishable on the
ground that they have caused, or have been intended to cause, or have
been known to be likely to cause a certain evil effect, omissions
which have caused, which have been intended to cause, or which have
been known to be likely to cause the same effect shall be punishable
in the same manner; provided that such omissions were, on other
grounds, illegal. An omission is illegal (see clause 28) if it be an
offence, if it be a breach of some direction of law, or if it be such
a wrong as would be a good ground for a civil action.

We cannot defend this rule better than by giving a few illustrations
of the way in which it will operate. A omits to give Z food, and by
that omission voluntarily causes Z’s death. Is this murder? Under our
rule it is murder if A was Z’s jailer, directed by the law to furnish
Z with food. It is murder if Z was the infant child of A, and had
therefore a legal right to sustenance, which right a civil court would
enforce against A. It is murder if Z was a bedridden invalid, and A a
nurse hired to feed Z. It is murder if A was detaining Z in unlawful
confinement, and had thus contracted (see clause 338) a legal
obligation to furnish Z, during the continuance of the confinement,
with necessaries. It is not murder if Z is a beggar who has no other
claim on A than that of humanity.

A omits to tell Z that a river is swollen so high that Z cannot safely
attempt to ford it, and by this omission voluntarily causes Z’s death.
This is murder if A is a peon stationed by authority to warn
travellers from attempting to ford the river. It is murder if A is a
guide who had contracted to conduct Z. It is not murder if A is a
person on whom Z has no other claim than that of humanity.

A savage dog fastens on Z; A omits to call off the dog, knowing that
if the dog be not called off it is likely that Z will be killed. Z is
killed. This is murder in A, if the dog belonged to A, inasmuch as his
omission to take proper order with the dog is illegal (clause 273).
But if A be a mere passer-by it is not murder.

We are sensible that in some of the cases which we have put, our rule
may appear too lenient. But we do not think that it can be made more
severe, without disturbing the whole order of society. It is true that
the man who, having abundance of wealth, suffers a fellow creature to
die of hunger at his feet, is a bad man,—a worse man, probably, than
many of those for whom we have provided very severe punishment. But we
are unable to see where, if we make such a man legally punishable, we
can draw the line. If the rich man who refuses to save a beggar’s life
at the cost of a little copper is a murderer, is the poor man just one
degree above beggary also to be a murderer if he omits to invite the
beggar to partake his hard-earned rice? Again, if the rich man is a
murderer for refusing to save the beggar’s life at the cost of a
little copper, is he also to be a murderer if he refuses to save the
beggar’s life at the cost of a thousand rupees? Suppose A to be fully
convinced that nothing can save Z’s life, unless Z leave Bengal and
reside a year at the Cape, is A, however wealthy he may be, to be
punished as a murderer because he will not, at his own expense, send Z
to the Cape? Surely not. Yet it will be difficult to say on what
principle we can punish A for not spending an anna to save Z’s life,
and leave him unpunished for not spending a thousand rupees to save
Z’s life. The distinction between a legal and an illegal omission is
perfectly plain and intelligible. But the distinction between a large
and a small sum of money is very far from being so; not to say that a
sum which is small to one man is large to another.

The same argument holds good in the case of the ford. It is true that
none but a very depraved man would suffer another to be drowned when
he might prevent it by a word. But if we punish such a man, where are
we to stop? How much exertion are we to require? Is a person to be a
murderer if he does not go fifty yards through the sun of Bengal at
noon in May in order to caution a traveller against a swollen river?
Is he to be a murderer if he does not go a hundred yards?—if he does
not go a mile?—if he does not go ten? What is the precise amount of
trouble and inconvenience which he is to endure? The distinction
between the guide who is bound to conduct the traveller as safely as
he can, and a mere stranger, is a clear distinction. But the
distinction between a stranger who will not give a halloo to save a
man’s life, and a stranger who will not run a mile to save a man’s
life, is very far from being equally clear.

It is, indeed, most highly desirable that men should not merely
abstain from doing harm to their neighbours, but should render active
services to their neighbours. In general, however, the penal law must
content itself with keeping men from doing positive harm, and must
leave to public opinion, and to the teachers of morality and religion,
the office of furnishing men with motives for doing positive good. It
is evident that to attempt to punish men by law for not rendering to
others all the service which it is their duty to render to others
would be preposterous. We must grant impunity to the vast majority of
those omissions which a benevolent morality would pronounce
reprehensible, and must content ourselves with punishing such
omissions only when they are distinguished from the rest by some
circumstance which marks them out as peculiarly fit objects of penal
legislation. Now, no circumstance appears to us so well fitted to be
the mark as the circumstance which we have selected. It will generally
be found in the most atrocious cases of omission; it will scarcely
ever be found in a venial case of omission; and it is more clear and
certain than any other mark that has occurred to us. That there are
objections to the line which we propose to draw, we have admitted. But
there are objections to every line which can be drawn, and some line
must be drawn.

SECTION VI
LIABILITY OF OCCUPIERS OF PREMISES

MAYNARD _v._ BOSTON AND MAINE RAILROAD
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER 4, 1874.
_Reported in 115 Massachusetts Reports, 458._

Tort for the killing of a horse on a railroad by a locomotive engine.

Upon the trial, the plaintiff admitted that the horse must be considered
as trespassing upon the railroad, but contended and offered evidence
tending to show that by an exercise of proper care the injury to the
horse might have been avoided. The defendants offered evidence to
control this, and tending to show that they did all they reasonably
could do to stop their train before striking the horse. There was no
evidence of any wanton misconduct on their part.

The counsel for the defendants contended and asked the presiding judge
to rule, that the defendants would not be liable, unless the plaintiff
proved a reckless and wanton misconduct of their employees in the
management of the train when the horse was killed. The presiding judge
declined so to rule; but did rule that though the horse was trespassing
upon the defendants’ land at the time, the managers of the train could
not carelessly run over him, but were bound to use reasonable care to
avoid injuring him, and that if the jury found that by the exercise of
reasonable care they might have avoided injuring the horse, they would
be liable. The jury found for the plaintiff, and the defendants alleged
exceptions.[123]

GRAY, C. J. If the horse had been rightfully upon the defendants’ land,
it would have been their duty to exercise reasonable care to avoid
injuring the horse. But it being admitted by the plaintiff that his
horse was trespassing upon the railroad, they did not owe him that duty,
and were not liable to him for anything short of a reckless and wanton
misconduct of those employed in the management of their train. The
defendants were therefore entitled to the instruction which they
requested. Tonawanda Railroad _v._ Munger, 5 Denio, 255; S. C. 4 Comst.
349; Vandegrift _v._ Rediker, 2 Zab. 185; Railroad Co. _v._ Skinner, 19
Penn. St. 298; Tower _v._ Providence & Worcester Railroad, 2 R. I. 404;
Cincinnati, Hamilton & Dayton Railroad _v._ Waterson, 4 Ohio St. 424;
Louisville & Frankfort Railroad _v._ Ballard, 2 Met. (Ky.) 177.

The instruction given to the jury held the defendants to the same
obligation to the plaintiff as if his horse had been rightfully on their
land; and made their paramount duty to the public of running the train
with proper speed and safety, and their use of the land set apart and
fitted for the performance of that duty, subordinate to the care of
private interests in property which was upon their track without right.

Some passages in the opinion in Eames _v._ Salem & Lowell Railroad, 98
Mass. 560, 563, were relied on by the plaintiff’s counsel at the
argument, and apparently formed the basis of the rulings of the learned
judge in the Court below. But in that case there was no evidence of any
negligence or misconduct in the management of the train, and an exact
definition of the defendants’ liability, by reason of such negligence or
misconduct, was not required. In the present case such a definition was
requested by the defendants in appropriate terms, and was refused, and
for that refusal their

_Exceptions must be sustained._[124]

HERRICK _v._ WIXOM
SUPREME COURT, MICHIGAN, SEPTEMBER 27, 1899.
_Reported in 121 Michigan Reports, 384._

Trespass on the Case for personal injuries.

Defendant was the possessor and manager of a tent show or circus. On the
afternoon of an exhibition plaintiff went inside the tent and took a
seat. There was a conflict of testimony as to whether plaintiff was
invited into the tent by an authorized agent of defendant, or whether he
entered without any invitation or other justification. A feature of the
entertainment consisted in the ignition and explosion of a giant
firecracker, attached to a pipe set in an upright position in one of the
show rings. Plaintiff sat thirty or forty feet from the place where the
cracker was exploded. At the explosion, part of the firecracker flew and
struck plaintiff in the eye, whereby he lost the sight of his eye.

The judge left to the jury the question whether it was negligent in
defendant to explode this firecracker in the inside of the tent and in
the presence of the audience.

Then he gave, among others, the following instruction:—

“Now you must further find, in order that the plaintiff recover, that
the plaintiff was in the tent, where he was injured, by the invitation
of some person having authority to allow him to go in there. If he was a
mere trespasser, who forced his way in, then the defendant owed him no
duty that would enable him to recover under the declaration and proofs
in this case.”...

Verdict of no cause of action. Judgment for defendant. Plaintiff brought
error.[125]

MONTGOMERY, J. [After stating the case.] We think this instruction
faulty, in so far as it was intended to preclude recovery in any event
if the plaintiff was found to be a trespasser. It is true that a
trespasser who suffers an injury because of a dangerous condition of
premises is without remedy. But, where a trespasser is discovered upon
the premises by the owner or occupant, he is not beyond the pale of the
law, and any negligence resulting in injury will render the person
guilty of negligence liable to respond in damages. Beach, Contrib. Neg.
§ 50; Whart. Neg. § 346; Marble _v._ Ross, 124 Mass. 44; Houston, etc.,
R. Co. _v._ Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Brown _v._ Lynn, 31
Pa. St. 510 (72 Am. Dec. 768); Needham _v._ Railroad Co., 37 Cal. 409;
Davies _v._ Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. In this
case the negligent act of the defendant’s servant was committed after
the audience was made up. The presence of plaintiff was known, and the
danger to him from a negligent act was also known. The question of
whether a dangerous experiment should be attempted in his presence, or
whether an experiment should be conducted with due care and regard to
his safety, cannot be made to depend upon whether he had forced himself
into the tent. Every instinct of humanity revolts at such a suggestion.

For this error the judgment will be reversed, and a new trial
ordered.[126]

CINCINNATI & ZANESVILLE R. CO. _v._ SMITH
SUPREME COURT, OHIO, DECEMBER TERM, 1871.
_Reported in 22 Ohio State Reports, 227._

Error to the Court of Common Pleas of Fayette County, reserved in the
District Court.[127]

The plaintiff below, Richard Smith, sued the defendant below, the
Cincinnati & Zanesville Railroad Company, to recover the value of two
horses alleged to have been killed through the negligence of the
servants of the defendant in operating one of its trains. The inclosure
of the plaintiff adjoined the railroad of the defendant; and from this
inclosure, on the night on which the horses were killed, they escaped on
to the railroad.

The Court, among other things, charged the jury as follows:—

The defendant’s servants in this case were not bound to use
extraordinary care or extraordinary means to save the plaintiff’s
horses. But they were bound to use what, in that peculiar business, is
ordinary care and diligence; and if the loss of the horses was the
result of a want of that ordinary care and diligence, the defendant is
liable.

The defendant had the right to the free and unobstructed use of its
railroad track. And the paramount duty of the employees is the
protection of the passengers and property in the train, and the train
itself.

But this being their paramount duty, they are bound to use ordinary care
and diligence, so as not unnecessarily to injure the property of others.

Under the circumstances of the case, could and would reasonably prudent
men, skilled in that kind of business, keeping in view as their
paramount duty the protection and safety of the train, its passengers,
and the property on and about it intrusted to their care, in the
exercise of ordinary care have stopped the train and saved the horses?
If so, and the defendant’s servants did not so act, the defendant is
liable in this case; otherwise the defendant is not liable.

In considering the paramount duty of the employees in the proper
management of the train for the safety of passengers and property of its
train, you have a right to determine whether they have other duties to
perform. It is claimed the engineer had other duties than watching the
track to perform, which were necessary for the safety of the passengers
and property of the train,—such as gauging his steam, watching
time-table, regulating his supply of water, examining his machinery,
watching for the station-signal, etc. If such were the case, he had a
lawful right to perform these duties, and was not bound to neglect them
to save the plaintiff’s horses, nor bound to watch the track while
performing these duties. They were only bound, under the circumstances
of the case, to use ordinary care and diligence to save the horses,—the
safety of the passengers and property of the train being their paramount
duty; and if the jury find from the evidence that the persons in charge
of the engine were attending to the duties of the train approaching the
station at the time of the accident, these duties were paramount to
watching the track for trespassing animals; and if the horses were not,
on that account, discovered in time to save them by using ordinary means
to stop the train, the defendant is not liable.

It is claimed by the defendant’s counsel that off the crossings of the
railroad the servants of the railroad company have a right to presume
that there are no trespassers on the roadway; that they are not bound to
look out for trespassers except for the safety of passengers or property
in charge. It is also claimed that inasmuch as the road at the place
where the plaintiff’s horses got on the track and were killed was
fenced, on that account the defendant’s servants in charge of the train
were not bound to look out for trespassing stock. Upon this question I
only can charge you this: That if the railroad was fenced at the place
where the horses got on and were killed, and this was known to the
defendant’s employees, you have a right to look to that circumstance as
reflecting upon and in determining whether the employees exercised
ordinary care in the management of the train. But if they might, in the
exercise of ordinary care, have discovered the animals, although they
were trespassers on the roadway, other than at a crossing, in time to
have prevented their destruction, it was their duty to do so; and if
from such want of ordinary care they were not discovered in time to
prevent their destruction, the defendant is liable for their loss to the
plaintiff.[128]

WHITE, J. The whole charge is set out in the bill of exceptions.
Considering its several parts in connection, and giving to the whole a
fair construction, we deem it necessary only to notice two particulars
in which it is objected to.

These are: 1. Whether the fact that the horses were trespassing on the
track excused the servants of the defendant from the exercise of
ordinary care; and, 2. Whether that fact, and the additional one that
the road was fenced, excused the engineer, as respects the owner of
stray animals, from looking ahead to see whether such animals were on
the track or not.

In regard to the first of these particulars, it is contended on behalf
of the railroad company that, as the horses were trespassing on the
railroad, the company was exempt from using ordinary care to save them,
and that it was only liable for what is called gross negligence.

The Court instructed the jury that the defendant had the right to the
free and unobstructed use of its railroad track, and that the paramount
duty of its employees was the protection of the passengers and property
in the train, and the train itself. But this being their paramount duty,
they were bound to use ordinary care and diligence so as not
unnecessarily to injure the property of others.

We think the charge stated the law correctly. We see no good reason, in
principle, why a party, so far as may be consistent with the full
enjoyment of his own rights, ought not to use ordinary care so as not
unnecessarily to injure the property of others.

It is true, the rule contended for by the counsel of the plaintiff in
error is sustained by a number of authorities. But the later and better
considered cases are to the contrary. Illinois Central R. R. Co. _v._
Middlesworth, 46 Ill. 494; Bemis _v._ Conn., &c. R. R., 42 Vt. 375;
Isbell _v._ N. Y. R. R. Co., 27 Conn. 393; Redfield’s American Railway
Cases, 355, 356.

The rule contended for has never been adopted in this State. It is,
moreover, as respects railroad companies, inconsistent with our statute
law on the subject. S. & C. 331.

The facts in the case of the C. H. & D. R. R. Co. _v._ Waterson & Kirk,
4 Ohio St. 424, cited and relied upon by the counsel of the plaintiff in
error, were different from those in the case now before us, and we do
not regard the rule there laid down as to the liability of the company
in that case as applicable to this.

From what has been said of the charge in the first particular named, it
would seem to follow that it is unobjectionable as respects the second.
If it was the duty of the servants of the company, so far as was
consistent with their other and paramount duties, to use ordinary care
to avoid injuring animals on the track, they were, of course, bound to
adopt the ordinary precautions to discover danger, as well as to avoid
its consequences after it became known.

The fact that the road was fenced at the place of collision with the
horses, was a circumstance to be considered in connection with the other
circumstances of the case in determining whether the engineer was guilty
of negligence in not looking ahead and discovering the danger in time to
avoid it. The fact that the road was fenced rendered it less probable
that wandering animals would be on the track; but it cannot be said that
the engineer, as a matter of law, by reason of the fences, was wholly
excused from keeping a lookout ahead of the train.

If the servants of the company in charge of the train, having due regard
to their duties for the safety of the persons and property in their
charge, could, by the exercise of ordinary care, have seen and saved the
horses, we think they were bound to have done so. Bemis _v._ Conn., &c.
R. R., _supra_, 381; Louis. & Nash. R. R. Co. _v._ Wainscott, 3 Bush,
149.[129]

_Judgment affirmed._

SHEEHAN _v._ ST. PAUL & DULUTH R. CO.
UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT, OCTOBER 16,
1896.
_Reported in 46 U. S. Appeals, 498._

SEAMAN, J.[130] The plaintiff at the time of his injury was neither in
the relation of passenger nor of one in a public crossing or place in
which the public were licensed to travel, but upon the undisputed facts
was a mere intruder on the tracks of the defendant, technically a
trespasser; and this record excludes any of the elements of implied
license or invitation to such use which have given rise to much
discussion and diversity of views in the courts. Therefore the inquiry
is here squarely presented, What is the duty which a railway company
owes to a trespasser on its tracks, and how and when does the duty
arise? The decisions upon this subject uniformly recognize that the
trespasser cannot be treated as an outlaw; and at the least that, if
wantonly injured in the operation of the railroad, the company is
answerable in damages. Clearly, then, an obligation is placed upon the
company to exercise some degree of care when the danger becomes
apparent. Is it, however, bound to foresee or assume that rational
beings will thus enter as trespassers in a place of danger, and to
exercise in the running of its trains the constant vigilance in view of
that probability which is imposed for public crossings? There are cases
which would seem to hold this strict requirement (see note, 1 Thompson
on Negligence (1880), 448; East Tennessee and Georgia Railroad Co. _v._
St. John, 5 Sneed, 524); but by the great preponderance of authority, in
this country and in England, the more reasonable doctrine is pronounced,
in effect, as follows: That the railroad company has the right to a free
track in such places; that it is not bound to any act or service in
anticipation of trespassers thereon; and that the trespasser who
ventures to enter upon a track for any purpose of his own assumes all
risks of the conditions which may be found there, including the
operation of engines and cars. Wright _v._ Boston and Maine Railroad,
129 Mass. 440; Philadelphia and Reading Railroad Company _v._ Hummell,
44 Penn. St. 375. The decision by this court, in Cleveland, Cincinnati,
Chicago and St. Louis Railway Company _v._ Philips’ Administrator (1),
24 U. S. Appeals, 489, adopts the view held in this line of cases,
citing the authorities of which repetition here is unnecessary. The same
doctrine prevails in Minnesota, where the injury in question arose.
Johnson _v._ Truesdale, 46 Minnesota, 345; Studley _v._ St. Paul &
Duluth R. Co., 48 Minnesota, 249. In the latter case it was held that
there could be no recovery “unless the engineer saw the girl in time to
avoid the accident, and then was guilty of such gross negligence in not
trying to avoid it as to evince a reckless disregard of human life;” and
the opinion gives this further exposition of the rule: “The defendant’s
engineer was under no obligation to anticipate a trespasser, or to look
out for persons walking upon the track; but, upon discovering
plaintiff’s intestate across the cattle-guard, as he claims she was when
he noticed that she was in danger, it became the engineer’s duty to use
proper care to avoid running her down. If he failed to exercise proper
care, he would necessarily be grossly negligent and evince a reckless
disregard of human life.” So in Wisconsin, in Anderson _v._ Chicago, St.
Paul, Minneapolis & Omaha Railway Company, 87 Wisconsin, 195, 204, it is
said: “The use of a railroad is exclusively for its owners or those
acting under its authority, and the company is not bound to the exercise
of any active duty of care or diligence towards mere trespassers upon
its track, to keep a lookout to discover or protect them from injury,
except that, when discovered in a position of danger or peril, it is its
duty to use all reasonable and proper effort to save and protect them
from the probable consequences of their indiscretion or negligence.”

The well-established and just rule which holds the railroad company to
the exercise of constant and strict care against injury through its
means is applicable only to the relation on which it is founded, of an
existing duty or obligation. This active or positive duty arises in
favor of the public at a street crossing or other place at which it is
presumable that persons or teams may be met. It is not material, so far
as concerns this inquiry, whether the place is one for which a lawful
right of passage exists, as it is the fact of notice to the company
arising out of its existence and the probability of its use which
imposes the positive duty to exercise care; the requirement of an
extreme degree of care being superadded because of the hazards which
attend the operations of the company. The case of a trespasser on the
track in a place not open to travel is clearly distinguishable in the
absence of this notice to the company. There is no constructive notice
upon which to base the obligation of constant lookout for his presence
there, and no actual notice up to the moment the trainmen have
discovered the fact of his peril. As that peril comes wholly from his
unauthorized act and temerity, the risk and all positive duty of care
for his safety rest with the trespasser. The obligation of the company
and its operatives is not then preëxisting, but arises at the moment of
discovery, and is negative in its nature,—a duty which is common to
human conduct to make all reasonable effort to avert injury to others
from means which can be controlled.

This is the issue presented here. It excludes all inquiry respecting the
character of the roadbed, cattle-guard, locomotive, brake appliances or
other means of operation, or of the speed or manner of running the train
up to the moment of notice, because no breach of positive duty is
involved. It is confined to the evidence relating to the discovery by
the engineer and fireman of the plaintiff’s peril and to the efforts
then made to avert the injury; and out of that to ascertain whether, in
any view which may justly be taken, it is shown that these men or the
engineer in disregard of the duty which then confronted them neglected
to employ with reasonable promptness the means at hand for stopping the
train.[131]

BRETT, M. R., IN HEAVEN _v._ PENDER
(1883) _11 Queen’s Bench Division, 503, 506, 507._

BRETT, M. R.... The action is in form and substance an action for
negligence. That the stage was, through want of attention of the
defendant’s servants, supplied in a state unsafe for use is not denied.
But want of attention amounting to a want of ordinary care is not a good
cause of action, although injury ensue from such want, unless the person
charged with such want of ordinary care had a duty to the person
complaining to use ordinary care in respect of the matter called in
question. Actionable negligence consists in the neglect of the use of
ordinary care or skill towards a person to whom the defendant owes the
duty of observing ordinary care and skill, by which neglect the
plaintiff, without contributory negligence on his part, has suffered
injury to his person or property. The question in this case is whether
the defendant owed such a duty to the plaintiff.

MITCHELL, J., IN AKERS _v._ CHICAGO, &c. R. CO.
(1894) _58 Minnesota, 540, 544._

MITCHELL, J. Actionable negligence is the failure to discharge a legal
duty to the person injured. If there is no duty, there is no negligence.
Even if a defendant owes a duty to some one else, but does not owe it to
the person injured, no action will lie. The duty must be due to the
person injured. These principles are elementary, and are equally
applicable, whether the duty is imposed by positive statute or is
founded on general common-law principles.[132]

LARY _v._ CLEVELAND R. CO.
SUPREME COURT, INDIANA, NOVEMBER TERM, 1881.
_Reported in 78 Indiana Reports, 323._

Lary sued the railroad company for damage alleged to have been sustained
by him, through the negligent failure of the company to repair a
building standing on its grounds, and formerly used by it as a freight
house. Answer, a general denial. Upon the trial, the plaintiff
introduced his evidence; the defendant demurred to it, and the plaintiff
joined in demurrer. The Court sustained the demurrer, and the plaintiff
excepted.

The facts which the plaintiff’s evidence tended to prove are
substantially as follows:—

The railroad company owned half an acre of land between the railroad
track and a highway. On this land was a building erected several years
before for a freight house. It was no longer used as the general freight
house, though still used for storing the company’s wood. A part of the
roof of the building was off, and had been so for some months. The
plaintiff, who was twenty years of age, was in the habit of passing the
building almost daily, and had noticed that part of the roof was off. In
a rain storm, the plaintiff went under the platform of the old freight
house, and played there with other young people. A piece of the roof was
torn off by the wind. The plaintiff, being frightened at the noise, ran
out, saw the piece of the roof in the air, and ran towards the highway;
but before or as he reached the edge of it, this fragment of the roof
fell upon him.[133]

MORRIS, C. [After stating the case.] Upon the facts thus stated, can the
appellant maintain this action?

There is no testimony tending to show that the appellant was at the
freight house by the invitation of the appellee, nor that he was there
for the purpose of transacting any business with the appellee. The
appellant intruded upon the premises of the appellee, and is not,
therefore, entitled to that protection which one, expressly or by
implication, invited into the house or place of business of another, is
entitled to. The appellant was a trespasser, and as such he entered upon
the appellee’s premises, taking the risks of all the mere omissions of
the appellee as to the condition of the grounds and buildings thus
invaded without leave. We do not wish to be understood as holding or
implying that if, on the part of the appellee, there had been any act
done implying a willingness to inflict the injury upon the appellant, it
would not be liable. But we think there is nothing in the evidence from
which such an inference can be reasonably drawn. The building could be
seen by all; its condition was open to the inspection of every one; it
had been abandoned as a place for the transaction of public business; it
was in a state of palpable and visible decay, and no one was authorized,
impliedly or otherwise, to go into or under it. Under such
circumstances, the law says to him who intrudes into such a place, that
he must proceed at his own risk.

In the case of The Pittsburgh, &c. R. W. Co. _v._ Bingham, 29 Ohio St.
364, the question was: “Is a railroad company bound to exercise ordinary
care and skill in the erection, structure, or maintenance of its station
house or houses, as to persons who enter or are at the same, not on any
business with the company or its agents, nor on any business connected
with the operation of its road; but are there without objection by the
company, and therefore by its mere sufferance or permission?” The Court
answered this question in the negative.

In the case of Hounsell _v._ Smyth, 7 C. B. N. S. 731, the plaintiff
fell into a quarry, left open and unguarded on the unenclosed lands of
the defendant, over which the public were permitted to travel; it was
held that the owner was under no legal obligation to fence or guard the
excavation unless it was so near the public road as to render travel
thereon dangerous. That the person so travelling over such waste lands
must take the permission with its concomitant conditions, and, it may
be, perils. Hardcastle _v._ The South Yorkshire R. W. Co., 4 H. & N. 67;
Sweeny _v._ Old Colony, &c. R. R. Co., 10 Allen, 368; Knight _v._ Abert,
6 Barr, 472.

After reviewing the above and other cases, Judge Boynton, in the case of
The Pittsburgh, &c. R. W. Co. _v._ Bingham, _supra_, says:—

“The principle underlying the cases above cited recognizes the right of
the owner of real property to the exclusive use and enjoyment of the
same without liability to others for injuries occasioned by its unsafe
condition, where the person receiving the injury was not in or near the
place of danger by lawful right; and where such owner assumed no
responsibility for his safety by inviting him there, without giving him
notice of the existence or imminence of the peril to be avoided.”

In the case from which we have quoted, the intestate of the plaintiff
was at the defendant’s station house, not on any business with it, but
merely to pass away his time, when, by a severe and sudden blast of
wind, a portion of the roof of the station house was blown off the
building and against the intestate, with such force as to kill him. The
case, in its circumstances, was not unlike the one before us. Nicholson
_v._ Erie R. W. Co., 41 N. Y. 525; Murray _v._ McLean, 57 Ill. 378;
Durham _v._ Musselman, 2 Blackf. 96 (18 Am. Dec. 133).

In the case of Sweeny _v._ Old Colony, &c. R. R. Co., 10 Allen, 368, the
Court say:—

“A licensee, who enters on premises by permission only, without any
enticement, allurement, or inducement being held out to him by the owner
or occupant, cannot recover damages for injuries caused by obstructions
or pitfalls. He goes there at his own risk, and enjoys the license
subject to its concomitant perils.” Carleton _v._ Franconia Iron and
Steel Co., 99 Mass. 216; Harris _v._ Stevens, 31 Vt. 79, 90; Wood _v._
Leadbitter, 13 M. & W. 838.

The evidence in this case brings it, we think, within the principles
settled by the above cases.

The appellant contends that the evidence shows that the appellee was
guilty of gross negligence in not repairing its freight house, and that
such negligence renders it liable, though he entered upon its premises
without invitation or license, as a mere intruder, and was, while such
intruder, injured; and, in support of this proposition, we are referred
to the following cases: Lafayette, &c. R. R. Co. _v._ Adams, 26 Ind. 76;
Indianapolis, &c. R. R. Co. _v._ McClure, 26 Ind. 370; Gray _v._ Harris,
107 Mass. 492; Isabel _v._ Hannibal, &c. R. R. Co., 60 Mo. 475.

In the first of the above cases, the Court held that, where the
negligence of the company was so gross as to imply a disregard of
consequences or a willingness to inflict the injury, it was liable,
though the party injured was not free from fault. In the second case, it
was held that a railroad company, not required to fence its road, would
not be liable for animals killed on its road, unless guilty of gross
negligence. The phrase “gross negligence,” as used in these cases, means
something more than the mere omission of duty; it meant, as shown by the
evidence in the cases, reckless and aggressive conduct on the part of
the company’s servants. “Something more than negligence, however gross,
must be shown, to enable a party to recover for an injury, when he has
been guilty of contributory negligence.” The Pennsylvania Co. _v._
Sinclair, 62 Ind. 301. There was, in the cases referred to in 26 Ind.,
something more than negligence. As in the case of The Indianapolis, &c.
R. W. Co. _v._ McBrown, 46 Ind. 229, where the animal was driven through
a deep cut, eighty rods long, into and upon a trestle work of the
company, there was aggressive malfeasance. In the Massachusetts case,
the Court held that a party building a dam across a stream must provide
against unusual floods. We do not think these cases applicable to the
one before us.

There could be no negligence on the part of the appellee, of which the
appellant can be heard to complain, unless at the time he received the
injury, the appellee was under some obligation or duty to him to repair
its freight house. “Actionable negligence exists only where the one
whose act causes or occasions the injury owes to the injured person a
duty, created either by contract or by operation of law, which he has
failed to discharge.” Pittsburgh, &c. R. W. Co. _v._ Bingham, _supra_;
Burdeck _v._ Cheadle, 26 Ohio St. 393; Town of Salem _v._ Goller, 76
Ind. 291. We have shown that the appellee owed the appellant no such
duty.

The judgment below should be affirmed.

PER CURIAM. It is ordered, upon the foregoing opinion, that the judgment
below be affirmed, at the costs of the appellant.[134]

BUCH _v._ AMORY MANUFACTURING CO.
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1897.
_Reported in 69 New Hampshire Reports, 257._

Case. Trial by jury and verdict for the plaintiff. March 30, 1886, the
plaintiff, then eight years of age and unable to speak or understand
English, was injured by the machinery in operation in the defendants’
mill. The evidence tended to show that the plaintiff’s brother, who was
thirteen years of age, was employed as a back-boy in the mule-spinning
room, and that at his request the plaintiff went into the room for the
purpose of learning the work of a back-boy. The elder brother had no
authority to request or permit the plaintiff to go into the mill or to
instruct him, unless it could be inferred from the fact testified to by
him that “he saw other boys taking their brothers to learn, as he
understood from their motions.” The plaintiff was in the mill for a day
and a half until the accident, openly assisting more or less in the work
of the back-boys. He testified that he was directed by a person not the
overseer of the room, whom he saw “bossing” the other boys, to pick up
some bobbins and put some waste in a box. There was evidence tending to
show that Fulton, the overseer, who was in charge of and hired the
back-boys and other operatives in the room, passed in the alleys near
the plaintiff, and that he was well acquainted with his help. He
testified that he had no knowledge of the plaintiff’s presence in the
room until about two hours before the accident, when, aware that the boy
was not an employee, he directed him to go out, and thinking he might
not understand English, took him to an operative who spoke the
plaintiff’s language, whom he told to send the plaintiff out. The
plaintiff testified that Fulton spoke to him and, as he understood,
directed him to remove his vest, but that he did not understand he was
ordered to leave. There was no evidence except Fulton’s that the order
was communicated to the plaintiff or understood by him. There was no
evidence or claim that the machinery was improperly constructed or
operated, or that it was out of repair. The plaintiff’s hand was caught
in a gearing which the back-boys were instructed to avoid, but there was
no evidence that the plaintiff was given any instruction or warning
whatever. There was evidence tending to prove that boys under thirteen
years of age were not employed in the room, and that the place and
machinery were dangerous for a child of the plaintiff’s age. Subject to
exception, a motion that a verdict be directed for the defendants was
denied.

CARPENTER, C. J. On the evidence, the jury could not properly find that
the plaintiff was upon the premises of the defendants with their consent
or permission. Although there was evidence tending to show that other
back-boys had taken their brothers into the room for the purpose of
instructing them in the business, there was no sufficient evidence that
the fact that they did so was known to the defendants, and there was
evidence that on the first occasion brought to their knowledge they
objected. Upon this state of the evidence, a license by the
defendants—whether material or immaterial—for the plaintiff’s presence
in the room could not legitimately be inferred. The plaintiff was a
trespasser.

The defendant’s machinery was in perfect order and properly managed.
They were conducting their lawful business in a lawful way and in the
usual and ordinary manner. During the plaintiff’s presence they made no
change in the operation of their works or in their method of doing
business. No immediate or active intervention on their part caused the
injury. It resulted from the joint operation of the plaintiff’s conduct
and the ordinary and usual condition of the premises. Under these
circumstances, an adult in full possession of his faculties, or an
infant capable of exercising the measure of care necessary to protect
himself from the dangers of the situation, whether he was on the
premises by permission or as a trespasser, could not recover.

The plaintiff was an infant of eight years. The particular circumstances
of the accident—how or in what manner it happened that the plaintiff
caught his hand in the gearing—are not disclosed by the case. It does
not appear that any evidence was offered tending to show that he was
incapable of knowing the danger from putting his hand in contact with
the gearing, or of exercising a measure of care sufficient to avoid the
danger. Such an incapacity cannot be presumed. Stone _v._ Railroad, 115
N. Y. 104, 109–111; Hayes _v._ Norcross, 162 Mass. 546, 548; Mulligan
_v._ Curtis, 100 Mass. 512, 514; Cosgrove _v._ Ogden, 49 N. Y. 255, 258;
Kunz _v._ Troy, 104 N. Y. 344, 351; Lovett _v._ Railroad, 9 Allen, 557,
563.

An infant is bound to use the reason he possesses and to exercise the
degree of care and caution of which he is capable. If the plaintiff
could by the due exercise of his intellectual and physical powers have
avoided the injury, he is no more entitled to recover than an adult
would be under the same circumstances. The burden was upon him, and the
case might be disposed of upon the ground that he adduced no evidence
tending to show that he had not sufficient reason and discretion to
appreciate the particular risk of injury that he incurred and to avoid
it. But it may be that evidence tending to show the plaintiff’s
incapacity was adduced, and that the case is silent on the subject
because this particular question was not made by the defendants.

Assuming, then, that the plaintiff was incapable either of appreciating
the danger or of exercising the care necessary to avoid it, is he, upon
the facts stated, entitled to recover? He was a trespasser in a place
dangerous to children of his age. In the conduct of their business and
management of their machinery the defendants were without fault. The
only negligence charged upon or attributed to them is that, inasmuch as
they could not make the plaintiff understand a command to leave the
premises and ought to have known that they could not, they did not
forcibly eject him.

Actionable negligence is the neglect of a legal duty. The defendants are
not liable unless they owed to the plaintiff a legal duty which they
neglected to perform. With purely moral obligations the law does not
deal. For example, the priest and Levite who passed by on the other side
were not, it is supposed, liable at law for the continued suffering of
the man who fell among thieves, which they might and morally ought to
have prevented or relieved. Suppose A, standing close by a railroad,
sees a two-year-old babe on the track and a car approaching. He can
easily rescue the child with entire safety to himself, and the instincts
of humanity require him to do so. If he does not, he may, perhaps,
justly be styled a ruthless savage and a moral monster; but he is not
liable in damages for the child’s injury, or indictable under the
statute for its death. P. S., c. 278, s. 8.

“In dealing with cases which involve injuries to children, courts ...
have sometimes strangely confounded legal obligation with sentiments
that are independent of law.” Indianapolis _v._ Emmelman, 108 Ind. 530.
“It is important to bear in mind, in actions for injuries to children, a
very simple and fundamental fact, which in this class of cases is
sometimes strangely lost sight of, viz., that no action arises without a
breach of duty.” 2 Thomp. Neg. 1183, note 3. “No action will lie against
a spiteful man, who, seeing another running into danger, merely omits to
warn him. To bring the case within the category of actionable negligence
some wrongful act must be shown, or a breach of some positive duty;
otherwise, a man who allows strangers to roam over his property would be
held answerable for not protecting them against any danger they might
encounter whilst using the license.” Gautret _v._ Egerton, L. R. 2 C. P.
371, 375.

What duties do the owners owe to a trespasser upon their premises? They
may eject him, using such force and such only as is necessary for the
purpose. They are bound to abstain from any other or further intentional
or negligent acts of personal violence,—bound to inflict upon him by
means of their own active intervention no injury which by due care they
can avoid. They are not bound to warn him against hidden or secret
dangers arising from the condition of the premises (Redigan _v._
Railroad, 155 Mass. 44, 47, 48), or to protect him against any injury
that may arise from his own acts or those of other persons. In short, if
they do nothing, let him entirely alone, in no manner interfere with
him, he can have no cause of action against them for any injury that he
may receive. On the contrary, he is liable to them for any damage that
he by his unlawful meddling may cause them or their property. What
greater or other legal obligation was cast on these defendants by the
circumstance that the plaintiff was (as is assumed) an irresponsible
infant?

If landowners are not bound to warn an adult trespasser of hidden
dangers,—dangers which he by ordinary care cannot discover and,
therefore, cannot avoid,—on what ground can it be claimed that they must
warn an infant of open and visible dangers which he is unable to
appreciate? No legal distinction is perceived between the duties of the
owners in one case and the other. The situation of the adult in front of
secret dangers which by no degree of care he can discover, and that of
the infant incapable of comprehending danger, is in a legal aspect
exactly the same. There is no apparent reason for holding that any
greater or other duty rests upon the owners in one case than in the
other.

There is a wide difference—a broad gulf—both in reason and in law,
between causing and preventing an injury; between doing by negligence or
otherwise a wrong to one’s neighbor, and preventing him from injuring
himself; between protecting him against injury by another and guarding
him from injury that may accrue to him from the condition of the
premises which he has unlawfully invaded. The duty to do no wrong is a
legal duty. The duty to protect against wrong is, generally speaking and
excepting certain intimate relations in the nature of a trust, a moral
obligation only, not recognized or enforced by law. Is a spectator
liable if he sees an intelligent man or an unintelligent infant running
into danger and does not warn or forcibly restrain him? What difference
does it make whether the danger is on another’s land, or upon his own,
in case the man or infant is not there by his express or implied
invitation? If A sees an eight-year-old boy beginning to climb into his
garden over a wall stuck with spikes and does not warn him or drive him
off, is he liable in damages if the boy meets with injury from the
spikes? Degg _v._ Railway, 1 H. & N. 773, 777. I see my neighbor’s
two-year-old babe in dangerous proximity to the machinery of his
windmill in his yard, and easily might, but do not, rescue him. I am not
liable in damages to the child for his injuries, nor, if the child is
killed, punishable for manslaughter by the common law or under the
statute (P. S., c. 278, s. 8), because the child and I are strangers,
and I am under no legal duty to protect him. Now suppose I see the same
child trespassing in my own yard and meddling in like manner with the
dangerous machinery of my own windmill. What additional obligation is
cast upon me by reason of the child’s trespass? The mere fact that the
child is unable to take care of himself does not impose on me the legal
duty of protecting him in the one case more than in the other. Upon what
principle of law can an infant by coming unlawfully upon my premises
impose upon me the legal duty of a guardian? None has been suggested,
and we know of none.

An infant, no matter of how tender years, is liable in law for his
trespasses. 1 Ch. Pl. 86; 2 Kent, 241; Cool. Torts, 103; Poll. Torts,
46; 2 Add. Torts, 1126, 1153; 10 Am. & Eng. Enc. Law, 668, et seq.;
Humphrey _v._ Douglass, 10 Vt. 71; School District _v._ Bragdon, 23 N.
H. 507; Eaton _v._ Hill, 50 N. H. 235; Bullock _v._ Babcock, 3 Wend.
391; Williams _v._ Hays, 143 N. Y. 442, 446–451; Conklin _v._ Thompson,
29 Barb. 218; Neal _v._ Gillett, 23 Conn. 437; Huchting _v._ Engel, 17
Wis. 237. If, then, the defendants’ machinery was injured by the
plaintiff’s act in putting his hand in the gearing, he is liable to them
for the damages in an action of trespass and to nominal damages for the
wrongful entry. It would be no answer to such an action that the
defendants might by force have prevented the trespass. It is impossible
to hold that while the plaintiff is liable to the defendants in
trespass, they are liable to him in case for neglecting to prevent the
act which caused the injury both to him and them. Cases of enticement,
allurement, or invitation of infants to their injury, or setting traps
for them, and cases relating to the sufficiency of public ways, or to
the exposure upon them of machinery attractive and dangerous to children
have no application here.

Danger from machinery in motion in the ordinary course of business
cannot be distinguished from that arising from a well, pit, open
scuttle, or other stationary object. The movement of the works is a part
of the regular and normal condition of the premises. Sullivan _v._
Railroad, 156 Mass. 378; Holbrook _v._ Aldrich, 168 Mass. 15; Rodgers
_v._ Lees, 140 Pa. St. 475. The law no more compels the owners to shut
down their gates and stop their business for the protection of a
trespasser than it requires them to maintain a railing about an open
scuttle or to fence in their machinery for the same purpose. Benson _v._
Company, 77 Md. 535; Mergenthaler _v._ Kirby, 79 Md. 182. There was no
evidence tending to show that the defendants neglected to perform any
legal duty to the plaintiff. McGuiness _v._ Butler, 159 Mass. 233, 236,
238; Grindley _v._ McKechnie, 163 Mass. 494; Holbrook _v._ Aldrich, 168
Mass. 15, 17, and cases cited.

_Verdict set aside: judgment for the defendants._[135]

PARSONS, J., did not sit: the others concurred.

KEFFE _v._ MILWAUKEE AND ST. PAUL RAILWAY CO.
SUPREME COURT, MINNESOTA, JANUARY 11, 1875.
_Reported in 21 Minnesota Reports, 207._

The plaintiff, an infant, brought this action in the Court of Common
Pleas for Ramsey County to recover damages for injuries sustained while
playing upon a turn-table of defendant. The circumstances under which
plaintiff was injured are thus stated in the complaint: “That in
connection with said railroad” [of defendant] “defendant, before and up
to the month of October, 1867, used and operated a certain turn-table,
located on the lands of said defendant in said town of Northfield, which
said turn-table was so constructed and arranged as to be easily turned
around and made to revolve in a horizontal direction.”

After minutely describing the turn-table, the complaint proceeds: “That
said turn-table was situated in a public place, near to a passenger
depot of the defendant, and within 120 feet from the residence and home
of plaintiff. That said turn-table was unfastened and in no way
protected, fenced, guarded, or enclosed, to prevent it from being turned
around at the pleasure of small children, although the same could at all
times be readily locked and securely fastened.

“That said turn-table ... was in the possession and under the control of
defendant, and not necessary in operating said railroad and it was the
duty of said defendant to keep said turn-table fastened or in some way
protected, so that children could not readily have access thereto and
revolve the same. That the same was not so protected or fastened, and
that said turn-table, when left unfastened, was very attractive to young
children, and that while the same was being moved by children, and at
all times when left unfastened, it was dangerous to persons upon or near
it.

“That defendant had notice of all the aforesaid facts before and at the
time the injury herein named occurred to the plaintiff.

“That plaintiff, on September 11, 1867, was a child of tender years,
without judgment or discretion, he being at that date seven years old,
and that in consequence of the carelessness, negligence, and improper
conduct of said defendant, in not locking, enclosing, or otherwise
fastening said turn-table, and by the negligence, carelessness, and
improper conduct of said defendant, its agents, and servants, in
allowing said turn-table to be and remain unfastened, insecure, and
improperly put in motion, it was, at the date last aforesaid, revolved
by other children, over whom the parents and guardians of plaintiff had
no control, and without their knowledge, and, while being so revolved,
the plaintiff, being on said turn-table, had his right leg caught near
the knee, between the surface of said turn-table and said abutment or
wall, and between the iron rail on said turn-table and the iron rail on
said abutment or wall, and said leg was thereby so bruised, broken,
mangled, and fractured, as to render amputation necessary.”

The complaint further alleges that the injury was caused by defendant’s
negligence, and without any fault or negligence on the part of the
plaintiff, or his parents or guardians, etc.

The defendant having answered the complaint, and the action having been
called for trial, the defendant moved for judgment on the pleadings. The
motion was granted by Hall, J., and judgment entered accordingly, from
which plaintiff appealed.

_Bigelow, Flandrau & Clark_, for respondent, relied on the opinion of
Hall, J., and the cases therein cited.[136]

YOUNG, J. In the elaborate opinion of the Court below, which formed the
basis of the argument for the defendant in this Court, the case is
treated as if the plaintiff was a mere trespasser, whose tender years
and childish instincts were no excuse for the commission of the
trespass, and who had no more right than any other trespasser to require
the defendant to exercise care to protect him from receiving injury
while upon its turn-table. But we are of opinion that, upon the facts
stated in the complaint, the plaintiff occupied a very different
position from that of a mere voluntary trespasser upon the defendant’s
property, and it is therefore unnecessary to consider whether the
proposition advanced by the defendant’s counsel, viz., that a landowner
owes no duty of care to trespassers, is not too broad a statement of a
rule which is true in many instances.

To treat the plaintiff as a voluntary trespasser is to ignore the
averments of the complaint, that the turn-table, which was situate in a
public (by which we understand an open, frequented) place, was, when
left unfastened, very attractive, and, when put in motion by them, was
dangerous to young children, by whom it could be easily put in motion,
and many of whom were in the habit of going upon it to play. The
turn-table, being thus attractive, presented to the natural instincts of
young children a strong temptation; and such children, following, as
they must be expected to follow, those natural instincts, were thus
allured into a danger whose nature and extent they, being without
judgment or discretion, could neither apprehend nor appreciate, and
against which they could not protect themselves. The difference between
the plaintiff’s position and that of a voluntary trespasser, capable of
using care, consists in this, that the plaintiff was induced to come
upon the defendant’s turn-table by the defendant’s own conduct, and
that, as to him, the turn-table was a hidden danger,—a trap.

While it is held that a mere licensee “must take the permission with its
concomitant conditions,—it may be perils,” Hounsell _v._ Smyth, 7 C. B.
(N. S.) 731; Bolch _v._ Smith, 7 H. & N. 836, yet even such licensee has
a right to require that the owner of the land shall not knowingly and
carelessly put concealed dangers in his way. Bolch _v._ Smith, _per_
Channell and Wilde, BB.; Corby _v._ Hill, 4 C. B. (N. S.) 556, _per_
Willes, J.

And where one goes upon the land of another, not by mere license, but by
invitation from the owner, the latter owes him a larger duty. “The
general rule or principle applicable to this class of cases is that an
owner or occupant is bound to keep his premises in a safe and suitable
condition for those who come upon and pass over them, using due care, if
he has held out any inducement, invitation, or allurement, either
express or implied, by which they have been led to enter thereon.” _Per_
Bigelow, C. J., in Sweeny _v._ Old Colony & Newport R. Co., 10 Allen,
368, reviewing many cases. And see Indermaur _v._ Dames, L. R. 1 C. P.
274; L. R. 2 C. P. 311.

Now, what an express invitation would be to an adult, the temptation of
an attractive plaything is to a child of tender years. If the defendant
had left this turn-table unfastened for the purpose of attracting young
children to play upon it, knowing the danger into which it was thus
alluring them, it certainly would be no defence to an action by the
plaintiff, who had been attracted upon the turn-table and injured, to
say that the plaintiff was a trespasser, and that his childish instincts
were no excuse for his trespass. In Townsend _v._ Wathen, 9 East, 277,
it was held to be unlawful for a man to tempt even his neighbor’s dogs
into danger, by setting traps on his own land, baited with
strong-scented meat, by which the dogs were allured to come upon his
land and into his traps. In that case, Lord Ellenborough asks, “What is
the difference between drawing the animal into the trap by his natural
instinct, which he cannot resist, and putting him there by manual
force?” And Grose, J. says “A man must not set traps of this dangerous
description in a situation to invite his neighbor’s dogs, and, as it
were, to compel them by their instinct to come into the traps.”

It is true that the defendant did not leave the turn-table unfastened
for the purpose of injuring young children; and if the defendant had no
reason to believe that the unfastened turn-table was likely to attract
and to injure young children, then the defendant would not be bound to
use care to protect from injury the children that it had no good reason
to suppose were in any danger. But the complaint states that the
defendant knew that the turn-table, when left unfastened, was easily
revolved; that, when left unfastened, it was very attractive, and when
put in motion by them, dangerous, to young children; and knew also that
many children were in the habit of going upon it to play. The defendant
therefore knew that by leaving this turn-table unfastened and unguarded,
it was not merely inviting young children to come upon the turn-table,
but was holding out an allurement, which, acting upon the natural
instincts by which such children are controlled, drew them by those
instincts into a hidden danger; and having thus knowingly allured them
into a place of danger, without their fault (for it cannot blame them
for not resisting the temptation it has set before them), it was bound
to use care to protect them from the danger into which they were thus
led, and from which they could not be expected to protect themselves.

We agree with the defendant’s counsel that a railroad company is not
required to make its land a safe playground for children. It has the
same right to maintain and use its turn-table that any landowner has to
use his property. It is not an insurer of the lives or limbs of young
children who play upon its premises. We merely decide that when it sets
before young children a temptation which it has reason to believe will
lead them into danger, it must use ordinary care to protect them from
harm. What would be proper care in any case must, in general, be a
question for the jury, upon all the circumstances of the case.

The position we have taken is fully sustained by the following cases,
some of which go much farther in imposing upon the owner of dangerous
articles the duty of using care to protect from injury children who may
be tempted to play near or meddle with them, than it is necessary to go
in this case. Lynch _v._ Nurdin, 1 Q. B. 29; Birge _v._ Gardiner, 19
Conn. 507; Whirley _v._ Whiteman, 1 Head, 610.

It is true that, in the cases cited, the principal question discussed is
not whether the defendant owed the plaintiff the duty of care, but
whether the defendant was absolved from liability for breach of duty by
reason of the fact that the plaintiff was a trespasser, who, by his own
act, contributed to the injury; and the distinction is not sharply drawn
between the effect of the plaintiff’s trespass, as a bar to his right to
require care, and the plaintiff’s contributory negligence, as a bar to
his right to recover for the defendant’s failure to exercise such care
as it was his duty to use. But as a young child, whom the defendant
knowingly tempts to come upon his land, if anything more than a
technical trespasser, is led into the commission of the trespass by the
defendant himself, and thus occupies a position widely different from
that of an ordinary trespasser, the fact that the Courts, in the cases
referred to, assumed, instead of proving, that the defendant owed to a
young child, under such circumstances, a duty he would not owe to an
ordinary trespasser, for whose trespass he was not in any way
responsible, does not weaken the authority of those cases. And in
Railroad Co. _v._ Stout, 17 Wall. 657 (a case in all respects similar to
the present), the distinction insisted on by counsel is taken by Mr.
Justice Hunt, and the circumstance that the plaintiff was in some sense
a trespasser is held not to exempt the defendant from the duty of care.
In the charge of the learned circuit judge at the trial of the last
named case (reported under the title of Stout _v._ Sioux City & Pacific
R. Co., 2 Dillon, 294), the elements which must concur to render the
defendant liable, in a case like the present, are clearly stated.

In Hughes _v._ Macfie, 2 Hurlst. & Coltm. 744, and Mangan _v._ Atterton,
L. R. 1 Exch. 239, cited by defendant’s counsel, there was nothing to
show that the defendants knew or had reason to apprehend that the cellar
lid in the one case, or the crushing machine in the other, would be
likely to attract young children into danger. It must be conceded that
Hughes _v._ Macfie is not easily to be reconciled with Birge _v._
Gardiner, and that Mangan _v._ Atterton seems to conflict with Lynch
_v._ Nurdin; but whether correctly decided or otherwise, they do not
necessarily conflict with our decision in this case.

Much reliance is placed by defendant on Phila. & Reading R. Co. _v._
Hummell, 44 Penn. St. 375 and Gillis _v._ Penn. R. Co., 59 Penn. St.
129. In the first of these cases, the plaintiff, a young child, was
injured by coming upon the track while the cars were in motion. The only
negligence charged upon the defendant was the omission to give any
signal at or after the starting of the train. If the plaintiff had been
crossing the track, through one of the openings which the company had
suffered the people in the neighborhood to make in the train while
standing on the track, and the cars had then been run together upon him,
without any warning, the case would more nearly resemble the present;
but the facts, as they appear, show that the company used abundant care,
and that it had no reason to suppose that the plaintiff was exposed to
danger; and the decision is put upon the latter ground, although Strong,
J., delivering the opinion of the Court, uses language which lends some
support to the defendant’s contention in this case. Gillis _v._ Penn. R.
Co. was properly decided, on the ground that the company did nothing to
invite the plaintiff upon the platform, by the fall of which he was
injured, and that the platform was strong enough to bear the weight of
any crowd of people which the company might reasonably expect would come
upon it. Neither of these cases is an authority against, while a later
case in the same court, Kay _v._ Penn. R. Co., 65 Penn. St. 269, tends
strongly to support, the plaintiff’s right of action in this case; and
the recent case of Pittsburg, A. & M. Passenger R. Co. _v._ Caldwell, 74
Penn. St. 421, points in the same direction.

It was not urged upon the argument that the plaintiff was guilty of
contributory negligence, and we have assumed that the plaintiff
exercised, as he was bound to do, such reasonable care as a child of his
age and understanding was capable of using, and that there was no
negligence on the part of his parents or guardians, contributing to his
injury.

_Judgment reversed._[137]

FROST _v._ EASTERN RAILROAD
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1886.
_Reported in 64 New Hampshire Reports, 220._

Case, for personal injuries from the alleged negligence of the
defendants in not properly guarding and securing a turn-table. The
plaintiff, who sues by his father and next friend, was seven years old
when the accident occurred, June 23, 1877, and the action was commenced
June 7, 1884. Plea, the general issue and statute of limitations. A
motion for a nonsuit was denied, and the defendants excepted. Verdict
for the plaintiff. The facts are sufficiently stated in the opinion.

CLARK, J. The action is not barred by the statute of limitations. “Any
infant, married woman, or insane person may bring any personal actions
within two years after such disability is removed.” G. L., c. 221, s. 7.

As a general rule, in cases where a disability exists when the right of
action accrues, the statute does not run during the continuance of the
disability, and it has not commenced to run against the plaintiff.
Pierce _v._ Dustin, 24 N. H. 417; Little _v._ Downing, 37 N. H. 356. It
is said that the plaintiff’s next friend was under no disability, that
he could have brought the action at any time within six years after the
right of action accrued, and therefore the statute should apply to this
case. It is an answer to this suggestion that it is the infant’s action,
and the failure of the next friend to bring suit within six years is no
bar to the plaintiff’s right of action. Wood Lim. of Act. 476.

The motion for a nonsuit raises the question whether there was evidence
upon which the jury could properly find a verdict for the plaintiff.
Paine _v._ Railway, 58 N. H. 611. The ground of the action is, that the
defendants were guilty of negligence in maintaining a turn-table
insecurely guarded, which, being wrongfully set in motion by older boys,
caused an injury to the plaintiff, who was at that time seven years old,
and was attracted to the turn-table by the noise of the older and larger
boys turning and playing upon it. The turn-table was situated on the
defendants’ land, about sixty feet from the public street, in a cut with
high, steep embankments on each side; and the land on each side was
private property and fenced. It was fastened by a toggle, which
prevented its being set in motion unless the toggle was drawn by a
lever, to which was attached a switch padlock, which being locked
prevented the lever from being used unless the staple was drawn. At the
time of the accident the turn-table was fastened by the toggle, but it
was a controverted point whether the padlock was then locked. When
secured by the toggle and not locked with the padlock, the turn-table
could not be set in motion by boys of the age and strength of the
plaintiff.

Upon these facts we think the action cannot be maintained. The alleged
negligence complained of relates to the construction and condition of
the turn-table, and it is not claimed that the defendants were guilty of
any active misconduct towards the plaintiff. The right of a landowner in
the use of his own land is not limited or qualified like the enjoyment
of a right or privilege in which others have an interest, as the use of
a street for highway purposes under the general law, or for other
purposes under special license (Moynihan _v._ Whidden, 143 Mass. 287),
where care must be taken not to infringe upon the lawful rights of
others. At the time of his injury the plaintiff was using the
defendants’ premises as a playground without right. The turn-table was
required in operating the defendants’ railroad. It was located on its
own land so far removed from the highway as not to interfere with the
convenience and safety of the public travel, and it was not a trap set
for the purpose of injuring trespassers. Aldrich _v._ Wright, 53 N. H.
404. Under these circumstances, the defendants owed no duty to the
plaintiff; and there can be no negligence or breach of duty where there
is no act or service which the party is bound to perform or fulfil. A
landowner is not required to take active measures to insure the safety
of intruders, nor is he liable for an injury resulting from the lawful
use of his premises to one entering upon them without right. A
trespasser ordinarily assumes all risk of danger from the condition of
the premises; and to recover for an injury happening to him he must show
that it was wantonly inflicted, or that the owner or occupant, being
present and acting, might have prevented the injury by the exercise of
reasonable care after discovering the danger. Clark _v._ Manchester, 62
N. H. 577; State _v._ Railroad, 52 N. H. 528; Sweeny _v._ Railroad, 10
Allen, 368; Morrissey _v._ Railroad, 126 Mass. 377; Severy _v._
Nickerson, 120 Mass. 306; Morgan _v._ Hallowell, 57 Me. 375; Pierce _v._
Whitcomb, 48 Vt. 127; McAlpin _v._ Powell, 70 N. Y. 126; St. L., V. & T.
H. R. R. Co. _v._ Bell, 81 Ill. 76; Gavin _v._ Chicago, 97 Ill. 66; Wood
_v._ School District, 44 Iowa, 27; Gramlich _v._ Wurst, 86 Pa. St. 74;
Cauley _v._ P. C., & St. Louis Railway Co., 95 Pa. St. 398; Gillespie
_v._ McGowan, 100 Pa. St. 144; Mangan _v._ Atterton, L. R. 1 Ex. 239.
The maxim that a man must use his property so as not to incommode his
neighbor, only applies to neighbors who do not interfere with it or
enter upon it. Knight _v._ Abert, 6 Pa. St. 472. To hold the owner
liable for consequential damages happening to trespassers from the
lawful and beneficial use of his own land would be an unreasonable
restriction of his enjoyment of it.

We are not prepared to adopt the doctrine of Railroad Co. _v._ Stout, 17
Wall. 657, and cases following it, that the owner of machinery or other
property attractive to children is liable for injuries happening to
children wrongfully interfering with it on his own premises. The owner
is not an insurer of the safety of infant trespassers. One having in his
possession agricultural or mechanical tools is not responsible for
injuries caused to trespassers by careless handling, nor is the owner of
a fruit-tree bound to cut it down or enclose it, or to exercise care in
securing the staple and lock with which his ladder is fastened, for the
protection of trespassing boys who may be attracted by the fruit.
Neither is the owner or occupant of premises upon which there is a
natural or artificial pond, or a blueberry pasture, legally required to
exercise care in securing his gates and bars to guard against accidents
to straying and trespassing children. The owner is under no duty to a
mere trespasser to keep his premises safe; and the fact that the
trespasser is an infant cannot have the effect to raise a duty where
none otherwise exists. “The supposed duty has regard to the public at
large, and cannot well exist as to one portion of the public and not to
another, under the same circumstances. In this respect children, women,
and men are upon the same footing. In cases where certain duties exist,
infants may require greater care than adults, or a different kind of
care; but precautionary measures having for their object the protection
of the public must as a rule have reference to all classes alike.” Nolan
_v._ N. Y. N. H. & H. Railroad Co., 53 Conn. 461.

There being no evidence to charge the defendants with negligence, the
motion for a nonsuit should have been granted.

_Exceptions sustained._[138]

COOKE _v._ MIDLAND GREAT WESTERN RAILWAY OF IRELAND
IN THE HOUSE OF LORDS, MARCH 1, 1909.
_Reported in [1909] Appeal Cases, 229._

The appellant by his father brought an action against the respondents
for an injury sustained on the company’s land in Meath under the
circumstances stated in the head-note, the details of which are fully
discussed in the judgments in this House. At the trial before Lord
O’Brien, C. J., the jury found a verdict for the plaintiff for £550, and
judgment was entered accordingly. The jury found that the fence was in a
defective condition through the negligence of the defendants; that the
plaintiff was allured through the hedge and up to the turn-table by the
negligence of the defendants; and that it was by reason of the
defendants’ negligence and as the effective cause of it that the
misfortune occurred. That judgment was affirmed by the King’s Bench
Division in Ireland (Palles, C. B., and Johnson, J., Kenny, J.,
dissenting) and was afterwards set aside by the Court of Appeal in
Ireland (Sir S. Walker, L. C., FitzGibbon and Holmes, L.JJ.). Hence this
appeal by the plaintiff.[139]

LORD MACNAGHTEN. My Lords, the only question before your Lordships is
this: Was there evidence of negligence on the part of the company fit to
be submitted to the jury? If there was, the verdict must stand, although
your Lordships might have come to a different conclusion on the same
materials.

I cannot help thinking that the issue has been somewhat obscured by the
extravagant importance attached to the gap in the hedge, both in the
arguments of counsel and in the judgments of some of the learned judges
who have had the case under consideration. That there was a gap there,
that it was a good broad gap some three feet wide, is, I think, proved
beyond question. But of all the circumstances attending the case it
seems to me that this gap taken by itself is the least important. I have
some difficulty in believing that a gap in a roadside fence is a strange
and unusual spectacle in any part of Ireland. But however that may be, I
quite agree that the insufficiency of the fence, though the company were
bound by Act of Parliament to maintain it, cannot be regarded as the
effective cause of the accident.

The question for the consideration of the jury may, I think, be stated
thus: Would not a private individual of common sense and ordinary
intelligence, placed in the position in which the company were placed,
and possessing the knowledge which must be attributed to them, have seen
that there was a likelihood of some injury happening to children
resorting to the place and playing with the turn-table, and would he not
have thought it his plain duty either to put a stop to the practice
altogether, or at least to take ordinary precautions to prevent such an
accident as that which occurred?

This, I think, was substantially the question which the Lord Chief
Justice presented to the jury. It seems to me to be in accordance with
the view of the Court of Queen’s Bench in Lynch _v._ Nurdin, 1 Q. B. 29,
and the opinion expressed by Romer and Stirling, L.JJ., in McDowall _v._
Great Western Ry. Co., [1903] 2 K. B. 331.

The Lord Chancellor of Ireland puts Lynch _v._ Nurdin, 1 Q. B. 29,
aside. He holds that it bears no analogy to the present case, because
the thing that did the mischief there was a “cart in the public street—a
nuisance.” But no question of nuisance was considered in Lynch _v._
Nurdin. That point was not suggested. The ground of the decision is a
very simple proposition. “If,” says Lord Denman, “I am guilty of
negligence in leaving anything dangerous in a place where I know it to
be extremely probable that some other person will unjustifiably set it
in motion to the injury of a third, and if that injury should be so
brought about, I presume that the sufferer might have redress by action
against both or either of the two, but unquestionably against the
first.” If that proposition be sound, surely the character of the place,
though, of course, an element proper to be considered, is not a matter
of vital importance. It cannot make very much difference whether the
place is dedicated to the use of the public or left open by a careless
owner to the invasion of children who make it their playground.

I think the jury were entitled and bound to take into consideration all
the circumstances of the case—the mode in which the turn-table was
constructed; its close proximity to the wall by which the plaintiff’s
leg was crushed; the way in which it was left, unfenced, unlocked, and
unfastened; the history of this bit of ground and its position, shut off
as it was by an embankment from the view of the company’s servants at
the station, and lying half derelict. After the construction of the
embankment it served no purpose in connection with the company’s
undertaking, except that at one time a corner of it was used as a
receptacle for some timber belonging to the company, and afterwards as a
site for this turn-table. In other respects, and apart from these uses,
it seems to have been devoted or abandoned to the sustenance of the
railway inspector’s goat and the diversion of the youth of Navan. It is
proved that in spite of a notice board idly forbidding trespass it was a
place of habitual resort for children, and that children were frequently
playing with the timber, and afterwards with the turn-table. At the date
of the trial, twelve months after the accident, a beaten path leading
from the gap bore witness both to the numbers that flocked to the spot
and to the special attraction that drew children to it. It is remarkable
that not a single word of cross-examination as to either of these points
was addressed to the principal witnesses for the plaintiff, Tully, the
herd, and Gertrude Cooke, the plaintiff’s sister; nor was any
explanation or evidence offered on the part of the company. Now the
company knew, or must be deemed to have known, all the circumstances of
the case and what was going on. Yet no precaution was taken to prevent
an accident of a sort that might well have been foreseen and very easily
prevented. They did not close up the gap until after the accident. Then
it was the first thing thought of. But it was too late. They did not
summon any of the children who played there, or bring them before the
magistrates, as a warning to trespassers and a proof that they were
really in earnest in desiring to stop an objectionable practice which
had gone on so long and so openly. They did not have their turn-table
locked automatically in the way in which Mr. Barnes, C. E., whose
evidence is uncontradicted, says it is usual to lock such machines. The
table, it seems, was not even fastened. There was a bolt; but if Cooke,
the father of the plaintiff, is to be believed, the bolt was rusty and
unworkable. The jury were not bound to believe Fowler, a ganger in the
service of the company, in preference to Cooke. Fowler, after some
incautious admissions which the jury probably accepted as true, turned
round and showed himself, as the Chief Justice says, to be hostile to
the plaintiff. He prevaricated to such an extent that the jury were
justified in disregarding everything said by him with the view of
shielding his employers or saving himself from blame, whether it came
out of his own head, as the nonsense he talked about rat-holes, or was
suggested by counsel, as the expression of “hunting” children off the
ground.

* * * * *

It seems to me that the Chief Justice would have been wrong if he had
withdrawn the case from the jury. I think the jury were entitled, in
view of all the circumstances, on the evidence before them,
uncontradicted as it was, to find that the company were guilty of
negligence. I am therefore of opinion that the finding of the jury
should be upheld and the judgment under appeal reversed, with pauper
costs here and costs below; and I move your Lordships accordingly.

I will only add that I do not think that this verdict will be followed
by the disastrous consequences to railway companies and landowners which
the Lord Chancellor of Ireland seems to apprehend. Persons may not think
it worth their while to take ordinary care of their own property, and
may not be compellable to do so; but it does not seem unreasonable to
hold that, if they allow their property to be open to all comers,
infants as well as children of maturer age, and place upon it a machine
attractive to children and dangerous as a plaything, they may be
responsible in damages to those who resort to it with their tacit
permission, and who are unable, in consequence of their tender age, to
take care of themselves.[140]

BOLCH _v._ SMITH
IN THE EXCHEQUER, JANUARY 30, 1862.
_Reported in 7 Hurlstone & Norman, 736._

Action to recover for damage occurring as hereinafter stated. Pleas:
first, not guilty; second, various special pleas. Issues thereon.[141]

At the trial, before CHANNELL, B., at the last Hampshire Summer Assizes,
the following facts appeared: The plaintiff was a millwright employed in
the Government dock-yard at Portsmouth. The defendant was a contractor,
and had been engaged for some time in enlarging one of the docks. The
men employed in the dock-yard were not allowed to leave it during the
day, and water-closets had been built for their use. For the purpose of
going to these water-closets, they had permission to use certain paths
which crossed the dock-yard. The defendant had been permitted to erect a
mortar-mill for the purpose of his work, and he built an engine-house on
one side of one of these paths and the mortar-mill on the other side of
the path. A revolving shaft which connected the engine with the mill was
placed across the path about six inches above the level of the ground.
This shaft was partly covered with a few planks not joined together, and
forming an incline upwards from the ground, so that a barrow could be
wheeled over it. The shaft had been on that spot covered or uncovered
for five years. The plaintiff had gone along this path to one of the
water-closets, and whilst returning he accidentally stumbled when near
the shaft, which was in rapid motion, and on reaching out his hand to
save himself his left arm was caught by the shaft, and so much lacerated
that it was necessary to amputate it. There were two other paths by
which the plaintiff might have reached the water-closet; but the one he
used was the shortest and most convenient.

In the course of the defendant’s case it appeared that the shaft had
been fenced to some extent but not sufficiently.

At the close of the defendant’s case, the learned judge proposed to
leave it to the jury to assess the damages, supposing the plaintiff had
a right of action, and then to nonsuit the plaintiff, reserving leave
for him to move to set aside the nonsuit, and enter the verdict for the
amount assessed by the jury. The plaintiff’s counsel declined to accede
to this course; whereupon the learned judge left it to the jury to say:
first, whether the plaintiff was lawfully using the way in question on
the day of the accident; secondly, whether the defendant was guilty of
negligence in leaving the shaft in the state it was on that day. The
jury answered both questions in the affirmative, and they added that
they found “that the shaft was not sufficiently fenced;” and they
assessed the damages at 230_l._ A verdict having been entered for the
plaintiff for that amount.

_Coleridge_, in last Michaelmas Term, obtained a rule nisi for a new
trial, on the ground that the learned judge misdirected the jury in not
telling them that there was no obligation on the part of the defendant
to fence the shaft; and also that the verdict was against the evidence.

CHANNELL, B. I am of opinion that the rule must be absolute for a new
trial. [Remainder of opinion omitted.]

MARTIN, B. I am of the same opinion. The real objection to this action
is that the plaintiff has failed to establish that there was any
obligation or duty on the part of the defendant to have this path in any
other condition than it was at the time of the accident. That should
have been established in some way. If the plaintiff could have shown any
such obligation on the part of the defendant he would have made out a
case, but that was a condition precedent, and the plaintiff has wholly
failed to do so. The defendant had a right to erect the machinery, to
erect it in the place he did, and to work it in the manner he was doing.

Then what is the true condition of the plaintiff? It is said that he had
a right to go along the path across which the machinery was erected, for
he was a workman employed in the dock-yard, and had liberty to use the
water-closet. But that is a fallacious argument. It is true the
plaintiff had permission to use the path. Permission involves leave and
license, but it gives no _right_. If I avail myself of permission to
cross a man’s land, I do so by virtue of a license, not of a right. It
is an abuse of language to call it a right: it is an excuse or license,
so that the party cannot be treated as a trespasser. Inasmuch as there
was another way by which the plaintiff might have gone, but voluntarily
chose the one which was out of order, I think he has no right of action
against the defendant, and that he ought to have been nonsuited at the
trial.

WILDE, B. I am of the same opinion. It is of importance in all these
cases that the facts upon which the decisions are based should be made
plain. The plaintiff was one of a number of persons who obtained leave
and license from the dock-yard authorities to cross the yard from one
place to another. The defendant had permission from the same authorities
to put up certain machinery in the yard. The plaintiff while walking
along the usual track fell down, not by reason of any obstruction, but
in consequence of stumbling, and in trying to save himself, his arm came
in contact with a revolving shaft and was lacerated.

I will decide the case as if it were a question between the plaintiff
and the owners of the yard, because if they are not responsible for
putting up the shaft, a fortiori the defendant is not. Then, was there
any obligation on the owners of the yard not to put up machinery that
might be dangerous to persons crossing it? None of the facts tend to
show that any such obligation existed. If what was put up was an
obstruction to any person who used that way, the only consequence would
be that he would have to go another way. That being so, it appears to me
that this action cannot lie, because I agree that it is founded upon a
duty, and none exists.

That disposes of the case; but I will add that I do not mean to say that
if the defendant had made a hole in the yard, and had covered it in a
way that was insufficient, but which appeared to be sufficient, he would
not have been liable. But here there was nothing of that character. The
danger was open and visible. There was nothing which could be called a
“trap.”

POLLOCK, C. B., concurred.

_Rule absolute for a new trial._[142]

GAUTRET _v._ EGERTON
IN THE COMMON PLEAS, FEBRUARY 11, 1867.
_Reported in Law Reports, 2 Common Pleas, 371._

The declaration in the first of these actions stated that the defendants
were possessed of a close of land, and of a certain canal and cuttings
intersecting the same, and of certain bridges across the said canal and
cuttings, communicating with and leading to certain docks of the
defendants, which said land and bridges had been and were from time to
time used with the consent and permission of the defendants by persons
proceeding towards and coming from the said docks; that the defendants,
well knowing the premises, wrongfully, negligently, and improperly kept
and maintained the said land, canal, cuttings, and bridges, and suffered
them to continue and be in so improper a state and condition as to
render them dangerous and unsafe for persons lawfully passing along and
over the said land and bridges towards the said docks, and using the
same as aforesaid; and that Leon Gautret, whilst he was lawfully in and
passing and walking along the said close and over the said bridge, and
using the same in the manner and for the purpose aforesaid, by and
through the said wrongful, negligent, and improper conduct of the
defendants as aforesaid, fell into one of the said cuttings of the
defendants, intersecting the said close as aforesaid, and thereby lost
his life within twelve calendar months next before the suit: and the
plaintiff, as administratrix, for the benefit of herself, the widow of
the said Leon Gautret, and A. Gautret, &c., according to the statute in
such case made and provided, claimed 2,500_l._

The defendants demurred to the declaration, on the ground that “it does
not appear that there was any legal duty or obligation on the part of
the defendants to take means for preventing the said land, &c., being
dangerous and unsafe.” Joinder.

_Crompton_ (_Mellish, Q. C._, with him), in support of the demurrer.—To
maintain this action, the declarations ought to show a _duty_ in the
defendants to keep the canal, cuttings, and bridges in a safe condition,
and also that some invitation had been held out to the deceased to come
there, and that the thing complained of constituted a sort of trap.
Seymour _v._ Maddox, 16 Q. B. 326 (E. C. L. R. vol. 71), 19 L. J. Q. B.
525; Corby _v._ Hill, 4 C. B. N. S. 556 (E. C. L. R. vol. 93), 27 L. J.
C. P. 318. The declaration is entirely wanting in all these particulars.
It is not enough to show that the defendants were aware that the place
in question was in an unsafe condition, and that the public were in the
habit of passing along it. Hounsell _v._ Smyth, 7 C. B. N. S. 731, 29 L.
J. C. P. 203.

[WILLES, J. The declaration does not even state that the deceased
persons were unacquainted with the state of the place.]

_Herschell_, for the plaintiff Gautret.—The question raised upon this
declaration is, whether there is any duty on the part of the defendants
toward persons using their land as the deceased here did. That may be
negligence in the case of a licensee, which would not be negligence as
against a mere trespasser: and, if there can be any case in which the
law would imply a duty, it is sufficiently alleged here.

[WILLES, J. It may be the duty of the defendants to abstain from doing
any act which may be dangerous to persons coming upon the land by their
invitation or permission, as in Indermaur _v._ Dames, Law Rep. 1 C. P.
274.[143] So, if I employ one to carry an article which is of a
peculiarly dangerous nature, without cautioning him, I may be
responsible for any injury he sustains through the absence of such
caution. That was the case of Farrant _v._ Barnes, 11 C. B. N. S. 553,
31 L. J. C. P. 137. But, what duty does the law impose upon these
defendants to keep their bridges in repair? If I dedicate a way to the
public which is full of ruts and holes, the public must take it as it
is. If I dig a pit in it, I may be liable for the consequences: but, if
I do nothing, I am not.]

It was not necessary to specify the nature of the negligence which is
charged: it was enough to allege generally a duty and a breach of it.
Knowing the bridge to be unsafe, it was the duty of the defendants not
to permit the public to use it. In Bolch _v._ Smith, 7 H. & N. 736, 31
L. J. Ex. 201, the defect in the fencing of the shaft was apparent: but
the judgments of Channell and Wilde, BB., seem to concede that, if there
had been a concealed defect, the action would have been maintainable.
That shows that there is some duty in such a case as this.

_Potter_, for the plaintiff Jones, submitted that the implied request on
the part of the defendants to persons having occasion to go to the docks
to pass by the way in question, raised a duty in them to keep it in a
safe condition.

WILLES, J. I am of opinion that our judgment must be for the defendants
in each of these cases. The argument urged on behalf of the plaintiffs,
when analyzed, amounts to this, that we ought to construe the general
words of the declaration as describing whatever sort of negligence the
plaintiffs can prove at the trial. The authorities, however, and reason
and good sense, are the other way. The plaintiff must, in his
declaration, give the defendant notice of what his complaint is. He must
recover _secundum allegata et probata_. What is it that a declaration of
this sort should state in order to fulfil those conditions? It ought to
state the facts upon which the supposed duty is founded, and the duty to
the plaintiff with the breach of which the defendant is charged. It is
not enough to show that the defendant has been guilty of negligence,
without showing in what respect he was negligent, and how he became
bound to use care to prevent injury to others. All that these
declarations allege is, that the defendants were possessed of land, and
of a canal and cuttings intersecting the same, and of certain bridges
across the canal and cuttings communicating with and leading to certain
docks of theirs; that they allowed persons going to and from the docks,
whether upon the business or for the profit of the defendants or not, to
pass over the land; and that the deceased persons, in pursuance of and
using that permission, fell into one of the cuttings, and so met their
deaths. The consequences of these accidents are sought to be visited
upon these defendants, because they have allowed persons to go over
their land, not alleging it to have been upon the business or for the
benefit of the defendants, or as the servants or agents of the
defendants; nor alleging that the defendants have been guilty of any
wrongful act, such as digging a trench on the land, or misrepresenting
its condition, or anything equivalent to laying a trap for the unwary
passengers; but simply because they permitted these persons to use a way
with the condition of which, for anything that appears, those who
suffered the injury were perfectly well acquainted. That is the whole
sum and substance of these declarations. If the docks to which the way
in question led were public docks, the way would be a public way, and
the township or parish would be bound to repair it, and no such
liability as this could be cast upon the defendants merely by reason of
the soil of the way being theirs. That is so not only in reason but also
upon authority. It was so held in Robbins _v._ Jones, 15 C. B. N. S.
221, 33 L. J. C. P. 1, where a way having been for a number of years
dedicated to the public, we held that the owner of the adjoining house
was not responsible for death resulting to a person from the giving way
of the pavement, partly in consequence of its being over-weighted by a
number of persons crowding upon it, and partly from its having been
weakened by user. Assuming that these were private docks, the private
property of the defendants, and that they permitted persons going to or
coming from the docks, whether for their own benefit or that of the
defendants, to use the way, the dedication of a permission to use the
way must be taken to be in the character of a gift. The principle of law
as to gifts is, that the giver is not responsible for damage resulting
from the insecurity of the thing, unless he knew its evil character at
the time, and omitted to caution the donee. There must be something like
fraud on the part of the giver before he can be made answerable. It is
quite consistent with the declarations in these cases that this land was
in the same state at the time of the accident that it was in at the time
the permission to use it was originally given. To create a cause of
action, something like fraud must be shown. No action will lie against a
spiteful man who, seeing another running into a position of danger,
merely omits to warn him. To bring the case within the category of
actionable negligence, some wrongful act must be shown, or a breach of
some positive duty: otherwise, a man who allows strangers to roam over
his property would be held to be answerable for not protecting them
against any danger which they might encounter whilst using the license.
Every man is bound not wilfully to deceive others, or do any act which
may place them in danger. It may be, as in Corby _v._ Hill, 4 C. B. N.
S. 556, 27 L. J. C. P. 318, that he is responsible if he puts an
obstruction on the way which is likely to cause injury to those who by
his permission use the way; but I cannot conceive that he could incur
any responsibility merely by reason of his allowing the way to be out of
repair. For these reasons, I think these declarations disclose no cause
of action against the defendants, and that the latter are therefore
entitled to judgment.

KEATING, J. I am of the same opinion. It is not denied that a
declaration of this sort must show a duty and a breach of that duty. But
it is said that these declarations are so framed that it would be
necessary for the plaintiffs at the trial to prove a duty. I am,
however, utterly unable to discover any duty which the defendants have
contracted towards the persons whom the plaintiffs represent, or what
particular breach of duty is charged. It is said that the condition of
the land and bridges was such as to constitute them a kind of trap. I
cannot accede to that. The persons who used the way took it with all its
imperfections.

_Herschell_ asked and obtained leave to amend within ten days, on
payment of costs; otherwise judgment for the defendants.

_Judgment accordingly._

CAMPBELL _v._ BOYD
SUPREME COURT, NORTH CAROLINA, FEBRUARY TERM, 1883.
_Reported in 88 North Carolina Reports, 129._

Civil action tried at Fall Term, 1882, of Beaufort Superior Court,
before Gilliam, J.

The defendant appealed.

SMITH, C. J. The defendant owns and operates a mill, that has been built
and used for one hundred years, at the head of Pungo creek. A few yards
below its site the creek divides, and its waters flow in two separate
streams. Along its course on either side run parallel public roads each
two miles distant, and from them have been constructed private ways
leading up to and meeting at the mill, and affording convenient access
from the roads to it. One of these ways was opened by former
proprietors, and the other in the year 1867, by the defendant.

In 1875 or 1876, the defendant, with other owners of the intervening
land, united in opening a connecting way, between those leading from the
public roads, from near points in each, so as to form a direct passway
across the two divergent streams from one road to the other, without
going up to the mill. Over these waters they also constructed bridges.
While this direct route was opened mainly for the convenience of the
defendant and his associates, whose lands were traversed, it was also
used as well by the public with full knowledge of the defendant, and
without objection from any one in passing between the roads.

In February, 1882, the plaintiff, with his horse, while in the use of
this connecting way and passing one of the bridges, broke through, and
both were precipitated into the creek, and the damage sustained for the
redress of which the suit is brought.

The flooring of the bridge was sound, and there was no visible
indication of weakness or decay to put a person passing over it on his
guard. But the timbers underneath, and hidden by the floor, were in a
rotten and unsound condition, and of this the defendant had full
knowledge before the disaster.

He was at his mill and saw what occurred, and going up to the place
remarked to the plaintiff that when he saw him about to enter the bridge
he thought of calling him to stop, but did not do so; that the bridge
was unsafe, and he regretted he did not stop the plaintiff from
crossing.

These are the material facts found by the judge, under the consent of
parties that he should pass upon the evidence and ascertain the facts of
the case, and our only inquiry is upon the correctness of his ruling
that the defendant is liable in damages to the plaintiff, and from which
the defendant appeals.

The only case in our reports bearing upon the point is that of
Mulholland _v._ Brownrigg, 2 Hawks, 349. There, the defendant’s millpond
overflowed parts of the public road, and hollow bridges had been
erected, but by whom, did not appear; nor was it shown that they were
built at the expense of the public. This condition of things had existed
for twenty years, and the mill had been owned and operated by the
defendant for the space of five years. The successive mill proprietors
had kept the overflowed bed of the road and the bridges in repair. The
plaintiff’s wagon, loaded with goods, passing a bridge, broke through,
in consequence of its decayed state, and the goods were injured by the
water. The action was for this injury. It was declared by the Court that
as a nuisance was created by the flooding of the road, and the defendant
had undertaken to remedy it in constructing the bridges, it was his
duty, as that of preceding proprietors of the mill, to maintain them in
a proper condition of repair, and ensure the safety of those persons who
in using the road had to pass over them, and that the damage having
resulted from his negligence he was liable to the plaintiff. The
proposition is asserted, that inasmuch as the defendant has undertaken
to remedy a nuisance of his own creating, by constructing the bridge, he
undertakes also and is bound to keep it in sufficient repair, and is
answerable for the consequences of his neglect to do so.

The principle of law, in more general terms and with a wider scope, is
thus expressed by Hoar, J., in Combs _v._ New Bed. Con. Co., 102 Mass.
584. “There is another class of cases in which it has been held that, if
a person allows a dangerous place to exist in premises occupied by him,
he will be responsible for injury caused thereby, to any other person
entering upon the premises by his invitation and procurement, express or
implied, and not notified of the danger, if the person injured is in the
use of due care.”

“The principle is well settled,” remarks Appleton, C. J., “that a person
injured, without neglect on his part, by a defect or obstruction in a
way or passage over which he has been induced to pass for a lawful
purpose, by an invitation express or implied, can recover damages for
the injury sustained, against the individual so inviting, and being in
default for the neglect.” Tobin _v._ P. S. & P. R. R., 59 Maine, 188.

Several illustrations of the principle in its different applications
will be found in Wharton on Negligence, § 826, and following.

The facts of the present case bring it within the rule thus enunciated.
The way was opened by the defendant and his associates; primarily,
though it was for his and their accommodation, yet, permissively, to the
general travelling public. It has, in fact, been thus used, and known to
the defendant to be thus used, with the acquiescence of himself and the
others; and under these circumstances it may fairly be assumed to be an
invitation to all who have occasion thus to use it; and hence a
voluntary obligation is incurred to keep the bridges in a safe
condition, so that no detriment may come to travellers.

Reparation is an inseparable incident of its construction, and, as the
obligation to repair rests on no other, the liability for neglect must
rest on those who put the bridges there and invited the public to use
them.

It is true the way might have been closed, or the public prohibited by
proper notices from passing over it, and no one could complain of the
exercise of the right to do so; but as long as the way is left open and
the bridges remain for the public to use, it is incumbent on those who
constructed and maintain them to see that they are safe for all.

The law does not tolerate the presence over and along a way in common
use, of structures apparently sound, but in fact ruinous, like
man-traps, inviting travellers to needless disaster and injury. The duty
of reparation should rest on some one, and it can rest on none others
but those who built and used the bridges, and impliedly at least invite
the public to use them also. For neglect of this duty they must abide
the consequences.

We hold, therefore, that there is no error, and the judgment must be
affirmed.

_No error._

_Affirmed._[144]

GALLAGHER _v._ HUMPHREY
IN THE QUEEN’S BENCH, JUNE 14, 1862.
_Reported in 6 Law Times Reports, New Series, 684; S. C. 10 Weekly
Reporter, 664._[145]

Declaration. That the defendant was possessed of a crane fixed upon the
New Hibernia Wharf, in a certain passage called Montague Close,
Southwark, along which passage the plaintiff and others were permitted
to pass, repass, and use the same as a way to certain wharves; that the
crane was used by the defendant and his servants to raise and lower
goods over the passage; that the plaintiff was, with the permission of
the proprietors of the passage, lawfully passing along the said passage
to the said wharves; yet the defendant, by himself and his servants, so
negligently, &c. managed, directed, and conducted themselves that by and
through such neglect, &c., a part of said crane broke, whilst the
defendant, by his servants, was using the same, and certain goods fell
upon the plaintiff whilst he was passing along, &c. and broke both his
legs, &c.

Pleas: 1. Not guilty. 2. That the plaintiff and others were not
permitted by the proprietors of the said passage to pass, repass, and
use the said passage as a way from a highway to certain wharves, as in
the declaration charged. 3. That the plaintiff was not, with the
permission of the proprietors of the said passage, lawfully passing
along the said passage from the said highway to the said wharves, as in
the declaration alleged.

Issue on the said pleas.

At the trial before Blackburn, J., at the Croydon Summer Assizes, 1861,
it was proved that the plaintiff, the son of a laborer employed in the
erection of West Kent Wharf, under a contractor for the defendant’s
father, had, on the day when the accident happened, taken his father’s
dinner, according to his usual custom, to West Kent Wharf, and on his
return was obliged to pass under a crane erected on the defendant’s
(Hibernia) wharf, and there employed in lowering barrels of sugar. As he
was passing the chain broke, and 12 cwt. of sugar fell upon him,
inflicting the injuries complained of. The breakage of the chain was
caused by negligence in the mode of applying the breaks, for, after the
sugar had been attached the chain of the crane was allowed to run, and
then the man suddenly put on the break and the jerk caused the weight to
rise and fall and the chain to break. Montague Close is approached by
steps from London Bridge, the gate to which was usually opened very
early in the morning, and numbers of persons, to the knowledge of the
defendant, used to pass along the passage, and no objection was made to
persons using the way if on legitimate business. The judge left the
following questions to the jury: 1st, Was the accident caused by the
negligence of the defendant, or was it a pure accident over which no one
could have any control? 2d, Could the boy by reasonable care have
avoided the accident? 3d, Were the plaintiff and others permitted to go
up Montague Close by the owners? 4th, Did the defendant on the evidence
as disclosed tacitly give permission to the plaintiff to pass that way?
5th, Was the boy going to the wharf for a legitimate purpose? The jury
having answered all the questions in favor of the plaintiff, a verdict
was entered for him, with leave for the defendant to move to set it
aside and enter a verdict on the second and third issues. The damages
were assessed at £100.

A rule _nisi_ having been obtained calling on the plaintiff to show
cause why the verdict should not be entered for the defendant on the
second and third issues,—

_Shee_, Serjt., (_Grady_ with him,) showed cause. On the form of the
rule as obtained the plaintiff is clearly entitled to succeed, as there
was evidence that the defendant did by his acts tacitly give permission
to the boy to pass along the close for a lawful purpose, and the jury
have so found. But the plaintiff is also entitled to succeed on the
broader ground. In Corby _v._ Hill, 4 C. B. N. S. 556, it was held that
the defendant was liable for the negligence of his servant in placing
materials in a dangerous position, and without notice, on a private road
along which persons were accustomed to pass by leave of the owners; and
in Southcote _v._ Stanley, 25 L. J. 339, Ex.,[146] a visitor to a
person’s house was held entitled to recover for injuries caused by
opening a glass door which was insecure, and which it was necessary for
him to open. (He was then stopped by the Court.)

_Petersdorff_, Serjt., (_Bridge_ with him,) in support of the rule.
Montague Close was the defendant’s private property, and no one had any
right to be there without his express or implied permission. The
lowering heavy goods from the warehouses by cranes is a manifestly
dangerous business, and persons using the way took upon themselves
whatever risks might be incidental to that business. In Hounsell _v._
Smyth, 7 C. B. N. S. 743, where the defendant was held not to be liable
for leaving a quarry unfenced on waste land across which the public were
allowed to pass, Williams, J., said: “No right is averred, but merely
that the owners allowed persons, for diversion or business, to go across
the waste without complaint; that is, that they were not so churlish as
to interfere with any one who went across. But a person so using the
waste has no right to complain of any excavation he may find there; he
must accept the permission with its concomitant conditions, and it may
be its perils.” [BLACKBURN, J. Have you any authority that persons so
using the way take upon themselves the negligence of the servants about
the place?] In Bolch _v._ Smith, 31 L. J. 201, Ex., where workmen
employed in a dock-yard were permitted to use a place as a way on which
revolving machinery had been erected, it was held that the right so to
use the place was only the right not to be treated as a trespasser, and
that there was no obligation to fence the machinery, and no liability
for insufficiently fencing it. [COCKBURN, C. J. There was the ordinary
state of things in that case, and no superadded negligence.]

COCKBURN, C. J. I doubt whether on the pleadings and this rule it is
competent to enter into the question of negligence, and whether the
whole matter does not turn upon the question whether permission was or
was not given to the plaintiff to pass along the way. But I should be
sorry to decide this case upon that narrow ground. I quite agree that a
person who merely gives permission to pass and repass along his close is
not bound to do more than allow the enjoyment of such permissive right
under the circumstances in which the way exists; that he is not bound,
for instance, if the way passes along the side of a dangerous ditch or
along the edge of a precipice, to fence off the ditch or precipice. The
grantee must use the permission as the thing exists. It is a different
question, however, where negligence on the part of the person granting
the permission is superadded. It cannot be that, having granted
permission to use a way subject to existing dangers, he is to be allowed
to do any further act to endanger the safety of the person using the
way. The plaintiff took the permission to use the way subject to a
certain amount of risk and danger, but the case assumes a different
aspect when the negligence of the defendant—for the negligence of his
servants is his—is added to that risk and danger. The way in question
was a private one leading to different wharves. On part of the way a
wharf was being constructed or repaired, and the plaintiff’s father was
employed upon that work. It was the father’s habit not to go home to his
meals, and the boy used to take them to him at the wharf, and on this
occasion was passing along carrying his father’s dinner. The plaintiff
was therefore passing along on a perfectly legitimate purpose, and the
evidence is that the defendant permitted the way to be used by persons
having legitimate business upon the premises. That being so, the
defendant places himself by such permission under the obligation of not
doing anything by himself or his servants from which injury may arise,
and if by any act of negligence on the part of himself or his servants
injury does arise, he is liable to an action. That is the whole
question. The plaintiff is passing along the passage by permission of
the defendant, and though he could only enjoy that permission under
certain contingencies, yet when injury arises not from any of those
contingencies, but from the superadded negligence of the defendant, the
defendant is liable for that negligence as much as if it had been upon a
public highway.

WIGHTMAN, J. The rule in this case was obtained on a very narrow ground.
The declaration having alleged that the plaintiff and others were
permitted to pass, repass, and use the way in question, and that the
plaintiff was there with the permission of the proprietors of the
passage lawfully passing along the passage, the defendant took issue on
the fact whether such right to pass along the passage was permitted by
the defendant. I think that there was evidence to show that the
plaintiff had the permission of the defendant to use the way, and that
he was lawfully there at the time of the accident. I entirely agree with
my Lord Chief Justice that the plaintiff is also entitled to succeed on
the larger ground. It appears to me that such a permission as is here
alleged may be subject to the qualification that the person giving it
shall not be liable for injuries to persons using the way arising from
the ordinary state of things, or of the ordinary nature of the business
carried on; but that is distinguishable from the case of injuries wholly
arising from the negligence of that person’s servants.

CROMPTON, J. I am of the same opinion. I think we should look not only
to the grounds upon which this rule was granted, but to the real defence
set up by my brother Petersdorff. That defence is, in effect, that the
plaintiff was using the way only under the qualified permission that he
should be subject to any negligence of the plaintiff or his servants. If
that defence be sustainable upon the general issue, or otherwise, we
should see whether it is made out, and I am of opinion that it is not
made out. I quite agree with what has fallen from my Lord and my brother
Wightman. There may be a public dedication of a way, or a private
permission to use it subject to a qualification; for example, subject to
the danger arising from a stone step or a projecting house; and in such
a case the public, or the persons using the way, take the right to use
it subject to such qualification; but they are not thereby to be made
subject to risks from what may be called active negligence. Whenever a
party has a right to pass over certain ground, if injury occurs to him
while so passing from negligence, he has a right to compensation. The
argument of my brother Petersdorff fails therefore upon this ground. I
think, too, that it is doubtful whether even the fact that the injured
person was present unlawfully would excuse negligence, though it would
be an element in determining what is negligence, and what is not. In the
present case, however, that question does not arise, as there is no
doubt the plaintiff was there upon a legitimate errand.

BLACKBURN, J. I am of the same opinion. If the substantial defence
raised existed I am not sure but what it could be raised under the
present pleadings, and the leave reserved; but at any rate I think we
could amend the pleadings, if necessary, to raise it. But I do not think
that any such defence exists here. The plaintiff seeks to recover for
the negligence of the defendant. Now, the existence of negligence
depends upon the duty of the party charged with it. I concur with the
judgment of the Court of Exchequer in Bolch _v._ Smith that, when
permission is given to a person to pass through a yard where dangerous
machinery is at work, no duty is cast upon the person giving such
permission to fence the machinery against the person permitted so to
pass. That decision does not touch the present case, which falls rather
within the remark then made by my brother Wilde: “If persons in the
condition of the defendant had left anything like a trap in route used
on the premises, I am far from saying they would not be liable.” This is
more like the case of Corby _v._ Hill, where the matter placed upon the
road is called a trap set for persons using it; and it is clear that
when one gives another permission to pass over his land, it is his duty
not to set a trap for him. Here the boy was passing upon a legitimate
errand while the defendant’s servants were employed in lowering weights.
If he had sustained any injury by a weight descending, without any
negligence of the defendant’s servants, there is no doubt that he could
not recover, but he suffered through the negligence of the persons
lowering the bags, who were well aware that people were in the habit of
passing below, and that danger would arise if the chain broke. I think,
therefore, that it was the duty of the defendant and his servants to use
ordinary care that the chain should not break. The jury have found that
they neglected that duty, and I do not disagree with their finding. Our
decision does not conflict with the judgment of the Court of Exchequer
in Bolch v. Smith, or of the Common Pleas in Hounsell _v._ Smyth.

_Rule discharged._[147]

CARSKADDON _v._ MILLS
IN THE APPELLATE COURT, INDIANA, MAY TERM, 1892.
_Reported in 5 Indiana Appellate Court Reports, 22._

Action for damage to plaintiff’s horse.[148] Trial by the court. The
case made by plaintiff’s evidence was in substance as follows:—

Defendant purchased a lot of land in October, 1890. Across this lot ran
a road leading from one street to another, having a well-defined track
made by wagons, horses, etc. The road was not a public highway, but had
been used by the travelling public generally for a period of from five
to fifteen years. Defendant’s lot was not fenced on the front and rear,
the direction in which the road ran, but was fenced on the sides. After
building a house on the lot, defendant “informed” the people travelling
over this roadway not to use it any longer for such purpose; but no heed
was paid to this. In the latter part of December, 1890, in order the
more effectually to stop the travel over the lot, the defendant
stretched a strand of barbed wire across the rear end of the lot, about
three feet above the ground and at right angles, or nearly so, with said
road. The entire fence was upon the appellee’s lot. No notice of any
kind was given of this obstruction otherwise than as it advertised
itself. The wire could not be seen in the dark of night and only a short
distance—twenty to twenty-five feet—in daylight. There were no posts
that could be seen from the road in the night when the accident
hereinafter alluded to occurred. The appellant, who lived in that
community, had frequently travelled over the road leading across this
lot, and had no notice or knowledge of its being closed up with the
wire. The last time before the accident when he passed over the lot was
in September or October, 1890. At about 6 o’clock on the evening of
January 1, 1891, after it had become too dark to see this wire, the
appellant attempted to drive across this lot, in the road, to perform
some legitimate errand on the other side. Not knowing of the presence of
the wire, he drove his horse briskly ahead of him until the animal came
up suddenly against the barbs, cutting a gash in its front leg four to
five inches in length and two inches deep, severing the frontal muscle,
from which the horse was injured, to the damage of the appellant.

When the appellant had closed his evidence, the learned judge observed
that he had examined the law of the case, and saw no reason why a man
could not fence in his own land, on his own ground, and that, [if] “a
travelling man over such property taking the license into his own hand,
without invitation or inducement, because others do so, suffers injury,
he must put up with it.”

The judge ruled that plaintiff’s evidence did not make out a _prima
facie_ right to recover; and found for defendant; denying plaintiff’s
motion for a new trial. Plaintiff appealed.

REINHARD, C. J. [The learned judge said that a license may be created
either by parol or by acquiescence in the use of the property for the
purpose in question without objection. He _held_ that plaintiff was
_prima facie_ a licensee, and not a trespasser.]

A mere license, however, to travel over the land of another may be
revoked at any time at the pleasure of the licensor. Parish _v._ Kaspar,
109 Ind. 586; Simpson _v._ Wright, 21 Ill. App. 67; 13 Am. & Eng. Encyc.
of Law, 555.

Where the license is once proved, however, or a _prima facie_ case of
such license has been made out, it then devolves upon the party
asserting a revocation to prove it. Blunt _v._ Barrett, 54 N. Y. Sup.
548.

Consequently if the license in the present case was claimed to have been
discontinued or revoked, the burden was upon appellees to show that
fact.

Was such revocation established, or was there any evidence from which
the court could infer the same?

The transfer of the property, or the fencing of the same, may, under
ordinary circumstances, be sufficient to amount to a revocation.
Ordinarily a man has a right to use his own property as he pleases, but
at the same time this gives him no right to use it to the detriment or
injury of his neighbor. We think the erection of an ordinary fence
around the lot, one that was not calculated to inflict injury, was
proper and right, and it was the privilege of the appellees to thus
close up their premises without asking of any one the permission to do
so. But whenever they undertook to inclose their property under
circumstances that made it dangerous to those likely to pass over it,
and which the appellees must anticipate would incur injury by it, it
became their duty, if such dangerous means must be employed to
accomplish the purpose, to give some sort of warning.

Thus it was held in Houston, etc., R. W. Co. _v._ Boozer, 70 Tex. 530,
that if the owner of the land has been accustomed to permit others to
use his property to travel over to such an extent as to produce a
confident belief that the use will not be objected to, he must not
mislead them by failing to give a proper warning of his intention to
recall the permission. See, also, Cornish _v._ Stubbs, 5 L. R. C. P.
334; Mellor _v._ Watkins, L. R. 9 Q. B. 400.

While we grant the clear right of the appellees to revoke the license,
we assert as emphatically that they must do so in a manner not
calculated under ordinary circumstances to inflict injury unnecessarily.
Although a licensee acquires no interest, as the term is usually
employed, nor property right in the real estate over which he is allowed
to travel, he yet has the right not to be wilfully or even recklessly
injured by the acts of the owner. It cannot be said truthfully that the
owner does not owe _some_ duty to a licensee.

At the time of the stretching of the wire the appellees must have known
that the public would continue to travel over this lot until in some way
prevented from doing so. They must have known further that a single
strand of wire, without posts at the roadside, or other means calculated
to attract the attention of passers-by, could not be seen in the dark,
and was a dangerous obstruction, liable to injure those coming in
contact with it. They must, therefore, have anticipated just such
results as the one that happened to the appellant. It was their clear
duty, consequently, in case they desired to make use of the dangerous
wire, to shut out the public from going over their lot, to give some
warning by which the presence of the wire might be detected. Had they
used an ordinary fence, one constructed out of material not necessarily
dangerous to life and limb even if encountered in the dark, the case
might be otherwise, and notice might not have been necessary. But the
stretching of the barbed wire, without notice, under the circumstances
was, we think, a plain violation of duty.

The case made by the evidence is one of more than mere passive
negligence. In that class of cases it is well enough settled that there
is no liability to a mere licensee. Thus where the owner of premises
inadvertently leaves unguarded a pit, hatchway, trap-door, cistern, or
other dangerous opening, and one who is present merely by permission and
not by invitation, express or implied, falls into the opening and is
injured, he cannot recover, as, in such case, he enjoys the license
subject to the risks. Thiele _v._ McManus, 3 Ind. App. 132. But while an
owner may not be liable to one who is thus injured by mere inattention
and neglect of the owner, there could be no doubt of his liability if it
were shown that the obstruction was placed there purposely to keep the
licensee from entering the premises, or for the very purpose of
inflicting injury if an attempt be made to cross. As well might an owner
give permission to his neighbor to travel over his field and then set a
trap to hurt him.

Where the owner of ground digs a pit or erects other dangerous
obstructions at a place where it is probable that persons or animals may
go and become injured, without using proper care to guard the same, it
is well settled in this state that there is a liability, and that the
owner must respond in damages for any injury incurred by such
negligence. Young _v._ Harvey, 16 Ind. 314; Graves _v._ Thomas, 95 Ind.
361; Mayhew _v._ Burns, 103 Ind. 328; Penso _v._ McCormick, 125 Ind.
116.

A barbed wire fence is not of itself an unlawful one, and the building
of such along a public highway is not necessarily a negligent act; but
yet, even in such case as that, there may be circumstances under which a
person building such a fence, in a negligent manner, will be held liable
for damages caused thereby. Sisk _v._ Crump, 112 Ind. 504. All these
cases proceed upon the assumption that the party whose negligence caused
the injury owed the other some duty which he failed to perform, for,
after all, negligence is nothing more nor less than the failure to
discharge some legal duty or obligation.

Even trespassers have some rights an owner is bound to respect. If a
person, without permission, should attempt to cross the field of
another, and tramp down his growing grain, it would not be contended, we
apprehend, that this gave the owner any right to kill the trespasser, or
even to seriously injure him unnecessarily. The use of spring guns,
traps, and other devices to catch and injure trespassing persons or
animals has been condemned both in this country and in England. Hooker
_v._ Miller, 37 Iowa, 613; Deane _v._ Clayton, 7 Taunt. 489. If such
means may not be employed against trespassers, we do not see upon what
principle it can be held that it is proper to use them against one who
has a permissive right to go upon the property where they are placed.

While in the case at bar there may be no proof of intentional injury,
the facts, we think, bring the case within the principle declared in
Young _v._ Harvey, _supra_; Graves _v._ Thomas, _supra_; Penso _v._
McCormick, _supra_; and Sisk _v._ Crump, _supra_.

The court should have sustained the motion for a new trial.

_Judgment reversed._[149]

INDERMAUR _v._ DAMES
IN THE COMMON PLEAS, FEBRUARY 26, 1866.
_Reported in Law Reports, 1 Common Pleas, 274._

The judgment of the Court (ERLE, C. J., WILLES, KEATING, and MONTAGUE
SMITH, JJ.) was delivered by[150]

WILLES, J. This was an action to recover damages for hurt sustained by
the plaintiff’s falling down a shaft at the defendant’s place of
business, through the actionable negligence, as it was alleged, of the
defendant and his servants.

At the trial before the Lord Chief Justice at the sittings here after
Michaelmas Term, the plaintiff had a verdict for 400_l._ damages,
subject to leave reserved.

A rule was obtained by the defendant in last term to enter a nonsuit, or
to arrest the judgment, or for a new trial because of the verdict being
against the evidence.

The rule was argued during the last term, before Erle, C. J., Keating
and Montague Smith, JJ., and myself, when we took time to consider. We
are now of opinion that the rule ought to be discharged.

It appears that the defendant was a sugar-refiner, at whose place of
business there was a shaft four feet three inches square, and
twenty-nine feet three inches deep, used for moving sugar. The shaft was
necessary, usual, and proper in the way of the defendant’s business.
Whilst it was in use, it was necessary and proper that it should be open
and unfenced. When it was not in use, it was sometimes necessary, with
reference to ventilation, that it should be open. It was not necessary
that it should, when not in use, be unfenced; and it might then without
injury to the business have been fenced by a rail. Whether it was usual
to fence similar shafts when not in use did not distinctly appear; nor
is it very material, because such protection was unquestionably proper,
in the sense of reasonable, with reference to the safety of persons
having a right to move about upon the floor where the shaft in fact was,
because in its nature it formed a pitfall there. At the time of the
accident it was not in use, and it was open and unfenced.

The plaintiff was a journeyman gas-fitter in the employ of a patentee
who had supplied the defendant with his patent gas-regulator, to be paid
for upon the terms that it effected a certain saving: and, for the
purpose of ascertaining whether such a saving had been effected, the
plaintiff’s employer required to test the action of the regulator. He
accordingly sent the plaintiff to the defendant’s place of business for
that purpose; and, whilst the plaintiff was engaged upon the floor where
the shaft was, he (under circumstances as to which the evidence was
conflicting, but) accidentally, and, as the jury found, without any
fault or negligence on his part, fell down the shaft, and was seriously
hurt.

It was argued, that, as the defendant had objected to the plaintiff’s
working at the place upon a former occasion, he (the plaintiff) could
not be considered as having been in the place with the defendant’s leave
at the time of the accident: but the evidence did not establish a
peremptory or absolute objection to the plaintiff’s being employed, so
as to make the sending of him upon the occasion of the accident any more
against the defendant’s will than the sending of any other workman: and
the employment, and the implied authority resulting therefrom to test
the apparatus were not of a character involving personal preference
(_dilectus personæ_), so as to make it necessary that the patentee
should himself attend. It was not suggested that the work was not
journeyman’s work.

It was also argued that the plaintiff was at best in the condition of a
bare licensee or guest who, it was urged, is only entitled to use the
place as he finds it, and whose complaint may be said to wear the color
of ingratitude, so long as there is no design to injure him: see
Hounsell _v._ Smyth, 7 C. B. N. S. 371, 29 L. J. (C. P.) 203.

We think this argument fails, because the capacity in which the
plaintiff was there was that of a person on lawful business, in the
course of fulfilling a contract in which both the plaintiff and the
defendant had an interest, and not upon bare permission. No sound
distinction was suggested between the case of the servant and the case
of the employer, if the latter had thought proper to go in person; nor
between the case of a person engaged in doing the work for the defendant
pursuant to his employment, and that of a person testing the work which
he had stipulated with the defendant to be paid for if it stood the
test; whereby impliedly the workman was to be allowed an on-stand to
apply that test, and a reasonable opportunity of doing so. Any duty to
enable the workman to do the work in safety, seems equally to exist
during the accessory employment of testing: and any duty to provide for
the safety of the master workman, seems equally owing to the servant
workman whom he may lawfully send in his place.

It is observable, that, in the case of Southcote _v._ Stanley, 1 H. & N.
247, 25 L. J. (Ex.) 339, upon which much reliance was properly placed
for the defendant, Alderson, B., drew the distinction between a bare
licensee and a person coming on business, and Bramwell, B., between
active negligence in respect of unusual danger known to the host and not
to the guest, and a bare defect of construction or repair, which the
host was only negligent in not finding out or anticipating the
consequence of.

There is considerable resemblance, though not a strict analogy, between
this class of cases and those founded upon the rule as to voluntary
loans and gifts, that there is no remedy against the lender or giver for
damage sustained from the loan or gift, except in case of unusual danger
known to and concealed by the lender or giver. Macarthy _v._ Younge, 6
H. & N. 329, 30 L. J. (Ex.) 227. The case of the carboy of vitriol[151]
was one in which this Court held answerable the bailor of an unusually
dangerous chattel, the quality of which he knew, but did not tell the
bailee, who did not know it, and, who as a proximate consequence of his
not knowing, and without any fault on his part, suffered damage.

The cases referred to as to the liability for accidents to servants and
persons employed in other capacities in a business or profession which
necessarily and obviously exposes them to danger, as in Seymour _v._
Maddox, 16 Q. B. 326, also have their special reasons. The servant or
other person so employed is supposed to undertake not only all the
ordinary risks of the employment into which he enters, but also all
extraordinary risks which he knows of and thinks proper to incur,
including those caused by the misconduct of his fellow-servants, not
however including those which can be traced to mere breach of duty on
the part of the master. In the case of a statutory duty to fence, even
the knowledge and reluctant submission of the servant who has sustained
an injury, are held to be only elements in determining whether there has
been contributory negligence: how far this is the law between master and
servant, where there is danger known to the servant, and no statute for
his protection, we need not now consider, because the plaintiff in this
case was not a servant of the defendant, but the servant of the
patentee. The question was adverted to, but not decided, in Clarke _v._
Holmes, 7 H. & N. 937, 31 L. J. (Ex.) 356.[152]

The authorities respecting guests and other bare licensees, and those
respecting servants and others who consent to incur a risk, being
therefore inapplicable, we are to consider what is the law as to the
duty of the occupier of a building with reference to persons resorting
thereto in the course of business, upon his invitation, express or
implied. The common case is that of a customer in a shop: but it is
obvious that this is only one of a class; for, whether the customer is
actually chaffering at the time, or actually buys or not, he is,
according to an undoubted course of authority and practice, entitled to
the exercise of reasonable care by the occupier to prevent damage from
unusual danger, of which the occupier knows or ought to know, such as a
trap-door left open, unfenced, and unlighted: Lancaster Canal Company
_v._ Parnaby, 11 Ad. & E. 223, 3 P. & D. 162; _per cur._ Chapman _v._
Rothwell, E. B. & E. 168, 27 L. J. (Q. B.) 315, where Southcote _v._
Stanley, 1 H. & N. 247, 25 L. J. (Ex.) 339, was cited, and the Lord
Chief Justice, then Erle, J., said: “The distinction is between the case
of a visitor (as the plaintiff was in Southcote _v._ Stanley), who must
take care of himself, and a customer, who, as one of the public, is
invited for the purposes of business carried on by the defendant.” This
protection does not depend upon the fact of a contract being entered
into in the way of the shopkeeper’s business during the stay of the
customer, but upon the fact that the customer has come into the shop in
pursuance of a tacit invitation given by the shopkeeper, with a view to
business which concerns himself. And, if a customer were, after buying
goods, to go back to the shop in order to complain of the quality, or
that the change was not right, he would be just as much there upon
business which concerned the shopkeeper, and as much entitled to
protection during this accessory visit, though it might not be for the
shopkeeper’s benefit, as during the principal visit, which was. And if,
instead of going himself, the customer were to send his servant, the
servant would be entitled to the same consideration as the master.

The class to which the customer belongs includes persons who go not as
mere volunteers, or licensees, or guests, or servants, or persons whose
employment is such that danger may be considered as bargained for, but
who go upon business which concerns the occupier, and upon his
invitation, express or implied.

And, with respect to such a visitor at least, we consider it settled
law, that he, using reasonable care on his part for his own safety, is
entitled to expect that the occupier shall on his part use reasonable
care to prevent damage from unusual danger which he knows or ought to
know; and that, where there is evidence of neglect, the question whether
such reasonable care has been taken, by notice, lighting, guarding or
otherwise, and whether there was contributory negligence in the
sufferer, must be determined by a jury as matter of fact.

In the case of Wilkinson _v._ Fairrie, 1 H. & C. 633, 32 L. J. (Ex.) 73,
relied upon for the defendant, the distinction was pointed out between
ordinary accidents, such as falling down stairs, which ought to be
imputed to the carelessness or misfortune of the sufferer, and accidents
from unusual, covert danger, such as that of falling down into a pit.

It was ably insisted for the defendant that he could only be bound to
keep his place of business in the same condition as other places of
business of the like kind, according to the best known mode of
construction. And this argument seems conclusive to prove that there was
no absolute duty to prevent danger, but only a duty to make the place as
little dangerous as such a place could reasonably be, having regard to
the contrivances necessarily used in carrying on the business. But we
think the argument is inapplicable to the facts of this case: first,
because it was not shown, and probably could not be, that there was any
usage never to fence shafts; secondly, because it was proved, that, when
the shaft was not in use, a fence might be resorted to without
inconvenience; and no usage could establish that what was in fact
unnecessarily dangerous was in law reasonably safe, as against persons
towards whom there was a duty to be careful.

Having fully considered the notes of the Lord Chief Justice, we think
there was evidence for the jury that the plaintiff was in the place by
the tacit invitation of the defendant, upon business in which he was
concerned; that there was by reason of the shaft unusual danger known to
the defendant; and that the plaintiff sustained damage by reason of that
danger, and of the neglect of the defendant and his servants to use
reasonably sufficient means to avert or warn him of it: and we cannot
say that the proof of contributory negligence was so clear that we ought
on this ground to set aside the verdict of the jury.

As for the argument that the plaintiff contributed to the accident by
not following his guide, the answer may be that the guide, knowing the
place, ought rather to have waited for him; and this point, as matter of
fact, is set at rest by the verdict.

For these reasons, we think there was evidence of a cause of action in
respect of which the jury were properly directed; and, as every
reservation of leave to enter a nonsuit carries with it an implied
condition that the Court may amend, if necessary, in such a manner as to
raise the real question, leave ought to be given to the plaintiff, in
the event of the defendant desiring to appeal or to bring a writ of
error, to amend the declaration by stating the facts as proved,—in
effect, that the defendant was the occupier of and carried on business
at the place; that there was a shaft, very dangerous to persons in the
place, which the defendant knew and the plaintiff did not know; that the
plaintiff, by invitation and permission of the defendant, was near the
shaft, upon business of the defendant, in the way of his own craft as a
gas-fitter, for hire, &c., stating the circumstances, the negligence,
and that by reason thereof the plaintiff was injured. The details of the
amendment can, if necessary, be settled at chambers.

As to the motion to arrest the judgment, for the reasons already given,
and upon condition that an amendment is to be made if and when required
by the defendant, it will follow the fate of the motion to enter a
nonsuit.

The other arguments for the defendant, to which we have not particularly
adverted, were no more than objections to the verdict as being against
the evidence: but it would be wrong to grant a new trial without a
reasonable expectation that another jury might take a different view of
the facts; and, as the Lord Chief Justice does not express any
dissatisfaction with the verdict, the rule upon this, the only remaining
ground, must also be discharged.

_Rule discharged._[153]

Affirmed in Exchequer Chamber, L. R. 2 C. P. 311.

McNEE _v._ COBURN TROLLEY TRACK COMPANY
SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 24, 1898.
_Reported in 170 Massachusetts Reports, 283._

Tort, for personal injuries occasioned to the plaintiff by the fall of
an elevator upon which he was riding while in the defendant’s employ.
Trial in the Superior Court, before Mason, C. J., who directed the jury
to return a verdict for the defendant; and reported the case for the
determination of this court. If the case should have been submitted to
the jury, judgment was to be entered for the plaintiff in a sum named;
otherwise, judgment on the verdict. The facts sufficiently appear in the
opinion.

The case was submitted on briefs to all the justices.

ALLEN, J. The general condition of the elevator was such that a jury
might find that the defendant would be negligent in continuing its use
for carrying workmen up and down while engaged in their work, if this
was done without warning them of the risk. It is true that the
particular defect which caused the accident was not open to observation
or easy to discover. But there was evidence tending to show that the
accident was caused by the use of the elevator while it was in a
condition which rendered it unsuitable for use, and that the defendant
was fairly put upon inquiry as to its safety; and that the defendant’s
duty in this respect was different from and greater than that of the
workmen themselves.

The question then remains whether the posting of the notices in the
elevator[154] showed such a performance by the defendant of its duty of
warning or cautioning the workmen, or such contributory negligence or
assumption of the risk on the part of the plaintiff, as to entitle the
defendant to have the case withdrawn from the jury. While upon the
evidence reported a verdict for the defendant would be more
satisfactory, we are unable to hold that the defendant was entitled to
such verdict as a matter of law. As a general rule, the sufficiency of
such warning or caution is a question of fact for the jury. Indermaur
_v._ Dames, L. R. 1 C. P. 274; S. C. L. R. 2 C. P. 311. It is true that
the plaintiff was not at liberty to shut his eyes in order to avoid
reading a plain notice of warning. If it be assumed that the plaintiff
must be held chargeable with a knowledge of the contents of the notice,
or at least that the defendant performed its duty of cautioning the
workmen by posting the notices in the elevator, we think the plaintiff
still had the right to go to the jury upon the question whether the
notices remained in force at the time of the accident, or had become a
dead letter. There was evidence tending to show that the notices were
put in the elevator a long time before the accident by a former
treasurer whose connection with the company had then ceased, that they
had become soiled and somewhat indistinct and torn, and that all of the
defendant’s workmen, including the general superintendent of the
building, were in the regular habit of using the elevator to carry them
up and down, and had been so for some months prior to the accident.
There was room for a legitimate argument that the defendant could not
have intended to keep such a rule in force forever, and to furnish an
elevator for permanent use by the men at their own sole risk; and that
the defendant expected the men to use it while they were engaged in its
work, and that it was for the defendant’s advantage that they should do
so, from the saving of time thereby secured. It might be found that the
plaintiff, even if he knew of the terms of the notice, might
nevertheless assume that its force had ceased.

If one who has posted a notice of entire prohibition permits it to be
habitually disregarded, as, for instance, a notice not to ride on the
platform of a street railway car, or in the baggage car of a train, a
practical invitation to violate it may be inferred from habitual usage
which is known to him. Long continued practice to the contrary may have
the effect to supersede or show a waiver of the rule. O’Donnell _v._
Allegheny Valley Railroad, 59 Penn. St. 239; Pennsylvania Railroad _v._
Langdon, 92 Penn. St. 21; Waterbury _v._ New York Central & Hudson River
Railroad, 17 Fed. Rep. 671. The notice in the present case was not one
of entire prohibition, but, in the opinion of a majority of the court,
the plaintiff upon the evidence had a right to go to the jury upon the
question whether it still remained in force; and, according to the terms
of the report, there must be

_Judgment for the plaintiff._[155]

GARFIELD COAL CO. _v._ ROCKLAND LIME CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 23, 1903.
_Reported in 184 Massachusetts Reports, 60._

Tort, by the owner of the coal barge Western Belle, for injury to that
vessel by grounding on a ledge of rock embedded in the mud at the bottom
of the defendant’s dock at Rockland, Maine.

In the Superior Court the case was tried by a judge without a jury.

“It appeared at the trial that defendant was part owner of a dock, and
used it for the discharge of cargoes of coal consigned to it. Plaintiff
had sold coal to the defendant, and sent it a barge loaded
therewith.”[156]

The plaintiff requested the judge to make certain rulings, including the
following:—

“4. It is not necessary for the plaintiff to show that the defendant
knew of the ledge; it is sufficient if its existence could have been
discovered by reasonable diligence.”

The judge refused to make any of the rulings, and found for the
defendant. The plaintiff excepted.

LATHROP, J.... The general rules of law which are applicable in cases of
this character are the same in England and in this country, and are the
same at common law and in admiralty. They are as well stated in the case
of Nickerson _v._ Tirrell, 127 Mass. 236, 239, as perhaps in any case:
“The owner or occupant of a dock is liable in damages to a person who,
by his invitation express or implied, makes use of it, for an injury
caused by any defect or unsafe condition of the dock which the occupant
negligently causes or permits to exist, if such person was himself in
the exercise of due care. Such occupant is not an insurer of the safety
of his dock,[157] but he is required to use reasonable care to keep his
dock in such a state as to be reasonably safe for use by vessels which
he invites to enter it, or for which he holds it out as fit and ready.
If he fails to use such due care, if there is a defect which is known to
him, or which by the use of ordinary care and diligence should be known
to him, he is guilty of negligence and liable to the person who, using
due care, is injured thereby. Wendell _v._ Baxter, 12 Gray, 494;
Carleton _v._ Franconia Iron & Steel Co., 99 Mass. 216; Thompson _v._
Northeastern Railway, 2 B. & S. 106; Mersey Docks _v._ Gibbs, L. R. 1 H.
L. 93.” Other cases bearing upon this point are: Smith _v._ Burnett, 173
U. S. 430; Barber _v._ Abendroth, 102 N. Y. 406; Barrett _v._ Black, 56
Maine, 498; Sawyer _v._ Oakman, 1 Lowell, 134, s. c. 7 Blatchf. 290; The
John A. Berkman, 6 Fed. Rep. 535; Pennsylvania Railroad _v._ Atha, 22
Fed. Rep. 920; Smith _v._ Havemeyer, 36 Fed. Rep. 927; Manhattan
Transportation Co. _v._ Mayor, 37 Fed. Rep. 160; Union Ice Co. _v._
Crowell, 55 Fed. Rep. 87. The rule is the same in England. Gibbs _v._
Liverpool Docks, 3 H. & N. 164; s. c. _nom._ Mersey Docks _v._ Gibbs, 11
H. L. Cas. 686, and L. R. 1 H. L. 93; The Moorcock, 13 P. D. 157, and 14
P. D. 64.

* * * * *

It is clear that the vessel was in the defendant’s dock on business, and
was, therefore, there by invitation. The judge has found, and the
evidence shows, that the injury was caused by a ledge of rocks embedded
in the mud at the bottom of the dock. The questions of fact which he did
not pass upon are whether the master was in the exercise of due care,
and whether the defendant knew of the defect or could by the exercise of
reasonable care and diligence have ascertained its existence.

* * * * *

The fourth request should have been given. See cases cited above.

_Exceptions sustained._[158]

INDIANAPOLIS STREET RAILWAY COMPANY _v._ DAWSON
APPELLATE COURT, INDIANA, NOVEMBER 17, 1903.
_Reported in 31 Indiana Appellate Court Reports, 605._

From Superior Court of Marion County; Vincent G. Clifford, Special
Judge.

Action by George J. Dawson against the Indianapolis Street Railway
Company. From a judgment for plaintiff, defendant appeals.

ROBY, J. Action by appellee. Verdict and judgment for $500. Demurrers to
first and second paragraphs of complaint overruled. Motion for a new
trial overruled.

It is averred in the first paragraph of complaint, in substance, as
extracted from a multitude of words, that appellant was on August 25,
1901, a corporation operating a street railway system in Indianapolis
and was a common carrier for hire; that it owned a park near said city,
and maintained certain attractions therein to induce persons to ride on
its cars, inviting them to said park; that on the day named it gave a
free band concert therein, the same having been extensively advertised
prior thereto; that on said day appellee, accompanied by a lady, took
passage upon one of its regular cars, and was conveyed to said park;
that a large number of persons were daily transported thereto, among
them a large number of lawless persons who were hostile to colored
people, of whom appellee was one, their names being unknown to
plaintiff, and who had long before said day entered into a conspiracy
“to suppress, molest, assault, and insult colored people generally who
might visit said park;” that in pursuance of such conspiracy said
persons assaulted and beat appellee, and drove him from the park; that
he and his companion demeaned themselves in a ladylike and gentlemanly
manner, but upon arriving at the park were set upon by a large number of
white boys and young men, appellee being assaulted and beaten by them;
that appellant had, and had had for a long time prior to said day, full
notice and knowledge of said conditions, and of the unlawful purposes
aforesaid, and of acts of violence committed thereunder, but took no
steps to prevent such conduct; that early in the afternoon of said day
said lawless men and boys began marching and drilling openly in said
park preparatory to an attack upon any colored male person who should be
found there later, appellant taking no steps to prevent such conduct or
to notify colored people of the danger, although it had knowledge
thereof; that neither appellant nor its officers made any objection to
the open and notorious gathering of white men and boys for the unlawful
purpose stated; that it was negligent and indifferent in not employing
and using a sufficient number of guards and policemen to maintain the
peace; that two of its guards or policemen aided and abetted the wrong
done appellee by standing by when he was being unmercifully beaten by
said crowd of lawless white men and boys, and offering him no
assistance, although they were able to do so, and could have prevented
injury to him. “Wherefore, by reason of the matters therein stated, the
plaintiff has been damaged,” etc. The second paragraph of complaint is
somewhat more extended than the first one, but for the purpose of this
opinion the statement made is sufficient.

The pleading charges appellant with notice of the alleged conspiracy,
with acquiescence therein, and, by its guards or policemen, with passive
participation in the actual assault made upon appellee. “When one
expressly or by implication invites others to come upon his premises,
whether for business or any other purpose, it is his duty to be
reasonably sure that he is not inviting them into danger, and to that
end he must exercise ordinary care and prudence to render the place
reasonably safe for the visit.” Cooley, Torts (2d ed.), 718; Howe _v._
Ohmart, 7 Ind. App. 32, 38; Richmond, etc., R. Co. _v._ Moore, 94 Va.
493, 37 L. R. A. 258; North Manchester, etc., Assn. _v._ Wilcox, 4 Ind.
App. 141; Penso _v._ McCormick, 125 Ind. 116, 21 Am. St. 211.

No case has been cited or found where the premises upon which the injury
complained of occurred, and to which the complainant came by invitation,
were made unsafe through a conspiracy of the nature set up herein.
Danger usually has been attributed to some defect in the premises
themselves. But as a matter of principle it is quite as reprehensible to
invite one knowing an enemy is awaiting him with the intent to assault
and beat him as it would be to invite him without having made the floor
or the stairway secure. One attending an agricultural fair in response
to a general invitation extended to the public has been awarded damages
against the association where his horse was killed by target shooting
upon a part of the ground allowed for such purpose. Conradt _v._ Clauve,
93 Ind. 476, 47 Am. Rep. 388.

Recoveries have also been sustained: When spectators rushed upon a
race-track, causing a collision between horses being driven thereon.
North Manchester, etc., Assn. _v._ Wilcox, 4 Ind. App. 141. When an
opening was left in a fence surrounding a race-track through which one
of the horses, running, went among the spectators. Windeler _v._ Rush
County Fair Assn., 27 Ind. App. 92. Where horses were started on a
race-track in opposite directions at the same time, causing collision.
Fairmount, etc., Assn. _v._ Downey, 146 Ind. 503. Where a horse with a
vicious habit of track bolting was permitted to run in a race, such
horse bolting the track, causing injury. Lane _v._ Minnesota, etc.,
Soc., 62 Minn. 175, 29 L. R. A. 708. Recognizing the rule of reasonable
care to make the premises safe, a recovery was denied in the absence of
any evidence of the immediate cause of a horse running through the
crowds. Hart _v._ Washington Park Club, 157 Ill. 9, 29 L. R. A. 492.
Where a street car company maintained a park as a place of attraction
for passengers over its line, the falling of a pole used by one making a
balloon ascension, under a contract, injuring a bystander, recovery was
allowed, the rule being announced that the company must use proper care
to protect its patrons from danger while on its grounds. Richmond, etc.,
R. Co. _v._ Moore, 94 Va. 493, 37 L. R. A. 258. Where a street car
company maintained a large stage for exhibitions, in a pleasure resort
owned by it, and made a written contract with a manager, by which the
latter furnished various entertainments, among which was target
shooting, one injured by a split bullet was allowed to recover, it being
held that he might safely rely on those who provided the exhibition and
invited his attendance to take due care to make the place safe from such
injury as he received, the question of due care being one for the jury.
Thompson _v._ Lowell, etc., St. R. Co., 170 Mass. 577, 40 L. R. A. 345;
Curtis _v._ Kiley, 153 Mass. 123.

The duty of common carriers to protect their passengers from injury on
account of unlawful violence by persons not connected with their service
has frequently furnished material for judicial consideration. The New
Jersey Court of Errors and Appeals approved an exhaustive and carefully
considered opinion delivered by the Supreme Court of that State to the
effect that a passenger who, while attempting to have her baggage
checked, was knocked down and injured by cabmen, in no sense servants of
the carrier, scuffling on a passageway under its control, might recover
against it. Exton _v._ Central R. Co., 63 N. J. L. 356, 56 L. R. A. 508.
In what seems to have been a pioneer case, it was held by the Supreme
Court of Pennsylvania in 1866, that it was the duty of the trainmen on a
passenger-train to exert the forces at their disposal to prevent injury
to passengers by others fighting in the car. Pittsburgh, etc., R. Co.
_v._ Hinds, 53 Pa. St. 512. Ten years later the Supreme Court of
Mississippi, after very exhaustive arguments by eminent counsel of
national reputation, reached the same conclusion. New Orleans, etc., R.
Co. _v._ Burke, 53 Miss. 200.

Without further elaboration it may safely be said that the unusual
character of an alleged peril, from which it is averred the appellant
did not use due care to protect its visitors, does not affect the right
of recovery, it being otherwise justified. The demurrers were therefore
correctly overruled.

Evidence was introduced of other prior assaults at said park upon
colored persons, and articles previously published by daily newspapers
in the city describing such occurrences were also admitted. In order to
determine whether appellant used due care, it was essential to show its
knowledge or means of information relative to the conditions alleged to
exist, rendering it dangerous for appellee to visit the park. The
evidence of similar occurrences was competent as tending to show notice
of the conditions. Toledo, etc., R. Co. _v._ Milligan, 2 Ind. App. 578;
City of Delphi _v._ Lowery, 74 Ind. 520, 39 Am. Rep. 98; City of Goshen
_v._ England, 119 Ind. 368, 375.

The facts upon which appellant’s liability depends otherwise than
heretofore considered were questions for the determination of the jury.
There was evidence tending to establish, and from which the jury might
properly find, the existence of such facts.

Appellant and its officers appear to have displayed indifference to the
conditions existing which it and they could not well help knowing. This
may have been due to the idea, sometimes entertained, that as to acts of
lawlessness it is a sufficient duty of citizenship to be indifferent.
Such idea is entirely erroneous.

_Judgment affirmed._[159]

SWEENY _v._ OLD COLONY RAILROAD COMPANY
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY TERM, 1865.
_Reported in 10 Allen, 368._

Tort to recover damages for a personal injury sustained by being run
over by the defendants’ cars, while the plaintiff was crossing their
railroad by license, on a private way leading from South Street to
Federal Street, in Boston.

At the trial in this Court, before Chapman, J., it appeared that this
private way, which is called Lehigh Street, was made by the South Cove
Corporation for their own benefit, and that they own the fee of it; that
it is wrought as a way, and buildings are erected on each side of it,
belonging to the owners of the way, and there has been much crossing
there by the public for several years. The defendants, having rightfully
taken the land under their charter, not subject to any right of way,
made a convenient plank-crossing and kept a flagman at the end of it on
South Street, partly to protect their own property, and partly to
protect the public. They have never made any objection to such crossing,
so far as it did not interfere with their cars and engines. There are
several tracks at the crossing. The only right of the public to use the
crossing is under the license implied by the facts stated above.

On the day of the accident, the defendants had a car at their depot
which they had occasion to run over to their car house. It was attached
to an engine and taken over the crossing, and to a proper distance
beyond the switch. The coupling-pin was then taken out, the engine
reversed, and it was moved towards the car house by the side track. The
engine was provided with a good engineer and fireman, and the car with a
brakeman; the bell was constantly rung, and the defendants were not
guilty of any negligence in respect to the management of the car or
engine.

As the engine and car were coming from the depot, the plaintiff, with a
horse and a wagon loaded with empty beer barrels, was coming down South
Street from the same direction. There was evidence tending to show that,
as he approached the crossing, the flagman, who was at his post, made a
signal to him with his flag to stop, which he did; that, in answer to an
inquiry by the plaintiff whether he could then cross, he then made
another signal with his flag, indicating that it was safe to cross; that
the plaintiff started and attempted to cross, looking straight forward;
that he saw the car coming near him as it went towards the car house;
and that he jumped forward from his wagon, and the car knocked him down
and ran over him and broke both his legs. It struck the fore-wheel of
his wagon and also his horse. If he had remained in his wagon, or had
not jumped forwards, or had kept about the middle of the crossing, the
evidence showed that he would not have been injured personally. His
wagon was near the left-hand side of the plank-crossing as he went.

The defendants contended that, even if the plaintiff used ordinary care,
and if the flagman carelessly and negligently gave the signal that he
might cross, when in fact it was unsafe to do so on account of the
approaching car, the plaintiff was not entitled to recover, because the
license to people to use the crossing was not a license to use it at the
risk of the defendants, but to use it as they best could when not
forbidden, taking care of their own safety, and going at their own risk;
and also, that if the flagman made a signal to the plaintiff that he
might cross, he exceeded his authority.

But the evidence being very contradictory as to the care used by the
plaintiff, and also as to the care used by the flagman, the judge ruled,
for the purpose of taking a verdict upon these two facts, that the
defendants had a right to use the crossing as they did on this occasion,
and that they were not bound to keep a flagman there; yet, since they
did habitually keep one there, they would be responsible to the
plaintiff for the injury done to him by the car, provided he used due
care, if he was induced to cross by the signal made to him by the
flagman, and if that signal was carelessly or negligently made at a time
when it was unsafe to cross on account of the movement of the car.

The jury returned a verdict for the plaintiff for $7500; and the case
was reserved for the consideration of the whole Court.

_J. G. Abbott_ and _P. H. Sears_, for the defendants. The defendants
had, for all purposes incident to the complete enjoyment of their
franchise, the right of exclusive possession and use of the place where
the accident happened, against the owners of the fee, and still more
against all other persons. Hazen _v._ Boston & Maine Railroad, 2 Gray,
574; Brainard _v._ Clapp, 10 Cush. 6; Gen. Stat. c. 63, §§ 102, 103. The
defendants were not bound to keep a flagman there, or exercise the other
precautions prescribed for the crossing of highways or travelled places.
Gen. Stat. c. 63, §§ 64–66, 83–91; Boston & Worcester Railroad _v._ Old
Colony Railroad, 12 Cush. 608. The license or permission, if any, to the
plaintiff to pass over the premises did not impose any duty on the
defendants, but he took the permission, with its concomitant perils, at
his own risk. Howland _v._ Vincent, 10 Met. 371, 374; Scott _v._ London
Docks Co., 11 Law Times (N. S.), 383; Chapman _v._ Rothwell, El. Bl. &
El. 168; Southcote _v._ Stanley, 1 Hurlst. & Norm. 247; Hounsell _v._
Smyth, 7 C. B. (N. S.) 729, 735, 742; Binks _v._ South Yorkshire
Railway, &c., 32 Law Journ. (N. S.) Q. B. 26; Blithe _v._ Topham, 1 Rol.
Ab. 88; S. C. 1 Vin. Ab. 555, pl. 4; Cro. Jac. 158. The defendants did
not hold out to the plaintiff an invitation to pass over. Hounsell _v._
Smyth and Binks _v._ South Yorkshire Railway, above cited. The allowing
or making of such private crossing was not in itself such an invitation,
and did not involve the duty of such precautions. The keeping of a
flagman there was wholly for the purpose of preventing persons from
crossing, not for the purpose of holding out invitations at any time.
The signal that the plaintiff might cross was in answer to his inquiry,
and was, at most, only revoking the prohibition, or granting permission;
it was not holding out an invitation. The duty of the flagman was simply
to warn persons against crossing; and if the flagman held out an
invitation or even gave permission to the plaintiff to cross, he went
beyond the scope of his employment, and the defendants are not liable on
account thereof. Lygo _v._ Newbold, 9 Exch. 203; Middleton _v._ Fowle, 1
Salk. 282. Even if the defendants had carelessly held out an invitation
to the plaintiff to cross, still they would not be liable; for the
report shows that after such supposed invitation the plaintiff might, by
the exercise of ordinary care, have avoided the injury; that the
plaintiff was himself at the time in the wrong; and that his own
negligence and fault contributed to the accident. Todd _v._ Old Colony &
Fall River Railroad, 7 Allen, 207; S. C. 3 Allen, 18, and cases cited;
Denny _v._ Williams, 5 Allen, 1, and cases cited; Spofford _v._ Harlow,
3 Allen, 177, and cases cited.

BIGELOW, C. J. This case has been presented with great care on the part
of the learned counsel for the defendants, who have produced before us
all the leading authorities bearing on the question of law which was
reserved at the trial. We have not found it easy to decide on which side
of the line which marks the limit of the defendant’s liability for
damages caused by the acts of their agents, the case at bar falls. But
on careful consideration we have been brought to the conclusion that the
rulings at the trial were right, and that we cannot set aside the
verdict for the plaintiff on the ground that it was based on erroneous
instructions in matter of law.

In order to maintain an action for an injury to person or property by
reason of negligence or want of due care, there must be shown to exist
some obligation or duty towards the plaintiff, which the defendant has
left undischarged or unfulfilled. This is the basis on which the cause
of action rests. There can be no fault, or negligence, or breach of
duty, where there is no act, or service, or contract, which a party is
bound to perform or fulfil. All the cases in the books, in which a party
is sought to be charged on the ground that he has caused a way or other
place to be incumbered or suffered it to be in a dangerous condition,
whereby accident and injury have been occasioned to another, turn on the
principle that negligence consists in doing or omitting to do an act by
which a legal duty or obligation has been violated. Thus a trespasser
who comes on the land of another without right cannot maintain an
action, if he runs against a barrier or falls into an excavation there
situated. The owner of the land is not bound to protect or provide
safeguards for wrong-doers. So a licensee, who enters on premises by
permission only, without an enticement, allurement, or inducement being
held out to him by the owner or occupant, cannot recover damages for
injuries caused by obstructions or pitfalls. He goes there at his own
risk, and enjoys the license subject to its concomitant perils. No duty
is imposed by law on the owner or occupant to keep his premises in a
suitable condition for those who come there solely for their own
convenience or pleasure, and who are not either expressly invited to
enter or induced to come upon them by the purpose for which the premises
are appropriated and occupied, or by some preparation or adaptation of
the place for use by customers or passengers, which might naturally and
reasonably lead them to suppose that they might properly and safely
enter thereon.

On the other hand, there are cases where houses or lands are so
situated, or their mode of occupation and use is such, that the owner or
occupant is not absolved from all care for the safety of those who come
on the premises, but where the law imposes on him an obligation or duty
to provide for their security against accident and injury. Thus the
keeper of a shop or store is bound to provide means of safe ingress and
egress to and from his premises for those having occasion to enter
thereon, and is liable in damages for any injury which may happen by
reason of any negligence in the mode of constructing or managing the
place of entrance and exit. So the keeper of an inn or other place of
public resort would be liable to an action in favor of a person who
suffered an injury in consequence of an obstruction or defect in the way
or passage which was held out and used as the common and proper place of
access to the premises. The general rule or principle applicable to this
class of cases is, that an owner or occupant is bound to keep his
premises in a safe and suitable condition for those who come upon and
pass over them, using due care, if he has held out any invitation,
allurement, or inducement, either express or implied, by which they have
been led to enter thereon. A mere naked license or permission to enter
or pass over an estate will not create a duty or impose an obligation on
the part of the owner or person in possession to provide against the
danger of accident. The gist of the liability consists in the fact that
the person injured did not act merely for his own convenience and
pleasure, and from motives to which no act or sign of the owner or
occupant contributed, but that he entered the premises because he was
led to believe that they were intended to be used by visitors or
passengers, and that such use was not only acquiesced in by the owner or
person in possession and control of the premises, but that it was in
accordance with the intention and design with which the way or place was
adapted and prepared or allowed to be so used. The true distinction is
this: A mere passive acquiescence by an owner or occupier in a certain
use of his land by others involves no liability; but if he directly or
by implication induces persons to enter on and pass over his premises,
he thereby assumes an obligation that they are in a safe condition,
suitable for such use, and for a breach of this obligation he is liable
in damages to a person injured thereby.

This distinction is fully recognized in the most recent and best
considered cases in the English Courts, and may be deemed to be the
pivot on which all cases like the one at bar are made to turn. In Corby
_v._ Hill, 4 C. B. (N. S.) 556, the owner of land, having a private road
for the use of persons coming to his house, gave permission to a builder
engaged in erecting a house on the land to place materials on the road;
the plaintiff, having occasion to use the road for the purpose of going
to the owner’s residence, ran against the materials and sustained
damage, for which the owner was held liable. Cockburn, C. J., says: “The
proprietors of the soil held out an allurement whereby the plaintiff was
induced to come on the place in question; they held this road out to all
persons having occasion to proceed to the house as the means of access
thereto.” In Chapman _v._ Rothwell, El. Bl. & El. 168, the proprietor of
a brewery was held liable in damages for injury and loss of life caused
by permitting a trap-door to be open without sufficient light or proper
safeguards, in a passageway through which access was had from the street
to his office. This decision was put on the ground that the defendant,
by holding out the passageway as the proper mode of approach to his
office and brewery, invited the party injured to go there, and was bound
to use due care in providing for his safety. This is the point on which
the decision turned, as stated by Keating, J., in Hounsell _v._ Smyth, 7
C. B. (N. S.) 738. In the last-named case the distinction is clearly
drawn between the liability of a person who holds out an inducement or
invitation to others to enter on his premises by preparing a way or path
by means of which they can gain access to his house or store, or pass
into or over the land, and in a case where nothing is shown but a bare
license or permission tacitly given to go upon or through an estate, and
the responsibility of finding a safe and secure passage is thrown on the
passenger and not on the owner. The same distinction is stated in Barnes
_v._ Ward, 9 C. B. 392; Hardcastle _v._ South Yorkshire Railway, &c., 4
Hurlst. & Norm. 67; and Binks _v._ South Yorkshire Railway, &c., 32 Law
Journ. (N. S.) Q. B. 26. In the last cited case the language of
Blackburn, J., is peculiarly applicable to the case at bar. He says,
“There might be a case where permission to use land as a path may amount
to such an inducement as to lead the persons using it to suppose it a
highway, and thus induce them to use it as such.” See also, for a clear
statement of the difference between cases where an invitation or
allurement is held out by the defendant, and those where nothing appears
but a mere license or permission to enter on premises, Bolch _v._ Smith,
7 Hurlst. & Norm. 741, and Scott _v._ London Docks Co., 11 Law Times (N.
S.), 383.

The facts disclosed at the trial of the case now before us, carefully
weighed and considered, bring it within that class in which parties have
been held liable in damages by reason of having held out an invitation
or inducement to persons to enter upon and pass over their premises. It
cannot in any just view of the evidence be said that the defendants were
passive only, and gave merely a tacit license or assent to the use of
the place in question as a public crossing. On the contrary, the place
or crossing was situated between two streets of the city (which are much
frequented thoroughfares), and was used by great numbers of people who
had occasion to pass from one street to the other, and it was fitted and
prepared by the defendants with a convenient plank-crossing, such as is
usually constructed in highways, where they are crossed by the tracks of
a railroad, in order to facilitate the passage of animals and vehicles
over the rails. It had been so maintained by the defendants for a number
of years. These facts would seem to bring the case within the principle
already stated, that the license to use the crossing had been used and
enjoyed under such circumstances as to amount to an inducement, held out
by the defendants to persons having occasion to pass, to believe that it
was a highway, and to use it as such. But the case does not rest on
these facts only. The defendants had not only constructed and fitted the
crossing in the same manner as if it had been a highway, but they had
employed a person to stand there with a flag, and to warn persons who
were about to pass over the railroad when it was safe for them to
attempt to cross with the vehicles and animals, without interference or
collision with the engines and cars of the defendants. And it was also
shown that when the plaintiff started to go over the tracks with his
wagon, it was in obedience to a signal from this agent of the defendants
that there was no obstruction or hindrance to his safe passage over the
railroad. These facts well warranted the jury in finding, as they must
have done in rendering a verdict for the plaintiff under the
instructions of the Court, that the defendants induced the plaintiff to
cross at the time when he attempted to do so, and met with the injury
for which he now seeks compensation.

It was suggested that the person employed by the defendants to stand
near the crossing with a flag exceeded his authority in giving a signal
to the plaintiff that it was safe for him to pass over the crossing just
previously to the accident, and that no such act was within the scope of
his employment, which was limited to the duty of preventing persons from
passing at times when it was dangerous to do so. But it seems to us that
this is a refinement and distinction which the facts do not justify. It
is stated in the report that the flagman was stationed at the place in
question, charged among other things with the duty of protecting the
public. This general statement of the object for which the agent was
employed, taken in connection with the fact that he was stationed at a
place constructed and used as a public way by great numbers of people,
clearly included the duty of indicating to persons when it was safe for
them to pass, as well as when it was prudent or necessary for them to
refrain from passing.

Nor do we think it can be justly said that the flagman in fact held out
no inducement to the plaintiff to pass. No express invitation need have
been shown. It would have been only necessary for the plaintiff to prove
that the agent did some act to indicate that there was no risk of
accident in attempting to pass over the crossing. The evidence at the
trial was clearly sufficient to show that the agent of the defendants
induced the plaintiff to pass, and that he acted in so doing within the
scope of the authority conferred on him. The question whether the
plaintiff was so induced was distinctly submitted to the jury by the
Court; nor do we see any reason for supposing that the instructions on
this point were misunderstood or misapplied by the jury. If they lacked
fulness, the defendants should have asked for more explicit
instructions. Certainly the evidence as reported well warranted the
finding of the jury on this point.

It was also urged that, if the defendants were held liable in this
action, they would be made to suffer by reason of the fact that they had
taken precautions to guard against accident at the place in question,
which they were not bound to use, and that the case would present the
singular aspect of holding a party liable for neglect in the performance
of a duty voluntarily assumed, and which was not imposed by the rules of
law. But this is by no means an anomaly. If a person undertakes to do an
act or discharge a duty by which the conduct of others may properly be
regulated and governed, he is bound to perform it in such manner that
those who rightfully are led to a course of conduct or action on the
faith that the act or duty will be duly and properly performed shall not
suffer loss or injury by reason of his negligence. The liability in such
cases does not depend on the motives or considerations which induced a
party to take on himself a particular task or duty, but on the question
whether the legal rights of others have been violated by the mode in
which the charge assumed has been performed.

The Court were not requested at the trial to withdraw the case from the
jury on the ground that the plaintiff had failed to show he was in the
exercise of due care at the time the accident happened. Upon the
evidence, as stated in the report, we cannot say, as matter of law, that
the plaintiff did not establish this part of his case.

_Judgment on the verdict._

After the above decision was rendered, the verdict was set aside, by
CHAPMAN, J., as against the evidence.[160]

STEVENS _v._ NICHOLS
SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 23, 1892.
_Reported in 155 Massachusetts Reports, 472._

Tort, to recover for injuries occasioned to the plaintiff by driving
over a curbstone covered with snow in a private way controlled by the
defendants. At the trial in the Superior Court, Mason, C. J., at the
defendants’ request, ruled that, upon the pleadings and the plaintiff’s
opening, he could not maintain the action, and ordered a verdict for the
defendants; and the plaintiff alleged exceptions. The facts, so far as
material to the points decided, appear in the opinion.

_John L. Thorndike_, for the defendants.[161]

This case bears no resemblance to Holmes _v._ Drew, 151 Mass. 578, where
the defendant had constructed a brick sidewalk by the side of a public
street, partly on her own land and partly in the street, without any
line of separation, and so that the whole was apparently part of the
street, and the defendant clearly intended that it should be used as
part of the street. There is no similarity between such an addition to
the apparent width of a public street and the opening of a private
avenue or way out of a public street. The private way could not have
been, or intended to be, part of the public street, and the separation
between them was plain....

The absence of similarity between this case and Holmes _v._ Drew, 151
Mass. 578, has already been pointed out; but it is also submitted that
that case is the first in which it has ever been held that the owner of
land was under any obligation to make it safe for a person that was
allowed to come upon the land for his own convenience, and for a purpose
in which the owner had no interest, whether the owner gave his consent
in the form of a permission or in the form of what might, in common
language, be called an invitation. Such persons were called licensees,
and must take the land as they found it, subject only to this, that the
owner must not lead them into danger by “something like fraud.” Gautret
_v._ Egerton, L. R. 2 C. P. 371, 374–375; Reardon _v._ Thompson, 149
Mass. 267, 268; Pollock on Torts, 424–426....

But as regards persons coming upon land at the request, actual or tacit,
of the owner upon business or for a purpose in which the owner had an
_interest_, it was his duty to make it reasonably safe, and he was
liable for damages arising from a neglect of this duty. Indermaur _v._
Dames, L. R. 1 C. P. 274, 2 C. P. 311; Carleton _v._ Franconia Iron &
Steel Co., 99 Mass. 216 (rock by wharf at which vessel unloaded); The
Moorcock, 14 P. D. 64 (a similar case); Davis _v._ Central
Congregational Society, 129 Mass. 367 (plaintiff attending a conference
of churches at defendant’s meeting-house, an object in which both
parties had an interest; also, p. 371, “a dangerous place without
warning”); Pollock on Torts, 415–418.

It is this _common interest_, not the form of the license or invitation,
that creates the liability (Holmes _v._ North Eastern Ry. Co., L. R. 4
Ex. 254, 6 Ex. 123).

The distinction between these two classes of cases is that in one the
owner of the land has an interest in the person’s coming there, while in
the other the authority to come upon the land is a pure _gratuity_. It
is reasonable that the owner should undertake some duty in respect of
the condition of the land when he brings another person there for an
object in which he himself has an interest. But there is no reason why
he should undertake any such duty when he makes a gift of the privilege
of going upon his land. The privilege is only a gift, whether the owner
gives it because it is asked for, or whether he offers it first, or asks
or “invites” the other to accept it. It may in a sense be said that a
person is “induced” to go upon land by a license or permission of the
owner, but the real inducement is his own convenience. When the owner
asks him to walk over his land whenever it is agreeable to him, and he
goes there, he does so because it is agreeable to him, and not because
the owner asks him. He is in law a _licensee_ going upon the land for
his own convenience by the owner’s permission, and not a person brought
there for a purpose in which the owner has an interest.[162]

_Licensees_, however, have a right to expect that the owner will not
create a new danger while the license continues, and he is liable for
the consequences if he does create such a danger; _e. g._, by making an
excavation near a path, as in Oliver _v._ Worcester, 102 Mass. 489, 502,
or by placing an obstruction in an avenue, as in Corby _v._ Hill, 4 C.
B. N. S. 556, 567, or by carelessly throwing a keg into a passageway, as
in Corrigan _v._ Union Sugar Refinery, 98 Mass. 577, or by negligent
management of trains at a private crossing of a railway habitually used
by the public with the assent of the company, as in Sweeny _v._ Old
Colony Rld. Co., 10 Allen, 368; Murphy _v._ Boston & Albany Rld. Co.,
133 Mass. 121; Hanks _v._ Boston & Albany Rld. Co., 147 Mass. 495; Byrne
_v._ New York Central Rld. Co., 104 N. Y. 362; Swift _v._ Staten Island
Rld. Co., 123 N. Y. 645; Taylor _v._ Delaware & Hudson Canal Co., 113
Pa. St. 162, 175.

The principle of these cases is stated by Willes, J., in Gautret _v._
Egerton, L. R. 2 C. P., p. 373, as follows: “If I dedicate a way to the
public which is full of ruts and holes, the public must take it as it
is. If I dig a pit in it, I may be liable for the consequences; but, if
I do nothing, I am not.”

The same principle is alluded to in June _v._ Boston & Albany Rld. Co.,
153 Mass. p. 82, where the court speaks of “cases in which even
unintended damage done to a licensee by actively bringing force to bear
upon his person will stand differently from merely passively leaving
land in a dangerous condition.”

The cases above mentioned include all that are cited in Holmes _v._
Drew, 151 Mass. 580. In none of them is it held or suggested that the
railway company was liable for any defect or obstruction in the
crossing, or that the landowner was liable for any excavation or
obstruction existing when the permission was granted.

[After citing cases where the court said that some kind of inducement or
invitation was necessary to create a liability for want of care in
running trains.] But it was not suggested that the inducement or
invitation would create any liability for defects in the crossing itself
which the company gratuitously allowed the public to use.

[Referring to cases where there is implied license to the public to use
a crossing.] The probability known to the company that some one may be
there in pursuance of the license is treated ... as the ground of
liability in such cases for want of care in running trains.... But there
is nothing in any of the cases above mentioned tending to support the
proposition that the knowledge of the habitual use of the crossing,
pursuant to the implied permission, would create a liability for defects
in the crossing itself or impose any kind of duty to make it safe or
convenient.

* * * * *

Holmes _v._ Drew (151 Mass. 578) does not belong to either of the two
last classes of cases. The plaintiff (1) did not go there upon the
defendant’s land for any purpose in which the defendant was interested,
and (2) the defendant did nothing to make the place less safe than it
was when it was first opened to the public. The plaintiff was a
volunteer, going upon the defendant’s land with her full permission, but
entirely for his own convenience. These distinctions do not appear to
have been called to the attention of the court. The judgment, which is
very short, seems to proceed upon the ground that the defendant, by
paving a footway partly on her own land and allowing it to remain
apparently a part of the street, showed an _intention_ that it should be
used by foot passengers, and that this would amount to an _implied
invitation_, which imposed on her a duty to make it reasonably safe. If
this is to be taken literally, a permission ceases to be a _license_ if
it is _intended_ that it shall be used; and an invitation imposes the
same duty when it is given gratuitously for the pleasure of the donee as
when it is given for an object in which the giver has an interest; and
the owner of land that gives permission to cross his land can escape
liability only by proving that he did not _intend_ the permission to be
used. It is submitted that the authorities cited in that case do not
support this doctrine. Two of them are cases where the invitation was to
come upon the land for a purpose in which the owner had an interest, and
in the three others a licensee was injured by negligence in something
done after the license was given....

LATHROP, J. The declaration in this case, so far as material to the
questions presented at the argument, alleged that the defendants on the
day of the accident were, and had been for a long time, lessees and
occupants of an estate on Atlantic Avenue in Boston; that the defendants
maintained a way or street down by their premises, “leading out of said
Atlantic Avenue, and extending to other premises beyond; that said
street was in all particulars like the public streets of the city of
Boston, being paved with granite blocks, and having sidewalks, and to
all appearances was a public thoroughfare; that the defendants had
placed no sign or notice of any kind upon or about said street ... which
would give warning to the plaintiff or to the public that said street
was private property, or dangerous, but had erected a granite curbing
out into said street, extending one half the distance across the same,
on a line with the rear of their estate, said granite curbing being from
six to seven inches above the grade of the paving; that said obstruction
was dangerous both by day and by night to all persons who entered upon
or passed through said street; that on or about said day the plaintiff
had business that called him to the premises that lie beyond the estate
of the defendants on said street, and, supposing and assuming that said
street was a highway, and being induced by the acts and omissions of
these defendants to so suppose and assume, entered in and upon said
street to drive through the same; that said obstruction was covered by
snow at said time, and plaintiff was unable to see the same; and, while
in the exercise of due care, his sleigh struck said granite curbing,”
and he was thrown out and injured.

The opening of the plaintiff’s counsel added but little to the
declaration. It stated that “the snow lay perfectly level” where the
curbstone was; that the plaintiff was driving through the defendants’
way “into the way lying beyond, of which it was ... an extension,” to
reach the works of the company for which he was working. It also stated
that, before the defendants controlled the way under the written lease,
they owned the premises, erected the building, paved the way, and put in
the curbstone; “that ever since this building and other buildings had
been erected down there the public made use of that way, as they would
use any other street in the city; that is, as much as they had any
occasion to pass down there with teams or on foot.”

It does not appear that the plaintiff had any right in the way, unless
he had it as one of the public. There is no allegation or statement that
the plaintiff had ever used the way before, or that he knew the way was
paved, or noticed whether there was a sign or not. Indeed, if he was
then using the way for the first time, the fair inference would be, from
the statement of the condition of the snow, that the fact that the way
was paved was unknown to him until after the accident, and did not
operate as an inducement to enter the way. The declaration contained no
allegation as to any use by the public of the way, and the statement in
the opening of counsel, that the public made use of that way, was
qualified by the words, “that is, as much as they had any occasion to
pass down there with teams or on foot.” It is difficult to see how
vehicles of any description could, when the paving was sufficiently
visible to act as an inducement, go over that portion of the way which
the defendants controlled.

Without laying stress upon these points, we are of opinion that the
declaration and the opening of the plaintiff’s counsel do not show that
there was any breach on the part of the defendants of any duty which
they owed the plaintiff. The defendants were not obliged to put up a
sign notifying travellers on the public street that the passageway was
not a public way. Galligan _v._ Metacomet Manuf. Co., 143 Mass. 527;
Reardon _v._ Thompson, 149 Mass. 267; Redigan _v._ Boston & Maine
Railroad, _ante_, 44.[163]

Nor can the fact that the passageway was paved be considered an
invitation or inducement to the public to enter upon it for their own
convenience. The defendants have a right to pave it for their own use or
for the use of their customers. Johnson _v._ Boston & Maine Railroad,
125 Mass. 75; Heinlein _v._ Boston & Providence Railroad, 147 Mass. 136;
Reardon _v._ Thompson, 149 Mass. 267; Donnelly _v._ Boston & Maine
Railroad, 151 Mass. 210; Redigan _v._ Boston & Maine Railroad, _ante_,
44.

There was in this case no allegation and no statement that the
defendants had any knowledge that the public was using the passageway,
or of such a condition of things that it can be said that they must have
known of it. But if it be assumed that there was such use and such
acquiescence that a license might be implied, the plaintiff stands in no
better position. “The general rule is,” as stated by Mr. Justice Holmes
in Reardon _v._ Thompson, _ubi supra_, “that a licensee goes upon land
at his own risk, and must take the premises as he finds them.” See also
Redigan _v._ Boston & Maine Railroad, _ante_, 44; Gautret _v._ Egerton,
L. R. 2 C. P. 371, 374.

The licensor has, however, no right to create a new danger while the
license continues. Oliver _v._ Worcester, 102 Mass. 489, 502; Corrigan
_v._ Union Sugar Refinery, 98 Mass. 577; Corby _v._ Hill, 4 C. B. (N.
S.) 556. So a railroad company which allows the public habitually to use
a private crossing of its tracks cannot use active force against a
person or vehicle crossing under a license, express or implied. Sweeny
_v._ Old Colony & Newport Railroad, 10 Allen, 368; Murphy _v._ Boston &
Albany Railroad, 133 Mass. 121; Hanks _v._ Boston & Albany Railroad, 147
Mass. 495. See June _v._ Boston & Albany Railroad, 153 Mass. 79, 82.

We have no occasion to consider whether the case of Holmes _v._ Drew,
151 Mass. 578, is open to the criticism that it is inconsistent with the
doctrine that a person who dedicates a footway to the public use is not
obliged to keep it in repair (see Fisher _v._ Prowse, 2 B. & S. 770,
780, and Robbins _v._ Jones, 15 C. B. (N. S.) 221) as we are of opinion
that that case has no application to the case at bar. In Holmes _v._
Drew, the defendant made a continuous pavement in front of his house,
partly on his own land and partly on the public land; and it was held
that the jury might infer from this an invitation to walk over the whole
pavement. In the case at bar, the defendants merely opened a private way
into a public street, and we fail to see that they thereby invited the
public to use it, even though it were paved.

_Exceptions overruled._[164]

TUTTLE _v._ GILBERT MANUFACTURING CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 20, 1887.
_Reported in 145 Massachusetts Reports, 169._

Tort, by lessee of a building against lessor. The lessee claimed, and
introduced evidence to show, that, at the time of letting, the lessor
agreed to repair the building and put it in safe condition; that the
lessee suffered damage by reason of a defect in the building; and that
the lessor failed and neglected to make repairs until after the damage
to the plaintiff.

Upon the evidence, the judge ruled that plaintiff could not recover, and
ordered a verdict for defendant. Plaintiff excepted.[165]

MORTON, C. J. It is the general rule that there is no warranty implied
in the letting of premises that they are reasonably fit for use. The
lessee takes an estate in the premises hired, and he takes the risk of
the quality of the premises, in the absence of an express or implied
warranty by the lessor, or of deceit. A lessee, therefore, if he is
injured by reason of the unsafe condition of the premises hired, cannot
maintain an action against the lessor, in the absence of warranty or of
misrepresentation. In cases where lessors have been held liable for such
injuries to the lessees, the liability is founded in negligence. Looney
_v._ McLean, 129 Mass. 33. Bowe _v._ Hunking, 135 Mass. 380, and cases
cited.

The plaintiff admits the general rule, but contends that this case is
taken out of it because, at the time of the letting, the defendant
agreed to repair and put in a safe condition the stable floor, the
unsafe condition of which caused the injury. The contract relied on is a
loose one; it fixed no time within which the repairs were to be made,
and it is doubtful whether the evidence proved any breach of contract on
the part of the defendant. But if we assume that the contract was to
make the repairs within a reasonable time, and that the jury would be
justified in finding that the defendant had not performed it within a
reasonable time, the question is whether, for such a breach, the
plaintiff can maintain an action of tort to recover for personal
injuries sustained by reason of the defective condition of the stable
floor.

The cases are numerous and confusing as to the dividing line between
actions of contract and of tort, and there are many cases where a man
may have his election to bring either action. Where the cause of action
arises merely from a breach of promise, the action is in contract.

The action of tort has for its foundation the negligence of the
defendant, and this means more than a mere breach of a promise.
Otherwise, the failure to meet a note, or any other promise to pay
money, would sustain an action in tort for negligence, and thus the
promisor be made liable for all the consequential damages arising from
such failure.

As a general rule, there must be some active negligence or misfeasance
to support tort. There must be some breach of duty distinct from breach
of contract. In the case at bar, the utmost shown against the defendant
is that there was unreasonable delay on its part in performing an
executory contract. As we have seen, it is not liable by reason of the
relation of lessor and lessee, but its liability, if any, must rest
solely upon a breach of this contract.

We do not see how the cases would differ in principle if an action were
brought against a third person who had contracted to repair the stable
floor and had unreasonably delayed in performing his contract. We are
not aware of any authority for maintaining such an action. If the
defendant had performed the work contemplated by its contract
unskilfully and negligently, it would be liable to an action of tort,
because in such case there would be a misfeasance, which is a sufficient
foundation for an action of tort. Such was the case of Gill _v._
Middleton, 105 Mass. 477.

The case of Ashley _v._ Root, 4 Allen, 504, does not conflict with our
view, but recognizes the rule that to sustain an action of tort there
must be more than a mere breach of contract.

The plaintiff now argues that he had the right to go to the jury upon
the questions of warranty and deceit. It does not appear that this claim
was made in the Superior Court; but it is clear that there is no
sufficient evidence of any warranty that the stable was safe, or of any
deceit or misrepresentation on the part of the defendant or its agent.

_Exceptions overruled._[166]

SOUTHCOTE _v._ STANLEY
IN THE EXCHEQUER, JUNE 4, 1856.
_Reported in 1 Hurlstone & Norman, 247._

The declaration stated that at the time of the committing of the
grievances, &c., the defendant was possessed of an hotel, into which he
had then permitted and invited the plaintiff to come as a visitor of the
defendant, and in which the plaintiff as such visitor then lawfully was
by the permission and invitation of the defendant, and in which hotel
there then was a glass door of the defendant which it was then necessary
for the plaintiff, as such visitor, to open for the purpose of leaving
the hotel, and which the plaintiff, as such visitor, then by the
permission of the defendant and with his knowledge, and without any
warning from him, lawfully opened for the purpose aforesaid, as a door
which was in a proper condition to be opened; nevertheless, by and
through the mere carelessness, negligence, and default of the defendant
in that behalf, the said door was then in an insecure and dangerous
condition, and unfit to be used or opened, and by reason of the said
door being in such insecure and dangerous condition and unfit, as
aforesaid, and of the then carelessness, negligence, default, and
improper conduct of the defendant in that behalf, a large piece of glass
from the said door fell out of the same to and upon the plaintiff, and
wounded him, and he sustained divers bodily injuries, and remained ill
and unable to work for a long time, &c.

Demurrer and joinder therein.

_Raymond_, in support of the demurrer. The declaration discloses no
cause of action. It is not stated that the plaintiff was in the hotel as
a guest, but merely as a visitor; and there is no allegation that the
defendant knew of the dangerous condition of the door. To render the
defendant liable, the declaration ought to have shown some contract
between the plaintiff and the defendant which imposed on the latter the
obligation of taking care that the door was secure; or it should have
alleged some negligence on the part of the defendant in the performance
of a duty which he owed to the plaintiff. [BRAMWELL, B. If a person
invites another into his house, and the latter can only enter through a
particular door, is it not the duty of the former to take care that the
door is in a secure condition?] He may not be aware that the door is
insecure. This declaration only alleges that through the carelessness,
negligence, and default of the defendant the door was in a dangerous
condition; that cannot be read as involving the allegation that the
defendant knew that the door was insecure. All facts necessary to raise
a legal liability must be strictly averred. Metcalfe _v._ Hetherington,
11 Exch. 257. [ALDERSON, B. It is not stated that it was the duty of the
defendant, as an hotel keeper, to take care that the door was secure.
Suppose a person invites another to his house, and the latter runs his
hand through a pane of glass, how is the former liable?] The Court then
called on

_Gray, contra._ The declaration shows a duty on the part of the
defendant, and a breach of that duty. It is immaterial whether the
injury takes place in a private house, or in a shop, or in a street; the
only question is whether the person who complains was lawfully there?
The case is similar in principle to that of Randleson _v._ Murray, 8 A.
& E. 109, which decided that a warehouseman who lowers goods from his
warehouse is bound to use proper tackle for that purpose. [ALDERSON, B.
It is the duty of every person who hangs anything over a public way to
take care that it is suspended by a proper rope.] Whether it be a
private house or a shop, a duty is so far imposed on the occupier to
keep it reasonably secure, that if a person lawfully enters, and through
the negligence of the occupier in leaving it in an insecure state
receives an injury, the occupier is responsible. Here it is alleged that
the defendant invited the plaintiff to come into the hotel as a visitor;
that shows that he was lawfully there. [POLLOCK, C. B. The position that
an action lies because the plaintiff was lawfully in the house, cannot
be supported; a servant is lawfully in his master’s house and yet if the
balusters fell, whereby he was injured, he could not maintain an action
against the master. If a lady who is invited to dinner goes in an
expensive dress, and a servant spills something over her dress which
spoils it, the master of the house would not be liable. Where a person
enters a house by invitation the same rule prevails as in the case of a
servant. A visitor would have no right of action for being put in a damp
bed, or near a broken pane of glass, whereby he caught cold. ALDERSON,
B. The case of a shop is different, because a shop is open to the
public; and there is a distinction between persons who come on business
and those who come by invitation.]

POLLOCK, C. B. We are all of opinion that the declaration cannot be
supported, and that the defendant is entitled to judgment. I do not
think it necessary to point out the reasons by which I have come to that
conclusion; because it follows from the decision of this Court
(Priestley _v._ Fowler, 3 M. & W. 1) that the mere relation of master
and servant does not create any implied duty on the part of the master
to take more care of the servant than he may reasonably be expected to
do of himself. That decision has been followed by several cases,[167]
and is now established law, though I believe the principle was not
recognized until recent times. The reason for the rule is that the
servant undertakes to run all the ordinary risks of service, including
those arising from the negligence of his fellow-servants. The rule
applies to all the members of a domestic establishment, so that the
master is not in general liable to a servant for injury resulting from
the negligence of a fellow-servant; neither can one servant maintain an
action against another for negligence whilst engaged in their common
employment. The same principle applies to the case of a visitor at a
house; whilst he remains there he is in the same position as any other
member of the establishment, so far as regards the negligence of the
master or his servants, and he must take his chance with the rest.

ALDERSON, B. I am of the same opinion.

BRAMWELL, B. I agree with Mr. _Gray_ to this extent, that where a person
is in the house of another, either on business or for any other purpose,
he has a right to expect that the owner of the house will take
reasonable care to protect him from injury; for instance, that he will
not allow a trap-door to be open through which the visitor may fall. But
in this case my difficulty is to see that the declaration charges any
act of commission. If a person asked another to walk in his garden, in
which he had placed spring-guns or men-traps, and the latter, not being
aware of it, was thereby injured, that would be an act of commission.
But if a person asked a visitor to sleep at his house, and the former
omitted to see that the sheets were properly aired, whereby the visitor
caught cold, he could maintain no action, for there was no act of
commission, but simply an act of omission. This declaration merely
alleges that “by and through the mere carelessness, negligence, default,
and improper conduct of the defendant,” the glass fell from the door.
That means a want of care,—a default in not doing something. The words
are all negatives, and under these circumstances the action is not
maintainable. I doubted whether the words “carelessness, negligence, and
improper conduct,” &c., might not mean something equivalent to actual
commission, but on the best consideration which I can give the subject,
it appears to me that they do not mean that, but merely point to a
negative. If I misconstrue the declaration it is the fault of those who
so framed it.

_Judgment for the defendant._[168]

BEEHLER _v._ DANIELS
SUPREME COURT, RHODE ISLAND, MAY 1, 1894.
_Reported in 18 Rhode Island Reports, 563._

Trespass on the Case. Certified from the Common Pleas Division on
demurrer to the declaration.

STINESS, J. The plaintiff seeks to recover for injury caused by falling
into an elevator well in the defendants’ building, which he entered in
the discharge of his duty, as a member of the fire department of the
city of Providence, in answering a call to extinguish a fire. The
negligence alleged in the first count is a failure to guard and protect
the well; and in the second count such a packing of merchandise as to
guide and conduct one to the unguarded and unprotected well. The
defendants demur to the declaration, alleging as grounds of demurrer
that they owed no duty to the plaintiff; that he entered their premises
in the discharge of a public duty and assumed the risks of his
employment; that he was in the premises without invitation from them;
and that they are not liable for consequences which they could not and
were not bound to foresee.

The decisive question thus raised is, Did the defendants, under the
circumstances, owe to the plaintiff a duty, for failure in which they
are liable to him in damages? The question is not a new one, and we
think it is safe to say that it has never been answered otherwise than
in favor of the defendants. The plaintiff argues that it was his duty to
enter the premises, and, consequently, since an owner may reasonably
anticipate the liability of a fire, a duty arises from the owner to the
fireman to keep his premises guarded and safe. An extension of this
argument to its legitimate result, as a rule of law, is sufficiently
startling to show its unsoundness. The liability to fire is common to
all buildings and at all times. Hence every owner of every building must
at all times keep every part of his property, in such condition, that a
fireman, unacquainted with the place, and groping about in darkness and
smoke, shall come upon no obstacle, opening, machine or anything
whatever which may cause him injury. This argument was urged in Woodruff
_v._ Bowen, 136 Ind. 431; but the court said: “We are of the opinion
that the owner of a building in a populous city does not owe it as a
duty at common law, independent of any statute or ordinance, to keep
such building safe for firemen or other officers, who, in a contingency,
may enter the same under a license conferred by law.”

Undoubtedly the plaintiff in this case had the right to enter the
defendants’ premises, and the character of his entry was that of a
licensee. Cooley on Torts, *313. But no such duty as is averred in this
declaration is due from an owner to a licensee. This question is
discussed in the case just cited, as also in many others. For example,
in Reardon _v._ Thompson, 149 Mass. 267, Holmes, J., says: “But the
general rule is that a licensee goes upon land at his own risk, and must
take the premises as he finds them. An open hole, which is not concealed
otherwise than by the darkness of the night, is a danger which a
licensee must avoid at his peril.” So in Mathews _v._ Bensel, 51 N. J.
Law, 30, Beasley, C. J., says: “The substantial ground of complaint laid
in the count is, that the defendants did not properly construct their
planer, and, being a dangerous instrument, did not surround it with
proper safeguards. But there is no legal principle that imposes such a
duty as this on the owner of property with respect to a mere licensee.
This is the recognized rule. In the case of Holmes _v._ Northeastern
Railway Co., L. R. 4 Exch. 254, 256, Baron Channell says: ‘That where a
person is a mere licensee he has no cause of action on account of the
dangers existing in the place he is permitted to enter.’” In Parker _v._
Portland Publishing Co., 69 Me. 173, this question is fully examined,
the court holding it to be well settled, if the plaintiff was at the
place where the injury was received by license merely, that the
defendant would owe him no duty and that he could not recover. See also
Indiana, etc., Railway Co. _v._ Barnhart, 115 Ind. 399; Gibson _v._
Leonard, 37 Ill. App. 344; Bedell _v._ Berkey, 76 Mich. 435.

There is a clear distinction between a license and an invitation to
enter premises, and an equally clear distinction as to the duty of an
owner in the two cases. An owner owes to a licensee no duty as to the
condition of premises, unless imposed by statute, save that he should
not knowingly let him run upon a hidden peril or wilfully cause him
harm; while to one invited he is under obligation for reasonable
security for the purposes of the invitation. The plaintiff’s declaration
does not set out a cause of action upon either of these grounds, and the
cases cited and relied on by him fall within the two classes of cases
described, and mark the line of duty very clearly. Parker _v._ Barnard,
135 Mass. 116, was the case of a police officer who had entered a
building, the doors of which were found open in the night time, to
inspect it according to the rules of the police department, and fell
down an unguarded elevator well. A statute required such wells to be
protected by railings and trap-doors. Judgment having been given for the
defendant at the trial, a new trial was ordered upon the ground of a
violation of statute. The court says: “The owner or occupant of land or
a building is not liable, at common law, for obstructions, pitfalls, or
other dangers there existing, as, in the absence of any inducement or
invitation to others to enter, he may use his property as he pleases.
But he holds his property ‘subject to such reasonable control and
regulation of the mode of keeping and use as the legislature, under the
police power vested in them by the Constitution of the Commonwealth, may
think necessary for the preventing of injuries to the rights of others
and the security of the public health and welfare.’” Then, likening the
plaintiff to a fireman, the court also says: “Even if they must
encounter the danger arising from neglect of such precautions against
obstructions and pitfalls as those invited or induced to enter have a
right to expect, they may demand, as against the owners or occupants,
that they observe the statute in the construction and management of
their building.” In Learoyd _v._ Godfrey, 138 Mass. 315, a police
officer fell down an uncovered well in or near a passageway to a house
where he was called to quell a disturbance of the peace. A verdict for
the plaintiff was sustained upon the ground that the jury must have
found that the officer was using the passageway by the defendant’s
invitation and that the evidence warranted the finding. Gordon _v._
Cummings, 152 Mass. 513, was the case of a letter carrier who fell into
an elevator well, in a hallway where he was accustomed to leave letters
in boxes put there for that purpose. The court held that there was an
implied invitation to the carrier to enter the premises. In Engel _v._
Smith, 82 Mich. 1, the plaintiff fell through a trap-door left open in a
building where he was employed. The question of duty is not discussed in
the case but simply the fact of negligence. In Bennett _v._ Railroad
Co., 102 U. S. 577, the plaintiff, a passenger, fell through a hatch
hole in the depot floor. The court construed the declaration as setting
out facts which amounted to an invitation to the plaintiff to pass over
the route which he took through the shed depot where the hatch hole was.

In the present case the plaintiff sets out no violation of a statute, or
facts which amount to an invitation, and, consequently, under the
well-settled rule of law, the defendants were under no liability to him
for the condition of their premises or the packing of their merchandise.
The demurrer to the declaration must therefore be sustained.[169]

SECTION VII
LIABILITY TO THIRD PERSONS OF MAKER OR VENDOR OF A CHATTEL

WINTERBOTTOM _v._ WRIGHT
IN THE EXCHEQUER, JUNE 6, 1842.
_Reported in 10 Meeson & Welsby, 109._

Case. The declaration stated, that the defendant was a contractor for
the supply of mail-coaches, and had in that character contracted for
hire and reward with the Postmaster-General, to provide the mail-coach
for the purpose of conveying the mail-bags from Hartford, in the county
of Chester, to Holyhead: That the defendant, under and by virtue of the
said contract, had agreed with the said Postmaster-General that the said
mail-coach should, during the said contract, be kept in a fit, proper,
safe, and secure state and condition for the said purpose, and took upon
himself, to wit, under and by virtue of the said contract, the sole and
exclusive duty, charge, care, and burden of the repairs, state, and
condition of the said mail-coach; and it had become and was the sole and
exclusive duty of the defendant, to wit, under and by virtue of his said
contract, to keep and maintain the said mail-coach in a fit, proper,
safe, and secure state and condition for the purpose aforesaid: That
Nathaniel Atkinson and other persons, having notice of the said
contract, were under contract with the Postmaster-General to convey the
said mail-coach from Hartford to Holyhead, and to supply horses and
coachmen for that purpose, and also not, on any pretence whatever, to
use or employ any other coach or carriage whatever than such as should
be so provided, directed, and appointed by the Postmaster-General: That
the plaintiff, being a mail-coachman, and thereby obtaining his
livelihood, and whilst the said several contracts were in force, having
notice thereof, and trusting to and confiding in the contract made
between the defendant and the Postmaster-General, and believing that the
said coach was in a fit, safe, secure, and proper state and condition
for the purpose aforesaid, and not knowing and having no means of
knowing to the contrary thereof, hired himself to the said Nathaniel
Atkinson and his co-contractors as mail-coachman, to drive and take the
conduct of the said mail-coach, which but for the said contract of the
defendant he would not have done. The declaration then averred, that the
defendant so improperly and negligently conducted himself, and so
utterly disregarded his aforesaid contract, and so wholly neglected and
failed to perform his duty in this behalf, that heretofore, to wit, on
the 8th of August, 1840, whilst the plaintiff, as such mail-coachman so
hired, was driving the said mail-coach from Hartford to Holyhead, the
same coach, being a mail-coach found and provided by the defendant under
his said contract, and the defendant then acting under his said
contract, and having the means of knowing and then well knowing all the
aforesaid premises, the said mail-coach being then in a frail, weak,
infirm, and dangerous state and condition, to wit, by and through
certain latent defects in the state and condition thereof, and unsafe
and unfit for the use and purpose aforesaid, and from no other cause,
circumstance, matter, or thing whatsoever gave way and broke down,
whereby the plaintiff was thrown from his seat, and, in consequence of
injuries then received, had become lamed for life.

To this declaration the defendant pleaded several pleas, to two of which
there were demurrers; but, as the Court gave no opinion as to their
validity, it is not necessary to state them.

_Peacock_, who appeared in support of the demurrers, having argued
against the sufficiency of the pleas,—

_Byles_, for the defendant, objected that the declaration was bad in
substance. This is an action brought, not against Atkinson and his
co-contractors, who were the employers of the plaintiff, but against the
person employed by the Postmaster-General, and totally unconnected with
them or with the plaintiff. Now it is a general rule, that wherever a
wrong arises merely out of the breach of a contract, which is the case
on the face of this declaration, whether the form in which the action is
conceived be _ex contractu_ or _ex delicto_, the party who made the
contract alone can sue: Tollit _v._ Sherstone, 5 M. & W. 283. If the
rule were otherwise, and privity of contract were not requisite, there
would be no limit to such actions. If the plaintiff may, as in this
case, run through the length of three contracts, he may run through any
number or series of them; and the most alarming consequences would
follow the adoption of such a principle. Levy _v._ Langridge, 4 M. & W.
337, will probably be referred to on the other side. But that case was
expressly decided on the ground that the defendant, who sold the gun by
which the plaintiff was injured, although he did not personally contract
with the plaintiff, who was a minor, knew that it was bought to be used
by him. Here there is no allegation that the defendant knew that the
coach was to be driven by the plaintiff. There, moreover, fraud was
alleged in the declaration, and found by the jury: and there, too, the
cause of injury was a weapon of a dangerous nature, and the defendant
was alleged to have had notice of the defect in its construction.
Nothing of that sort appears upon this declaration.

_Peacock, contra._ This case is within the principle of the decision in
Levy _v._ Langridge. Here the defendant entered into a contract with a
public officer to supply an article which, if imperfectly constructed,
was necessarily dangerous, and which, from its nature and the use for
which it was destined, was necessarily to be driven by a coachman. That
is sufficient to bring the case within the rule established by Levy _v._
Langridge. In that case the contract made by the father of the plaintiff
with the defendant was made on behalf of himself and his family
generally, and there was nothing to show that the defendant was aware
even of the existence of the particular son who was injured. Suppose a
party made a contract with government for a supply of muskets, one of
which, from its misconstruction, burst and injured a soldier: there it
is clear that the use of the weapon by a soldier would have been
contemplated, although not by the particular individual who received the
injury, and could it be said, since the decision in Levy _v._ Langridge,
that he could not maintain an action against the contractor? So, if a
coachmaker, employed to put on the wheels of a carriage, did it so
negligently that one of them flew off, and a child of the owner were
thereby injured, the damage being the natural and immediate consequence
of his negligence, he would surely be responsible. So, if a party
entered into a contract to repair a church, a workhouse, or other public
building, and did it so insufficiently that a person attending the
former, or a pauper in the latter, were injured by the falling of a
stone, he could not maintain an action against any other person than the
contractor; but against him he must surely have a remedy. It is like the
case of a contractor who negligently leaves open a sewer, whereby a
person passing along the street is injured. It is clear that no action
could be maintained against the Postmaster-General: Hall _v._ Smith, 2
Bing. 156; Humphreys _v._ Mears, 1 Man. & R. 187; Priestly _v._ Fowler.
But here the declaration alleges the accident to have happened through
the defendant’s negligence and want of care. The plaintiff had no
opportunity of seeing that the carriage was sound and secure. [ALDERSON,
B. The decision in Levy _v._ Langridge proceeds upon the ground of the
knowledge and fraud of the defendant.] Here also there was fraud: the
defendant represented the coach to be in a proper state for use, and
whether he represented that which was false within his knowledge, or a
fact as true which he did not know to be so, it was equally a fraud in
point of law, for which he is responsible.

LORD ABINGER, C. B. I am clearly of opinion that the defendant is
entitled to our judgment. We ought not to permit a doubt to rest upon
this subject, for our doing so might be the means of letting in upon us
an infinity of actions. This is an action of the first impression, and
it has been brought in spite of the precautions which were taken, in the
judgment of this Court in the case of Levy _v._ Langridge, to obviate
any notion that such an action could be maintained. We ought not to
attempt to extend the principle of that decision, which, although it has
been cited in support of this action, wholly fails as an authority in
its favor; for there the gun was bought for the use of the son, the
plaintiff in that action, who could not make the bargain himself, but
was really and substantially the party contracting. Here the action is
brought simply because the defendant was a contractor with a third
person; and it is contended that thereupon he became liable to everybody
who might use the carriage. If there had been any ground for such an
action, there certainly would have been some precedent of it; but with
the exception of actions against innkeepers, and some few other persons,
no case of a similar nature has occurred in practice. That is a strong
circumstance, and is of itself a great authority against its
maintenance. It is however contended, that this contract being made on
the behalf of the public by the Postmaster-General, no action could be
maintained against him, and therefore the plaintiff must have a remedy
against the defendant. But that is by no means a necessary
consequence,—he may be remediless altogether. There is no privity of
contract between these parties; and if the plaintiff can sue, every
passenger, or even any person passing along the road, who was injured by
the upsetting of the coach, might bring a similar action. Unless we
confine the operation of such contracts as this to the parties who
entered into them, the most absurd and outrageous consequences, to which
I can see no limit, would ensue. Where a party becomes responsible to
the public, by undertaking a public duty, he is liable, though the
injury may have arisen from the negligence of his servant or agent. So,
in cases of public nuisances, whether the act was done by the party as a
servant, or in any other capacity, you are liable to an action at the
suit of any person who suffers. Those, however, are cases where the real
ground of the liability is the public duty, or the commission of the
public nuisance. There is also a class of cases in which the law permits
a contract to be turned into a tort; but unless there has been some
public duty undertaken, or public nuisance committed, they are all cases
in which an action might have been maintained upon the contract. Thus, a
carrier may be sued either in assumpsit or case; but there is no
instance in which a party, who was not privy to the contract entered
into with him, can maintain any such action. The plaintiff in this case
could not have brought an action on the contract; if he could have done
so, what would have been his situation supposing the Postmaster-General
had released the defendant? That would, at all events, have defeated his
claim altogether. By permitting this action, we should be working this
injustice, that after the defendant had done everything to the
satisfaction of his employer, and after all matters between them had
been adjusted, and all accounts settled on the footing of their
contract, we should subject them to be ripped open by this action of
tort being brought against him.

ALDERSON, B. I am of the same opinion. The contract in this case was
made with the Postmaster-General alone; and the case is just the same as
if he had come to the defendant and ordered a carriage, and handed it at
once over to Atkinson. If we were to hold that the plaintiff could sue
in such a case, there is no point at which such actions would stop. The
only safe rule is to confine the right to recover to those who enter
into the contract: if we go one step beyond that, there is no reason why
we should not go fifty. The only real argument in favor of the action
is, that this is a case of hardship; but that might have been obviated,
if the plaintiff had made himself a party to the contract. Then it is
urged that it falls within the principle of the case of Levy _v._
Langridge. But the principle of that case was simply this, that the
father having bought the gun for the very purpose of being used by the
plaintiff, the defendant made representations by which he was induced to
use it. There, a distinct fraud was committed on the plaintiff; the
falsehood of the representation was also alleged to have been within the
knowledge of the defendant who made it, and he was properly held liable
for the consequences. How are the facts of that case applicable to those
of the present? Where is the allegation of misrepresentation or fraud in
this declaration? It shows nothing of the kind. Our judgment must
therefore be for the defendant.

GURNEY, B., concurred.

ROLFE, B. The breach of the defendant’s duty, stated in this
declaration, is his omission to keep the carriage in a safe condition;
and when we examine the mode in which that duty is alleged to have
arisen, we find a statement that the defendant took upon himself, to
wit, under and by virtue of the said contract, the sole and exclusive
duty, charge, care, and burden of the repairs, state, and condition of
the said mail-coach, and, during all the time aforesaid, it had become
and was the sole and exclusive duty of the defendant, to wit, under and
by virtue of his said contract, to keep and maintain the said mail-coach
in a fit, proper, safe, and secure state and condition. The duty,
therefore, is shown to have arisen solely from the contract; and the
fallacy consists in the use of that word “duty.” If a duty to the
Postmaster-General be meant, that is true; but if a duty to the
plaintiff be intended (and in that sense the word is evidently used),
there was none. This is one of those unfortunate cases in which there
certainly has been _damnum_, but it is _damnum absque injuria_; it is,
no doubt, a hardship upon the plaintiff to be without a remedy, but, by
that consideration we ought not to be influenced. Hard cases, it has
been frequently observed, are apt to introduce bad law.

_Judgment for the defendant._[170]

BLOOD BALM COMPANY _v._ COOPER
SUPREME COURT, GEORGIA, OCTOBER 14, 1889.
_Reported in 83 Georgia Reports, 857._

Action by Cooper against Blood Balm Company in the City Court of
Atlanta. Verdict for plaintiff. Defendants brought error.[171]

BLANDFORD, J. The main question in this case arises upon the refusal of
the Court below to award a nonsuit, and the solution of this question
depends upon whether, where one prepares what is known as a proprietary
or patent medicine, and puts it upon the market and recommends it to the
world as useful for the cure of certain diseases, the bottle containing
it having therewith a prescription made by the proprietor of the
medicine, in which he states that it is to be taken in certain
quantities, and such medicine, accompanied with this prescription, is
sold by the proprietor to a druggist for the purpose of being resold to
persons who might wish to use it, and the druggist sells the same to a
person who uses it in the quantity thus prescribed, and it being shown
that the same contains a certain article known as the iodide of potash
in such quantity as proves harmful to the person thus using, the
proprietor is liable. The plaintiff in error insists that there is no
liability on the part of the proprietor, (1) because it was not sold by
the proprietor to the person injured, but by a druggist who had
purchased the same from the proprietor; and several cases are cited to
sustain this position; (2) because the drug thus sold was not imminently
hurtful or poisonous.

1. We are not aware of any decision of this Court upon this question,
indeed there is none; and we have searched carefully not only the
authorities cited by counsel in this case, but others, and we find no
question like the one which arises in this record determined by any
Court. In the case of Thomas _v._ Winchester, 6 N. Y. (2 Seld.) 397, 57
Am. Dec. 455, 1 Thompson, Neg. 224, referred to by counsel in this case,
the question decided was, that a dealer in drugs and medicines who
carelessly labels a deadly poison as a harmless medicine, and sends it
so labelled into market, is liable to all persons who, without fault on
their part, are injured by using it as such medicine in consequence of
the false label. This comes nearer the present case than any we have
been able to find, and it is relied upon by both parties as an
authority; and in the notes thereto by Mr. Freeman in the American
Decisions, the cases relied upon by counsel in this case are embraced
and referred to, and to some extent considered. It is not denied by
counsel in this case that the doctrine of the case cited (Thomas _v._
Winchester) is sound and correct law, but the present case differs from
that case, and mainly in this: there the drug sold was a deadly poison,
and the wrong consisted in putting a label upon the same which indicated
that it was a harmless medicine; whereas in this case the medicine sold
was not a deadly poison, and no label was put upon it which was
calculated to deceive any one in this respect. But accompanying this
medicine was a prescription of the proprietor stating the quantity to be
taken, and the evidence tended to show that the quantity thus prescribed
contained iodide of potash to such an extent as, when taken by the
plaintiff, produced the injury and damage complained of. The liability
of the plaintiff in error to the person injured arises, not by contract,
but for a wrong committed by the proprietor in the prescription and
direction as to the dose that should be taken.

We can see no difference whether the medicine was directly sold to the
defendant in error by the proprietor, or by an intermediate party to
whom the proprietors had sold it in the first instance for the purpose
of being sold again. It was put upon the market by the proprietor, not
alone for the use of druggists to whom they might sell it, but to be
used by the public in general who might need the same for the cure of
certain diseases for which the proprietor set forth in his label the
same was adapted. This was the same thing as if the proprietor himself
had sold this medicine to the defendant in error, with his instructions
and directions as to how the same should be taken. In all the cases
cited by the plaintiff in error there is no case in which the proprietor
prescribed the doses and quantities to be taken of the medicine sold by
him. If this medicine contained the iodide of potassium in sufficient
quantity to produce the injurious consequences complained of to the
defendant in error, and if the same was administered to him, either by
himself or any other person, as prescribed in the label accompanying the
medicine, he could, in our judgment, recover for any injury he may have
sustained on account of the poisonous effect thereof. It was a wrong on
the part of the proprietor to extend to the public generally an
invitation to take the medicine in quantities sufficient to injure and
damage persons who might take it.

A medicine which is known to the public as being dangerous and poisonous
if taken in large quantities, may be sold by the proprietor to druggists
and others, and if any person, without more, should purchase and take
the same so as to cause injury to himself, the proprietor would not be
liable. But if the contents of a medicine are concealed from the public
generally, and the medicine is prepared by one who know its contents,
and he sells the same, recommending it for certain diseases and
prescribing the mode in which it shall be taken, and injury is thereby
sustained by the person taking the same, the proprietor would be liable
for the damage thus sustained. These proprietary or patent medicines are
secret, or intended by the proprietors to be secret, as to their
contents. They expect to derive a profit from such secrecy. They are
therefore liable for all injuries sustained by any one who takes their
medicine in such quantities as may be prescribed by them. There is no
way for a person who uses the medicine to ascertain what its contents
are, ordinarily, and in this case the contents were only ascertained
after an analysis made by a chemist,—which would be very inconvenient
and expensive to the public; nor would it be the duty of a person using
the medicine to ascertain what poisonous drugs it may contain. He has a
right to rely upon the statement and recommendation of the proprietor,
printed and published to the world; and if thus relying, he takes the
medicine and is injured on account of some concealed drug of which he is
unaware, the proprietor is not free from fault, and is liable for the
injury thereby sustained. It appears from the analysis made by the
chemist in this case that this medicine contained 25 grains of the
iodide of potash to two tablespoonfuls of the medicine. The testimony of
the plaintiff, by witnesses learned in the profession of medicine, was
that iodide of potash in this quantity would produce the effects upon a
person using it shown by the condition of the defendant in error. The
prescription accompanying the bottle directed the taking of one to two
tablespoonfuls of the medicine, and this was done by the defendant in
error, and he was thereby greatly injured and damaged.

This is not like the case of a dangerous machine or a gun sold to a
person and by him given or sold to another, as in some of the cases
referred to. Mr. Freeman, in his notes to the case above referred to
(Thomas _v._ Winchester), alludes to all those cases; and Mr. Thompson,
in his work on Negligence, refers to the same cases, and they are there
fully discussed.

_Judgment affirmed._

[Remainder of opinion omitted.]

HUSET _v._ J. I. CASE THRESHING MACHINE CO.
CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, FEBRUARY 26, 1903.
_Reported in 120 Federal Reporter, 865._

SANBORN, Circuit Judge:[172]

Is a manufacturer or vendor of an article or machine which he knows,
when he sells it, to be imminently dangerous, by reason of a concealed
defect therein, to the life and limbs of any one who shall use it for
the purpose for which it was made and intended, liable to a stranger to
the contract of sale for an injury which he sustains from the concealed
defect while he is lawfully applying the article or machine to its
intended use?

The argument of this question has traversed the whole field in which the
liability of contractors, manufacturers, and vendors to strangers to
their contracts for negligence in the construction or sale of their
articles has been contested. The decisions which have been cited are not
entirely harmonious, and it is impossible to reconcile all of them with
any established rule of law. And yet the underlying principle of the law
of negligence, that it is the duty of every one to so act himself and to
so use his property as to do no unnecessary damage to his neighbors,
leads us fairly through the maze. With this fundamental principle in
mind, if we contemplate the familiar rules that every one is liable for
the natural and probable effects of his acts; that negligence is a
breach of a duty; that an injury that is the natural and probable
consequence of an act of negligence is actionable, while one that could
not have been foreseen or reasonably anticipated as the probable effect
of such an act is not actionable, because the act of negligence in such
a case is the remote, and not the proximate, cause of the injury; and
that, for the same reason, an injury is not actionable which would not
have resulted from an act of negligence except from the interposition of
an independent cause (Chicago, St. Paul, Minneapolis & Omaha R. Co. _v._
Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582)—nearly all the
decisions upon this subject range themselves along symmetrical lines,
and establish rational rules of the law of negligence consistent with
the basic principles upon which it rests.

Actions for negligence are for breaches of duty. Actions on contracts
are for breaches of agreements. Hence the limits of liability for
negligence are not the limits of liability for breaches of contracts,
and actions for negligence often accrue where actions upon contracts do
not arise, and vice versa. It is a rational and fair deduction from the
rules to which brief reference has been made that one who makes or sells
a machine, a building, a tool, or an article of merchandise designed and
fitted for a specific use is liable to the person who, in the natural
course of events, uses it for the purpose for which it was made or sold,
for an injury which is the natural and probable consequence of sale. But
when a contractor builds a house or a bridge, or a manufacturer
constructs a car or a carriage, for the owner thereof under a special
contract with him, an injury to any other person than the owner for whom
the article is built and to whom it is delivered cannot ordinarily be
foreseen or reasonably anticipated as the probable result of the
negligence in its construction. So, when a manufacturer sells articles
to the wholesale or retail dealers, or to those who are to use them,
injury to third persons is not generally the natural or probable effect
of negligence in their manufacture, because (1) such a result cannot
ordinarily be reasonably anticipated, and because (2) an independent
cause—the responsible human agency of the purchaser—without which the
injury to the third person would not occur, intervenes, and, as Wharton
says, “insulates” the negligence of the manufacturer from the injury to
the third person. Wharton on Law of Negligence (2d ed.) § 134. For the
reason that in the cases of the character which have been mentioned the
natural and probable effect of the negligence of the contractor or
manufacturer will generally be limited to the party for whom the article
is constructed, or to whom it is sold, and, perhaps more than all this,
for the reason that a wise and conservative public policy has impressed
the courts with the view that there must be a fixed and definite
limitation to the liability of manufacturers and vendors for negligence
in the construction and sale of complicated machines and structures
which are to be operated or used by the intelligent and the ignorant,
the skilful and the incompetent, the watchful and the careless, parties
that cannot be known to the manufacturers or vendors, and who use the
articles all over the country hundreds of miles distant from the place
of their manufacture or original sale, a general rule has been adopted
and has become established by repeated decisions of the courts of
England and of this country that in these cases the liability of the
contractor or manufacturer for negligence in the construction or sale of
the articles which he makes or vends is limited to the persons to whom
he is liable under his contracts of construction or sale. The limits of
the liability for negligence and for breaches of contract in cases of
this character are held to be identical. The general rule is that a
contractor, manufacturer, or vendor is not liable to third parties who
have no contractual relations with him for negligence in the
construction, manufacture, or sale of the articles he handles.
Winterbottom _v._ Wright, 10 M. & W. 109; Longmeid _v._ Holliday, 6
Exch. 764, 765; Blakemore _v._ Ry. Co., 8 El. & Bl. 1035; Collis _v._
Selden, L. R. 3 C. P. 495, 497; Bank _v._ Ward, 100 U. S. 195, 204, 25
L. Ed. 621; Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A.
567; Goodlander _v._ Standard Oil Co., 63 Fed. 400, 406, 11 C. C. A.
253, 259, 27 L. R. A. 583; Loop _v._ Litchfield, 42 N. Y. 351, 359, 1
Am. Rep. 513; Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 623; Curtain
_v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep.
220; Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617,
19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; Daugherty _v._
Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep.
204; Burke _v._ De Castro, 11 Hun, 354; Swan _v._ Jackson, 55 Hun, 194,
7 N. Y. Supp. 821; Barrett _v._ Mfg. Co., 31 N. Y. Super. Ct. 545;
Carter _v._ Harden, 78 Me. 528, 7 Atl. 392; McCaffrey _v._ Mfg. Co., (R.
I.) 50 Atl. 651, 55 L. R. A. 822; Marvin Safe Co. _v._ Ward, 46 N. J.
Law, 19; Burdick _v._ Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767;
Davidson _v._ Nichols, 11 Allen, 514; J. I. Case Plow Works _v._ Niles &
Scott Co., (Wis.) 63 N. W. 1013.

In these cases third parties, without any fault on their part, were
injured by the negligence of the manufacturer, vendor, or furnisher of
the following articles, while the parties thus injured were innocently
using them for the purposes for which they were made or furnished, and
the courts held that there could be no recovery, because the makers,
vendors, or furnishers owed no duty to strangers to their contracts of
construction, sale, or furnishing. A stage-coach, Winterbottom _v._
Wright, 10 M. & W. 109; a leaky lamp, Longmeid _v._ Holliday, 6 Exch.
764, 765; a defective chain furnished one to lead stone, Blakemore _v._
Ry Co., 8 El. & Bl. 1035; an improperly hung chandelier, Collis _v._
Selden, L. R. 3 C. P. 495, 497; an attorney’s certificate of title, Bank
_v._ Ward, 100 U. S. 195, 204, 25 L. Ed. 621; a defective valve in an
oil car, Goodlander _v._ Standard Oil Co., 63 Fed. 401, 406, 11 C. C. A.
253, 259, 27 L. R. A. 583; a porch on a hotel, Curtain _v._ Somerset,
140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; a
defective side saddle, Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109,
30 C. C. A. 567; a defective rim in a balance wheel, Loop _v._
Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; a defective boiler, Losee
_v._ Clute, 51 N. Y. 494, 10 Am. Rep. 623; a defective cylinder in a
threshing machine, Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo.
605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; a
defective wall which fell on a pedestrian, Daugherty _v._ Herzog, 145
Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; a
defective rope on a derrick, Burke _v._ Refining Co., 11 Hun, 354; a
defective shelf for a workman to stand upon in placing ice in a box,
Swan _v._ Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; a defective hoisting
rope of an elevator, Barrett _v._ Mfg. Co., 31 N. Y. Super. Ct. 545; a
runaway horse, Carter _v._ Harden, 78 Me. 528, 7 Atl. 392; a defective
hook holding a heavy weight in a drop press, McCaffrey _v._ Mfg. Co.,
(R. I.) 50 Atl. 651, 55 L. R. A. 822; a defective bridge, Marvin Safe
Co. _v._ Ward, 46 N. J. Law, 19; shelves in a dry goods store, whose
fall injured a customer, Burdick _v._ Cheadle, 26 Ohio St. 393, 20 Am.
Rep. 767; a staging erected by a contractor for the use of his
employees, McGuire _v._ McGee, (Pa.) 13 Atl. 551; defective wheels, J.
I. Case Plow Works _v._ Niles & Scott Co., (Wis.) 63 N. W. 1013.

In the leading case of Winterbottom _v._ Wright this rule is placed upon
the ground of public policy, upon the ground that there would be no end
of litigation if contractors and manufacturers were to be held liable to
third persons for every act of negligence in the construction of the
articles or machines they make after the parties to whom they have sold
them have received and accepted them. In that case the defendant had
made a contract with the Postmaster-General to provide and keep in
repair the stage-coach used to convey the mail from Hartford to
Holyhead. The coach broke down, overturned, and injured the driver, who
sued the contractor for the injury resulting from his negligence. Lord
Abinger, C. B., said:

“There is no privity of contract between these parties; and, if the
plaintiff can sue, every passenger, or even any person passing along the
road, who was injured by the upsetting of the coach, might bring a
similar action. Unless we confine the operation of such contracts as
this to the parties who entered into them, the most absurd and
outrageous consequences, to which I can see no limit, would ensue.”

Baron Alderson said:

“I am of the same opinion. The contract in this case was made with the
Postmaster-General alone; and the case is just the same as if he had
come to the defendant and ordered a carriage, and handed it at once over
to Atkinson. If we were to hold that the plaintiff could sue in such a
case, there is no point at which such actions would stop. The only safe
rule is to confine the right to recover to those who enter into the
contract. If we go one step beyond that, there is no reason why we
should not go fifty.”

The views expressed by the judges in this case have prevailed in England
and in the United States, with the exception of two decisions which are
in conflict with the leading case and with all the decisions to which
reference has been made. Those cases are Devlin _v._ Smith, 89 N. Y.
470, 42 Am. Rep. 311, in which Smith, a painter, employed Stevenson, a
contractor, to build a scaffold 90 feet in height, for the express
purpose of enabling the painter’s workmen to stand upon it to paint the
interior of the dome of a building, and the Court of Appeals of New York
held that Stevenson was liable to a workman of Smith, the painter, who
was injured by a fall, caused by the negligence of Stevenson in the
construction of the scaffold upon which he was working; and Schubert
_v._ J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32
Am. St. Rep. 559, in which a painter purchased of a manufacturer a
stepladder, and one of the painter’s employees, who was injured by the
breaking of a step caused by the negligence of the manufacturer, was
permitted to recover of the latter for the injuries he had sustained.
The decision in Devlin _v._ Smith may, perhaps, be sustained on the
ground that the workmen of Smith were the real parties in interest in
the contract, since Stevenson was employed and expressly agreed to
construct the scaffold for their use. But the case of Schubert _v._ J.
R. Clark Co. is in direct conflict with the side saddle case, Bragdon
_v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; the porch case,
Curtain _v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am.
St. Rep. 220; the defective cylinder case, Heizer _v._ Kingsland &
Douglass Mfg. Co., 110 Mo. 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am.
St. Rep. 481; the defective hook case, McCaffrey _v._ Mfg. Co., (R. I.)
50 Atl. 651, 55 L. R. A. 822; and with the general rule upon which all
these cases stand.

It is, perhaps, the more remarkable that the current of decisions
throughout all the courts of England and the United States should be so
uniform and conclusive in support of this rule, and that there should,
in the multitude of opinions, be but one or two in conflict with it,
than it is that such sporadic cases should be found. They are
insufficient in themselves, or in the reasoning they contain, to
overthrow or shake the established rule which prevails throughout the
English-speaking nations.

But while this general rule is both established and settled, there are,
as is usually the case, exceptions to it as well defined and settled as
the rule itself. There are three exceptions to this rule.

The first is that an act of negligence of a manufacturer or vendor which
is imminently dangerous to the life or health of mankind, and which is
committed in the preparation or sale of an article intended to preserve,
destroy, or affect human life, is actionable by third parties who suffer
from the negligence. Dixon _v._ Bell, 5 Maule & Sel. 198; Thomas _v._
Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton _v._ Sewall, 106 Mass.
143, 8 Am. Rep. 298; Elkins _v._ McKean, 79 Pa. 493, 502; Bishop _v._
Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Peters _v._ Johnson,
(W. Va.) 41 S. E. 190, 191, 57 L. R. A. 428. The leading case upon this
subject is Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A
dealer in drugs sold to a druggist a jar of belladonna, a deadly poison,
and labelled it “Extract of Dandelion.” The druggist filled a
prescription of extract of dandelion, prepared by a physician for his
patient. The patient took the prescription thus filled, and recovered of
the wholesale dealer for the injuries she sustained. In Norton _v._
Sewall, 106 Mass. 143, 8 Am. Rep. 298, a recovery was had by a third
party for the sale of laudanum as rhubarb; in Bishop _v._ Weber, for the
furnishing of poisonous food for wholesome food; in Peters _v._ Johnson,
for the sale of saltpetre for epsom salts; and in Dixon _v._ Bell, for
placing a loaded gun in the hands of a child. In all these cases of sale
the natural and probable result of the act of negligence—nay, the
inevitable result of it—was not an injury to the party to whom the sales
were made, but to those who, after the purchasers had disposed of the
articles, should consume them. Hence these cases stand upon two
well-established principles of law: (1) That every one is bound to avoid
acts or omissions imminently dangerous to the lives of others, and (2)
that an injury which is the natural and probable result of an act of
negligence is actionable. It was the natural and probable result of the
negligence in these cases that the vendees would not suffer, but that
those who subsequently purchased the deleterious articles would sustain
the injuries resulting from the negligence of the manufacturers or
dealers who furnished them.

The second exception is that an owner’s act of negligence which causes
injury to one who is invited by him to use his defective appliance upon
the owner’s premises may form the basis of an action against the owner.
Coughtry _v._ Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387; Bright
_v._ Barnett & Record Co., (Wis.) 60 N. W. 418, 420, 26 L. R. A. 524;
Heaven _v._ Pender, L. R. 11 Q. B. Div. 503; Roddy _v._ Railway Co., 104
Mo. 234, 241, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333. In
Coughtry _v._ Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387, the owner
of a building employed Osborn & Martin to construct a cornice, and
agreed with them to furnish a scaffold upon which their men could
perform the work. He furnished the scaffold and one of the employees of
the contractors was injured by the negligence of the owner in
constructing the scaffold. The court held that the act of the owner was
an implied invitation to the employees of Osborn & Martin to use the
scaffold and imposed upon him a liability for negligence in its
erection. The other cases cited to this exception are of a similar
character.

The third exception to the rule is that one who sells or delivers an
article which he knows to be imminently dangerous to life or limb to
another without notice of its qualities is liable to any person who
suffers an injury therefrom which might have been reasonably
anticipated, whether there were any contractual relations between the
parties or not. Langridge _v._ Levy, 2 M. & W. 519, 4 M. & W. 337;
Wellington _v._ Oil Co., 104 Mass. 64, 67; Lewis _v._ Terry, (Cal.) 43
Pac. 398. In Langridge _v._ Levy, 2 M. & W. 519, a dealer sold a gun to
the father for the use of the son, and represented that it was a safe
gun, and made by one Nock. It was not made by Nock, was a defective gun,
and when the son discharged it, it exploded and injured him. The son was
permitted to recover, because the defendant had knowingly sold the gun
to the father for the purpose of being used by the plaintiff by loading
and discharging it, and had knowingly made a false warranty that this
might be safely done, and the plaintiff, on the faith of that warranty,
and believing it to be true, had used the gun, and sustained the
damages. The court said in conclusion:

“We therefore think that, as there is fraud, and damage, the result of
that fraud, not from an act remote and consequential, but one
contemplated by the defendant at the time as one of its results, the
party guilty of the fraud is responsible to the party injured.”

This case was affirmed in 4 M. & W. 337, on the ground that the sale of
the gun to the father for the use of the son with the knowledge that it
was not as represented was a fraud, which entitled the son to recover
the damages he had sustained.

In Wellington _v._ Oil Co., the defendants knowingly sold to one Chase,
a retail dealer, to be sold by him to his customers as oil, naphtha, a
dangerous and explosive liquid. Chase sold the naphtha as oil, the
plaintiff used it in a lamp for illuminating purposes, it ignited and
exploded, and he recovered of the wholesale dealer. Judge Gray, later
Mr. Justice Gray of the Supreme Court, said:

“It is well settled that a man who delivers an article, which he knows
to be dangerous or noxious, to another person, without notice of its
nature and qualities, is liable for an injury which may reasonably be
contemplated as likely to result, and which does in fact result
therefrom to that person or any other who is not himself in fault. Thus
a person who delivers a carboy, which he knows to contain nitric acid,
to a carrier, without informing him of the nature of its contents, is
liable for an injury occasioned by the leaking out of the acid upon
another carrier, to whom it is delivered by the first in the ordinary
course of business, to be carried to its destination. Farrant _v._
Barnes, 11 C. B. (N. S.) 553. So a chemist who sells a bottle of liquid,
made up of ingredients known only to himself, representing it to be fit
to be used for washing the hair, and knowing that it is to be used by
the purchaser’s wife, is liable for an injury occasioned to her by using
it for washing her hair. George _v._ Skivington, Law Rep. 5 Ex. 1.”

In Lewis _v._ Terry, (Cal.) 43 Pac. 398, a dealer, knowing a folding bed
to be defective and unsafe, sold it to a Mr. Apperson without informing
him of the fact. His wife suffered a broken arm and other severe
injuries from the negligence of the dealer in the sale of the bed, and
recovered of him the damages she sustained.

The Supreme Court of Missouri, in Heizer _v._ Kingsland & Douglass Mfg.
Co., in which they held that the manufacturer was not liable to a third
person for negligence in the construction of the cylinder of a threshing
machine, which burst and injured him, said:

“Had the defendant sold this machine to Ellis, knowing that the cylinder
was defective, and for that reason dangerous, without informing him of
the defect, then the defendant would be liable even to third persons not
themselves in fault. Shearman & Redfield on Negligence, (4th ed.) §
117.”

Turning now to the case in hand, it is no longer difficult to dispose of
it. The allegations of the complaint are that the defendant prepared a
covering for the cylinder of the threshing machine, which was
customarily and necessarily used by those who operated it to walk upon,
and which was so incapable of sustaining the least weight that it would
bend and collapse whenever any one stepped upon it; that it concealed
this defective and dangerous condition of the threshing rig so that it
could not be readily discovered by persons engaged in operating or
working upon it; that it knew that the machine was in this imminently
dangerous condition when it shipped and supplied it to the employer of
the plaintiff; and that the plaintiff has sustained serious injury
through this defect in its construction. The case falls fairly within
the third exception. It portrays a negligence imminently dangerous to
the lives and limbs of those who should use the machine, a machine
imminently dangerous to the lives and limbs of all who should undertake
to operate it, a concealment of this dangerous condition, a knowledge of
the defendant when it was shipped and supplied to the employer of the
plaintiff that the rig was imminently dangerous to all who should use it
for the purpose for which it was made and sold, and consequent damage to
the plaintiff. It falls directly within the rule stated by Mr. Justice
Gray that when one delivers an article, which he knows to be dangerous
to another person, without notice of its nature and qualities, he is
liable for an injury which may be reasonably contemplated as likely to
result, and which does in fact result therefrom, to that person or to
any other who is not himself in fault. The natural, probable, and
inevitable result of the negligence portrayed by this complaint in
delivering this machine when it was known to be in a condition so
imminently dangerous to the lives and limbs of those who should
undertake to use it for the purpose for which it was constructed was the
death, or loss of one or more of the limbs, of some of the operators. It
is perhaps improbable that the defendant was possessed of the knowledge
of the imminently dangerous character of this threshing machine when it
delivered it, and that upon the trial of the case it will be found to
fall under the general rule which has been announced in an earlier part
of this opinion. But upon the facts alleged in this complaint, the act
of delivering it to the purchaser with a knowledge and a concealment of
its dangerous condition was so flagrant a disregard of the rule that one
is bound to avoid any act imminently dangerous to the lives and health
of his fellows that it forms the basis of a good cause of action in
favor of any one who sustained injury therefrom.

The judgment of the Circuit Court must be reversed, and the cause must
be remanded to the court below for further proceedings not inconsistent
with the views expressed in this opinion.

HEAVEN _v._ PENDER
IN THE COURT OF APPEAL, JULY 30, 1883.
_Reported in 11 Queen’s Bench Division, 503._

Action to recover damages for injuries alleged to have been sustained by
the plaintiff through the negligence of the defendant. The County Court
judge gave judgment for the plaintiff. The Queen’s Bench Division, on
appeal, ordered judgment for defendant. The plaintiff appealed to the
Court of Appeal.[173]

BRETT, M. R. In this case the plaintiff was a workman in the employ of
Gray, a ship-painter. Gray entered into a contract with a shipowner
whose ship was in the defendant’s dock to paint the outside of his ship.
The defendant, the dock-owner, supplied, under a contract with the
shipowner, an ordinary stage to be slung in the ordinary way outside the
ship for the purpose of painting her. It must have been known to the
defendant’s servants, if they had considered the matter at all, that the
stage would be put to immediate use, that it would not be used by the
shipowner, but that it would be used by such a person as the plaintiff,
a working ship-painter. The ropes by which the stage was slung, and
which were supplied as a part of the instrument by the defendant, had
been scorched and were unfit for use, and were supplied without a
reasonably careful attention to their condition. When the plaintiff
began to use the stage the ropes broke, the stage fell, and the
plaintiff was injured. The Divisional Court held that the plaintiff
could not recover against the defendant. The plaintiff appealed. The
action is in form and substance an action for negligence. That the stage
was, through want of attention of the defendant’s servants, supplied in
a state unsafe for use is not denied. But want of attention amounting to
a want of ordinary care is not a good cause of action although injury
ensue from such want, unless the person charged with such want of
ordinary care had a duty to the person complaining to use ordinary care
in the matter called in question. Actionable negligence consists in the
neglect of the use of ordinary care or skill toward a person to whom the
defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff, without contributory negligence on his part, has
suffered injury to his person or property. The question in this case is
whether the defendant owed such a duty to the plaintiff.

If a person contracts with another to use ordinary care or skill toward
him or his property, the obligation need not be considered in the light
of a duty; it is an obligation of contract. It is undoubted, however,
that there may be the obligation of such a duty from one person to
another although there is no contract between them with regard to such
duty. Two drivers meeting have no contract with each other, but under
certain circumstances they have a reciprocal duty toward each other. So
two ships navigating the sea. So a railway company which has contracted
with one person to carry another has no contract with the person
carried, but has a duty toward that person. So the owner or occupier of
a house or land who permits a person or persons to come to his house or
land has no contract with such person or persons, but has a duty toward
him or them. It should be observed that the existence of a contract
between two persons does not prevent the existence of the suggested duty
between them also being raised by law independently of the contract, by
the facts with regard to which the contract is made and to which it
applies an exactly similar but a contract duty. We have not in this case
to consider the circumstances in which an implied contract may arise to
use ordinary care and skill to avoid danger to the safety of person or
property. We have not in this case to consider the question of a
fraudulent misrepresentation, express or implied, which is a
well-recognized head of law. The questions which we have to solve in
this case are: What is the proper definition of the relation between two
persons other than the relation established by contract, or fraud, which
imposes on one of them a duty toward the other to observe, with regard
to the person or property of such other, such ordinary care or skill as
may be necessary to prevent injury to his person or property; and
whether the present case falls within such definition? When two drivers
or two ships are approaching each other, such a relation arises between
them when they are approaching each other in such a manner that, unless
they use ordinary care and skill to avoid it, there will be danger of an
injurious collision between them. This relation is established in such
circumstances between them, not only if it be proved that they actually
know and think of this danger, but whether such proof be made or not. It
is established, as it seems to me, because any one of ordinary sense who
did think would at once recognize that if he did not use ordinary care
and skill under such circumstances there would be such danger. And every
one ought, by the universally recognized rules of right and wrong, to
think so much with regard to the safety of others who may be jeopardized
by his conduct; and if, being in such circumstances, he does not think,
and in consequence neglects, or if he neglects to use ordinary care and
skill, and injury ensue, the law, which takes cognizance of and enforces
the rules of right and wrong, will force him to give an indemnity for
the injury. In the case of a railway company carrying a passenger with
whom it has not entered into the contract of carriage, the law implies
the duty, because it must be obvious that unless ordinary care and skill
be used the personal safety of the passenger must be endangered. With
regard to the condition in which an owner or occupier leaves his house
or property other phraseology has been used, which it is necessary to
consider. If a man opens his shop or warehouse to customers it is said
that he invites them to enter, and that this invitation raises the
relation between them which imposes on the inviter the duty of using
reasonable care so to keep his house or warehouse that it may not
endanger the person or property of the person invited. This is in a
sense an accurate phrase, and as applied to the circumstances a
sufficiently accurate phrase. Yet it is not accurate if the word
“invitation” be used in its ordinary sense. By opening a shop you do not
really invite, you do not ask A. B. to come in to buy; you intimate to
him that if it pleases him to come in he will find things which you are
willing to sell. So in the case of shop, warehouse, road, or premises,
the phrase has been used that if you permit a person to enter them you
impose on yourself a duty not to lay a trap for him. This, again, is in
a sense a true statement of the duty arising from the relation
constituted by the permission to enter. It is not a statement of what
causes the relation which raises the duty. What causes the relation is
the permission to enter and the entry. But it is not a strictly accurate
statement of the duty. To lay a trap means in ordinary language to do
something with an intention. Yet it is clear that the duty extends to a
danger the result of negligence without intention. And with regard to
both these phrases, though each covers the circumstances to which it is
particularly applied, yet it does not cover the other set of
circumstances from which an exactly similar legal liability is inferred.
It follows, as it seems to me, that there must be some larger
proposition which involves and covers both sets of circumstances. The
logic of inductive reasoning requires that where two major propositions
lead to exactly similar minor premises there must be a more remote and
larger premise which embraces both of the major propositions. That, in
the present consideration, is, as it seems to me, the same proposition
which will cover the similar legal liability inferred in the cases of
collision and carriage. The proposition which these recognized cases
suggest, and which is, therefore, to be deduced from them, is that
whenever one person is by circumstances placed in such a position with
regard to another that every one of ordinary sense who did think would
at once recognize that if he did not use ordinary care and skill in his
own conduct with regard to those circumstances he would cause danger of
injury to the person or property of the other, a duty arises to use
ordinary care and skill to avoid such danger. Without displacing the
other propositions to which allusion has been made as applicable to the
particular circumstances in respect of which they have been enunciated,
this proposition includes, I think, all the recognized cases of
liability. It is the only proposition which covers them all. It may,
therefore, safely be affirmed to be a true proposition, unless some
obvious case can be stated in which the liability must be admitted to
exist, and which yet is not within this proposition. There is no such
case. Let us apply this proposition to the case of one person supplying
goods or machinery or instruments or utensils, or the like, for the
purpose of their being used by another person, but with whom there is no
contract as to the supply. The proposition will stand thus: whenever one
person supplies goods, or machinery, or the like, for the purpose of
their being used by another person under such circumstances that every
one of ordinary sense would, if he thought, recognize at once that
unless he used ordinary care and skill with regard to the condition of
the thing supplied or the mode of supplying it, there will be danger of
injury to the person or property of him for whose use the thing is
supplied and who is to use it, a duty arises to use ordinary care and
skill as to the condition or manner of supplying such thing. And for a
neglect of such ordinary care or skill whereby injury happens, a legal
liability arises to be enforced by an action for negligence. This
includes the case of goods, etc., supplied to be used immediately by a
particular person or persons, or one of a class of persons, where it
would be obvious to the person supplying, if he thought that the goods
would in all probability be used at once by such persons before a
reasonable opportunity for discovering any defect which might exist, and
where the thing supplied would be of such a nature that neglect of
ordinary care or skill as to its condition or the manner of supplying it
would probably cause danger to the person or property of the person for
whose use it was supplied, and who was about to use it. It would exclude
a case in which the goods are supplied under circumstances in which it
would be a chance by whom they would be used or whether they would be
used or not, or whether they would be used before there would probably
be means of observing any defect, or where the goods would be of such a
nature that a want of care or skill as to their condition or the manner
of supplying them would not probably produce danger of injury to person
or property. The cases of vendor and purchaser and lender and hirer
under contract need not be considered, as the liability arises under the
contract, and not merely as a duty imposed by law, though it may not be
useless to observe that it seems difficult to import the implied
obligation into the contract except in cases in which if there were no
contract between the parties the law would, according to the rule above
stated, imply the duty.

Examining the rule which has been above enunciated with the cases which
have been decided with regard to goods supplied for the purpose of being
used by persons with whom there is no contract, the first case to be
considered is inevitably Langridge _v._ Levy, 2 M. & W. 519; 4 id. 337.
It is not an easy case to act upon. It is not, it cannot be, accurately
reported; the declaration is set out; the evidence is assumed to be
reported; the questions left to the jury are stated. And then it is said
that a motion was made to enter a nonsuit in pursuance of leave reserved
on particular grounds. These grounds do not raise the question of fraud
at all, but only the question of remoteness. And although the question
of fraud seems in a sense to have been left to the jury, yet no question
was, according to the report, left to them as to whether the plaintiff
acted on the faith of the fraudulent misrepresentation, which is,
nevertheless, a necessary question in a case of fraudulent
misrepresentation. The report of the argument makes the object of the
argument depend entirely upon an assumed motion to arrest the judgment,
which raises always a discussion depending entirely on the form of the
declaration, and the effect on it of a verdict, in respect of which it
is assumed that all questions were left to the jury. If this was the
point taken the report of the evidence and of the questions left to the
jury is idle! The case was decided on the ground of a fraudulent
misrepresentation as stated in the declaration. It is inferred that the
defendant intended the representation to be communicated to the son. Why
he should have such an intention in fact it seems difficult to
understand. His immediate object must have been to induce the father to
buy and pay for the gun. It must have been wholly indifferent to him
whether, after the sale and payment, the gun would be used or not by the
son. I cannot hesitate to say that, in my opinion, the case is a wholly
unsatisfactory case to act on as an authority. But taking the case to be
decided on the ground of a fraudulent misrepresentation made
hypothetically to the son, and acted upon by him, such a decision upon
such a ground in no way negatives the proposition that the action might
have been supported on the ground of negligence without fraud. It seems
to be a case which is within the proposition enunciated in this
judgment, and in which the action might have been supported without
proof of actual fraud. And this seems to be the meaning of Cleasby, B.,
in the observations he made on Langridge _v._ Levy, _supra_, in the case
of George _v._ Skivington, L. R. 5 Ex. 1, 5. In that case the
proposition laid down in that judgment is clearly adopted. The ground of
the decision is that the article was, to the knowledge of the defendant,
supplied for the use of the wife and for her immediate use. And
certainly, if he or any one in his position had thought at all, it must
have been obvious that a want of ordinary care or skill in preparing the
prescription sold would endanger the personal safety of the wife.

In Corby _v._ Hill, 4 C. B. (N. S.) 556, it is stated by the Lord Chief
Justice that an allurement was held out to the plaintiff. And Willes,
J., stated that the defendant had no right to set a trap for the
plaintiff. But in the form of declaration suggested by Willes, J., on p.
567, there is no mention of allurement, or invitation or trap. The facts
suggested in that form are, “that the plaintiff had license to go on the
road, that he was in consequence accustomed and likely to pass along it,
that the defendant knew of that custom and probability, that the
defendant negligently placed slates in such a manner as to be likely to
prove dangerous to persons driving along the road, that the plaintiff
drove along the road, being by reason of the license lawfully on the
road, and that he was injured by the obstruction.” It is impossible to
state a case more exactly within the proposition laid down in this
judgment. In Smith _v._ London & St. Katharine Docks Co., L. R. 3 C. P.
326, the phrase is again used of invitation to the plaintiff by the
defendants. Again, let it be observed that there is no objection to the
phrase as applied to the case. But the real value of the phrase may not
improperly be said to be that invitation imports knowledge by the
defendant of the probable use by the plaintiff of the article supplied,
and therefore carries with it the relation between the parties which
establishes the duty. In Indermaur _v._ Dames, L. R. 1 C. P. 274, L. R.
2 C. P. 311, reliance is again placed upon a supposed invitation of the
plaintiff by the defendant. But, again, it is hardly possible to state
facts which bring a case more completely within the definition of the
present judgment. In Winterbottom _v._ Wright, 10 M. & W. 109, it was
held that there was no duty cast upon the defendant with regard to the
plaintiff. The case was decided on what was equivalent to a general
demurrer to the declaration. And the declaration does not seem to show
that the defendant, if he had thought about it, must have known, or
ought to have known, that the coach would be necessarily or probably
driven by the plaintiff, or by any class of which he could be said to be
one, or that it would be so driven within any time which would make it
probable that the defect would not be observed. The declaration relied
too much on contracts entered into with other persons than the
plaintiff. The facts alleged did not bring the case within the
proposition herein enunciated. It was an attempt to establish a duty
toward all the world. The case was decided on the ground of remoteness.
And it is as to too great a remoteness that the observation of Lord
Abinger is pointed, when he says that the doctrine of Langridge _v._
Levy, _supra_, is not to be extended. In Francis _v._ Cockrell, L. R. 5
Q. B. 501, the decision is put by some of the judges on an implied
contract between the plaintiff and the defendant. But Cleasby, B. (p.
515), puts it upon the duty raised by the knowledge of the defendant
that the stand was to be used immediately by persons of whom the
plaintiff was one. In other words, he acts upon the rule above laid
down. In Collis _v._ Selden, L. R. 3 C. P. 495, it was held that the
declaration disclosed no duty. And obviously, the declaration was too
uncertain. There is nothing to show that the defendant knew more of the
probability of the plaintiff rather than any other of the public being
near the chandelier. There is nothing to show that the plaintiff was
more likely to be in the public-house than any other member of the
public. There is nothing to show how soon after the hanging of the
chandelier any one might be expected or permitted to enter the room in
which it was. The facts stated do not bring it within the rule. There is
an American case: Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455,
cited in Mr. Horace Smith’s Treatise on the Law of Negligence, p. 88,
note (t), which goes a very long way. I doubt whether it does not go too
far. In Longmeid _v._ Holliday, 6 Ex. 761, a lamp was sold to the
plaintiff to be used by the wife. The jury were not satisfied that the
defendant knew of the defect in the lamp. If he did, there was fraud; if
he did not, there seems to have been no evidence of negligence. If there
was fraud, the case was more than within the rule. If there was no fraud
the case was not brought by other circumstances within the rule. In
Gautret _v._ Egerton, L. R. 2 C. P. 374, the declaration was held by
Willes, J., to be bad on demurrer, because it did not show that the
defendant had any reason to suppose that persons going to the docks
would not have ample means of seeing the holes and cuttings relied on.
He does not say there must be fraud in order to support the action. He
says there must be something like fraud. He says: “Every man is bound
not wilfully to deceive others.” And then, in the alternative, he says:
“or to do any act which may place them in danger.” There seems to be no
case in conflict with the rule above deduced from well admitted cases. I
am, therefore, of opinion that it is a good, safe, and just rule.

I cannot conceive that if the facts were proved which would make out the
proposition I have enunciated, the law can be that there would be no
liability. Unless that be true, the proposition must be true. If it be
the rule the present case is clearly within it. This case is also, I
agree, within that which seems to me to be a minor proposition, namely,
the proposition which has been often acted upon, that there was in a
sense an invitation of the plaintiff by the defendant to use the stage.
The appeal must, in my opinion, be allowed, and judgment must be entered
for the plaintiff.

COTTON, L. J., BOWEN, L. J., concurs in the judgment I am about to read.
[The opinion holds defendant liable, on the ground that he must be
considered as having invited the workman to use the dock and all
appliances provided by the dock-owner as incident to the use of the
dock; and that he was under obligation to take reasonable care that at
the time the appliances provided for immediate use in the dock were
furnished by him they were in a fit state to be used. The opinion then
proceeds as follows:—]

This decides this appeal in favor of the plaintiff, and I am unwilling
to concur with the Master of the Rolls in laying down unnecessarily the
larger principle which he entertains, inasmuch as there are many cases
in which the principle was impliedly negatived.

Take, for instance, the case of Langridge _v._ Levy, _supra_, to which
the principle, if it existed, would have applied. But the judges who
decided that case based their judgment on the fraudulent representation
made to the father of the plaintiff by the defendant. In other cases
where the decision has been referred to, judges have treated fraud as
the ground of the decision; as was done by Coleridge, J., in Blackmore
_v._ Bristol & Exeter Ry. Co., 8 E. & B. 1035; and in Collis _v._
Selden, L. R. 3 C. P. 495, Willes, J., says that the judgment in
Langridge _v._ Levy, _supra_, was based on the fraud of the defendant.
This impliedly negatives the existence of the larger general principle
which is relied on, and the decisions in Collis _v._ Selden, _supra_,
and in Longmeid _v._ Holliday, _supra_ (in each of which the plaintiff
failed), are, in my opinion, at variance with the principle contended
for. The case of George _v._ Skivington, _supra_, and especially what is
said by Cleasby, B., in giving judgment in that case, seems to support
the existence of the general principle. But it is not in terms laid down
that any such principle exists, and the case was decided by Cleasby, B.,
on the ground that the negligence of the defendant which was his own
personal negligence was equivalent, for the purposes of that action, to
fraud, on which (as he said) the decision in Langridge _v._ Levy,
_supra_, was based.[174]

In declining to concur in laying down the principle enunciated by the
Master of the Rolls, I in no way intimate any doubt as to the principle
that any one who leaves a dangerous instrument, as a gun, in such a way
as to cause danger, or who without due warning supplies to others for
use an instrument or thing which to his knowledge, from its construction
or otherwise, is in such a condition as to cause danger, not necessarily
incident to the use of such an instrument or thing, is liable for injury
caused to others by reason of his negligent act.

For the reasons stated I agree that the plaintiff is entitled to
judgment, though I do not entirely concur with the reasoning of the
Master of the Rolls.

_Judgment reversed._

MacPHERSON _v._ BUICK MOTOR COMPANY
COURT OF APPEALS, NEW YORK, MARCH 14, 1916.
_Reported in 217 New York Reports, 382._

CARDOZO, J. The defendant is a manufacturer of automobiles. It sold an
automobile to a retail dealer. The retail dealer resold to the
plaintiff. While the plaintiff was in the car it suddenly collapsed. He
was thrown out and injured. One of the wheels was made of defective
wood, and its spokes crumbled into fragments. The wheel was not made by
the defendant; it was bought from another manufacturer. There is
evidence, however, that its defects could have been discovered by
reasonable inspection, and that inspection was omitted. There is no
claim that the defendant knew of the defect and wilfully concealed it.
The case, in other words, is not brought within the rule of Kuelling
_v._ Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303,
111 Am. St. Rep. 691, 5 Ann. Cas. 124. The charge is one, not of fraud,
but of negligence. The question to be determined is whether the
defendant owed a duty of care and vigilance to any one but the immediate
purchaser.

The foundations of this branch of the law, at least in this state, were
laid in Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A poison
was falsely labelled. The sale was made to a druggist, who in turn sold
to a customer. The customer recovered damages from the seller who
affixed the label. “The defendant’s negligence,” it was said, “put human
life in imminent danger.” A poison, falsely labelled, is likely to
injure any one who gets it. Because the danger is to be foreseen, there
is a duty to avoid the injury. Cases were cited by way of illustration
in which manufacturers were not subject to any duty irrespective of
contract. The distinction was said to be that their conduct, though
negligent, was not likely to result in injury to any one except the
purchaser. We are not required to say whether the chance of injury was
always as remote as the distinction assumes. Some of the illustrations
might be rejected to-day. The principle of the distinction is, for
present purposes, the important thing. Thomas _v._ Winchester became
quickly a landmark of the law. In the application of its principle there
may, at times, have been uncertainty or even error. There has never in
this state been doubt or disavowal of the principle itself. The chief
cases are well known, yet to recall some of them will be helpful. Loop
_v._ Litchfield, 42 N. Y. 351, 1 Am. Rep. 513, is the earliest. It was
the case of a defect in a small balance wheel used on a circular saw.
The manufacturer pointed out the defect to the buyer, who wished a cheap
article and was ready to assume the risk. The risk can hardly have been
an imminent one, for the wheel lasted five years before it broke. In the
meanwhile the buyer had made a lease of the machinery. It was held that
the manufacturer was not answerable to the lessee. Loop _v._ Litchfield
was followed in Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 638, the
case of the explosion of a steam boiler. That decision has been
criticized (Thompson on Negligence, 233; Shearman & Redfield on
Negligence, [6th ed.] § 117); but it must be confined to its special
facts. It was put upon the ground that the risk of injury was too
remote. The buyer in that case had not only accepted the boiler, but had
tested it. The manufacturer knew that his own test was not the final
one. The finality of the test has a bearing on the measure of diligence
owing to persons other than the purchaser. Beven, Negligence, (3d ed.)
pp. 50, 51, 54; Wharton, Negligence, (2d ed.) § 134.

These early cases suggest a narrow construction of the rule. Later
cases, however, evince a more liberal spirit. First in importance is
Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311. The defendant, a
contractor, built a scaffold for a painter. The painter’s servants were
injured. The contractor was held liable. He knew that the scaffold, if
improperly constructed, was a most dangerous trap. He knew that it was
to be used by the workmen. He was building it for that very purpose.
Building it for their use, he owed them a duty, irrespective of his
contract with their master, to build it with care.

From Devlin _v._ Smith we pass over intermediate cases and turn to the
latest case in this court in which Thomas _v._ Winchester was followed.
That case is Statler _v._ Ray Mfg. Co., 195 N. Y. 478, 480, 88 N. E.
1063. The defendant manufactured a large coffee urn. It was installed in
a restaurant. When heated, the urn exploded and injured the plaintiff.
We held that the manufacturer was liable. We said that the urn “was of
such a character inherently that, when applied to the purposes for which
it was designed, it was liable to become a source of great danger to
many people if not carefully and properly constructed.”

It may be that Devlin _v._ Smith and Statler _v._ Ray Mfg. Co. have
extended the rule of Thomas _v._ Winchester. If so, this court is
committed to the extension. The defendant argues that things imminently
dangerous to life are poisons, explosives, deadly weapons—things whose
normal function it is to injure or destroy. But whatever the rule in
Thomas _v._ Winchester may once have been, it has no longer that
restricted meaning. A scaffold (Devlin _v._ Smith, _supra_) is not
inherently a destructive instrument. It becomes destructive only if
imperfectly constructed. A large coffee urn (Statler _v._ Ray Mfg. Co.,
_supra_) may have within itself, if negligently made, the potency of
danger, yet no one thinks of it as an implement whose normal function is
destruction. What is true of the coffee urn is equally true of bottles
of aerated water. Torgesen _v._ Schultz, 192 N. Y. 156, 84 N. E. 956, 18
L. R. A. (N. S.) 726, 127 Am. St. Rep. 894. We have mentioned only cases
in this court. But the rule has received a like extension in our courts
of intermediate appeal. In Burke _v._ Ireland, 26 App. Div. 487, 50 N.
Y. Supp. 369, in an opinion by Cullen, J., it was applied to a builder
who constructed a defective building; in Kahner _v._ Otis Elevator Co.,
96 App. Div. 169, 89 N. Y. Supp. 185, to the manufacturer of an
elevator; in Davies _v._ Pelham Hod Elevating Co., 65 Hun, 573, 20 N. Y.
Supp. 523, affirmed in this court without opinion, 146 N. Y. 363, 41 N.
E. 88, to a contractor who furnished a defective rope with knowledge of
the purpose for which the rope was to be used. We are not required at
this time either to approve or to disapprove the application of the rule
that was made in these cases. It is enough that they help to
characterize the trend of judicial thought.

Devlin _v._ Smith was decided in 1882. A year later a very similar case
came before the Court of Appeal in England (Heaven _v._ Pender, 11 Q. B.
D. 503). We find in the opinion of Brett, M. R., afterwards Lord Esher,
the same conception of a duty, irrespective of contract, imposed upon
the manufacturer by the law itself:

“Whenever one person supplies goods or machinery, or the like, for the
purpose of their being used by another person under such circumstances
that every one of ordinary sense would, if he thought, recognize at once
that unless he used ordinary care and skill with regard to the condition
of the thing supplied, or the mode of supplying it, there will be danger
of injury to the person or property of him for whose use the thing is
supplied, and who is to use it, a duty arises to use ordinary care and
skill as to the condition or manner of supplying such thing.”

He then points out that for a neglect of such ordinary care or skill
whereby injury happens, the appropriate remedy is an action for
negligence. The right to enforce this liability is not to be confined to
the immediate buyer. The right, he says, extends to the persons or class
of persons for whose use the thing is supplied. It is enough that the
goods “would in all probability be used at once ... before a reasonable
opportunity for discovering any defect which might exist,” and that the
thing supplied is of such a nature “that a neglect of ordinary care or
skill as to its condition or the manner of supplying it would probably
cause danger to the person or property of the person for whose use it
was supplied, and who was about to use it.” On the other hand, he would
exclude a case “in which the goods are supplied under circumstances in
which it would be a chance by whom they would be used or whether they
would be used or not, or whether they would be used before there would
probably be means of observing any defect,” or where the goods are of
such a nature that “a want of care or skill as to their condition or the
manner of supplying them would not probably produce danger of injury to
person or property.” What was said by Lord Esher in that case did not
command the full assent of his associates. His opinion has been
criticized “as requiring every man to take affirmative precautions to
protect his neighbors as well as to refrain from injuring them.” Bohlen,
Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. (N. S.)
341. It may not be an accurate exposition of the law of England. Perhaps
it may need some qualification even in our own state. Like most attempts
at comprehensive definition, it may involve errors of inclusion and of
exclusion. But its tests and standards, at least in their underlying
principles with whatever qualification may be called for as they are
applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas _v._ Winchester is not
limited to poisons, explosives, and things of like nature, to things
which in their normal operation are implements of destruction. If the
nature of a thing is such that it is reasonably certain to place life
and limb in peril when negligently made, it is then a thing of danger.
Its nature gives warning of the consequences to be expected. If to the
element of danger there is added knowledge that the thing will be used
by persons other than the purchaser, and used without new tests, then,
irrespective of contract, the manufacturer of this thing of danger is
under a duty to make it carefully. That is as far as we are required to
go for the decision of this case. There must be knowledge of a danger,
not merely possible, but probable. It is possible to use almost anything
in a way that will make it dangerous if defective. That is not enough to
charge the manufacturer with a duty independent of his contract. Whether
a given thing is dangerous may be sometimes a question for the court and
sometimes a question for the jury. There must also be knowledge that in
the usual course of events the danger will be shared by others than the
buyer. Such knowledge may often be inferred from the nature of the
transaction. But it is possible that even knowledge of the danger and of
the use will not always be enough. The proximity or remoteness of the
relation is a factor to be considered. We are dealing now with the
liability of the manufacturer of the finished product, who puts it on
the market to be used without inspection by his customers. If he is
negligent, where danger is to be foreseen, a liability will follow.

We are not required at this time to say that it is legitimate to go back
of the manufacturer of the finished product and hold the manufacturers
of the component parts. To make their negligence a cause of imminent
danger, an independent cause must often intervene; the manufacturer of
the finished product must also fail in his duty of inspection. It may be
that in those circumstances the negligence of the earlier members of the
series is too remote to constitute, as to the ultimate user, an
actionable wrong. Beven on Negligence, (3d ed.) 50, 51, 54; Wharton on
Negligence, (2d ed.) § 134; Leeds _v._ N. Y. Tel. Co., 178 N. Y. 118, 70
N. E. 219; Sweet _v._ Perkins, 196 N. Y. 482, 90 N. E. 50; Hayes _v._
Hyde Park, 153 Mass. 514, 516, 27 N. E. 522, 12 L. R. A. 249. We leave
that question open. We shall have to deal with it when it arises. The
difficulty which it suggests is not present in this case. There is here
no break in the chain of cause and effect. In such circumstances, the
presence of a known danger, attendant upon a known use, makes vigilance
a duty. We have put aside the notion that the duty to safeguard life and
limb, when the consequences of negligence may be foreseen, grows out of
contract and nothing else. We have put the source of the obligation
where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of
the duty of a manufacturer which enables us to measure this defendant’s
liability. Beyond all question, the nature of an automobile gives
warning of probable danger if its construction is defective. This
automobile was designed to go 50 miles an hour. Unless its wheels were
sound and strong, injury was almost certain. It was as much a thing of
danger as a defective engine for a railroad. The defendant knew the
danger. It knew also that the car would be used by persons other than
the buyer. This was apparent from its size; there were seats for three
persons. It was apparent also from the fact that the buyer was a dealer
in cars, who bought to resell. The maker of this car supplied it for the
use of purchasers from the dealer just as plainly as the contractor in
Devlin _v._ Smith supplied the scaffold for use by the servants of the
owner. The dealer was indeed the one person of whom it might be said
with some approach to certainty that by him the car would not be used.
Yet the defendant would have us say that he was the one person whom it
was under a legal duty to protect. The law does not lead us to so
inconsequent a conclusion. Precedents drawn from the days of travel by
stage-coach do not fit the conditions of travel to-day. The principle
that the danger must be imminent does not change, but the things subject
to the principle do change. They are whatever the needs of life in a
developing civilization requires them to be.

In reaching this conclusion, we do not ignore the decisions to the
contrary in other jurisdictions. It was held in Cadillac Co. _v._
Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287, that an
automobile is not within the rule of Thomas _v._ Winchester. There was,
however, a vigorous dissent. Opposed to that decision is one of the
Court of Appeals of Kentucky. Olds Motor Works _v._ Shaffer, 145 Ky.
616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689. The
earlier cases are summarized by Judge Sanborn in Huset _v._ J. I. Case
Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303.
Some of them, at first sight inconsistent with our conclusion, may be
reconciled upon the ground that the negligence was too remote, and that
another cause had intervened. But even when they cannot be reconciled
the difference is rather in the application of the principle than in the
principle itself. Judge Sanborn says, for example, that the contractor
who builds a bridge, or the manufacturer who builds a car, cannot
ordinarily foresee injury to other persons than the owner as the
probable result. 120 Fed. 865, at page 867, 57 C. C. A. 237, at page
239, 61 L. R. A. 303. We take a different view. We think that injury to
others is to be foreseen not merely as a possible, but as an almost
inevitable result. See the trenchant criticism in Bohlen, _supra_, at
page 351. Indeed, Judge Sanborn concedes that his view is not to be
reconciled with our decision in Devlin _v._ Smith, _supra_. The doctrine
of that decision has now become the settled law of this state, and we
have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom _v._
Wright, 10 M. & W. 109, is often cited. The defendant undertook to
provide a mail coach to carry the mail bags. The coach broke down from
latent defects in its construction. The defendant, however, was not the
manufacturer. The court held that he was not liable for injuries to a
passenger. The case was decided on a demurrer to the declaration. Lord
Esher points out in Heaven _v._ Pender, _supra_, at page 513, that the
form of the declaration was subject to criticism. It did not fairly
suggest the existence of a duty aside from the special contract which
was the plaintiff’s main reliance. See the criticism of Winterbottom
_v._ Wright, in Bohlen, _supra_, at pages 281, 283. At all events, in
Heaven _v._ Pender, _supra_, the defendant, a dock owner, who put up a
staging outside a ship, was held liable to the servants of the
shipowner. In Elliot _v._ Hall, 15 Q. B. D. 315, the defendant sent out
a defective truck laden with goods which he had sold. The buyer’s
servants unloaded it, and were injured because of the defects. It was
held that the defendant was under a duty “not to be guilty of negligence
with regard to the state and condition of the truck.” There seems to
have been a return to the doctrine of Winterbottom _v._ Wright in Earl
_v._ Lubbock, [1905] 1 K. B. 253. In that case, however, as in the
earlier one, the defendant was not the manufacturer. He had merely made
a contract to keep the van in repair. A later case (White _v._ Steadman,
[1913] 3 K. B. 340, 348) emphasizes that element. A livery stable keeper
who sent out a vicious horse was held liable, not merely to his
customer, but also to another occupant of the carriage, and Thomas _v._
Winchester was cited and followed, White _v._ Steadman, _supra_, at
pages 348, 349. It was again cited and followed in Dominion Natural Gas
Co. _v._ Collins, [1909] A. C. 640, 646. From these cases a consistent
principle is with difficulty extracted. The English courts, however,
agree with ours in holding that one who invites another to make use of
an appliance is bound to the exercise of reasonable care. Caledonian Ry.
Co. _v._ Mulholland, [1898] A. C. 216, 227; Indermaur _v._ Dames, L. R.
1 C. P. 274. That at bottom is the underlying principle of Devlin _v._
Smith. The contractor who builds the scaffold invites the owner’s
workmen to use it. The manufacturer who sells the automobile to the
retail dealer invites the dealer’s customers to use it. The invitation
is addressed in the one case to determinate persons and in the other to
an indeterminate class, but in each case it is equally plain, and in
each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A., who has
contracted with B., a duty to C. and D. and others according as he knows
or does not know that the subject-matter of the contract is intended for
their use. We may find an analogy in the law which measures the
liability of landlords. If A. leases to B. a tumble-down house, he is
not liable, in the absence of fraud, to B.’s guests who enter it and are
injured. This is because B. is then under the duty to repair it, the
lessor has the right to suppose that he will fulfill that duty, and, if
he omits to do so, his guests must look to him. Bohlen, _supra_, at page
276. But if A. leases a building to be used by the lessee at once as a
place of public entertainment, the rule is different. There injury to
persons other than the lessee is to be foreseen, and foresight of the
consequences involves the creation of a duty. Junkermann _v._ Tilyou R.
Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F, 700, and cases there
cited.

In this view of the defendant’s liability there is nothing inconsistent
with the theory of liability on which the case was tried. It is true
that the court told the jury that “an automobile is not an inherently
dangerous vehicle.” The meaning, however, is made plain by the context.
The meaning is that danger is not to be expected when the vehicle is
well constructed. The court left it to the jury to say whether the
defendant ought to have foreseen that the car, if negligently
constructed, would become “imminently dangerous.” Subtle distinctions
are drawn by the defendant between things inherently dangerous and
things imminently dangerous, but the case does not turn upon these
verbal niceties. If danger was to be expected as reasonably certain,
there was a duty of vigilance, and this whether you call the danger
inherent or imminent. In varying forms that thought was put before the
jury. We do not say that the court would not have been justified in
ruling as a matter of law that the car was a dangerous thing. If there
was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection
because it bought the wheels from a reputable manufacturer. It was not
merely a dealer in automobiles. It was a manufacturer of automobiles. It
was responsible for the finished product. It was not at liberty to put
the finished product on the market without subjecting the component
parts to ordinary and simple tests. Richmond & Danville R. R. Co. _v._
Elliott, 149 U. S. 266, 272, 13 Sup. Ct. 837, 37 L. Ed. 728. Under the
charge of the trial judge nothing more was required of it. The
obligation to inspect must vary with the nature of the thing to be
inspected. The more probable the danger the greater the need of caution.

There is little analogy between this case and Carlson _v._ Phoenix
Bridge Co., 132 N. Y. 273, 30 N. E. 750, where the defendant bought a
tool for a servant’s use. The making of tools was not the business in
which the master was engaged. Reliance on the skill of the manufacturer
was proper and almost inevitable. But that is not the defendant’s
situation. Both by its relation to the work and by the nature of its
business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been
found in them.

The judgment should be affirmed, with costs.

WILLARD BARTLETT, C. J. (dissenting). The plaintiff was injured in
consequence of the collapse of a wheel of an automobile manufactured by
the defendant corporation which sold it to a firm of automobile dealers
in Schenectady, who in turn sold the car to the plaintiff. The wheel was
purchased by the Buick Motor Company, ready made, from the Imperial
Wheel Company of Flint, Mich., a reputable manufacturer of automobile
wheels which had furnished the defendant with 80,000 wheels, none of
which had proved to be made of defective wood prior to the accident in
the present case. The defendant relied upon the wheel manufacturer to
make all necessary tests as to the strength of the material therein, and
made no such test itself. The present suit is an action for negligence,
brought by the subvendee of the motor car against the manufacturer as
the original vendor. The evidence warranted a finding by the jury that
the wheel which collapsed was defective when it left the hands of the
defendant. The automobile was being prudently operated at the time of
the accident, and was moving at a speed of only eight miles an hour.
There was no allegation or proof of any actual knowledge of the defect
on the part of the defendant, or any suggestion that any element of
fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned
judge who presided at the trial was that, although an automobile is not
an inherently dangerous vehicle, it may become such if equipped with a
weak wheel; and that if the motor car in question, when it was put upon
the market was in itself inherently dangerous by reason of its being
equipped with a weak wheel, the defendant was chargeable with a
knowledge of the defect so far as it might be discovered by a reasonable
inspection and the application of reasonable tests. This liability, it
was further held, was not limited to the original vendee, but extended
to a subvendee like the plaintiff, who was not a party to the original
contract of sale.

I think that these rulings, which have been approved by the Appellate
Division, extend the liability of the vendor of a manufactured article
further than any case which has yet received the sanction of this court.
It has heretofore been held in this state that the liability of the
vendor of a manufactured article for negligence arising out of the
existence of defects therein does not extend to strangers injured in
consequence of such defects, but is confined to the immediate vendee.
The exceptions to this general rule which have thus far been recognized
in New York are cases in which the article sold was of such a character
that danger to life or limb was involved in the ordinary use thereof; in
other words, where the article sold was inherently dangerous. As has
already been pointed out, the learned trial judge instructed the jury
that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and
accurate of American law writers, states the general rule thus:

“The general rule is that a contractor, manufacturer, vendor or
furnisher of an article is not liable to third parties who have no
contractual relations with him, for negligence in the construction,
manufacture or sale of such article.” 2 Cooley on Torts, (3d ed.) 1486.

The leading English authority in support of this rule, to which all the
later cases on the same subject refer, is Winterbottom _v._ Wright, 10
Meeson & Welsby, 109, which was an action by the driver of a stage-coach
against a contractor who had agreed with the postmaster general to
provide and keep the vehicle in repair for the purpose of conveying the
royal mail over a prescribed route. The coach broke down and upset,
injuring the driver, who sought to recover against the contractor on
account of its defective construction. The Court of Exchequer denied him
any right of recovery on the ground that there was no privity of
contract between the parties, the agreement having been made with the
postmaster general alone.

“If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every
passenger or even any person passing along the road who was injured by
the upsetting of the coach might bring a similar action. Unless we
confine the operation of such contracts as this to the parties who enter
into them the most absurd and outrageous consequences, to which I can
see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by
the leading New York case of Thomas _v._ Winchester, 6 N. Y. 397, 408,
57 Am. Dec. 455, which, however, involved an exception to the general
rule. There the defendant, who was a dealer in medicines, sold to a
druggist a quantity of belladonna, which is a deadly poison, negligently
labelled as extract of dandelion. The druggist in good faith used the
poison in filling a prescription calling for the harmless dandelion
extract, and the plaintiff for whom the prescription was put up was
poisoned by the belladonna. This court held that the original vendor was
liable for the injuries suffered by the patient. Chief Judge Ruggles,
who delivered the opinion of the court, distinguished between an act of
negligence imminently dangerous to the lives of others and one that is
not so, saying:

“If A. build a wagon and sell it to B., who sells it to C., and C. hires
it to D., who in consequence of the gross negligence of A. in building
the wagon is overturned and injured, D. cannot recover damages against
A., the builder. A.’s obligation to build the wagon faithfully arises
solely out of his contract with B. The public have nothing to do with
it.... So, for the same reason, if a horse be defectively shod by a
smith, and a person hiring the horse from the owner is thrown and
injured in consequence of the smith’s negligence in shoeing, the smith
is not liable for the injury.”

In Torgesen _v._ Schultz, 192 N. Y. 156, 159, 84 N. E. 956, 18 L. R. A.
(N. S.) 726, 127 Am. St. Rep. 894, the defendant was the vendor of
bottles of aerated water which were charged under high pressure and
likely to explode unless used with precaution when exposed to sudden
changes of temperature. The plaintiff, who was a servant of the
purchaser, was injured by the explosion of one of these bottles. There
was evidence tending to show that it had not been properly tested in
order to insure users against such accidents. We held that the defendant
corporation was liable notwithstanding the absence of any contract
relation between it and the plaintiff “under the doctrine of Thomas _v._
Winchester, _supra_, and similar cases based upon the duty of the vendor
of an article dangerous in its nature or likely to become so in the
course of the ordinary usage to be contemplated by the vendor, either to
exercise due care to warn users of the danger or to take reasonable care
to prevent the article sold from proving dangerous when subjected only
to customary usage.”

The character of the exception to the general rule limiting liability
for negligence to the original parties to the contract of sale, was
still more clearly stated by Judge Hiscock, writing for the court in
Statler _v._ Ray Manufacturing Co., 195 N. Y. 478, 482, 88 N. E. 1063,
where he said that:

“In the case of an article of an inherently dangerous nature, a
manufacturer may become liable for a negligent construction which, when
added to the inherent character of the appliance, makes it imminently
dangerous, and causes or contributes to a resulting injury not
necessarily incident to the use of such an article if properly
constructed, but naturally following from a defective construction.”

In that case the injuries were inflicted by the explosion of a battery
of steam-driven coffee urns, constituting an appliance liable to become
dangerous in the course of ordinary usage.

The case of Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311, is cited
as an authority in conflict with the view that the liability of the
manufacturer and vendor extends to third parties only when the article
manufactured and sold is inherently dangerous. In that case the builder
of a scaffold 90 feet high, which was erected for the purpose of
enabling painters to stand upon it, was held to be liable to the
administratrix of a painter who fell therefrom and was killed, being at
the time in the employ of the person for whom the scaffold was built. It
is said that the scaffold, if properly constructed, was not inherently
dangerous, and hence that this decision affirms the existence of
liability in the case of an article not dangerous in itself, but made so
only in consequence of negligent construction. Whatever logical force
there may be in this view it seems to me clear from the language of
Judge Rapallo, who wrote the opinion of the court, that the scaffold was
deemed to be an inherently dangerous structure, and that the case was
decided as it was because the court entertained that view. Otherwise he
would hardly have said, as he did, that the circumstances seemed to
bring the case fairly within the principle of Thomas _v._ Winchester.

I do not see how we can uphold the judgment in the present case without
overruling what has been so often said by this court and other courts of
like authority in reference to the absence of any liability for
negligence on the part of the original vendor of an ordinary carriage to
any one except his immediate vendee. The absence of such liability was
the very point actually decided in the English case of Winterbottom _v._
Wright, _supra_, and the illustration quoted from the opinion of Chief
Judge Ruggles in Thomas _v._ Winchester, _supra_, assumes that the law
on the subject was so plain that the statement would be accepted almost
as a matter of course. In the case at bar the defective wheel on an
automobile, moving only eight miles an hour, was not any more dangerous
to the occupants of the car than a similarly defective wheel would be to
the occupants of a carriage drawn by a horse at the same speed, and yet,
unless the courts have been all wrong on this question up to the present
time, there would be no liability to strangers to the original sale in
the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case
depends, and the recognized exceptions thereto, were discussed by
Circuit Judge Sanborn, of the United States Circuit Court of Appeals in
the Eighth Circuit, in Huset _v._ J. I. Case Threshing Machine Co., 120
Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303, in an opinion which reviews
all the leading American and English decisions on the subject up to the
time when it was rendered (1903). I have already discussed the leading
New York cases, but as to the rest I feel that I can add nothing to the
learning of that opinion or the cogency of its reasoning. I have
examined the cases to which Judge Sanborn refers, but if I were to
discuss them at length, I should be forced merely to paraphrase his
language, as a study of the authorities he cites has led me to the same
conclusion; and the repetition of what has already been so well said
would contribute nothing to the advantage of the bench, the bar, or the
individual litigants whose case is before us.

A few cases decided since his opinion was written, however, may be
noticed. In Earl _v._ Lubbock, [1905] L. R. 1 K. B. Div. 253, the Court
of Appeal in 1904 considered and approved the propositions of law laid
down by the Court of Exchequer in Winterbottom _v._ Wright, _supra_,
declaring that the decision in that case, since the year 1842, had stood
the test of repeated discussion. The Master of the Rolls approved the
principles laid down by Lord Abinger as based upon sound reasoning; and
all the members of the court agreed that his decision was a controlling
authority which must be followed. That the federal courts still adhere
to the general rule, as I have stated it, appears by the decision of the
Circuit Court of Appeals in the Second Circuit, in March, 1915, in the
case of Cadillac Motor Car Co. _v._ Johnson, 221 Fed. 801, 137 C. C. A.
279, L. R. A. 1915E, 287. That case, like this, was an action by a
subvendee against a manufacturer of automobiles for negligence in
failing to discover that one of its wheels was defective, the court
holding that such an action could not be maintained. It is true there
was a dissenting opinion in that case, but it was based chiefly upon the
proposition that rules applicable to stage-coaches are archaic when
applied to automobiles, and that if the law did not afford a remedy to
strangers to the contract, the law should be changed. If this be true,
the change should be effected by the Legislature and not by the courts.
A perusal of the opinion in that case and in the Huset Case will
disclose how uniformly the courts throughout this country have adhered
to the rule and how consistently they have refused to broaden the scope
of the exceptions. I think we should adhere to it in the case at bar,
and therefore I vote for a reversal of this judgment.

HISCOCK, CHASE, and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN,
J., concurs in result. WILLARD BARTLETT, C. J., reads dissenting
opinion. POUND, J., not voting.

Judgment affirmed.[175]

SECTION VIII
CONTRIBUTORY CULPABLE CONDUCT OF PLAINTIFF

NEAL _v._ GILLETT
SUPREME COURT OF ERRORS, CONNECTICUT, JUNE TERM, 1855.
_Reported in 23 Connecticut Reports, 437._

Action to recover for personal injury alleged to have been incurred
through the negligence of the defendants. Plaintiff claimed that the
defendants were guilty of gross negligence, as the cause of the injury;
and that, if the jury should so find, the plaintiff was entitled to
recover notwithstanding there had been on his part a want of mere
ordinary care which might have essentially contributed to produce the
injury complained of. The Court charged the jury in conformity to this
claim of the plaintiff. Verdict for plaintiff. Motion for new trial.

SANFORD, J. [Omitting opinion on another point.][176] The question
presented upon the second point, is, whether a plaintiff is entitled to
recover for an injury, produced by the combined operation of his own
want of “ordinary care,” and the gross negligence of the defendant. The
exact boundaries between the several degrees of care and their
correlative degrees of carelessness, or negligence, are not always
clearly defined or easily pointed out. We think, however, that by
“ordinary care,” is meant “that degree of care which may reasonably be
expected from a person in the party’s situation” (41 E. C. L. R.
425),[177] that is, “reasonable care” (19 Conn. R. 572); and that “gross
negligence” imports not a malicious intention or design to produce a
particular injury, but a thoughtless disregard of consequences; the
absence, rather than the actual exercise, of volition with reference to
results.

What is the measure of “reasonable care” must of course depend upon the
circumstances of the particular situation in which the party at the time
is placed. But “reasonable care,” every one, in the enjoyment of his
rights, and the performance of his duties, is bound to exercise at all
times and under all circumstances. When he has done that, he is
answerable to no one for any consequences which ensue, for he has done
all his duty; when he has done less than that he is in fault, and if an
injury ensue to another in consequence of such fault, he is responsible
for it; if to himself, he must bear it. If in the enjoyment of their
lawful rights by two persons, at the same time and place, reasonable
care is exercised by both, and an injury accrues to one of them, it must
be borne by the suffering party as a providential visitation. If such
care is exercised by neither party, and an injury accrues to one of
them, he must bear it, for he was himself in fault. And we hold that
when the gist of the action is negligence merely,—whether gross or
slight, the plaintiff is not entitled to recover, when his own want of
ordinary, or reasonable care, has essentially contributed to his injury;
because he is himself in fault, and because of the difficulty, if not
impossibility, of ascertaining in what proportions the parties
respectively, by their negligence, have contributed to the production of
the injury, and whether it would have been produced at all but by the
combined operation of the negligence of both. When the injury is
intentional, and designed, other considerations apply.

For anything this Court can see, the negligence of the defendants,
however gross, might have been entirely harmless, but for the
plaintiff’s own wrongful contribution to the combined causes which
produced his injury. And so too, for anything this Court can see,
although the defendants’ negligence was gross, and fully adequate to the
production of the injury, yet the plaintiff’s exercise of reasonable
care would have saved him from its consequences.

In the recent case of Park _v._ O’Brien, 23 Conn. R. 339, this Court
said, “It is necessary for the plaintiff, to prove, first, negligence on
the part of the defendant, and, secondly, that the injury to the
plaintiff occurred in consequence of that negligence. But in order to
prove this latter point, the plaintiff must show that such injury was
not caused, wholly, or in part, by his own negligence;[178] for although
the defendant was guilty of negligence, if the plaintiff’s negligence
contributed essentially to the injury, it is obvious that it did not
occur by reason of the defendant’s negligence.” “Hence, to say that the
plaintiff must show the latter” [the want of the plaintiff’s concurring
negligence], “is only saying that he must show that the injury was owing
to the negligence of the defendant.”

The same reasonable doctrine is sanctioned by other decisions, in our
own Court and elsewhere. Birge _v._ Gardiner, 19 Conn. R. 507; Beers
_v._ Housatonic R. R. Co., 19 Conn. R. 566, and cases there cited.

We think, therefore, that the charge of the Court, on this point, was
wrong, and that a new trial ought to be granted.

In this opinion the other judges concurred, except Ellsworth, J., who
was disqualified.

_New trial to be granted._[179]

PAYNE _v._ CHICAGO & ALTON RAILROAD COMPANY
SUPREME COURT, MISSOURI, JUNE 25, 1895.
_Reported in 129 Missouri Reports, 405._

Action for personal injuries alleged to be caused by the negligence of
defendant. Answer: a general denial, and a plea of contributory
negligence.[180]

The judge, at the request of plaintiff, gave the following instruction:—

“No. 7. One of the defences in this case interposed by the defendant is
that of negligence on the part of plaintiff, Claude Payne, directly
contributing to the injuries of which plaintiff complains; and the court
instructs the jury that the law devolves upon the defendant the burden
of proving such negligence by a preponderance of the evidence, and it is
not sufficient that the jury may believe from the evidence that the
plaintiff was simply guilty of negligence, but that the negligence of
plaintiff, and not that of the defendant, must be the proximate or
immediate cause of the injury, to excuse the defendant from liability.”

In the Circuit Court plaintiff had judgment. Defendant appealed.

MACFARLANE, J. Defendant complains of instruction 7 given the jury at
the request of plaintiff. The complaint is that the instruction
improperly defines contributory negligence.

Contributory negligence, as the word imports, implies the concurring
negligence of both plaintiff and defendant. The phrase is defined by
Beach as follows: “Contributory negligence, in its legal signification,
is such an act or omission on the part of a plaintiff, amounting to a
want of ordinary care, as, concurring or coöperating with the negligent
act of the defendant, is a proximate cause or occasion of the injury
complained of.” Beach, Cont. Neg. [2 ed.] sect. 7. The definition given
by Shearman & Redfield in their work on Negligence (sect. 61) is in
substance and effect the same.

If the negligence of either plaintiff or defendant is the sole cause of
the injury there could be no contributory negligence in the case. The
question for the jury is whether the plaintiff could “by the exercise of
such care and skill as he was bound to exercise, have avoided the
consequence of the defendant’s negligence.” Lord Blackburn, L. R. 3 App.
Cas. 1207. See, also, 4 Am. & Eng. Encyclopedia of Law, 18 & 19. It is
clear that there could be no contributory negligence unless there was
also negligence of defendant to which that of plaintiff could
contribute. Unless the negligence of defendant was the proximate cause
of the injury, there could be no liability. Unless the negligence of
plaintiff was a proximate cause of the injury, his action, on the ground
of contributory negligence, would not be defeated.

Testing the instruction by these rules, it cannot be approved. It tells
the jury that “the negligence of plaintiff, and not that of defendant,
must be the proximate or immediate cause of the injury to excuse the
defendant from liability.” They were told in effect that this result
would follow though “plaintiff was simply guilty of negligence.” The
jury may as well have been told that to defeat a recovery on the plea of
contributory negligence, it was necessary to find that the negligence of
plaintiff was the sole proximate cause of the injury. The instruction
ignored entirely concurring or contributory negligence of both parties,
which is one essential element of contributory negligence. There are no
degrees which distinguish the negligence made necessary by the law to
defeat a recovery. And negligence which is proximate or a cause of the
injury is sufficient. It does not matter that the concurring and
coöperating negligence of defendant was negligence, _per se_, such as
the violation of an ordinance, as in this case, or statute law.

The instruction is also misleading wherein it informs the jury that in
order for defendant to establish its plea of contributory negligence “it
is not sufficient that the jury may believe from the evidence that
plaintiff was simply guilty of negligence,” and as qualified or
explained, by what follows, does not correctly declare the law. The
negligence to defeat a recovery must be a proximate cause for the
injury, but need not be the sole proximate cause.

As the evidence on the issue of contributory negligence was very clear,
we think the errors in this instruction prejudicial and must cause a
reversal.[181]

_Judgment reversed, and cause remanded._

BREESE, J., IN GALENA, &c. R. Co. _v._ JACOBS
(1858) _20 Illinois, 478, 496–497._

[After citing decisions in other jurisdictions.] It will be seen from
these cases that the question of liability does not depend absolutely on
the absence of all negligence on the part of the plaintiff, but upon the
relative degree of care or want of care as manifested by both parties;
for all care or negligence is at best but relative, the absence of the
highest possible degree of care showing the presence of some negligence,
slight as it may be. The true doctrine, therefore, we think, is, that in
proportion to the negligence of the defendant should be measured the
degree of care required of the plaintiff; that is to say, the more gross
the negligence manifested by the defendant, the less degree of care will
be required of the plaintiff to entitle him to recover.... We say, then,
that in this, as in all like cases, the degree of negligence must be
measured and considered, and whenever it shall appear that the
plaintiff’s negligence is comparatively slight and that of the defendant
gross, he shall not be deprived of his action.[182]

UNITED STATES COMPILED STATUTES, 1913, § 8659.

In all actions hereafter brought against any such common carrier[183] by
railroad under or by virtue of any of the provisions of this Act to
recover damages for personal injuries to an employee, or where such
injuries have resulted in his death, the fact that the employee may have
been guilty of contributory negligence shall not bar a recovery, but the
damages shall be diminished by the jury in proportion to the amount of
negligence attributable to such employee: Provided, That no such
employee who may be injured or killed shall be held to have been guilty
of contributory negligence in any case where the violation by such
common carrier of any statute enacted for the safety of employees
contributed to the injury or death of such employee.[184] (Act of April
22, 1908, c. 149, § 3, 35 Stat. L. 66.)

ENGLAND, WORKMEN’S COMPENSATION ACT, 1906, § 1 (c.)

If it is proved that the injury to a workman is attributable to the
serious and wilful misconduct of that workman, any compensation claimed
in respect of that injury shall, unless the injury results in death or
serious and permanent disablement, be disallowed.[185]

THE MAX MORRIS
SUPREME COURT OF THE UNITED STATES, NOVEMBER 17, 1890.
_Reported in 137 United States Reports, 1._

The case, as stated by the court, was as follows:—

This was a suit in Admiralty, brought in the District Court of the
United States for the Southern District of New York, by Patrick Curry
against the steamer Max Morris.[186]

The libel alleged that on the 27th of October, 1884, the libellant was
lawfully on board of that vessel, being employed to load coal upon her
by the stevedore who had the contract for loading the coal; that, on
that day, the libellant, while on the vessel, fell from her bridge to
the deck, through the negligence of those in charge of her, in having
removed from the bridge the ladder usually leading therefrom to the
deck, and in leaving open, and failing to guard, the aperture thus left
in the rail on the bridge; that the libellant was not guilty of
negligence; and that he was injured by the fall and incapacitated from
labor. He claimed $3000 damages.

The answer alleged negligence on the part of the libellant and an
absence of negligence on the part of the claimant.

The District Court, held by Judge Brown, entered a decree in favor of
the libellant for $150 damages, and $32.33 as one-half of the
libellant’s costs, less $47.06 as one-half of the claimant’s costs,
making the total award to the libellant $135.27. The opinion of the
District Judge is reported in 24 Fed. Rep. 860. It appeared from that
that the judge charged to the libellant’s own fault all his pain and
suffering and all mere consequential damages, and charged the vessel
with his wages, at $2 per day, for seventy-five working days, making
$150.

The claimant appealed to the Circuit Court, on the ground that the libel
should have been dismissed. It was stipulated between the parties that
the facts as stated in the opinion of the District Judge should be taken
as the facts proved in the case, and that the appeal should be heard on
those facts. Judge Wallace, who heard the case on appeal in the Circuit
Court, delivered an opinion, in August, 1886, which is reported in 28
Fed. Rep. 881, affirming the decree of the District Court. No decree was
made on that decision, but the case came up again in the Circuit Court
on the 14th of March, 1887, the Court being held by Mr. Justice
Blatchford and Judge Wallace, when a certificate was signed by them
stating as follows: “The libellant was a longshoreman, a resident of the
city and county of New York, and was, at the time when the said accident
occurred, employed as longshoreman, by the hour, by the stevedore having
the contract to load coal on board the steamship Max Morris. The
injuries to the libellant were occasioned by his falling through an
unguarded opening in the rail on the after-end of the lower bridge. The
Max Morris was a British steamship, hailing from Liverpool, England. The
defendant contends, as a matter of defence to said libel, that the
injuries complained of by libellant were caused by his own negligence.
The libellant contends that the injuries were occasioned entirely
through the fault of the vessel and her officers. The Court finds, as a
matter of fact, that the injuries to the libellant were occasioned
partly through his own negligence and partly through the negligence of
the officers of the vessel. It now occurs, as a question of law, whether
the libellant, under the above facts, is entitled to a decree for
divided damages. On this question the opinions of the judges are in
conflict.” On motion of the claimant, the question in difference was
certified to this Court, and a decree was entered by the Circuit Court
affirming the decree of the District Court and awarding to the libellant
a recovery of $135.27, with interest from the date of the decree of the
District Court, and $26.30 as the libellant’s costs in the Circuit
Court, making a total of $172. From that decree the claimant has
appealed to this Court. Rev. Stat. §§ 652, 693; Dow _v._ Johnson, 100 U.
S. 158.

MR. JUSTICE BLATCHFORD, after stating the case as above reported,
delivered the opinion of the Court.

The question discussed in the opinions of Judge Brown and Judge Wallace,
and presented to us for decision, is whether the libellant was debarred
from the recovery of any sum of money, by reason of the fact that his
own negligence contributed to the accident, although there was
negligence also in the officers of the vessel. The question presented by
the certificate is really that question, although stated in the
certificate to be whether the libellant, under the facts presented, was
entitled to a decree “for divided damages.” It appears from the opinion
of the District Judge that he imposed upon the claimant “some part of
the damage” which his concurrent negligence occasioned, while it does
not appear from the record that the award of the $150 was the result of
an equal division of the damages suffered by the libellant, or a giving
to him of exactly one-half, or of more or less than one-half, of such
damages.

The particular question before us has never been authoritatively passed
upon by this Court, and is, as stated by the District Judge in his
opinion, whether, in a Court of admiralty, in a case like the present,
where personal injuries to the libellant arose from his negligence
concurring with that of the vessel, any damages can be awarded, or
whether the libel must be dismissed, according to the rule in common-law
cases.

The doctrine of an equal division of damages in admiralty, in the case
of a collision between two vessels, where both are guilty of fault
contributing to the collision, had long been the rule in England, but
was first established by this Court in the case of The Schooner
Catherine _v._ Dickinson, 17 How. 170, and has been applied by it to
cases where, both vessels being in fault, only one of them was injured,
as well as to cases where both were injured, the injured vessel, in the
first case, recovering only one-half of its damages, and, in the second
case, the damages suffered by the two vessels being added together and
equally divided, and the vessel whose damages exceeded such one-half
recovering the excess against the other vessel. In the case of The
Schooner Catherine _v._ Dickinson, _supra_, both vessels being held in
fault for the collision, it was said by the Court, speaking by Mr.
Justice Nelson, p. 177, that the well-settled rule in the English
admiralty was “to divide the loss,” and that “under the circumstances
usually attending these disasters” the Court thought “the rule dividing
the loss the most just and equitable, and as best tending to induce care
and vigilance on both sides, in the navigation.”

[In Atlee _v._ Packet Co., 21 Wallace, 389, p. 395, MILLER, J., said:]
“But the plaintiff has elected to bring his suit in an admiralty Court,
which has jurisdiction of the case, notwithstanding the concurrent right
to sue at law. In this Court the course of proceeding is in many
respects different and the rules of decision are different. The mode of
pleading is different, the proceeding more summary and informal, and
neither party has a right to trial by jury. An important difference as
regards this case is the rule for estimating the damages. In the
common-law Court the defendant must pay all the damages or none. If
there has been on the part of the plaintiffs such carelessness or want
of skill as the common law would esteem to be contributory negligence,
they can recover nothing. By the rule of the admiralty Court, where
there has been such contributory negligence, or, in other words, when
both have been in fault, the entire damages resulting from the collision
must be equally divided between the parties. This rule of the admiralty
commends itself quite as favorably in its influence in securing
practical justice as the other; and the plaintiff who has the selection
of the forum in which he will litigate cannot complain of the rule of
that forum.” This Court, therefore, treated the case as if it had been
one of a collision between two vessels.

Some of the cases referred to show that this Court has extended the rule
of the division of damages to claims other than those for damages to the
vessels which were in fault in a collision.

* * * * *

The rule of the equal apportionment of the loss where both parties were
in fault would seem to have been founded upon the difficulty of
determining, in such cases, the degree of negligence in the one and the
other. It is said by Cleirac (_Us et Coutumes de la Mer_, p. 68) that
such rule of division is a rustic sort of determination, and such as
arbiters and amicable compromisers of disputes commonly follow, where
they cannot discover the motives of the parties, or when they see faults
on both sides.

As to the particular question now presented for decision, there has been
a conflict of opinion in the lower Courts of the United States.

* * * * *

All these were cases in admiralty, and were not cases of collision
between two vessels. They show an amelioration of the common-law rule,
and an extension of the admiralty rule in a direction which we think is
manifestly just and proper. Contributory negligence, in a case like the
present, should not wholly bar recovery. There would have been no injury
to the libellant but for the fault of the vessel; and while, on the one
hand, the Court ought not to give him full compensation for his injury,
where he himself was partly in fault, it ought not, on the other hand,
to be restrained from saying that the fact of his negligence should not
deprive him of all recovery of damages. As stated by the District Judge
in his opinion in the present case, the more equal distribution of
justice, the dictates of humanity, the safety of life and limb and the
public good, will be best promoted by holding vessels liable to bear
some part of the actual pecuniary loss sustained by the libellant, in a
case like the present, where their fault is clear, provided the
libellant’s fault, though evident, is neither wilful, nor gross, nor
inexcusable, and where the other circumstances present a strong case for
his relief. We think this rule is applicable to all like cases of marine
tort founded upon negligence and prosecuted in admiralty, as in harmony
with the rule for the division of damages in cases of collision. The
mere fact of the negligence of the libellant as partly occasioning the
injuries to him, when they also occurred partly through the negligence
of the officers of the vessel, does not debar him entirely from a
recovery.

The necessary conclusion is, that the question whether the libellant,
upon the facts found, is entitled to a decree for divided damages, must
be answered in the affirmative, in accordance with the judgment below.
This being the only question certified, and the amount in dispute being
insufficient to give this Court jurisdiction of the whole case, our
jurisdiction is limited to reviewing this question. Chicago Union Bank
_v._ Kansas City Bank, 136 U. S. 223. Whether, in a case like this, the
decree should be for exactly one-half of the damages sustained, or
might, in the discretion of the Court, be for a greater or less
proportion of such damages, is a question not presented for our
determination upon this record, and we express no opinion upon it.

_Decree affirmed._[187]

SCOTT, COLLISIONS AT SEA WHERE BOTH SHIPS ARE IN FAULT, 13 Law
Quarterly Review, 17.

If minor or collateral differences be disregarded, there are amongst
civilized nations four different ways of dealing with collision damage
where both ships are in fault.

1. To mass the total damage and divide it equally between the two
ships.[188]

This is the British rule, and has been the American rule....

2. To leave the loss where it falls.

This is the rule in Germany, Holland, Italy, Spain, and those of the
South American States which have derived their law from Spain, and was
the rule in Great Britain in our Courts of Common Law previous to the
Judicature Act, 1873.

3. To divide the loss proportionally to the value of the vessels in
collision.

A kind of general average principle obtaining in Turkey and Egypt.

4. To divide the loss proportionally to the faults of the two vessels.

This is the rule of France, Belgium, Norway, Sweden, Denmark,
Portugal, Greece, and Roumania.

See Franck, Collisions at Sea in Relation to International Maritime
Law, 12 Law Quarterly Review, 260.

ENGLAND, MARITIME CONVENTIONS ACT (1911), § 1.

1. (1) Where, by the fault of two or more vessels, damage or loss is
caused to one or more of those vessels, to their cargoes or freight,
or to any property on board, the liability to make good the damage or
loss shall be in proportion to the degree in which each vessel was in
fault:

Provided that—

(a) if, having regard to all the circumstances of the case, it is
not possible to establish different degrees of fault, the liability
shall be apportioned equally; and

(b) nothing in this section shall operate so as to render any
vessel liable for any loss or damage to which her fault has not
contributed.

BUTTERFIELD _v._ FORRESTER
IN THE KING’S BENCH, APRIL 22, 1809.
_Reported in 11 East, 60._

This was an action on the case for obstructing a highway, by means of
which obstruction the plaintiff, who was riding along the road, was
thrown down with his horse, and injured, &c. At the trial before Bayley,
J., at Derby, it appeared that the defendant, for the purpose of making
some repairs to his house, which was close by the roadside at one end of
the town, had put up a pole across this part of the road, a free passage
being left by another branch or street in the same direction. That the
plaintiff left a public house not far distant from the place in question
at 8 o’clock in the evening in August, when they were just beginning to
light candles, but while there was light enough left to discern the
obstruction at one hundred yards distance; and the witness who proved
this, said that if the plaintiff had not been riding very hard he might
have observed and avoided it; the plaintiff, however, who was riding
violently, did not observe it, but rode against it, and fell with his
horse and was much hurt in consequence of the accident; and there was no
evidence of his being intoxicated at the time. On this evidence Bayley,
J., directed the jury, that if a person riding with reasonable and
ordinary care could have seen and avoided the obstruction; and if they
were satisfied that the plaintiff was riding along the street extremely
hard, and without ordinary care, they should find a verdict for the
defendant, which they accordingly did.

_Vaughan_, Serjt., now objected to this direction, on moving for a new
trial; and referred to Buller’s Ni. Pri. 26,[189] where the rule is laid
down, that “if a man lay logs of wood across a highway, though a person
may with care ride safely by, yet if by means thereof my horse stumble
and fling me, I may bring an action.”

BAYLEY, J. The plaintiff was proved to be riding as fast as his horse
could go, and this was through the streets of Derby. If he had used
ordinary care he must have seen the obstruction; so that the accident
appeared to happen entirely from his own fault.

LORD ELLENBOROUGH, C. J. A party is not to cast himself upon an
obstruction which had been made by the fault of another, and avail
himself of it, if he do not himself use common and ordinary caution to
be in the right. In cases of persons riding upon what is considered to
be the wrong side of the road, that would not authorize another
purposely to ride up against them. One person being in fault will not
dispense with another’s using ordinary care for himself. Two things must
concur to support this action: an obstruction in the road by the fault
of the defendant, and no want of ordinary care to avoid it on the part
of the plaintiff.

_Rule refused._

DAVIES _v._ MANN
IN THE EXCHEQUER, NOVEMBER 4, 1842.
_Reported in 10 Meeson & Welsby, 546._

Case for negligence. The declaration stated, that the plaintiff
theretofore, and at the time of the committing of the grievance
thereinafter mentioned, to wit, on, &c., was lawfully possessed of a
certain donkey, which said donkey of the plaintiff was then lawfully in
a certain highway, and the defendant was then possessed of a certain
wagon and of certain horses drawing the same, which said wagon and
horses of the defendant were then under the care, government, and
direction of a certain then servant of the defendant, in and along the
said highway; nevertheless the defendant, by his said servant, so
carelessly, negligently, unskilfully, and improperly governed and
directed his said wagon and horses, that by and through the
carelessness, negligence, unskilfulness, and improper conduct of the
defendant, by his said servant, the said wagon and horses of the
defendant then ran and struck with great violence against the said
donkey of the plaintiff, and thereby then wounded, crushed, and killed
the same, &c.

The defendant pleaded not guilty.

At the trial, before Erskine, J., at the last Summer Assizes for the
county of Worcester, it appeared that the plaintiff, having fettered the
fore-feet of an ass belonging to him, turned it into a public highway,
and at the time in question the ass was grazing on the off side of a
road about eight yards wide, when the defendant’s wagon, with a team of
three horses, coming down a slight descent, at what the witness termed a
smartish pace, ran against the ass, knocked it down, and the wheels
passing over it, it died soon after. The ass was fettered at the time,
and it was proved that the driver of the wagon was some little distance
behind the horses. The learned judge told the jury, that though the act
of the plaintiff, in leaving the donkey on the highway so fettered as to
prevent his getting out of the way of carriages travelling along it,
might be illegal, still, if the proximate cause of the injury was
attributable to the want of proper conduct on the part of the driver of
the wagon, the action was maintainable against the defendant; and his
Lordship directed them, if they thought that the accident might have
been avoided by the exercise of ordinary care on the part of the driver,
to find for the plaintiff. The jury found their verdict for the
plaintiff, damages 40_s._

_Godson_ now moved for a new trial, on the ground of misdirection. The
act of the plaintiff in turning the donkey into the public highway was
an illegal one, and, as the injury arose principally from that act, the
plaintiff was not entitled to compensation for that injury which, but
for his own unlawful act, would never have occurred. [PARKE, B. The
declaration states that the ass was lawfully on the highway, and the
defendant has not traversed that allegation; therefore it must be taken
to be admitted.] The principle of law, as deducible from the cases is,
that where an accident is the result of faults on both sides, neither
party can maintain an action. Thus, in Butterfield _v._ Forrester, 11
East, 60, it was held that one who is injured by an obstruction on a
highway, against which he fell, cannot maintain an action, if it appear
that he was riding with great violence and want of ordinary care,
without which he might have seen and avoided the obstruction. So, in
Vennall _v._ Garner, 1 C. & M. 21, in case for running down a ship, it
was held, that neither party can recover when both are in the wrong; and
Bayley, B., there says, “I quite agree that if the mischief be the
result of the combined negligence of the two, they must both remain in
_statu quo_, and neither party can recover against the other.” Here the
plaintiff, by fettering the donkey, had prevented him from removing
himself out of the way of accident; had his fore-feet been free no
accident would probably have happened. Pluckwell _v._ Wilson, 5 Car. &
P. 375; Luxford _v._ Large, Ibid. 421, and Lynch _v._ Nurdin, 1 Ad. & E.
(N. S.) 29[190]; 4 P. & D. 672, are to the same effect.

LORD ABINGER, C. B. I am of opinion that there ought to be no rule in
this case. The defendant has not denied that the ass was lawfully in the
highway, and therefore we must assume it to have been lawfully there;
but even were it otherwise, it would have made no difference, for as the
defendant might, by proper care, have avoided injuring the animal, and
did not, he is liable for the consequences of his negligence, though the
animal may have been improperly there.

PARKE, B. This subject was fully considered by this Court in the case of
Bridge _v._ The Grand Junction Railway Company, 3 M. & W. 246, where, as
appears to me, the correct rule is laid down concerning negligence,
namely, that the negligence which is to preclude a plaintiff from
recovering in an action of this nature, must be such as that he could,
by ordinary care, have avoided the consequences of the defendant’s
negligence. I am reported to have said in that case, and I believe quite
correctly, that “the rule of law is laid down with perfect correctness
in the case of Butterfield _v._ Forrester, that, although there may have
been negligence on the part of the plaintiff, yet unless he might, by
the exercise of ordinary care, have avoided the consequences of the
defendant’s negligence, he is entitled to recover; if by ordinary care
he might have avoided them, he is the author of his own wrong.” In that
case of Bridge _v._ Grand Junction Railway Company, there was a plea
imputing negligence on both sides; here it is otherwise; and the judge
simply told the jury, that the mere fact of negligence on the part of
the plaintiff in leaving his donkey on the public highway, was no answer
to the action, unless the donkey’s being there was the immediate cause
of the injury; and that, if they were of opinion that it was caused by
the fault of the defendant’s servant in driving too fast or, which is
the same thing, at a smartish pace, the mere fact of putting the ass
upon the road would not bar the plaintiff of his action. All that is
perfectly correct; for, although the ass may have been wrongfully there,
still the defendant was bound to go along the road at such a pace as
would be likely to prevent mischief. Were this not so, a man might
justify the driving over goods left on a public highway, or even over a
man lying asleep there, or the purposely running against a carriage
going on the wrong side of the road.

GURNEY, B., and ROLFE, B., concurred.

_Rule refused._[191]

NORTHERN PACIFIC RAILWAY COMPANY _v._ JONES
UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT, FEBRUARY 5, 1906.
_Reported in 144 Federal Reporter, 47._

GILBERT, J.[192] ... The defendant in error was a miner of the age of
34 years, and was in the full possession of his senses. According to
his own testimony, he walked upon the railroad track a distance of
more than half a mile without once looking back or stopping to listen
for an approaching train. In so doing, it must be held that he was
guilty of gross negligence, which, irrespective of negligence in the
failure of the engineer to discover him on the track, is sufficient to
bar his right of recovery. It was no excuse for his failure to take
such precautions that the wind was blowing in his face, or that the
noise of a waterfall may have deadened the sound of an approaching
train. Those circumstances only rendered the use of his senses the
more imperative. It was his duty continually to exercise vigilance.

* * * * *

On the authority of Inland & Seaboard Coasting Co. _v._ Tolson, 139 U.
S. 551–558, 11 Sup. Ct. 653, 35 L. Ed. 270; Grand Trunk Ry. Co. _v._
Ives, 144 U. S. 408–429, 12 Sup. Ct. 679, 36 L. Ed. 485; and Bogan
_v._ Carolina Central Ry. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R.
A. 418, the defendant in error invokes the doctrine that the
contributory negligence of the party injured will not defeat the
action, if it be shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the
injured party’s negligence. In the first of these decisions, the
doctrine was applied in a case where the plaintiff, a wharfinger, was
standing with his foot between the timbers of a wharf, to deliver
freight to a vessel which was about to make a landing there, and which
struck the wharf with such force as to crush his foot. But the court
held that the doctrine was applicable, for the reason that the jury
might well have been of opinion that, while there was some negligence
on the plaintiff’s part in standing where and as he did, yet the
officers of the boat knew just where and how he stood, and might have
avoided injuring him, if they had used reasonable care to prevent the
steamboat from striking the wharf with unusual and unnecessary
violence. In the Ives Case, the plaintiff’s intestate was killed while
attempting to cross a railroad track. There was evidence of negligence
on the part of the railroad company. On the part of the plaintiff’s
intestate there was no evidence as to what precaution he took before
placing himself in the place of danger, except that, at a distance of
about seventy-six feet from the track, he stopped several minutes,
presumably to listen for trains; that while there a train passed; and
that, soon after it had passed, and while the noise caused by it was
still quite distinct, he proceeded across the track and was struck by
another train. The court held that the question of contributory
negligence of the plaintiff’s intestate was properly left to the jury,
as one to be determined under all the circumstances of the case, but
incidentally proceeded to affirm the rule above quoted, citing Davies
_v._ Mann, 10 M. & W. 546; Inland & Seaboard Coasting Co. _v._ Tolson,
and other cases. There was no evidence in the Ives Case that the
plaintiff’s intestate was seen by those who were managing the train in
time to have avoided the accident. The court, in that case, however,
reaffirmed the rule that a traveller, on going upon a railroad track,
ought to make vigilant use of his senses of sight and hearing, and
listen for signals, and look in the different directions from which a
train might come, and said:—

“If by neglect of this duty he suffers injury from a passing train, he
cannot recover of the company, although it may itself be chargeable
with negligence, or have failed to give the signals required by
statute, or be running at the time at a speed exceeding the legal
rate.”

It cannot be contended that in the Ives Case the Supreme Court
intended to lay down the broad rule that no contributory negligence of
the party injured will defeat his right to recover, if it be shown
that the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of that negligence. To so hold
would be to destroy the whole doctrine of contributory negligence. As
applied to the present case, it would mean that the plaintiff in error
was bound to know that the defendant in error was upon its track, and
that he would not step aside in time to avoid the train. Such is not
the doctrine of cases such as Northern Pacific Railroad _v._
Freeman[193] and the other decisions which we have cited above. The
doctrine of “the last clear chance,” so invoked by the defendant in
error, originated in Davies _v._ Mann, in which it was held that the
plaintiff’s want of ordinary care in that case did not constitute
contributory negligence, because it was a remote cause or mere
condition of the injury, and did not proximately contribute to it, and
because the negligence of the defendant arose subsequently to that of
the plaintiff, and the latter’s negligence was so obvious as to have
been discoverable by the exercise of ordinary care. That doctrine has
no application to a case where the plaintiff voluntarily places
himself in a place of danger from which he has present means of
escape, and continues there without exercising precautions which an
ordinarily prudent man would exercise. We have nothing here to do with
the law applicable to a case where the injured person is found in a
place of danger, as upon a railroad trestle, from which he is
powerless to extricate himself on the approach of a train, and where
his situation is discovered, or ought to have been discovered, by
those in charge of the train.

* * * * *

JONES _v._ CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY
SUPREME COURT, SOUTH CAROLINA, APRIL TERM, 1901.
_Reported in 61 South Carolina Reports, 556._

Action under statute by administrator of Susan V. Jones to recover for
her death. Mrs. Jones was killed by a train backing down upon her
while she was walking on the railroad track. Plaintiff’s evidence
tended to show that the track at that place had been accustomed to be
used by the public as a walkway with the knowledge and acquiescence of
the defendant company. Mrs. Jones, when killed, was on a trestle. The
train was backing down behind her, at a speed of from five to ten
miles an hour. There was evidence on plaintiff’s part that no bell was
rung, no whistle blown, no warning given of the approach of the train;
also that there was no lookout on the train, and no rear-end lights.

Defendant requested the following instruction (No. 6):—

“Even if the defendant was guilty of negligence in the backing of its
train, and such negligence was a proximate cause of the injury, if the
jury also believe that the said Susan V. Jones showed a want of
ordinary care in walking down the track that night, under all the
circumstances, and such carelessness was a proximate cause of the
injury, she was guilty of contributory negligence, and the plaintiff
would not be entitled to recover.”

The judge qualified this instruction by adding:—

“If the deceased, Mrs. Jones, was guilty of negligence in acting as
you may find from the testimony that she acted, and if her conduct,
her negligence, together with the negligence of the railroad company,
contributed to her injury as the proximate cause, then the railroad
company would not be responsible, unless the railroad company could
have avoided injuring her notwithstanding her negligence.”

The judge charged the jury, in accordance with plaintiff’s ninth
request, as follows:—

“Contributory negligence is a matter of defence, and must be proved by
defendant by a preponderance of the evidence; but unless the
contributory negligence was the proximate cause of the accident, and
if in spite of such contributory negligence the accident could have
been avoided by the use of ordinary care on the part of the defendant,
then plaintiff is still entitled to recover.”

Verdict for plaintiff and judgment thereon. Defendant appealed.[194]

JONES, J.... The testimony being undisputed that Mrs. Jones,
plaintiff’s intestate, was walking down the railroad track at the time
of the injury, the defendant was entitled to have the sixth request to
charge above mentioned in the tenth exception submitted to the jury as
entirely correct. The remarks by the court down to the clause, “unless
the railroad company could have avoided injuring her notwithstanding
her negligence,” were not improper nor inconsistent with the request,
but the addition of such qualification was erroneous and wholly
inconsistent with the well-settled principles governing contributory
negligence. The same error was made in the charge excepted to in the
eleventh exception above, when the court instructed the jury, “but
unless the contributory negligence was the proximate cause of the
accident, and if in spite of _such_ contributory negligence (that is,
negligence which contributed as a proximate cause), the accident could
have been avoided by the use of ordinary care on the part of the
defendant, then the plaintiff is still entitled to recover.” The
charge destroyed the defence of contributory negligence. In _every_
case where there is contributory negligence the defendant could have
avoided the injury by ordinary care, for the simple reason that there
can be no such thing as contributory negligence unless the defendant
be negligent. The error complained of is the same error which was
condemned in Cooper _v._ Ry. Co., 56 S. C. 94. The law in this state
is settled that contributory negligence as defined in Cooper’s case,
_supra_, to _any_ extent, will _always_ defeat plaintiff’s recovery,
unless the injury is wantonly or wilfully inflicted; for the law
cannot measure how much of the injury is due to the plaintiff’s own
fault, and will not recompense one for injury resulting to himself
from his own misconduct. The objection to the charge is that it
instructed the jury that although plaintiff’s negligence contributed
to her injury as a proximate cause, she could recover if the defendant
by ordinary care could have avoided the injury. Is it not manifest
that such a rule would abolish contributory negligence as a defence?
The qualifying terms, “unless the railroad company could have avoided
injuring her notwithstanding her negligence,” would necessarily
mislead a jury; for they would at once say the railroad company could
have avoided the injury by not being negligent in the manner alleged
in the complaint, by having suitable rear end lights, by a reasonable
lookout, by loud warning of the train’s approach, by running at such
slow speed as to enable any one warned to get off the track; and then
utterly ignore the defendant’s plea and evidence of contributory
negligence, because of the instruction that plaintiff, notwithstanding
her negligence which proximately caused her injury, could still
recover, if the defendant could have avoided the injury. The jury
ought to have been instructed without qualification, that if plaintiff
was negligent and that negligence contributed as a proximate cause to
her injury, she could not recover, unless the injury was wantonly or
wilfully inflicted.

The judgment of the Circuit Court is reversed, and the case remanded
for a new trial.

CORDINER _v._ LOS ANGELES TRACTION COMPANY
DISTRICT COURT OF APPEALS, SECOND DISTRICT, CALIFORNIA, APRIL 16, 1907.
_Reported in 4 California Appellate Decisions, 480._

SHAW, J. Neither of the defendants questioned the right of plaintiff
to recover such damages as she had sustained in the collision, but
each contended that the other should be held responsible therefor; and
with the view of having the jury pass upon the question, the Los
Angeles Railway Company asked the court to instruct the jury, in
effect, that notwithstanding the negligence of its motorman in driving
his car upon the crossing, still if the traction motorman could, after
he saw that it was beyond the power of the motorman of the Los Angeles
Railway car to avoid the accident, have, by proper care, prevented the
collision, then the negligence of the defendant Los Angeles Traction
Company was the proximate cause of the injury. In other words, while
admitting that plaintiff’s injury resulted from the collision due to
the joint or concurrent acts of negligence of defendants, she must be
confined in her recovery for such damages to a judgment rendered
against the defendant who had the “last clear chance” to avoid the
collision and neglected to act upon it. Appellant seeks to apply the
well-established principle that “he who last has a clear opportunity
of avoiding the accident, by the exercise of proper care to avoid
injuring another, must do so.” Esrey _v._ S. Pacific Co., 103 Cal.
541. This rule is only applicable to cases where the defence is based
upon the contributory negligence of plaintiff due to his want of care
in placing himself in a position of danger, and where he may,
notwithstanding his negligence, recover from a defendant, who by the
exercise of proper care could have avoided the injury. We are unable
to perceive why this rule should apply to plaintiff, who was in no way
chargeable, by imputation or otherwise, with negligence; nor are we
referred to any authority which supports the proposition. Indeed, all
the authorities recognize the right of recovery against either or both
of the defendants whose concurring acts of negligence united in
producing the injury. 1 Shearman & Redfield on Neg. p. 122; 1 Thompson
on Neg. p. 75; Doeg _v._ Cook, 126 Cal. 213; Tompkins _v._ Clay St.
Ry. Co., 66 Cal. 163; Pastene _v._ Adams, 49 Cal. 87.[195]

STILES _v._ GEESEY
SUPREME COURT, PENNSYLVANIA, MAY 30, 1872.
_Reported in 71 Pennsylvania State Reports, 439._

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of York County.

Action on the case by Jacob B. Geesey against Thomas Stiles, for alleged
injury by the negligence of William Stiles, son of defendant, by which
plaintiff’s horse and carriage were damaged.[196]

Plaintiff’s wife, driving in a light carriage of plaintiff’s, hitched
her horse to a tree on the road, and went into a friend’s house. The
carriage projected into the travelled part of the road. Whilst the
carriage was so left, the defendant’s son, William Stiles, was driving
his father’s team with a loaded wagon along the road. He got off to do
something to his wagon; and seeing an acquaintance in a neighboring
barn, stopped a moment to exchange a few words with him, the team moving
on slowly at the time with the load up the hill, keeping the travelled
track of the road till the front horse was just behind plaintiff’s
carriage standing unattended where it was left. At this point of time
William Stiles was behind his own wagon, at some distance from it; and
did not see the obstruction in the road in time to avoid a collision.
The wagon collided with the carriage. Stiles halloed “Whoa,” and his
horses stopped. In the collision, the plaintiff’s horse was fatally
injured.

The third point of the plaintiff, which was affirmed in the charge to
the jury by Fisher, P. J., is as follows:—

“That Thomas Stiles cannot excuse the negligence of William Stiles by
showing that the plaintiff’s property was placed where it received the
injury by want of ordinary care by Mrs. Geesey, if, in the opinion of
the jury such want is imputable to her, should the jury believe that
William Stiles was chargeable with negligence in leaving his team and
permitting it to go along the highway unattended.”

_Verdict for plaintiff._

READ, J. [After stating the facts.] We have taken in brief, the
defendant’s statement of his defence, which fairly raises the question
of contributory negligence. “It is an incontestable principle that where
the injury complained of is the product of mutual or concurring
negligence, no action for damages will lie. The parties being mutually
in fault there can be no apportionment of the damages. The law has no
scales to determine in such cases whose wrong-doing weighed most in the
compound that occasioned the mischief:” per Woodward, J., 12 Harris,
469.

“The question presented to the Court or the jury is never one of
comparative negligence, as between the parties; nor does very great
negligence on the part of a defendant so operate to strike a balance of
negligence as to give a judgment to a plaintiff whose own negligence
contributes in any degree to the injury.” Wilds _v._ Hudson River
Railroad Co., 24 N. Y. 432.

The third error assigned is that the Court erred in their charge to the
jury on the plaintiff’s third point, which was as follows: “That Thomas
Stiles cannot excuse the negligence of William Stiles by showing that
the plaintiff’s property was placed where it received the injury, by
want of ordinary care by Mrs. Geesey, if in the opinion of the jury such
want is imputable to her, should the jury believe William Stiles was
chargeable with negligence, in leaving his team and permitting it to go
along the highway unattended,” which point the Court affirmed, holding
that although there was contributory negligence on the part of the
plaintiff, he was entitled to recover from the defendant on account of
his negligence. This was a binding instruction upon the jury, leaving
nothing for them to inquire into practically, except the negligence of
the defendant. In this the Court committed a clear error, and the
judgment must be reversed, and _venire de novo_ awarded.

RADLEY _v._ LONDON AND NORTH WESTERN RAILWAY COMPANY
IN THE HOUSE OF LORDS, DECEMBER 1, 1876.
_Reported in Law Reports, 1 Appeal Cases, 754._

This was an appeal against a decision of the Court of Exchequer Chamber.

The appellants were the plaintiffs in an action brought in the Court of
Exchequer, in which they claimed to recover damages for the destruction
of a bridge occasioned, as they alleged, by the negligence of the
defendants’ servants. The plaintiffs were owners of the Sankey Brook
Colliery, in the county of Lancaster, which was situated near a branch
line of the defendants’ railway. There was a siding belonging to the
plaintiffs, which communicated with the railway, and the defendants’
servants were in the habit of taking trucks loaded with coals from this
siding, in order to run them on the railway to forward them to their
destination, and also of bringing back empty trucks and running them
from the railway on to the siding. On Saturday after working hours, when
all the colliery men had gone away, the defendants’ servants ran some of
the plaintiffs’ empty trucks from the railway upon the siding and there
left them. In that position they remained. One of the watchmen employed
by the plaintiffs knew that they were there, but nothing was done to
remove them to a different place. In the first of these trucks had been
placed a truck which had broken down, and the height of the two trucks
combined was nearly eleven feet. There was, in advance of the spot where
the trucks had been left, a bridge placed over a part of the siding, the
span of which bridge was about eight feet from the ground. On Sunday
afternoon the defendants’ servants brought a long line of empty trucks
belonging to the plaintiffs, and ran them on the line of the siding,
pushing on the first set of trucks in front. Some resistance was
perceived, and the pushing force of the engine employed was increased,
and the result was, as the two trucks at the head of the line could not
pass under the bridge, they struck with great force against it and broke
it down.[197] For the damage thereby occasioned this action was brought.
The defence was contributory negligence; it being insisted that the
plaintiffs ought to have moved the first set of trucks to a safe place,
or at all events, not to have left the truck with the disabled truck in
it so as to be likely to occasion mischief. At the trial before Mr.
Justice Brett, at the Summer Assizes at Liverpool, in 1873, the learned
judge told the jury that “you must be satisfied that the plaintiffs’
servants did not do anything which persons of ordinary care, under the
circumstances, would not do, or that they omitted to do something which
persons of ordinary care would do.... It is for you to say entirely as
to both points; but the law is this, the plaintiffs must have satisfied
you that this happened by the negligence of the defendants’ servants,
and without any contributory negligence of their own, in other words
that it was solely by the negligence of the defendants’ servants. If you
think it was, then your verdict will be for the plaintiffs. If you think
it was not solely by the negligence of the defendants’ servants, your
verdict must be for the defendants.”[198] The jurors having, on this
direction, stated that they thought there was contributory negligence on
the part of the plaintiffs, the learned judge directed that the verdict
should be entered for the defendants, but reserved leave for the
plaintiffs to move.

A rule having been obtained for a new trial, it was after argument
before Barons Bramwell and Amphlett made absolute.[199] On appeal to the
Exchequer Chamber the decision was, by Justices Blackburn, Mellor, Lush,
Brett, and Archibald (_diss._ Justice Denman), reversed.[200] This
appeal was then brought.[201]

LORD PENZANCE. My Lords, the action out of which this appeal arises is
an action charging the defendants with negligence (through their
servants) in so managing the shunting of some empty coal-wagons as to
knock down a bridge and some staging and some colliery head-gearing,
which stood upon it, and belonged to the plaintiffs.

The first question on the appeal is, whether the Court of Exchequer
Chamber was right in holding that there was any evidence, proper to be
submitted to the jury, tending to the conclusion that the plaintiffs
themselves had been guilty of some negligence in the matter, and that
such negligence had contributed to produce the accident and injury of
which they complained.

The general facts of the case, the particular facts which gave rise to
the imputation of negligence, and the contention of both sides as to the
fair result of these facts, are stated in the judgment of the Court of
Exchequer delivered by Baron Bramwell. His Lordship here read the
statement from Mr. Baron Bramwell’s judgment.[202]

It may be admitted that this is a fair and full statement of the
arguments and considerations on the one side, and on the other, upon
which the question of the plaintiffs’ negligence had to be decided. But
it had to be decided by the jurors, and not by the Court, and I am
unable to perceive any reason why the learned judge did wrong in
submitting these arguments and considerations to their decision
accordingly. The bare statement of them is enough to show that there
were in the case facts and circumstances sufficient at least to raise
the question of negligence, whether they were a sufficient proof of
negligence or not.

The decision, therefore, of the Exchequer Chamber upon this matter
ought, I think, to be upheld.

The remaining question is whether the learned judge properly directed
the jury in point of law. The law in these cases of negligence is, as
was said in the Court of Exchequer Chamber, perfectly well settled and
beyond dispute.

The first proposition is a general one, to this effect, that the
plaintiff in an action for negligence cannot succeed if it is found by
the jury that he has himself been guilty of any negligence or want of
ordinary care which contributed to cause the accident.

But there is another proposition equally well established, and it is a
qualification upon the first, namely, that though the plaintiff may have
been guilty of negligence, and although that negligence may, in fact,
have contributed to the accident, yet if the defendant could in the
result, by the exercise of ordinary care and diligence, have avoided the
mischief which happened, the plaintiffs’ negligence will not excuse him.

This proposition, as one of law, cannot be questioned. It was decided in
the case of Davies _v._ Mann, 10 M. & W. 546, supported in that of Tuff
_v._ Warman, 5 C. B. (N. S.) 573; 27 L. J. C. P. 322, and other cases,
and has been universally applied in cases of this character without
question.

The only point for consideration, therefore, is whether the learned
judge properly presented it to the mind of the jury.

It seems impossible to say that he did so. At the beginning of his
summing-up he laid down the following as the propositions of law which
governed the case: It is for the plaintiffs to satisfy you that this
accident happened through the negligence of the defendants’ servants,
and as between them and the defendants, that it was solely through the
negligence of the defendants’ servants. They must satisfy you that it
was solely by the negligence of the defendants’ servants, or, in other
words, that there was no negligence on the part of their servants
contributing to the accident; so that, if you think that both sides were
negligent, so as to contribute to the accident, then the plaintiffs
cannot recover.

This language is perfectly plain and perfectly unqualified, and in case
the jurors thought there was any contributory negligence on the part of
the plaintiffs’ servants, they could not, without disregarding the
direction of the learned judge, have found in the plaintiffs’ favor,
however negligent the defendants had been, or however easily they might
with ordinary care have avoided any accident at all.

The learned judge then went on to describe to the jury what it was that
might properly be considered to constitute negligence, first in the
conduct of the defendants, and then in the conduct of the plaintiffs;
and having done this, he again reverted to the governing propositions of
law, as follows: “There seem to be two views. It is for you to say
entirely as to both points. But the law is this, the plaintiff must have
satisfied you that this happened by the negligence of the defendants’
servants, and without any contributory negligence of their own; in other
words, that it was solely by the negligence of the defendants’ servants.
If you think it was, then your verdict will be for the plaintiffs. If
you think it was not solely by the negligence of the defendants’
servants, your verdict must be for the defendants.”

This, again, is entirely without qualification, and the undoubted
meaning of it is, that if there was any contributory negligence on the
part of the plaintiffs, they could in no case recover. Such a statement
of the law is contrary to the doctrine established in the case of Davies
_v._ Mann, 10 M. & W. 546, and the other cases above alluded to, and in
no part of the summing-up is that doctrine anywhere to be found. The
learned counsel were unable to point out any passage addressed to it.

It is true that in part of his summing-up the learned judge pointed
attention to the conduct of the engine-driver, in determining to force
his way by violence through the obstruction, as fit to be considered by
the jury on the question of negligence; but he failed to add that if
they thought the engine-driver might at this stage of the matter by
ordinary care have avoided all accident, any previous negligence of the
plaintiffs would not preclude them from recovering.

In point of fact the evidence was strong to show that this was the
immediate cause of the accident, and the jury might well think that
ordinal care and diligence on the part of the engine-driver would,
notwithstanding any previous negligence of the plaintiffs in leaving the
loaded-up truck on the line, have made the accident impossible. This
substantial defect of the learned judge’s charge is that that question
was never put to the jury.

On this point, therefore, I propose to move that your Lordships should
reverse the decision of the Exchequer Chamber, and direct a new trial.

THE LORD CHANCELLOR (Lord Cairns). My Lords, I have had the advantage of
considering the opinion which has just been expressed to your Lordships
in this case by my noble and learned friend, and, concurring as I do
with every word of it, I do not think it is necessary that I should do
more than say that I hope your Lordships will agree to the motion which
he has proposed.

LORD BLACKBURN. My Lords, I agree entirely with the noble Lord who has
first spoken as to what were the proper questions for the jury in this
case, and that they were not decided by the jury. I am inclined to think
that the learned judge did in part of his summing-up sufficiently ask
the proper questions, had they been answered, but unfortunately he
failed to have an answer from the jury to those questions, it appearing
by the case that the only finding was as to the plaintiffs’ negligence.

I agree, therefore, in the result that there should be a new trial.

LORD GORDON. My Lords, I entirely concur in the motion which has been
submitted to your Lordships by my noble and learned friend on the other
side of the House. The question is one which has given rise to some
difficulty in the courts of Scotland, but I think that it is very likely
that the opinion which has been expressed in this case will be regarded
as a very useful authority for guiding their decisions.[203]

_Judgment of the Court of Exchequer Chamber reversed._
_Judgment of the Court of Exchequer restored, and a new trial ordered,
with costs._
_Lords’ Journals_, December 1, 1876.

NASHUA IRON AND STEEL CO. _v._ WORCESTER & NASHUA RAILROAD CO.
SUPREME COURT, NEW HAMPSHIRE, JUNE, 1882.
_Reported in 62 New Hampshire Reports, 159._

Case. Demurrer to the declaration.

CARPENTER, J. The declaration alleges that by the defendants’ careless
management of their engine and cars, the plaintiffs’ horse was
frightened, and caused to run upon and injure Ursula Clapp, who was
without fault; that Clapp brought her action therefor against the
plaintiffs, and recovered judgment for damages, which they paid; that
the defendants had notice of, and were requested to defend, the suit.
The defendants demur. Inasmuch as Clapp could not have recovered against
the plaintiffs unless they were in fault (Brown _v._ Collins, 53 N. H.
442; Lyons _v._ Child, 61 N. H. 72), it must be taken that their
negligence co-operated with that of the defendants to produce the
injury. If the plaintiffs were not liable in that action because their
negligence was not, and the defendants’ negligence was, the cause of the
accident, the objection is not now open to the defendants. Littleton
_v._ Richardson, 34 N. H. 179. In relation to Clapp, both parties were
wrong-doers. She could pursue her remedy against either or both of them
at her election. Burrows _v._ March Gas Co., L. R. 5 Ex. 67, 71.

One of several wrong-doers, who has been compelled to pay the damages
caused by the wrong, has in general no remedy against the others. He
cannot make his own misconduct the ground of an action in his favor. To
this proposition there are, it has been said, so many exceptions, that
it can hardly, with propriety, be called a general rule. Bailey _v._
Bussing, 28 Conn. 455. Its application is restricted to cases where the
person seeking redress knew, or is presumed to have known, that the act
for which he has been mulcted in damages was unlawful. Jacobs _v._
Pollard, 10 Cush. 287, 289; Coventry _v._ Barton, 17 Johns. 142. In many
instances several parties may be liable in law to the person injured,
while as between themselves some of them are not wrong-doers at all; and
the equity of the guiltless to require the actual wrong-doer to respond
for all the damages, and the equally innocent to contribute his
proportion, is complete. Wooley _v._ Batte, 2 C. & P. 417; Pearson _v._
Skelton, 1 M. & W. 504; Betts _v._ Gibbins, 2 A. & E. 57; Adamson _v._
Jarvis, 4 Bing. 66; Avery _v._ Halsey, 14 Pick. 174; Gray _v._ Boston
Gas Light Co., 114 Mass. 149; Churchill _v._ Holt, 127 Mass. 165, and
131 Mass. 67; Bailey _v._ Bussing, _supra_; Smith _v._ Foran, 43 Conn.
244. These cases, instead of being exceptions to the rule, seem rather
not to fall within it. The right of recovery rests in the one case upon
the principle that he who without fault on his part is injured by
another’s wrongful act is entitled to indemnity, and in the other upon
the doctrine of contribution. One of two masters, who is compelled to
pay damages by reason of his servant’s negligence, may have contribution
from the other because he has removed a burden common to both. They may
recover indemnity of the servant, because as against him they are
without fault, and are directly injured by his misconduct. One who is so
far innocent that he can recover for an injury to his person or
property, may also recover whatever sum he, by reason of his relation to
the wrong, has been compelled to pay to a third person. If the
plaintiffs could recover for an injury to their horse, caused by the
accident, they may recover the sum which they paid to Clapp.

The declaration is general. It does not disclose the particulars of the
plaintiffs’ negligence, by reason of which Clapp recovered against them.
Under it, cases differing widely in their facts and legal aspects may be
proved. Among others possible, it may be shown that the horse was in the
charge of the plaintiffs’ servants, who might have prevented its fright
or its running after the fright, or if they could do neither, that they
might nevertheless have avoided the injury to Clapp; or it may appear
that the plaintiffs’ negligence consisted solely in permitting the
horse, whether attended or unattended by their servants, to be at the
place where it was at the time of the fright. The generality of the
declaration does not render it bad in law. Corey _v._ Bath, 35 N. H.
531. If the plaintiffs are entitled to judgment upon any state of facts
provable under it, the demurrer must be overruled. Whether the
plaintiffs can recover in any case, and if so, in what cases, possible
to be proved under the declaration, are speculative or hypothetical
questions, of which none may, and all cannot, arise. They involve
substantially the whole subject of the law relating to mutual
negligence. The case might properly be discharged without considering
them (Smith _v._ Cudworth, 24 Pick. 196), and the parties required to
present by the pleadings, or by a verdict, the facts upon which their
rights depend. A brief consideration, however, of the general questions
involved, may, it is thought, facilitate a trial, and save expense to
the parties.

Ordinary care is such care as persons of average prudence exercise under
like circumstances. Tucker _v._ Henniker, 41 N. H. 317; Sleeper _v._
Sandown, 52 N. H. 244; Aldrich _v._ Monroe, 60 N. H. 118. Every one in
the conduct of his lawful business is bound to act with this degree of
care, and if he fails to do so is responsible for the consequences. It
follows that a person injured by reason of his want of ordinary care, or
(since the law makes no apportionment between actual wrong-doers) by the
joint operation of his own and another’s negligence, is remediless. This
general rule of law justly applied to the facts determines, it is
believed, the rights of the parties in all actions for negligence. In
its application, the law, as in various other cases, deals with the
immediate cause,—the cause as distinguished from the occasion,—and looks
at the natural and reasonably to be expected effects. Cowles _v._
Kidder, 24 N. H. 383; Hooksett _v._ Company, 44 N. H. 108; McIntire _v._
Plaisted, 57 N. H. 608; Solomon _v._ Chesley, 59 N. H. 243; China _v._
Southwick, 12 Me. 238; Lowery _v._ Western U. Tel. Co., 60 N. Y. 198;
Rigby _v._ Hewitt, 5 Exch. 243; Blyth _v._ Birmingham Waterworks Co., 11
Exch. 781; Bank of Ireland _v._ Evans’s Charities, 5 H. L. Ca. 389, 410,
411; Ionides _v._ Marine Ins. Co., 14 C. B. N. S. 259; Romney Marsh _v._
Trinity House, L. R. 5 Ex. 204; Holmes _v._ Mather, L. R. 10 Ex. 268;
Sharp _v._ Powell, L. R. 7 C. P. 253; Pearson _v._ Cox, 2 C. P. Div.
369; Tutein _v._ Hurley, 98 Mass. 211; Bro. Leg. Max. 215.

Actions for negligence may, for convenience of consideration, be
separated into four classes, namely,—where, upon the occasion of the
injury complained of (1) the plaintiff, (2) the defendant, or (3)
neither party was present, and (4) where both parties were present. In
all of them it may happen that both parties were more or less negligent.
Actions upon the statute of highways are a common example of the first
class. The negligence of the defendant, however great, does not relieve
the plaintiff from the duty of exercising ordinary care. If,
notwithstanding the defective condition of the highway, this degree of
care on the part of the plaintiff would prevent the accident, his and
not the defendant’s negligence, though but for the latter it could not
happen, is, in the eye of the law, its sole cause. Farnum _v._ Concord,
2 N. H. 394; Butterfield _v._ Forrester, 11 East, 60. In this class of
cases, an injury which the plaintiff’s negligence contributes to produce
could not happen without it. The not uncommon statement that the
plaintiff cannot recover if his negligence contributes in any degree to
cause the injury, is strictly correct, although the word “contribute”
may be, as Crompton, J., in Tuff _v._ Warman, 5 C. B. N. S. 584, says it
is, “a very unsafe word to use,” and “much too loose.” The result is the
same whether the plaintiff acts with full knowledge of the danger, or,
by reason of a want of proper care, fails to discover it seasonably. If
he is not bound to anticipate, and in advance provide for, another’s
negligence, he may not wilfully or negligently shut his eyes against its
possibility. He is bound to be informed of everything which ordinary
care would disclose to him. He can no more recover for an injury caused
by driving into a dangerous pit, of which he is ignorant, but of which
ordinary care would have informed him, than for one caused by carelessly
driving into a known pit. Norris _v._ Litchfield, 35 N. H. 271; Clark
_v._ Barrington, 41 N. H. 44; Tucker _v._ Henniker, 41 N. H. 317;
Winship _v._ Enfield, 42 N. H. 213, 214; Underhill _v._ Manchester, 45
N. H. 220.

The defendant’s negligence being found or conceded, the remaining
question is, whether the plaintiff, by the exercise of ordinary care,
could have escaped the injury. If he could not, he is free from fault,
and is entitled to recover. If he could, he not only cannot recover for
his own injury, but is himself liable to the other party, if the latter
is injured; and the case becomes one of the second class, of which
Davies _v._ Mann, 10 M. & W. 546, is an instance. The defendant is
liable here for the same reason that, as plaintiff, he could not
recover,—that is to say, because ordinary care on his part would have
prevented the injury. The fact that one has carelessly exposed his
property in a dangerous situation does not absolve his neighbors from
the obligation of conducting themselves in regard to it with ordinary
care. An injury which that degree of care would prevent is caused by the
want of it, and not by the owner’s negligence in leaving his property in
a perilous position. A surgeon, called to set a leg carelessly broken,
cannot successfully urge, in answer to a suit for mal-practice, that the
patient’s negligence in breaking his leg caused the crooked or shortened
limb. Lannen _v._ Albany Gas-light Co., 44 N. Y. 459, 463; Hibbard _v._
Thompson, 109 Mass. 286, 289. So far as the question of civil liability
is concerned, there is no distinction, except it may be in the measure
of damages (Fay _v._ Parker, 53 N. H. 342, Bixby _v._ Dunlap, 56 N. H.
456), between wilful and negligent wrongs. One who, without reasonable
necessity, kills his neighbor’s ox, found trespassing in his field, is
equally liable whether he does it purposely or carelessly. Aldrich _v._
Wright, 53 N. H. 398; McIntire _v._ Plaisted, 57 N. H. 606; Cool. Torts,
688–694. Mann would be no more liable for wilfully shooting the fettered
ass which Davies has carelessly left in the public highway, than he is
for the running over it, which, by ordinary care, he could avoid. The
owner’s negligence, in permitting the ox to stray and in leaving the ass
fettered in the street, although without it the injury would not happen,
is no more the cause, in a legal sense, of the negligent than of the
wilful wrong. In each case alike,—as in that of the broken leg,—it
merely affords the wrong-doer an opportunity to do the mischief.
Bartlett _v._ Boston Gas-light Co., 117 Mass. 533; Clayards _v._
Dethick, 12 Q. B. 439, 445.

Knowledge, or its equivalent, culpable ignorance, and ignorance without
fault of the situation, are circumstances by which, among others, the
requisite measure of vigilance is determined. Griffin _v._ Auburn, 58 N.
H. 121, 124; Palmer _v._ Dearing, 93 N. Y. 7; Robinson _v._ Cone, 22 Vt.
213. The question of contributory negligence is not involved. The wrong,
if any, is the negligent injury of property carelessly exposed to
danger. The only question is, whether the defendant could have prevented
it by ordinary care. If he could not, he is without fault, and not
liable. If he could, his negligence is, in law, the sole cause of the
injury. Davies _v._ Mann, 10 M. & W. 546; Radley _v._ London, &c.
Railway, 1 App. Ca. 754; Mayor of Colchester _v._ Brooke, 7 Q. B. 377;
Isbell _v._ N. Y. & N. H. Railroad, 27 Conn. 393; Trow _v._ Vt. Central
Railroad, 24 Vt. 487; Harlan _v._ St. Louis, &c. Railroad, 64 Mo. 480;
Kerwhacker _v._ Cleveland, &c. Railroad, 3 Ohio St. 172.

The law is not affected by the presence or the absence of the parties,
nor by the difficulty of applying it to complicated facts. To warrant a
recovery where both parties are present at the time of the injury, as
well as in other cases, ability on the part of the defendant must concur
with non-ability on the part of the plaintiff to prevent it by ordinary
care. Their duty to exercise this degree of care is equal and
reciprocal; neither is exonerated from his obligation by the present or
previous misconduct of the other. The law no more holds one responsible
for an unavoidable, or justifies an avoidable, injury to the person of
one who carelessly exposes himself to danger, than to his property,
similarly situated in his absence. He who cannot prevent an injury
negligently inflicted upon his person or property by an intelligent
agent, “present and acting at the time” (State _v._ Railroad, 52 N. H.
528, 557; White _v._ Winnisimmet Co., 7 Cush. 155, 157; Robinson _v._
Cone, 22 Vt. 213), is legally without fault, and it is immaterial
whether his inability results from his absence, previous negligence, or
other cause. On the other hand, his neglect to prevent it, if he can, is
the sole or co-operating cause of the injury. No one can justly complain
of another’s negligence, which, but for his own wrongful interposition,
would be harmless. Parker _v._ Adams, 12 Met. 415.

Cases of this class assume a great variety of aspects. While all are
governed by the fundamental principle, that he only who by ordinary care
can and does not prevent an injury, is responsible in damages, it is
impossible to formulate a rule in language universally applicable. A
statement of the law correct in its application to one state of facts
may be inaccurate when applied to another. Instructions to the jury
proper and sufficient in a case of the first class, would be not only
inappropriate but incorrect in one of the second class. The doctrine
laid down in Tuff _v._ Warman, 5 C. B. N. S. 573, 585, however just and
well suited to the evidence in that case, was held erroneous as applied
to the facts in Murphy _v._ Deane, 101 Mass. 455, 464–466, and, as a
general proposition, seems indefensible.

An accident may result from a hazardous situation caused by the previous
negligence of one or both parties. If, at the time of the injury, the
defendant is unable to remove the danger which his negligence has
created, the case becomes, in substance, one of the first class; the
plaintiff can recover or not, according as, by ordinary care, he can or
cannot protect himself from the natural consequences of the situation.
If the plaintiff, in like manner, is unable to obviate the danger which
his prior negligence has produced, the case becomes, substantially, one
of the second class; he can recover or not, according as the defendant,
by the same degree of care, can or cannot avoid the natural consequences
of such negligence. If due care on the part of either at the time of the
injury would prevent it, the antecedent negligence of one or both
parties is immaterial, except it may be as one of the circumstances by
which the requisite measure of care is to be determined. In such a case
the law deals with their behavior in the situation in which it finds
them at the time the mischief is done, regardless of their prior
misconduct. The latter is _incuria_, but not _incuria dans locum
injuriae_,—it is the cause of the danger; the former is the cause of the
injury. Metropolitan Railway _v._ Jackson, 3 App. Ca. 193, 198; Dublin,
&c. Railway _v._ Slattery, 3 App. Ca. 1155, 1166; Davey _v._ London, &c.
Railway, 12 Q. B. Div. 70, 76; Churchill _v._ Rosebeck, 15 Conn. 359,
363–365.

If a person, who by his carelessness is put in a position perilous to
himself and to others, while in that position does all that a person of
average prudence could, he is guilty of no wrong towards another who
embraces the opportunity negligently to injure him, or who receives an
injury which proper care on his part would prevent. It would doubtless
be esteemed gross carelessness to navigate the Atlantic in a vessel
without a rudder, but if the owner, while sailing his rudderless ship
with ordinary care, is negligently run down by a steamer, the latter
must pay the damages, and can recover none if it is injured. Dowell _v._
Steam Navigation Co., 5 E. & B. 195; Haley _v._ Earle, 30 N. Y. 208;
Hoffman _v._ Union Ferry Co., 47 N. Y. 176. If the vessel, by reason of
its lack of a rudder, runs upon and injures the steamer, both being in
the exercise of ordinary care at the time, the former must pay the
damages. He who by his negligence has produced a dangerous situation is
responsible for an injury resulting from it to one who is without fault.

If, at the time of the injury, each of the parties, or, in the absence
of antecedent negligence, if neither of them could prevent it by
ordinary care, there can be no recovery. The comparatively rare cases of
simultaneous negligence will ordinarily fall under one or the other of
these heads. If the accident results from the combined effect of the
negligence of both parties, that of neither alone being sufficient to
produce it, proof by the plaintiff that due care on the part of the
defendant would have prevented it will not entitle him to recover,
because like care on his own part would have had the same effect. If the
misconduct of each party is an adequate cause of the injury, so that it
would have occurred by reason of either’s negligence without the
co-operating fault of the other, proof by the plaintiff that by due care
he could not have prevented it will not entitle him to recover, because
no more could the defendant have prevented it by like care. Murphy _v._
Deane, 101 Mass. 464, 465; Churchill _v._ Holt, 131 Mass. 67. In each
case alike they are equally in fault. To warrant a recovery, the
plaintiff must establish both propositions, namely, that by ordinary
care he could not, and the defendant could, have prevented the injury.
State _v._ Railroad, 52 N. H. 528; Bridge _v._ Grand Junction Railway, 3
M. & W. 244; Dowell _v._ Steam Navigation Co., 5 E. & B. 195; Tuff _v._
Warman, 5 C. B. N. S. 573; Davey _v._ London, &c. Railway, 12 Q. B. Div.
70; Munroe _v._ Leach, 7 Met. 274; Lucas _v._ New Bedford, &c. Railroad,
6 Gray, 64; Murphy _v._ Deane, 101 Mass. 455; Hall _v._ Ripley, 119
Mass. 135; Button _v._ Hudson, &c. Railroad, 18 N. Y. 248; Austin _v._
N. J. Steamboat Co., 43 N. Y. 75; Barker _v._ Savage, 45 N. Y. 194;
Cool. Torts, 674, 675, and cases cited.

In the comparatively unfrequent cases of the third class, a negligent
plaintiff can seldom, if ever, recover. Where both parties are careless,
they are usually, if not always, equally in fault; ordinary care on the
part of either would prevent the injury. Not being present on the
occasion of the accident, neither can, in general, guard against the
consequences of the other’s negligence. Blyth _v._ Topham, Cro. Jac.
158; Sybray _v._ White, 1 M. & W. 435; Williams _v._ Groucott, 4 B. & S.
149; Lee _v._ Riley, 18 C. B. N. S. 722; Wilson _v._ Newberry, L. R. 7
Q. B. 31; Lawrence _v._ Jenkins, L. R. 8 Q. B. 274; Firth _v._ Bowling
Iron Co., 3 C. P. Div. 254; Crowhurst _v._ Amersham Burial Board, 4 Ex.
Div. 5; Bush _v._ Brainard, 1 Cow. 78; Lyons _v._ Merrick, 105 Mass. 71;
Page _v._ Olcott, 13 N. H. 399.

If there are actions for negligence of such a character that the rights
of the parties are not determinable by the application of these
principles, the present case is not one of them. If, notwithstanding the
defendants’ negligence, the plaintiffs, by ordinary care, could have
prevented the fright of the horse, or its running, after the fright, or,
in the absence of ability to do either, if they could have avoided the
running upon and injury to Clapp, their misconduct, and not that of the
defendants, was the cause of the accident, and they cannot recover. On
the other hand, if the plaintiffs’ carelessness consisted solely in
permitting the horse to be where it was at the time, and ordinary care
by the defendants would have prevented its fright, or, if the
plaintiffs, by proof of any state of facts competent to be shown under
the declaration, can make it appear that at the time of the occurrence
they could not, and the defendants could, by such care have prevented
the accident, they are entitled to recover.

_Demurrer overruled._

OATES _v._ METROPOLITAN STREET RAILWAY COMPANY
SUPREME COURT, MISSOURI, MAY 21, 1902.
_Reported in 168 Missouri Reports, 535, 547–549._

MARSHALL, J.... Instructions three and seven given for the defendant
sharply drew a distinction between the negligence of the defendant and
the contributory negligence of the plaintiff. Those instructions
declared the law to be that the defendant was not liable unless its
negligence was the direct cause of the injury, while the plaintiff was
not entitled to recover if his negligence “but contributes to the
injury.” That is, that the defendant was liable only for direct
negligence, while the plaintiff was cut off from recovery if he was
guilty of any negligence, however slight or remote or indirect it may
have been.

The law is that a defendant is liable if his negligence was the direct
and proximate cause of the injury, unless the plaintiff has also been
guilty of such negligence as directly contributed to the happening of
the injury, and the defendant is not liable no matter how negligent he
may have been if the plaintiff’s negligence has thus contributed to
the injury, for the doctrine of comparative negligence has never
obtained in this State. Hurt _v._ Railroad, 94 Mo. 264. In each
instance the negligence and the contributory negligence must be
direct, that is, must have entered into and formed a part of the
efficient cause of the accident. Hoepper _v._ Hotel Co., 142 Mo. 388;
Beach on Contr. Neg. (2 ed.), sec. 24; Matthews _v._ Toledo, 21 Ohio
Cir. Ct. Rep. 69; Dunkman _v._ Railroad, 16 Mo. App. 548; Corcoran
_v._ Railroad, 105 Mo. 399; Murray _v._ Railroad, 101 Mo. 236; Kellny
_v._ Railroad, 101 Mo. 67; Hicks _v._ Railroad, 46 Mo. App. 403;
Pinnell _v._ Railroad, 49 Mo. App. 170; Meyers _v._ Railroad, 59 Mo.
223.

Mere negligence, without any resulting damage, no more bars a
plaintiff’s recovery than it creates a liability against a defendant.
Dickson _v._ Railroad, 124 Mo. 140. Remote negligence which does not
become an efficient cause, neither creates nor bars a liability.
Kennedy _v._ Railroad, 36 Mo. 351; Meyers _v._ Railroad, 59 Mo. 223.
It is only where the plaintiff’s negligence contributes directly to
his injury that it precludes his recovery therefor, Moore _v._
Railroad, 126 Mo. 265. And the plaintiff’s contributory negligence
must mingle with the defendant’s negligence as a direct and proximate
cause in order to bar a recovery. Nolan _v._ Shickle, 69 Mo. 336;
Frick _v._ Railroad, 75 Mo. 542.

These instructions were, therefore, erroneous, and as the jury was
misdirected and as the plaintiff had made out a _prima facie_ case, he
was entitled to have the law properly declared to the jury, and the
trial court did right in granting a new trial.[204]

CARPENTER, J., IN NIEBOER _v._ DETROIT ELECTRIC RAILWAY
(1901) _128 Michigan, 486, 491, 492._[205]

CARPENTER, J. “... The law by which it is determined whether or not
the contributory negligence of the plaintiff bars recovery is very
uncertain. The adjudicated cases are by no means harmonious, and there
is an irreconcilable conflict between the principles announced by
eminent judges and the text-book writers. It has been stated that the
plaintiff cannot recover if the injury complained of would not have
occurred without his negligence. It has also been stated that
plaintiff’s negligence will not bar his recovery if due care on the
part of the defendant would have prevented the injury. If the first
statement is correct, contributory negligence always prevents a
recovery; if the second statement is correct, contributory negligence
never prevents recovery. The truth is that the first statement can be
correctly applied only in cases of simultaneous negligence, as in the
case of an injury to a person while crossing a railway in consequence
of his own and the railway company’s negligence. The second statement
can be correctly applied only in cases of successive negligence, as in
the famous Donkey Case, of Davies _v._ Mann, 10 Mees. & W. 546, where
defendant negligently ran into and injured the plaintiff’s donkey,
which plaintiff had negligently permitted to go unattended on the
highway. The test almost universally approved is whether or not
plaintiff’s negligence is the proximate cause of his injury. If it is,
he cannot recover; if it is not, he can. Even this test has been
criticised on the ground that the term ‘proximate’ is misleading. I
think this criticism just and important. The word ‘proximate’ is
ordinarily used to indicate the relation between defendant’s
negligence and the plaintiff’s injury. As so used, it has not the same
meaning that it has when used to indicate the relation between
plaintiff’s negligence and plaintiff’s injury. To illustrate, suppose
in the case of Davies _v._ Mann, above referred to, that, as a result
of the collision between the cart and the donkey, a third person had
been injured; I think all will agree that the owner of the donkey, as
well as the owner of the cart, would have been liable. See Lynch _v._
Nurdin, 1 Q. B. (N. S.) 29. And we have already seen that the
negligence of the owner of the donkey was not so related to the
collision as to preclude recovery in a suit by him against the owner
of the cart. As used in relation to contributory negligence, the term
‘proximate’ simply means that in some way the relation between
plaintiff’s negligence and his injury is more remote than that between
defendant’s negligence and the injury.”[206]

DROWN _v._ NORTHERN OHIO TRACTION COMPANY
SUPREME COURT, OHIO, MAY 7, 1907.
_Reported in 76 Ohio State Reports, 234._

Action for damage done to plaintiff’s buggy by an electric car which
came up behind it and hit it. Answer: denying that defendant was
negligent, and alleging negligence on plaintiff’s part.

On the trial, it appeared that Hardy, plaintiff’s driver, drove upon the
track without looking behind to see if a car was coming.

Defendant requested the following instructions:—

(3) If the jury find from the evidence that the plaintiff, through his
agent, Hardy, and the defendant were both negligent, and that the
negligence of both directly contributed to cause the injury complained
of in plaintiff’s petition, then your verdict should be for the
defendant.

(4) If the jury find that the negligence of both plaintiff’s agent and
the defendant combined so as to directly cause the injury complained of
by plaintiff, then your verdict should be for the defendant.

These requests to instruct were refused.

The court, among other instructions, charged in substance as follows:—

If you find that the motorman could, by the exercise of ordinary care,
have seen the plaintiff and stopped the car, and that by reason of the
failure to stop the car Hardy’s team was knocked down and injured, it
would be such negligence on the part of the defendant as would entitle
the plaintiff to recover, provided Hardy was free from contributory
negligence on his part.

If Hardy was on this track driving south, and you find that he was
negligent in being on it as he was, his failure to look or failure to
watch to avoid injury, if he was negligent, would not prevent him from
recovering in this suit, if the motorman, after discovering him in that
position, could have, by the use of reasonable and ordinary care,
avoided the injury by stopping the car. [This was a restatement in
concrete form of an abstract proposition already stated in the charge.]

In the Common Pleas Court there was a verdict for plaintiff and judgment
thereon. The Circuit Court reversed the judgment of the Common Pleas.
Plaintiff brought error.[207]

DAVIS, J. Under the issues in this case, evidence was introduced tending
to prove that the plaintiff’s agent was guilty of negligence directly
contributing to the injury to plaintiff’s property. If the driver of the
plaintiff’s team, immediately upon entering Main Street, and without
afterwards looking to the north, as he admits, drove southward upon the
track until the car coming from the north overtook and collided with the
buggy, he was negligent; because the street was open and unobstructed
for from two hundred to two hundred and fifty feet from the point at
which he entered upon it, and it was not necessary for him to go upon
the street railway track, and because, the night being dark, he
unnecessarily put himself in a place of obvious danger and continued
therein until the moment of the accident, without looking out for an
approaching car or doing anything whatever to avoid injury, apparently
risking his life and the property of his principal upon the presumption
that the defendant’s employees would make no mistakes nor be guilty of
any negligence. If, on the other hand, he drove along the street until
he came to the obstruction and then turned out upon the track to go
around it without again looking, as his own testimony shows that he did
not, and was then almost in the same instant struck by the car, he was
negligent. Upon either hypothesis, assuming that the defendant was
negligent in not keeping a proper lookout, or was otherwise not
exercising ordinary care to prevent collision with persons lawfully on
its track, the plaintiff could not recover, if it should appear in the
case that the negligence of both is contemporaneous and continuing until
after the moment of the accident, because, in such case the negligence
of each is a direct cause of the injury without which it would not have
occurred, rendering it impracticable in all such instances, if not
impossible, to apportion the responsibility and the damages. Suppose,
for example, that not only the buggy and horses had been injured, but
the defendant’s car also, by what standard could the extent of liability
of either party be determined? Timmons _v._ The Central Ohio Railroad
Co., 6 Ohio St. 105; Village of Conneaut _v._ Naef, 54 Ohio St. 529,
531. In short, there can be no recovery in such a case unless the whole
doctrine of contributory negligence, a doctrine founded in reason and
justice, should be abolished.

Under these circumstances, therefore, it was not sufficient to say to
the jury that if they should find that the motorman who had charge of
the car which struck the team, could by the exercise of ordinary care
have seen the team and could have stopped the car and that by reason of
the failure to do so the team was injured, it would be such negligence
by the defendant as would entitle the plaintiff to recover, provided
that the plaintiff’s driver was “free from contributory negligence.” The
defendant had the right to have the jury specifically instructed, as it
requested, that if the jury should find from the evidence that both the
plaintiff and the defendant, through their agents, were negligent, and
that the negligence of both combined so as to directly cause the injury
complained of, then the verdict should be for the defendant. The court
refused to so instruct the jury, and the circuit court correctly held
that the refusal to so charge was erroneous.

The error in refusing the defendant’s request to charge, was extended
and made much more prejudicial when the court, after giving instructions
as to contributory negligence by the plaintiff in very general terms,
proceeded to impress upon the jury, by repetition and with some
emphasis, the doctrine known as “the last chance.” This doctrine is
logically irreconcilable with the doctrine of contributory negligence,
and accordingly it has been vigorously criticised and warmly defended.
Probably, as in many such controversies, the truth lies in middle
ground; but it is certain that the rule is applicable only in
exceptional cases, and the prevalent habit of incorporating it in almost
every charge to the jury in negligence cases, in connection with, and
often as a part of, instructions upon the subject of contributory
negligence, is misleading and dangerous.

This confusion seems to arise either from misapprehension of the law or
a want of definite thinking. The doctrine of the “last chance” has been
clearly defined by a well-known text-writer as follows: “Although a
person comes upon the track negligently, yet if the servants of the
railway company, _after they see_ his danger, can avoid injuring him,
they are bound to do so. And, according to the better view with
reference to injuries to travellers at highway crossings—as
distinguished from injuries to _trespassers_ and _bare licensees_ upon
railway tracks at places where they have no legal right to be—the
servants of the railway company are bound to keep a vigilant lookout in
front of advancing engines or trains, to the end of discovering persons
exposed to danger on highway crossings; and the railway company will be
liable for running over them if, by maintaining such a lookout and by
using reasonable care and exertion to check or stop its train, it could
avoid injury to them.” 2 Thompson, Negligence, sec. 1629. The italics
are the author’s. Now, it must be apparent upon even a slight analysis
of this rule that it can be applied only in cases where the negligence
of the defendant is proximate and that of the plaintiff remote; for if
the plaintiff and the defendant both be negligent and the negligence of
both be concurrent and directly contributing to produce the accident,
then the case is one of contributory negligence pure and simple. But if
the plaintiff’s negligence merely put him in the place of danger and
stopped there, not actively continuing until the moment of the accident,
and the defendant either knew of his danger, or by the exercise of such
diligence as the law imposes on him would have known it, then, if the
plaintiff’s negligence did not concurrently combine with defendant’s
negligence to produce the injury, the defendant’s negligence is the
proximate cause of the injury and that of the plaintiff is a remote
cause. This is all there is of the so-called doctrine of “the last clear
chance.” A good illustration is found in the case of Railroad Co. _v._
Kassen, 49 Ohio St. 230. Kassen walked through the rear car of the train
on which he was a passenger to the rear platform, from which he either
stepped off or fell off upon the track, where he lay for about two
hours, when he was run over by another train. It was held that, although
Kassen may have been negligent in going upon the rear platform and
stepping or falling off, yet since the railroad company knew of his
peril and had ample time to remove him or to notify the trainmen on the
later train, its negligence in not doing so was the proximate cause of
Kassen’s death and the negligence of Kassen was remote. In that case the
proximate cause and the remote cause were so clearly distinguishable,
and it is so very evident from the opinion and the syllabus that this
distinction was the real ground of the judgment of the court, that it is
somewhat surprising that the doctrine of last chance as stated in that
case should have been so often misinterpreted as a qualification of the
doctrine of contributory negligence.

It is clear, then, that the last chance rule should not be given as a
hit or miss rule in every case involving negligence. It should be given
with discrimination. Since the plaintiff can recover only upon the
allegations of his petition, if there is no charge in the petition that
the defendant after having notice of the plaintiff’s peril could have
avoided the injury to plaintiff, and there is no testimony to support
such charge, the giving of such a charge would be erroneous. There is no
such allegation in the petition in this case. But further, there is
testimony tending to prove that the plaintiff’s team was driven upon the
street railway track in the night time, ahead of the car, and that it
continued on the track for a distance of two hundred and fifty feet
until struck by the car, without taking any precaution to avoid
accident. Assuming that the defendant was negligent in not seeing the
buggy on the track and in not avoiding the accident, yet the plaintiff’s
negligence was continuous and was concurrent at the very moment of the
collision. It proximately contributed to the collision, for without it
the collision would not have occurred. There was no new act of
negligence by the defendant, which was independent of the concurrent
negligence and which made the latter remote. Therefore there was no
place in the case for the doctrine of “the last clear chance.”

[Remainder of opinion omitted.]

_Judgment of Circuit Court affirmed._

MCLAIN, J., IN FULLER _v._ ILLINOIS CENTRAL RAILROAD COMPANY
(1911) _100 Mississippi, 705, 716._

MCLAIN, J.... The rule is settled beyond controversy or doubt, first
that all that is required of the railroad company as against a
trespasser is the abstention from wanton or willful injury, or that
conduct which is characterized as gross negligence; second, although
the injured party may be guilty of contributory negligence, yet this
is no defense if the injury were willfully, wantonly, or recklessly
done or the party inflicting the injury was guilty of such conduct as
to characterize it as gross; and, third, that the contributory
negligence of the party injured will not defeat the action if it is
shown that the defendant might by the exercise of reasonable care and
prudence have avoided the consequence of the injured party’s
negligence. This last principle is known as the doctrine of the “last
clear chance.” The origin of this doctrine is found in the celebrated
case of Davies _v._ Mann, 10 Mees. & W. 545.... It is impossible to
follow this case through its numerous citations in nearly every
jurisdiction subject to Anglo-American jurisprudence. For the present
it will be sufficient to say that the principle therein announced has
met with practically almost universal favor. It has been severely
criticised by some text-writers.... The law as enunciated in that case
has come to stay....

An analytical examination of the adjudged cases upon this subject will
demonstrate the correctness of the above analysis, and, in addition,
establish the soundness and technical accuracy announced in Davies
_v._ Mann, _supra_. This case has been criticised most severely ... by
courts of high authority, but these courts have utterly and entirely
failed to appreciate the base upon which the principle is bottomed,
and in repudiating the principle do so upon the idea that Davies _v._
Mann establishes the much-abused comparative negligence doctrine, a
doctrine repudiated by this court, but established in this state by
Laws 1910, ch. 135, p. 125. (But this statute has no reference to the
instant case because passed subsequent to the injuries complained of.)
In order for the injured party’s negligence to bar recovery, all of
the authorities hold that it must be the proximate cause; otherwise,
it is not contributory. Now, when it is fully understood that the
negligence of the injured party must be the proximate cause in order
to bar the remedy (and, as said above, all authorities everywhere,
ancient and modern, so affirm), the principle announced in Davies _v._
Mann must, from necessity, be the correct and true rule. If the
proximate and immediate cause of the injury—the _causa causans_—is the
controlling and determining factor in ascertaining whether the injured
party has the right to recover or whether the injuring party is not
liable, then it must follow, as night the day, that the party who has
the last opportunity to avoid the injury is the one upon whom the
blame shall fall. To express the idea differently: If the injured
party’s negligence be remote, and not proximate, he can recover
against the party who is guilty of negligence proximately contributing
or causing the injury. The North Carolina courts have perhaps more
satisfactorily and more clearly elucidated this question than have any
opinions that have come under the writer’s eye. In Smith _v._ N. & S.
R. R. Co., 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287, it is
said that the rule in Davies _v._ Mann simply furnishes a means for
ascertaining whether the plaintiff’s negligence is a remote or
proximate cause of the injury; that, before the introduction of this
rule, any negligence on the part of the plaintiff, which in any degree
contributes to the injury, was judicially treated as the proximate
cause, and constituted contributory negligence which barred recovery.
The same is clearly stated in Nashua Iron & Steel Co. _v._ W. & N. R.
R. Co., 62 N. H. 159, 163, _et seq._ The antecedent negligence of the
injured party, having been thus relegated to the position of a
condition or remote cause of the accident, it cannot be regarded as
contributory, since it is well established that negligence, in order
to be contributory, must be at least one of the proximate causes.[208]

LORD O’BRIEN, C. J., IN BUTTERLY _v._ MAYOR OF DROGHEDA
[1907] _2 Irish Reports, 134, 137._

LORD O’BRIEN, L. C. J.:—

The facts which give rise to the controversy we have to determine, in
this case, are comprised within a narrow compass. The plaintiff, on a
Saturday morning, was coming into the town of Drogheda in a car driven
by himself. Coming near the town he, as he alleged, was overtaken by
the horse and car of Mrs. Morgan. She desired to pass. He says he made
way for her, and, in doing so, ran against a heap of stones on the
road, and his car was upset and he was injured. It appears that there
were two heaps of stones on the road. They had been, immediately
before the collision, thrown on the road in order that they might be
spread on the road. The man who brought the load, and had thrown them
on the road, was a servant of the defendants. The intention was to
spread them immediately on the road. The man who brought them was in
fact, at the time of the accident, engaged in spreading the heap next
the town, some little distance from the heap where the accident
occurred. Now the first heap, where the accident occurred, was placed
on the road in such a position that there was between it and the right
side of the road a space of 12 feet, and between this heap and the
left side of the road, 6 feet. That is to say, on the right side there
was a space sufficient for two cars to pass simultaneously, and on the
left a space for one car to pass. The plaintiff’s case was that, Mrs.
Morgan overtaking him, he made room for her, pulled to the left, and
without any default of his, his car ran upon the heap and was
capsized. His case was that Mrs. Morgan caught him exactly where the
heap was, and, in endeavoring to avoid her, and without any default or
negligence on his part, the accident occurred. Now, three questions
were left to the jury:—

1. Were the defendants, by their workmen, guilty of negligence? Yes.

2. Was the plaintiff guilty of negligence? Yes.

And if so—

3. Could the defendants, by the exercise of ordinary care, have
avoided the consequence of the plaintiff’s negligence? Yes.

I have invariably refused, in these negligence cases, to leave
questions in this form to a jury. This formula appears to me
calculated to perplex and embarrass a jury. No doubt this formula is
used, and judges do their best to explain it, but I fear that when
juries take up the questions in the jury-room, the explanation has not
the desired effect. Chief Justice Monahan consistently refused to put
the questions in this shape to the jury. I have always tried these
cases on two questions: 1st, Were the defendants guilty of negligence?
and, 2d, if so, was the defendant’s negligence the real, direct, and
immediate cause of the misfortune? Now, the jury in the present case
answered the questions submitted to them in the way I have read. I am
of opinion that the answer to the question finding that the plaintiff
was guilty of negligence, determines the matter in favor of the
defendants. It is quite plain, in my opinion, that his negligence was
a direct contributory cause of the accident. It was a cause which
brought him on the heap of stones. Assuming that there was negligence
on the part of the defendants in having the stones there, still his
negligence must have contributed to his running up against them. He
either did not keep a sufficient lookout, or his unskilful driving
brought him on the stones. Getting on the stones, through negligence,
was at least a contributory cause of the accident. It directly
contributed to the accident. If there be two causes directly
contributing to the accident, one the negligence of the defendant and
the other the negligence of the plaintiff, the result is a verdict for
the defendant.

BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY _v._ LOACH
IN THE PRIVY COUNCIL, JULY 26, 1915.
_Reported in [1916] Appeal Cases, 719._

LORD SUMNER. This is an appeal from a judgment of the Court of Appeal of
British Columbia in favor of the administrator of the estate of Benjamin
Sands, who was run down at a level crossing by a car of the appellant
railway company and was killed. One Hall took Sands with him in a cart,
and they drove together on to the level crossing, and neither heard nor
saw the approaching car till they were close to the rails and the car
was nearly on them. There was plenty of light and there was no other
traffic about. The verdict, though rather curiously expressed, clearly
finds Sands guilty of negligence in not looking out to see that the road
was clear. It was not suggested in argument that he was not under a duty
to exercise reasonable care, or that there was not evidence for the jury
that he had disregarded it. Hall, who escaped, said that they went
“right on to the track,” when he heard Sands, who was sitting on his
left, say “Oh,” and looking up saw the car about fifty yards off. He
says he could then do nothing, and with a loaded wagon and horses going
two or three miles an hour he probably could not. It does not seem to
have been suggested that Sands could have done any good by trying to
jump off the cart and clear the rails. The car knocked cart, horses, and
men over, and ran some distance beyond the crossing before it could be
stopped. It approached the crossing at from thirty-five to forty-five
miles an hour. The driver saw the horses as they came into view from
behind a shed at the crossing of the road and the railway, when they
would be ten or twelve feet from the nearest rail, and he at once
applied his brake. He was then 400 feet from the crossing. If the brake
had been in good order it should have stopped the car in 300 feet. Apart
from the fact that the car did not stop in time, but overran the
crossing, there was evidence for the jury that the brake was defective
and inefficient and that the car had come out in the morning with the
brake in that condition. The jury found that the car was approaching at
an excessive speed and should have been brought under complete control,
and although they gave as their reason for saying so the presence of
possible passengers at the station by the crossing, and not the
possibility of vehicles being on the road, there can be no mistake in
the matter, and their finding stands. It cannot be restricted, as the
trial judge and the appellants sought to restrict it, to a finding that
the speed was excessive for an ill-braked car, but not for a
properly-braked car, or to a finding that there was no negligence except
the “original” negligence of sending the car out ill-equipped in the
morning.

Clearly if the deceased had not got on to the line he would have
suffered no harm, in spite of the excessive speed and the defective
brake, and if he had kept his eyes about him he would have perceived the
approach of the car and would have kept out of mischief. If the matter
stopped there, his administrator’s action must have failed, for he would
certainly have been guilty of contributory negligence. He would have
owed his death to his own fault, and whether his negligence was the sole
cause or the cause jointly with the railway company’s negligence would
not have mattered.

It was for the jury to decide which portions of the evidence were true,
and, under proper direction, to draw their own inferences of fact from
such evidence as they accepted. No complaint was made against the
summing-up, and there has been no attempt to argue before their
Lordships that there was not evidence for the jury on all points. If the
jury accepted the facts above stated, as certainly they well might do,
there was no further negligence on the part of Sands after he looked up
and saw the car, and then there was nothing that he could do. There he
was, in a position of extreme peril and by his own fault, but after that
he was guilty of no fresh fault. The driver of the car, however, had
seen the horses some perceptible time earlier, had duly applied his
brakes, and if they had been effective he could, as the jury found, have
pulled up in time. Indeed, he would have had 100 feet to spare. If the
car was 150 feet off when Sands looked up and said “Oh,” then each had
the other in view for fifty feet before the car reached the point at
which it should have stopped. It was the motorman’s duty, on seeing the
peril of Sands, to make a reasonable use of his brakes in order to avoid
injuring him, although it was by his own negligence that Sands was in
danger. Apparently he did his best as things then were, but partly the
bad brake and partly the excessive speed, for both of which the
appellants were responsible, prevented him from stopping, as he could
otherwise have done. On these facts, which the jury were entitled to
accept and appear to have accepted, only one conclusion is possible.
What actually killed Sands was the negligence of the railway company,
and not his own, though it was a close thing.

Some of the judges in the Courts below appear to have thought that
because the equipment of the car with a defective brake was the original
cause of the collision, and could not have been remedied after Sands got
on the line, no account should be taken of it in considering the
motorman’s failure to avoid the collision after he knew that Sands was
in danger. “You cannot charge up the same negligence under different
heads,” said Murphy, J., at the trial; “you cannot charge it up twice.”
“On the question of ultimate negligence,” he observed, “that negligence
must arise on the conditions as existing at the time of the accident. It
would, of course, be absurd to say the company had any opportunity
between the time that this rig appeared upon the track and the collision
to remedy any defect in the brake. If there was such a defect I think it
was original negligence and not what may possibly be termed ‘ultimate
negligence.’”

In the Court of Appeal Macdonald, C. J. A., delivering a dissentient
judgment in favor of the present appellants, said: “Where one party
negligently approaches a point of danger, and the other party, with like
obligation to take care, negligently approaches the same point of
danger, if there arises a situation which could be saved by one and not
by the other, and the former then negligently fail to use the means in
his power to save it, and injury is caused to the latter, that failure
is designated ultimate negligence, in the sense of being the proximate
cause of the injury. In this case it is sought to carry forward, as it
were, an anterior negligent omission of the defendants, though
continuing, it is true, up to the time of the occurrence, and to assign
to it the whole blame for the occurrence, although by no effort of the
defendants or their servants could the situation at that stage have been
saved.”

So, too, McPhillips, J. A., also dissenting, said: “Upon the evidence,
whether it was because of defective brakes or any of the acts of
negligence found against the defendants, none of them were acts of
negligence arising after the act of contributory negligence of the
deceased, and cannot be held to be acts of negligence which,
notwithstanding the later negligence of the deceased, warrant judgment
going for the plaintiff.... The motorman after he saw the vehicle could
not have stopped the car ... therefore, as nothing could be then done by
the motorman to remedy the ineffective brake, the want of care of the
deceased was the direct and effective contributory cause of the accident
resulting in his death.”

These considerations were again urged at their Lordships’ bar under
somewhat different forms. It was said (1) that the negligence relied on
as an answer to contributory negligence must be a new negligence, the
initial negligence which founded the cause of action being spent and
disposed of by the contributory negligence. Further, it was said (2)
that if the defendants’ negligence continued up to the moment of the
collision, so did the deceased’s contributory negligence, and that this
series, so to speak, of replications and rebutters finally merged in the
accident without the deceased ever having been freed from the legal
consequence of his own negligence having contributed to it.

The last point fails because it does not correspond with the fact. The
consequences of the deceased’s contributory negligence continued, it is
true, but, after he had looked, there was no more negligence, for there
was nothing to be done, and, as it is put in the classic judgment in
Tuff _v._ Warman, (1858) 5 C. B. (N. S.) 573, 585, his contributory
negligence will not disentitle him to recover “if the defendant might by
the exercise of care on his part have avoided the consequences of the
neglect or carelessness of the plaintiff.”

As to the former point, there seems to be some ambiguity in the
statement. It may be convenient to use a phraseology which has been
current for some time in the Canadian Courts, especially in Ontario,
though it is not precise. The negligence which the plaintiff proves to
launch his case is called “primary” or “original” negligence. The
defendant may answer that by proving against the plaintiff “contributory
negligence.” If the defendant fails to avoid the consequences of that
contributory negligence and so brings about the injury, which he could
and ought to have avoided, this is called “ultimate” or “resultant”
negligence. The opinion has been several times expressed, in various
forms, that “original” negligence and “ultimate” negligence are mutually
exclusive, and that conduct which has once been relied on to prove the
first cannot in any shape constitute proof of the second.

Here lies the ambiguity. If the “primary” negligent act is done and
over, if it is separated from the injury by the intervention of the
plaintiff’s own negligence, then no doubt it is not the “ultimate”
negligence in the sense of directly causing the injury. If, however, the
same conduct which constituted the primary negligence is repeated or
continued, and is the reason why the defendant does not avoid the
consequences of the plaintiff’s negligence at and after the time when
the duty to do so arises, why should it not be also the “ultimate”
negligence which makes the defendant liable?

This matter was much discussed in Brenner _v._ Toronto Ry. Co., 13 Ont.
L. R. 423, when Anglin, J., delivered a very valuable judgment in the
Divisional Court. The decision of the Divisional Court was reversed on
appeal, 15 Ont. L. R. 195, (1908) 40 Can. S. C. R. 540, but on other
grounds, and in their comments on the decision of the Divisional Court,
Duff, J., in the Supreme Court, and also Chancellor Boyd in Rice _v._
Toronto Ry. Co., (1910) 22 Ont. L. R. 446, 450, and Hunter, C. J., in
Snow _v._ Crow’s Nest Pass Coal Co., (1907) 13 B. C. Rep. 145, 155, seem
to have missed the point to which Anglin, J., had specially addressed
himself.

The facts of that case were closely similar to those in the present
appeal, and it was much relied on in argument in the court below.
Anglin, J., following the decision in Scott _v._ Dublin and Wicklow Ry.
Co., (1861) 11 Ir. C. L. Rep. 377, 394, observed as follows, 13 Ont. L.
R. 437, 439, 440: “Again, the duty of the defendants to the plaintiff,
breach of which would constitute ‘ultimate’ negligence, only arose when
her danger was or should have been apparent. Prior to that moment there
was an abstract obligation incumbent upon them to have their car
equipped with efficient emergency appliances ready and in condition to
meet the requirements of such an occasion. Had an occasion for the use
of emergency appliances not arisen, failure to fulfil that obligation
would have given rise to no cause of action. Upon the emergency arising,
that abstract obligation became a concrete duty owing to the plaintiff
to avoid the consequences of her negligence by the exercise of ordinary
care.... Up to that moment there was no such breach of duty to the
plaintiff. In that sense the failure of the defendants to avoid the
mischief, though the result of an antecedent want of care, was
negligence which occurred, in the sense of becoming operative,
immediately after the duty, in the breach of which it consisted, arose.
It effectively intervened between the negligence of the plaintiff and
the happening of the casualty. But there is a class of cases where a
situation of imminent peril has been created, either by the joint
negligence of both plaintiff and defendant, or it may be, by that of the
plaintiff alone, in which, after the danger is or should be apparent,
there is a period of time, of some perceptible duration, during which
both or either may endeavor to avert the impending catastrophe.... If,
notwithstanding the difficulties of the situation, efforts to avoid
injury duly made would have been successful, but for some self-created
incapacity which rendered such efforts inefficacious, the negligence
that produced such a state of disability is not merely part of the
inducing causes—a remote cause or a cause merely _sine qua non_—it is,
in very truth, the efficient, the proximate, the decisive cause of the
incapacity, and therefore of the mischief.... Negligence of a defendant
incapacitating him from taking due care to avoid the consequences of the
plaintiff’s negligence, may, in some cases, though anterior in point of
time to the plaintiff’s negligence, constitute ‘ultimate’ negligence,
rendering the defendant liable notwithstanding a finding of contributory
negligence of the plaintiff....”

Their Lordships are of opinion that, on the facts of the present case,
the above observations apply and are correct. Were it otherwise the
defendant company would be in a better position, when they had supplied
a bad brake but a good motorman, than when the motorman was careless but
the brake efficient. If the superintendent engineer sent out the car in
the morning with a defective brake, which, on seeing Sands, the motorman
strove to apply, they would not be liable, but if the motorman failed to
apply the brake, which, if applied, would have averted the accident,
they would be liable.

The whole law of negligence in accident cases is now very well settled,
and, beyond the difficulty of explaining it to a jury in terms of the
decided cases, its application is plain enough. Many persons are apt to
think that, in a case of contributory negligence like the present, the
injured man deserved to be hurt, but the question is not one of desert
or the lack of it, but of the cause legally responsible for the injury.
However, when once the steps are followed the jury can see what they
have to do, for the good sense of the rules is apparent. The inquiry is
a judicial inquiry. It does not always follow the historical method and
begin at the beginning. Very often it is more convenient to begin at the
end, that is at the accident, and work back along the line of events
which led up to it. The object of the inquiry is to fix upon some
wrong-doer the responsibility for the wrongful act which has caused the
damage. It is in search not merely of a causal agency but of the
responsible agent. When that has been done, it is not necessary to
pursue the matter into its origins; for judicial purposes they are
remote. Till that has been done there may be a considerable sequence of
physical events, and even of acts of responsible human beings, between
the damage done and the conduct which is tortious and is its cause. It
is surprising how many epithets eminent judges have applied to the
cause, which has to be ascertained for this judicial purpose of
determining liability, and how many more to other acts and incidents,
which for this purpose are not the cause at all. “Efficient or effective
cause,” “real cause,” “proximate cause,” “direct cause,” “decisive
cause,” “immediate cause,” “causa causans,” on the one hand, as against,
on the other, “causa sine qua non,” “occasional cause,” “remote cause,”
“contributory cause,” “inducing cause,” “condition,” and so on. No doubt
in the particular cases in which they occur they were thought to be
useful or they would not have been used, but the repetition of terms
without examination in other cases has often led to confusion, and it
might be better, after pointing out that the inquiry is an investigation
into responsibility, to be content with speaking of the cause of the
injury simply and without qualification.

In the present case their Lordships are clearly of opinion that, under
proper direction, it was for the jury to find the facts and to determine
the responsibility, and that upon the answers which they returned,
reasonably construed, the responsibility for the accident was upon the
appellants solely, because, whether Sands got in the way of the car with
or without negligence on his part, the appellants could and ought to
have avoided the consequences of that negligence, and failed to do so,
not by any combination of negligence on the part of Sands with their
own, but solely by the negligence of their servants in sending out the
car with a brake whose inefficiency operated to cause the collision at
the last moment, and in running the car at an excessive speed, which
required a perfectly efficient brake to arrest it. Their Lordships will
accordingly humbly advise His Majesty that the appeal should be
dismissed with costs.[209]

NEHRING _v._ THE CONNECTICUT COMPANY
SUPREME COURT, CONNECTICUT, JULY 19, 1912.
_Reported in 86 Connecticut Reports, 109._

PRENTICE, J. It is clear and unquestioned that there was evidence,
justifying its submission to the jury, tending to establish the
defendant’s negligence in the premises directly contributing to produce
the fatal injury which the plaintiff’s intestate suffered. The verdict
for the defendant was directed upon the ground that the plaintiff had
failed to present evidence, sufficient to go to the jury, tending to
establish the intestate’s freedom from contributory negligence.
Plaintiff’s counsel in his brief formally takes issue with this
conclusion of the court, asserting that the evidence was such as
entitled the plaintiff to go to the jury upon the question of the
intestate’s negligence. It is apparent, however, that little reliance is
placed upon this particular claim, and that the contention that the
court erred must fail unless the appeal which is made to the so-called
doctrine of “the last clear chance,” otherwise known as supervening or
intervening negligence, is well made. This appeal is urged with vigor,
so that the plaintiff’s main contention, which alone calls for serious
consideration, is that, notwithstanding the intestate’s failure to use
ordinary care, the defendant is liable through the operation of the
doctrine referred to, which, it is said, the court disregarded.

* * * * *

The notion appears to be more or less prevalent that this so-called
doctrine is a discovery of recent years, that it embodies a new legal
principle, and that this principle is one which invades the domain
formerly assigned to contributory negligence, and sets limitations upon
the operation of this latter doctrine so long and so deeply imbedded in
English and American jurisprudence. This is by no means true as respects
either the age or the character and scope of the principle which it
embodies. The names by which it has come to be known are indeed of
recent origin, and perhaps its present vogue and the misconception which
prevails as to its true place in the law of negligence are due in part
to its thus being given an independent status in the terminology of the
law. In fact, the principle is no modern discovery. It runs back to the
famous “Donkey Case” of Davies _v._ Mann, 10 Mees. & W. 546, decided in
1842. It was distinctly recognized by this court in 1858 in Isbell _v._
New York & N. H. R. Co., 27 Conn. 393. It was then not only recognized,
but its true place in the law was assigned to it. It was shown to be no
independent principle operating by the side of, and possibly
overstepping the bounds of, other principles, but merely a logical and
inevitable corollary of the long accepted doctrine of actionable
negligence as affected by contributory negligence. The definition of its
place, which was made in the clear-cut language of Judge Ellsworth,
inexorably forbade that it could by possibility run counter in its
application to the contributory negligence rule. This fundamental
principle we have steadily adhered to. Smith _v._ Connecticut Ry. & Ltg.
Co., 80 Conn. 268, 270, 67 Atl. 888; Elliott _v._ New York, N. H. & H.
R. Co., 83 Conn. 320, 322, 76 Atl. 298, 84 Conn. 444, 447, 80 Atl. 283.

There are, indeed, cases which give countenance to a different view upon
this latter subject. But their dicta, oftentimes, not to say generally,
uttered without an apparent comprehension of their logical consequence,
would create havoc with the law, and leave it guideless, or with two
conflicting guides. A sober second thought is, however, fast correcting
this mistake, so that there has already come to be a general concurrence
of the well-considered authorities in the view which has been taken in
this jurisdiction.

The contributory negligence rule has no practical application save in
cases where the defendant has been guilty of actionable negligence. It
proceeds upon the theory that whenever a person injured has contributed
essentially to his injury by his own negligent conduct, the law will not
give him redress, even against another who may have been directly
instrumental in producing the result. To furnish a basis for its
application there must have been a concurrence of negligent conduct.
This negligent conduct, furthermore, must have been of such a character
and so related to the result as to entitle it to be considered an
efficient or proximate cause of it. If there is a failure to use due
care on the part of either party at such a time, in such a way or in
such a relation to the result that it cannot fairly be regarded as an
efficient or proximate cause, the law will take no note of it. _Causa
proxima, non remota, spectatur._

It thus logically follows that, although a plaintiff may have failed to
exercise reasonable care in creating a condition, or in some other way,
which cannot be fairly said to have been the proximate cause of the
injuries of which he complains, the contributory negligence rule cannot
be invoked against him. The question with respect to negligent conduct
on the part of a person injured through the negligence of another, as
affecting the former’s right to recover, thus becomes resolved in every
case into one as to whether or not that conduct of his was a proximate
cause of the injury. If it was, then the contributory negligence rule is
applicable, and the plaintiff will by its operation be barred from
recovery. If it was not, that rule has no pertinence to the situation,
since there was no concurrence of negligence, without which there can be
no contributory negligence in the legal sense. It is conduct of the
latter kind—that is, conduct careless in itself, but not connected with
the injury as a proximate cause of it—to which the so-called doctrine of
“the last clear chance” relates, and that doctrine embraces within its
purview such conduct only.

This being so, it may well be questioned whether the doctrine deserves a
classification and a name as of an independent principle. But if, for
convenience sake or other reason, it is to be dignified in that way, it
is apparent that there is no manner of inconsistency between it and the
contributory-negligence rule, and that the domain of the latter rule is
in no way invaded or narrowed by a full recognition of it. It follows
that the decisive question in each case, where a plaintiff injured is
found to have been at fault in the premises from his failure to exercise
the required degree of care, resolves itself into one as to whether that
fault was or was not a proximate cause of the injury, and that the
answer to that question will infallibly determine whether or not it will
bar a recovery.

* * * * *

Thus far we have had the way marked out for us by the clearly defined
doctrine of former opinions. But the proposition just stated, which is
thus supported, while sufficient for the determination of many cases and
furnishing a helpful guide in most others, does not resolve all the
difficulties which may be encountered. It leaves the question open as to
when negligent conduct in a person injured in his person or property is
to be regarded as a proximate cause of the injury. How close must be the
causal connection between the negligence and the injury? It is at this
point that any real uncertainty or trouble arises under the doctrine of
this jurisdiction.

* * * * *

The negligence referred to in the claimed rule is, of course, that which
the law so denominates, to wit, want of due care which is a proximate
cause of harm. The proposition is not dealing with a lack of due care
which the law ignores. When it speaks of the negligence ceasing,
negligence in the legal sense is meant. It may in a given sense cease in
the sense that prudent conduct takes its place. It may for all legal
purposes cease through the relegation of it, as events progress, to the
domain of remote cause. In other words, it ceases when, and only when,
the conditions of contributory negligence disappear. The claimed test
thus solves no problems. It only brings one back, in doubtful cases, to
the inquiry whether the plaintiff’s conduct, lacking in due care, was of
such a character, or so related to the injury, that it ought to be
regarded as a proximate cause of it, as the real test which must be
applied.

The impossibility of framing any general abstract statement which will
suffice to resolve the difficulties which may be presented under varying
conditions, or to anticipate all such conditions, is apparent. We shall
undertake no such task. There are, however, certain sets of conditions,
of not infrequent occurrence, concerning which general conclusions may
be made safely and profitably.

There is, for instance, the occasional case where, after the plaintiff’s
peril, to which he has carelessly exposed himself or his property,
becomes known to the defendant, the latter introduces into the situation
a new and independent act of negligence without which there would have
been no injury. Such was the case of Smith _v._ Connecticut Ry. & Ltg.
Co., 80 Conn. 268, 270, 67 Atl. 888, and it was there held, in
accordance with sound reason, that this new negligence was to be
regarded as the sole proximate cause of the accident which ensued. The
rule for that type of case is thus furnished.

Cases of another class occasionally arise, where it is disclosed that
the plaintiff has by his lack of care placed himself in a position of
danger from which he either cannot, or cannot reasonably, escape after
the discovery of his danger. Here, again, there can be no hesitation in
saying, that if the defendant, after his discovery that the plaintiff is
in the situation described, fails to use reasonable care—and that is
care proportioned to the danger—to save him from harm, and harm results
from such failure, the defendant’s want of care will be regarded as the
sole proximate cause, and the plaintiff’s a remote cause only.

The situation just stated is not infrequently changed, in that means of
escape were open to the plaintiff by the exercise of reasonable care,
but it was apparent to the defendant, in season to have avoided the
doing of harm by the exercise of due care, that the plaintiff would not
avail himself of them. Here it is assumed that the situation of exposure
had been created and established by the plaintiff’s action before the
period of time began within which the defendant, acting reasonably,
might have saved him, and that within that period the plaintiff did
nothing to create or materially change that situation by active conduct
which was not marked by reasonable care. Under the assumption he remains
passive, in so far at least as negligent action is concerned, and can be
regarded as careless only in this that he did not awake to his
surroundings and do what he reasonably could to avoid the threatened
consequences of a situation which he had already negligently brought
about. In such cases the humane, and, to our mind, the better reason,
all things considered, leads to the conclusion to which our former
opinions, already cited, commit us, and which a large number of cases
elsewhere approve, that the want of care on the part of the plaintiff
will be regarded as a remote and not a proximate cause.

Another important variation is oftentimes introduced into the situation,
in that the plaintiff continued as an active agent in producing the
conditions under which his injury was received down to the time of its
occurrence, or at least until it was too late for the defendant, with
knowledge of his peril, to have saved him by the exercise of reasonable
care under the circumstances. This variation imports into the situation
an important factor. The plaintiff, during the period named, is not
merely passively permitting an already fixed condition to remain
unchanged. He is an actor upon the scene. He is, by acts of his
volition, bringing into the situation which confronts the defendant
changed conditions and, in the fullest sense, co-operating with the
latter in bringing about the ultimate result. In such case his conduct
must be regarded as a concurring efficient cause. It is, in the fullest
sense, a proximate and not a remote one, making his negligence
contributory.

It is said, however, that there are cases, and undoubtedly there are,
where it is reasonably apparent to the one who inflicts the injury that
the injured one is careless of his safety, and that, in continuance of
his carelessness, he is about to place himself in a position of danger,
which he subsequently does, and where the former thereafter, having a
reasonable opportunity to save him from harm, fails to do so; and it is
contended that in such cases the conduct of the injured person should be
regarded as a remote cause only of the resulting harm. We are unable to
discover any logical reason for such a conclusion, or any place at which
a practical or certain line of division can be drawn between that
careless conduct of a man, playing some part in an injury to him, which
the law will regard as having that causal connection with the injury
which makes it a proximate cause, and that careless conduct which will
not be so regarded, if the contention under consideration is to be
approved. The conduct of the man who inflicts the injury under such
general conditions may indeed be such that it is open to the charge of
wilfulness or wantonness. If so, the case is not one of negligence, and
the defense of contributory negligence would not be available. Rowen
_v._ New York, N. Y. & H. R. Co., 59 Conn. 364, 371, 21 Atl. 1073. If
the conduct is not wilful or wanton, it is negligent only. Thus treated,
it forms one factor of negligence in the situation. The plaintiff’s want
of care is another factor, and it certainly has something substantial to
do in bringing about the result reached. Upon what theory or foundation
in reason it can be said that, under the circumstances assumed, it is
not an efficient cause of that result co-operating concurrently with the
other cause to be found in the other party’s negligence, we are unable
to discover. The causal connection is plain to be seen, and the act of
causation is that of a positive act of volition. The two actors upon the
scene owe precisely the same duty to be reasonably careful. Dexter _v._
McCready, 54 Conn. 171, 174, 5 Atl. 855. Neither occupies in that regard
a superior position, and the one who suffers can claim no precedence
over his fellow actor or at the hands of the law. To say that no matter
if one be negligent in going forward into danger, or in creating new
conditions or complicating them, the law will protect him and cast upon
the other party the responsibility for the result, is to ignore the
fundamental principle of contributory negligence and bring the law upon
that subject into hopeless confusion, and merit for it the condemnation
which Thompson has so forcibly expressed. 1 Thompson on Negligence, §§
230, 233. The well-considered cases which have directly dealt with this
subject agree with us, we think, in our view that active continuing
negligence of the kind assumed is to be regarded as contributory in the
legal sense. Butler _v._ Rockland, T. & C. Street Ry. Co., 99 Me. 149,
160, 58 Atl. 775; Murphy _v._ Deane, 101 Mass. 455, 465; Dyerson _v._
Union Pacific R. Co., 74 Kan. 528, 87 Pac. 680; Little _v._ Superior
Rapid Transit Ry. Co., 88 Wis. 402, 409, 60 N. W. 705; Green _v._ Los
Angeles Terminal Ry. Co., 143 Cal. 31, 47, 76 Pac. 719; Olson _v._
Northern Pacific Ry. Co., 84 Minn. 258, 87 N. W. 843.

We have thus far dealt with cases in which actual knowledge on the part
of the defendant of the plaintiff’s peril enters into the assumption of
facts. Suppose, however, that such knowledge is not established, but
facts are shown from which it is claimed that the defendant ought in the
exercise of due care to have known of it. What shall be said of such a
situation?

In so far as imputed or constructive knowledge may be embraced in the
assumption, the simple answer is to be found in the legal principle that
full and adequate means of knowledge, present to a person when he acts,
are, under ordinary circumstances, treated as the equivalent of
knowledge. Post _v._ Clark, 35 Conn. 339, 342.

But our assumption reaches outside of the domain of knowledge, either
actual or constructive. It suggests, in the use of the phrase “ought in
the exercise of due care to have known,” frequently met with in the
books, the existence of a duty to exercise due care to acquire
knowledge, and the query is, whether the law recognizes the existence of
such a duty to the extent of making it a foundation for responsibility
for conduct akin to that which flows from conduct with actual or
constructive knowledge.

We have frequently held that the character of one’s conduct in respect
to care is to be determined in view of what he should have known as well
as of what he did in fact know. Snow _v._ Coe Brass Mfg. Co., 80 Conn.
63, 66 Atl. 881. In these cases the question has been as to one’s duty
for his own self-protection. That duty, according to established
principles, involves the making of reasonable use of one’s senses under
the penalty of forfeiture of all claim for redress in the event that
harm results. Popke _v._ New York, N. H. & H. R. Co., 81 Conn. 724, 71
Atl. 1098.

But how about a duty of acquiring knowledge, owed to others for their
safety, which, not being performed, will furnish a basis of liability?
In Elliott _v._ New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298,
we recognized that such a duty might exist. That case involved the
conduct of a locomotive engineer operating his engine at a
grade-crossing, and we approved a charge which gave to the knowledge
which the engineer, under the conditions, ought, in the use of due care,
to have had, the same effect as actual knowledge. The duty imposed upon
him was one to be watchful in order that needless harm might not come to
persons who might be using the crossing, from the dangerous instrument
of his calling. The duty was one toward others, which the circumstances
and conditions must be regarded as fairly creating. For a like reason a
similar duty rests upon other persons and under other conditions, in
greater or lesser measure. Whether it exists, and the extent of it,
depends upon the circumstances of each situation. A circumstance of
chief significance, perhaps, is one which concerns the character of that
about which the person is engaged in respect to its being calculated,
under the conditions, to work injury to others. And so it is that a
locomotive engineer, a motorman of a trolley-car running in a highway,
or a chauffeur driving an automobile, is under a duty to be watchful for
the protection of others which another man under other conditions would
not owe to his fellows. Unreasonableness in one’s conduct, as a
foundation for responsibility to others, cannot justly be established
upon the basis of knowledge not possessed. It can with propriety be
predicated upon negligence in not having acquired more knowledge.
Negligence in this respect, as in all others, implies the existence of a
duty to make use of means of knowledge. This duty must be found in the
circumstances, and caution must be exercised in order that it, with its
consequences, be not raised where the circumstances do not fairly impose
it, or be extended beyond the limits which the circumstances fairly
justify.[210]

GEORGE W. WHEELER, J. (dissenting). Just prior to the accident the
defendant’s car was being negligently operated. Assuming the decedent
walked either diagonally toward and upon the track, or close to it,
without using his senses to learn of the approaching car, and that there
was no excuse for his failure, he was negligent. If the accident
occurred while decedent and defendant were negligent and decedent’s
negligence was a proximate cause of the accident, and there was nothing
more to the case, there could be no recovery. But if the defendant’s
motorman saw, or could by the exercise of reasonable care have seen, the
decedent either approaching the track and about to place himself in
danger, or walking so near the track as to be in danger, apparently
heedless and unconscious of his peril, he owed to the deceased the duty
of warning him and of observing such precautions as might avoid running
into him. This was the case before the jury. We hold knowledge and the
means of knowledge of one having a duty to know equivalent. Elliott _v._
New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298. This duty
originated after the negligence of the motorman and of the deceased, and
after the latter’s peril and his unconsciousness of it might have been
discovered by the motorman. If its performance would have avoided the
injury to the deceased, its breach was the proximate cause of the
accident, and his negligence in placing himself in the place of peril a
condition, or the remote cause, of it. Of course, if he had not gone
upon the track he would not have been injured; if he was negligent in
going upon the track without using his senses, that was not the
proximate cause of the accident, but the failure of the defendant to
avoid the accident after it had the opportunity of avoidance and after
it knew of the decedent’s peril and his unconsciousness of it.

In each case of discovered peril caused by one’s negligence the question
is, did the defendant have the opportunity after such discovery, and was
it his duty, to have avoided the accident? Whether the conduct of the
motorman was gross negligence, or ordinary negligence, the breach of
duty was the same in kind, though differing in degree. If one walks upon
a railway track drunk, or in a reverie, or otherwise careless; or if one
stands or lies on or so near the railway track as to be in danger and
unconscious of it; or if one is in a position of peril through his own
negligence from which he is unable to extricate himself, the person
knowing or having the means and the duty to know of his presence owes
him the duty of avoiding injuring him. One who is negligently in a
position of danger and unconscious of it is in no different situation
than if he were incapable of extricating himself from his peril.

The few authorities which hold the antecedent negligence of the deceased
in getting into peril is concurrent with the defendant’s negligence so
as to bar a recovery, make meaningless the rule of duty compelling the
defendant to use reasonable care to avoid the accident after discovery
of the peril. A legal duty without a corresponding obligation is an
anomaly. When we relieve the motorman of liability for failure to avoid
an accident, he may operate his car at a negligent speed, without having
it under control, without keeping an outlook, without giving warning of
approach, and neither having nor using the ordinary instrumentalities of
equipment for avoiding injury to travellers, and so long as his conduct
is not gross negligence it carries with it no liability.

The opinion of the court classifies in five groups the several kinds of
cases which have been thought to be within the “last clear chance”
doctrine. In group one, the defendant, instead of doing his duty, does
something which is a new act of negligence. In group two, the peril is
one from which the plaintiff cannot, or cannot reasonably, extricate
himself. Each group supports a recovery. In group three, means of escape
were open to the plaintiff down to the accident, but he remained
unconscious of his peril. The opinion holds that if the plaintiff
remains passive after exposing himself to peril and does nothing to
materially change that condition, there may be a recovery. But in group
four, assuming the same facts as in group three, the court holds that if
the plaintiff after exposing himself to peril, instead of permitting the
fixed condition to remain unchanged continues as an active agent in
producing the conditions under which the injury was received down to its
occurrence, or until it was too late for the defendant to avoid the
accident, there can be no recovery. In group five, the defendant knows,
or ought to know, that the injured one is careless and is about to
expose himself to danger of which he is unconscious, and after such
knowledge has the opportunity to avoid injury to him, and in such case
the court holds there can be no recovery.

We have attempted to show that the breach of duty of the defendant in
each of these several groups is the same, and was a new act of
negligence of the defendant, viz.: the failure of the defendant to avoid
injuring the plaintiff after he knew of his peril when he was either
unconscious of it or incapable of extricating himself from it, and that
this breach was the proximate cause of the accident while the
plaintiff’s prior negligence was the remote cause.

The distinction between active and passive negligence made in groups
three and four, is new to our law, as well as to the law of negligence
generally prevailing in this country and in England. On analysis it does
not seem logical. A is crossing a trolley track when hailed by a friend;
he stops upon the track to talk and negligently fails to use his senses
to discover an approaching car. The motorman could have seen A in his
place of peril, unconscious of his danger, and in time, with the
exercise of reasonable care to have avoided injuring him; instead he
drives on his car and kills A. The opinion would hold A negligent in
being upon the track without using his senses to keep out of the way of
the oncoming car, but that as he remained passive and did nothing to
change his situation of peril after the motorman had the opportunity to
have avoided the accident, he may recover. But if A, instead of stopping
on the track had gone on his way across or upon the track and been
struck, his negligence would have been active and continued to the
accident and would have been concurrent with that of the motorman. It
must be conceded that the breach of the motorman’s duty would have been
the same in each case: a failure to use reasonable care to avoid the
accident. We see no reason why it should be available in the one case
and not in the other. In neither case has the plaintiff’s negligence
changed. It never became passive or nonexistent. It remained to the time
of the accident. It ceased, in a legal sense, to be a proximate cause of
the accident. A was relieved of its consequences because the negligence
of the motorman in failing to avoid the accident intervened and became
its proximate cause. If this distinction holds, and A be upon a trolley
track intoxicated and asleep, his negligence is passive; if awake and
walking his negligence is active.[211]

GAHAGAN _v._ BOSTON & MAINE RAILROAD
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1900.
_Reported in 70 New Hampshire Reports, 441._

Plaintiff was struck by a train while attempting to use a crossing
provided by the Railroad Company for persons having business with a
manufacturing company. From a point twenty-two feet from the nearest
rails there was an unobstructed view of the track in the direction from
which the train came. The accident happened near noon on a bright and
clear day. Generally the engine bell was rung, while the whistle was
sometimes sounded, for this crossing. Plaintiff knew it was usual to
ring the bell. In this instance a danger whistle was sounded at, or
immediately before, the time when plaintiff was struck; but there was
evidence tending to prove that no other warning of the approach of the
train was given. Plaintiff testified that he did not look or listen for
an approaching train; and that he did not look because he expected to
hear the bell or whistle if one was coming. The engineer testified that,
when about one hundred and fifty to two hundred feet from the crossing,
he saw plaintiff approaching the track; and that he kept watch of
plaintiff until he got within a few feet of the track, when he
whistled.[212]

A nonsuit was ordered, subject to exception.

PARSONS, J.... It is urged that the plaintiff relied upon the ringing of
the bell, and that the failure to give the warning signals (of which
there was some evidence which must here be taken to be true) excused him
from the exercise of vigilance. Though the plaintiff testified that he
did not look to see if a train was approaching because he expected to
hear the whistle or bell if there was, it cannot be claimed that he was
consciously at the time placing any reliance thereon, for he further
testifies that he had no thought of a train coming and did not listen
for the bell. As his counsel state in their brief, “There was no
positive effort, no conscious ‘harking’ or ‘listening’ to ascertain if
the train was coming.” But assuming that it might be found as a fact
that he did rely on the awakening of his consciousness by the
performance of the railroad’s duty of warning, the failure of the
defendants to perform their duty did not release him from his. The
obligation to use care was equally imposed upon each. If the defendants’
negligence excused the plaintiff from his duty of care, the plaintiff’s
negligence with equal reason would excuse the defendants. If the
plaintiff had the right to assume the defendants would perform their
duty, and, relying thereon, approach the crossing without exercising
care, the defendants had the right to assume that the plaintiff would
perform his duty, and omit the warning of bell and whistle. The duty of
care rested on each equally. If neither performed that duty both are in
fault, and neither can recover of the other. The collision in this case
resulted, it may be, because neither party performed their duty. If
either had, there might and probably would have been no accident. The
rights and liabilities of the parties consequent upon their acts
resulting in the collision are not affected by the fact that
subsequently one is plaintiff and the other defendant in a suit growing
out of the collision. Their several responsibility is fixed at the time
by their acts or failure to act. A suit by the engineer against Gahagan
for personal injury resulting from the collision would present precisely
the same legal question as that we now have. It would hardly be urged
that the engineer was not guilty of contributory negligence in failing
to ring the bell because he relied upon Gahagan’s performance of his
duty of stopping and allowing the train to go by. The negligence of
neither is an excuse for concurrent want of care in the other, because
for an injury resulting from the concurrent negligence of both neither
can recover. Nashua Iron and Steel Co. _v._ Railroad, 62 N. H. 159, 163.

The rule is laid down in Railroad Co. _v._ Houston, 95 U. S. 697, 702,
also a crossing case, as follows: “The failure of the engineer to sound
the whistle or ring the bell, if such were the fact, did not relieve the
deceased from the necessity of taking ordinary precautions for her
safety. Negligence of the company’s employees in these particulars was
no excuse for negligence on her part.”

* * * * *

It is not claimed that after the plaintiff stepped upon the track almost
immediately in front of the approaching train the defendants could have
prevented the injury, or that the employees in charge of the train, when
the danger thus became imminent, did not do all that could be done to
prevent the collision. At any time before this the plaintiff could have
avoided the collision. There was no moment when the defendants could,
while the plaintiff could not, have prevented the injury. The
plaintiff’s act in stepping upon the track, without precaution to
ascertain whether he could safely do so, was the last act in point of
time in the causation producing the injury. As there was no evidence
upon which it could reasonably be found that the plaintiff’s action in
this respect was the exercise of care, he cannot recover unless upon the
evidence some negligent act or omission of the defendants’ employees
could be found to be the sole proximate cause of the injury.

* * * * *

The plaintiff’s negligent occupation of the track did not authorize the
defendants to run upon and injure him, if by care they could have
avoided it. Ordinarily, the negligent act or omission which fails to
avoid the consequences of the plaintiff’s negligence is the last act in
time in the series leading to the injury. Such was the case in the cases
cited; the negligent occupation of the track by the plaintiffs preceded
the negligence of the defendants in failing to observe and guard against
the danger so produced. But as ordinary care may require vigilance to
guard against a dangerous situation reasonably to be apprehended, as
well as actually imminent, it cannot always follow that the last
negligent act in point of time is necessarily the proximate cause of the
injury. If the engineer knew or ought to have known that the plaintiff’s
negligence would place him upon the crossing when the train reached it,
the engineer was equally bound to avoid the collision as if he saw the
plaintiff actually on the track. The question is one of evidence merely.
The mere fact that the person when first seen is on the track is not
decisive. If a person on foot is seen crossing the track at such
distance ahead that it could not reasonably be apprehended that the
train would reach him in this position, the engineer would not be in
fault for not preparing to avoid a danger not reasonably to be expected.
In the present case there is evidence that when the plaintiff was first
seen by the engineer the collision could have been prevented. If the
engineer knew or ought to have known then that the plaintiff would be
upon the crossing when the train reached it, and could have avoided the
collision, his failure to do so is the proximate cause of the injury.

As there was evidence the collision might then have been prevented by
him, the sole remaining question is whether upon the evidence reasonable
men might find the engineer ought then to have foreseen the plaintiff’s
negligence. The bare fact that the plaintiff was seen approaching the
track is not sufficient to authorize such a finding. If it were, the
rule heretofore laid down and found to be approved by the authorities
and the reason of the case, that it is the duty of the highway traveller
to stop and allow the train to pass, would be reversed. It would become
the duty of the train to stop and wait for the person on foot to go by.
This would be unreasonable, impracticable, and put an end to the modern
system of rapid transportation demanded by the public, and to effectuate
which railroads are authorized by the state.

“The company’s servants may ordinarily presume that a person apparently
of full age and capacity, who is walking on the track at some distance
before the engine, will leave it in time to save himself from harm; or
if approaching the track, that he will stop if it becomes dangerous for
him to cross it. This presumption will not be justified under some
circumstances, as when the person who is on the track appears to be
intoxicated, asleep, or otherwise off his guard.” Pierce R. R. 331; 2
Shearm. & Red. Neg. _s._ 483; Chicago, etc. R. R. _v._ Lee, 68 Ill. 576,
581; Terre Haute, etc. R. R. _v._ Graham, 46 Ind. 239, 245; Lake Shore,
etc. R. R. _v._ Miller, 25 Mich. 274, 278, 280; Boyd _v._ Railway, 105
Mo. 371, 381, 382. The presumption is founded upon the general principle
of right acting and the instinct of self-preservation. Huntress _v._
Railroad, 66 N. H. 185; Lyman _v._ Railroad, 66 N. H. 200; 2 Thomp. Neg.
1601.

The case discloses no evidence apparent to the engineer taking the
present case out of the rule.

* * * * *

Aside from the plaintiff’s own statement and the fact of the subsequent
collision, the case contains no evidence that the plaintiff, when seen
by the engineer approaching the crossing, was not alert to the
situation, or tending to produce a belief that he would voluntarily rush
into danger without care. Until he stepped upon the track his only
danger consisted in the fact of his mental obliviousness to his duty of
taking care. So defining his danger, the claim of his counsel, that if
the engineer knew the plaintiff’s danger he could have avoided the
injury and is in fault for not doing so, is sound; but to submit to the
jury the question of fact whether the engineer ought to have known the
_status_ of the plaintiff’s mind in season to have prevented the
accident, not only in the absence of evidentiary facts tending to prove
such knowledge but in the face of all the facts open only to a contrary
inference, would be a violation of the familiar and elementary rule that
in judicial trials facts are to be found upon evidence, not conjecture.
Deschenes _v._ Railroad, 69 N. H. 285.

The evidence upon which counsel mainly rely, tending to show that when
seen by the engineer Gahagan’s face was not turned toward the train and
that his appearance did not indicate whether he saw the train or not,
does not tend to establish that he proposed to rush carelessly into
known danger, or that he would go upon the track without care to
ascertain if a train was approaching. That Gahagan knew the crossing,
its danger, and his approach to it, was conceded. Hence, in the face of
this admitted fact, although this evidence may have some tendency to
prove the contrary, the jury could not find that Gahagan did not know he
was approaching a place of danger, or that the engineer ought to have
inferred a fact which it is conceded did not exist. As there is no
evidence that the defendants ought to have known the plaintiff’s danger
in season to have avoided the results of his negligence, they cannot be
found guilty of negligence for not doing so.

* * * * *

_Exceptions overruled._

KEITH, P., IN NORFOLK & W. R. CO. _v._ DEAN’S ADM’X
(1907) _107 Virginia, 505, 506, 507, 513._

KEITH, P. The Circuit Court ... rests the case solely upon the second
count in the declaration, in which the case presented is that, after
it became apparent to the crew in charge of defendant company’s train
that intestate of plaintiff was on the track in front of the engine,
that he was unconscious of his danger, and would take no measures to
protect himself, the crew failed to use any measure to prevent the
accident. Such being the issue to be determined, it is needless to
consider so much of the evidence as relates to the use of the track as
a public passway, or as to whether or not the person injured was a
licensee or a trespasser. He was a human being, and when his dangerous
position was seen and known, and that he himself was unconscious of
his peril, and would take no measures for his own protection, it
became the duty of the railroad company to do all that could be done
consistent with its higher duties to others to save him from the
consequences of his own act, regardless of whether he was guilty of
contributory negligence or not. Seaboard & Roanoke R. Co. _v._
Joyner’s Adm’r, 92 Va. 355, 23 S. E. 773.

This being the narrow issue to be decided, it becomes necessary to
consider the evidence bearing upon it with care....

[The learned judge then considered the testimony. He found that there
was no failure of duty on the part of the train men; and he _held_
that the demurrer to the evidence should have been sustained. He
quoted, with approval, the following statements of the law.]

In N. & W. Ry. Co. _v._ Harman, 83 Va. 577, 8 S. E. 258, it is said
that “if a person seen upon the track is an adult, and apparently in
the possession of his or her faculties, the company has a right to
presume that he will exercise his senses and remove himself from his
dangerous position; and if he fails to do so, and is injured, the
fault is his own, and there is, in the absence of wilful negligence on
its part, no remedy against the company for the results of an injury
brought upon him by his own recklessness.”

* * * * *

In Rangeley _v._ Southern Ry. Co., 95 Va. 715, 30 S. E. 386, it is
said that a railroad company has the right to assume that a grown
person seen on its track will get out of the way of an approaching
train, and the company is not liable unless it is shown that after the
company, in the exercise of ordinary care, could have discovered that
he was not going to get off the track, it could have avoided the
injury.

O’KEEFE, ADM’X, _v._ CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY
SUPREME COURT, IOWA, OCTOBER 21, 1871.
_Reported in 32 Iowa Reports, 467._

Appeal from Polk District Court.

Action by an administratrix to recover damages for the death of her
husband, Dennis O’Keefe, alleged to have been killed by being run over
on the defendant’s road, through the negligence of the defendant’s
agents and employees. Defence in denial, and also that the death was
caused by the drunkenness and negligence of the plaintiff’s intestate.
There was a jury trial, resulting in a verdict and judgment for
plaintiff for $1000. The defendant appeals.

COLE, J. [Omitting statement of evidence.] After the evidence was
closed, the defendant asked the court to instruct the jury as follows:
“If you are satisfied from the evidence that Dennis O’Keefe, plaintiff’s
intestate, was, a short time before the alleged injury, in a state of
intoxication; that in such condition he went upon defendant’s railroad
and laid himself down upon the track, or fell down unable to support
himself because of such intoxication; that remaining in that condition a
passing train crushed one of his legs; that after the injury he was yet
under the influence of intoxicating liquors drank before the injury;
that the injured limb was amputated and death ensued, you will find for
the defendant, unless you further find from a preponderance of the
evidence that defendant or its agents had knowledge that he was thus
lying in time to prevent the accident,” to which the court added, and
then gave it, “_or, could have known with the exercise of ordinary
caution_.” This modification was excepted to at the time, and is now
assigned as error.

The well-established law of this state is, that in an action to recover
damages for the negligent act of the defendant, the plaintiff will not
be entitled to recover if his own negligence contributed directly to the
injury. In other words, this court recognizes and applies the doctrine
of “contributory negligence,” and not the doctrine of “comparative
negligence.” The latter doctrine obtains only in Illinois and Georgia,
while the former obtains in the other states, and also in the Federal
courts. The modification complained of ignored the doctrine of
contributory negligence, and substantially told the jury that plaintiff
might recover without regard to his negligence, if the defendant could
have prevented the injury with the exercise of ordinary caution. The
doctrine of the modification goes even farther than that of comparative
negligence; for, by the latter, a plaintiff can only recover when he
shows the defendant’s negligence to have been greater, by comparison,
than his, while by the modification the plaintiff might recover if the
defendant did not exercise ordinary caution, although the plaintiff’s
intestate may have been guilty of a much greater negligence in laying
himself down, in a condition of intoxication, near to or upon the track.
A similar modification was made to the second instruction. In each there
was error.

_Reversed._

PICKETT _v._ WILMINGTON & WELDON RAILROAD COMPANY
SUPREME COURT, NORTH CAROLINA, SEPTEMBER TERM, 1895.
_Reported in 117 North Carolina Reports, 616._

AVERY, J.[213] The most important question presented by the appeal is
whether the court erred in refusing to instruct the jury that if the
plaintiff’s intestate deliberately laid down upon the track and either
carelessly or intentionally fell asleep there, the defendant was not
liable, unless the engineer actually saw that he was lying there in
time, by the reasonable use of appliances at his command, to have
stopped the train before it reached him.

* * * * *

In Gunter _v._ Wicker, 85 N. C. 310, this court gave its sanction to
the principle first distinctly formulated in Davies _v._ Mann, 10 M. &
W. (Ex.) 545, that “Notwithstanding the previous negligence of the
plaintiff, if at the time the injury was done it might have been
avoided by the exercise of reasonable care and prudence on the part of
the defendant, an action will lie for damages.” This doctrine was
subsequently approved in Saulter _v._ Steamship Co., 88 N. C. 123;
Turrentine _v._ Railroad, 92 N. C. 638; Meredith _v._ Iron Co., 99 N.
C. 576; Roberts _v._ Railroad, 88 N. C. 560; Farmer _v._ Railroad,
_Ibid._ 564; Bullock _v._ Railroad, 105 N. C. 180; Wilson _v._
Railroad, 90 N. C. 69; Snowden _v._ Railroad, 95 N. C. 93; Carlton
_v._ Railroad, 104 N. C. 365; Randall _v._ Railroad, 104 N. C. 108;
Bullock _v._ Railroad, 105 N. C. 180, and it was repeatedly declared
in those cases that it was negligence on the part of the engineer of a
railway company to fail to exercise reasonable care in keeping a
lookout not only for stock and obstructions but for apparently
helpless or infirm human beings on the track, and that the failure to
do so supervening after the negligence of another, where persons or
animals were exposed to danger, would be deemed the proximate cause of
any resulting injury.

* * * * *

[As to argument for defendant.] But the reasons and the authorities
relied upon emanate generally from courts which hold that both persons
and animals upon a track are trespassers and entitled to consideration
only where actually seen in time to save them....

It cannot be denied that, in a number of the states which have adopted
the doctrine of Davies _v._ Mann, it has also been held that both man
and beast were trespassers when they went upon a railway track and
except at public crossings or in towns it was not the duty of the
engineer to exercise care in looking to his front with a view to the
protection of either. Where the law does not impose the duty of
watchfulness it follows that the failure to watch is not an omission,
of duty intervening between the negligence of the plaintiff in
exposing himself and the accident, unless he be actually seen in time
to avert it. The negligence of the corporation grows out of omission
of a legal duty and there can be no omission where there is no duty
prescribed.

* * * * *

We are of opinion that, when by the exercise of ordinary care an
engineer can see that a human being is lying apparently helpless from
any cause on the track in front of his engine in time to stop the
train by the use of the appliances at his command and without peril to
the safety of persons on the train, the company is liable for any
injury resulting from his failure to perform his duty. If it is the
settled law of North Carolina (as we have shown) that it is the duty
of an engineer on a moving train to maintain a reasonably vigilant
outlook along the track in his front, then the failure to do so is an
omission of a legal duty. If by the performance of that duty an
accident might have been averted, notwithstanding the previous
negligence of another, then, under the doctrine of Davies _v._ Mann,
and Gunter _v._ Wicker,[214] the breach of duty was the proximate
cause of any injury growing out of such accident, and where it is a
proximate cause the company is liable to respond in damages. Having
adopted the principle that one whose duty it is to see does see, we
must follow it to its logical results. The court committed no error of
which the defendant could justly complain in stating the general rule
which we have been discussing.

* * * * *

DYERSON _v._ UNION PACIFIC RAILROAD COMPANY
SUPREME COURT, KANSAS, NOVEMBER 10, 1906.
_Reported in 74 Kansas Reports, 528._

Plaintiff sued for damages caused by being struck by the tender of an
engine.

Plaintiff, an employee of the R. R. Co., had occasion to cross the
track. As he was about to step upon the track, he was struck by the
tender of a locomotive which was backing east at the rate of fifteen
or twenty miles an hour without giving a signal of its approach and
without keeping a lookout along the track. The track was straight for
a quarter of a mile west. It was a clear day, and there was nothing to
have prevented the plaintiff from seeing the engine and tender if he
had looked.[215]

At the trial, the court rendered judgment against plaintiff upon his
petition and preliminary statement to the jury which disclosed the
above facts. Plaintiff brought error.

MASON, J.

* * * * *

Finally it is contended in behalf of the plaintiff that, even
admitting his own want of care to have been such as would ordinarily
bar a recovery, still he had a right to submit to the jury the
question whether the employees in charge of the engine by the use of
reasonable diligence could have discovered his negligence in time to
avert the accident, and that an affirmative answer would have entitled
him to a verdict.

* * * * *

In a number of cases it has been held that if the engineer by the
exercise of reasonable diligence could have learned that danger was
imminent but did not do so, the liability of the company will be
determined in all respects as though he had in fact become aware of
it, the constructive knowledge being apparently deemed the equivalent
of actual knowledge. It is difficult or impossible to reconcile the
decisions upon this and related questions, or to derive from them any
generally accepted statement either of principle or result. Many of
them are collected and discussed in chapter ix of volume i of
Thompson’s Commentaries on the Law of Negligence, especially in
sections 222 to 247.

There seems, however, to be no sufficient reason why the mere fact
that a defendant is negligent in failing to discover a plaintiff’s
negligence, or his danger, should in and of itself exclude all
consideration of contributory negligence. Take the not unusual
situation of a train being negligently operated, let us say by being
run at too high a speed and without proper signals of warning being
given. Now, any one injured as a result of such negligence has _prima
facie_ a right to recover. But, if his own negligence has contributed
to his injury, then ordinarily his right is barred. How is the
situation altered if the railroad employees add to their negligence in
regard to speed and signals the negligence of failing to keep a
sufficient lookout? The negligence is of the same sort; and, if the
contributory negligence of the person injured prevents a recovery when
but the two elements of negligence are present, consistency requires
that it should have the same effect although a third element is added.
If in the present case the plaintiff was entitled to recover in spite
of his own negligence it must be because the order of its occurrence
with respect to that of the defendant made the latter the proximate
cause of the injury. This indeed is his contention, and to support it
reliance is placed upon the following text, which was quoted with
approval in Railway Co. _v._ Arnold, 67 Kan. 260, 72 Pac. 857, and the
substance of which is to be found also in volume xx of the American
and English Encyclopædia of Law, at page 137:—

“And upon the principle that one will be charged with notice of that
which by ordinary care he might have known, it is held that if either
party to an action involving the questions of negligence and
contributory negligence should, by the exercise of ordinary care, have
discovered the negligence of the other, after its occurrence, in time
to foresee and avoid its consequences, then such party is held to have
notice; and his negligence in not discovering the negligence of the
other, under such circumstances, is held the sole proximate cause of a
following injury.” (7 A. & E. Encycl. of L. 387.)

This may be accepted as a correct statement of a principle of
universal application, according with both reason and authority,
provided the words “after its occurrence” be interpreted to mean after
the person concerned had ceased to be negligent. The rule that under
the circumstances stated the neglect of one party to discover the
omission of the other is to be held to be the sole proximate cause of
a resulting injury is not an arbitrary but a reasonable one. The test
is, What wrongful conduct occasioning an injury was in operation at
the very moment it occurred or became inevitable? If just before that
climax only one party had the power to prevent the catastrophe, and he
neglected to use it, the legal responsibility is his alone. If,
however, each had such power, and each neglected to use it, then their
negligence was concurrent and neither can recover against the other.
As is said in the paragraph from which the foregoing quotation is
made, “it is only when the negligence of one party is subsequent to
that of the other that the rule can be invoked.” In a note printed in
volume ii of the supplement to the American and English Encyclopædia
of Law, at page 64, many recent cases are cited bearing on the
subject, and it is said:—

“This so-called exception to the rule of contributory negligence (_i.
e._, the doctrine of ‘the last clear chance’) will not be extended to
cases where the plaintiff’s own negligence extended up to and actually
contributed to the injury. To warrant its application there must have
been some new breach of duty on the part of the defendant subsequent
to the plaintiff’s negligence.”

In the present case it may be granted that the negligence of the
plaintiff began when he walked between the track and the ice-box on
the way to get the bucket, and that the employees in charge of the
engine were themselves negligent in not discovering this negligence on
his part and the peril to which it exposed him, and taking steps to
protect him. But his negligence as well as theirs continued up to the
moment of the accident, or until it could not possibly be averted. His
opportunity to discover and avoid the danger was at least as good as
theirs. His want of care existing as late as theirs was a concurring
cause of his injury, and bars his recovery. This determination is
entirely consistent with what Mr. Thompson in his work above cited has
styled the “last clear chance” doctrine, as is obvious from a
consideration of the terms in which it is stated. As originally
announced it was thus phrased:—

“The party who has the last opportunity of avoiding accident is not
excused by the negligence of any one else. His negligence, and not
that of the one first in fault, is the sole proximate cause of the
injury.” (1 Shear. & Red. Law of Neg., 5th ed., § 99.)

Mr. Thompson rewords it as follows:—

“Where both parties are negligent, the one that had the last clear
opportunity to avoid the accident, notwithstanding the negligence of
the other, is solely responsible for it—his negligence being deemed
the direct and proximate cause of it.” (1 Thomp. Com. Law Neg. § 240.)

Expressions are to be found in the reports seemingly at variance with
the conclusion here reached, but for the most part the decisions
holding a defendant liable for failure to discover and act upon the
plaintiff’s negligence were made in cases which were in fact like
Railway Co. _v._ Arnold, 67 Kan. 260, 72 Pac. 857, or were decided
upon the theory that they fell within the same rule. There the
plaintiff’s decedent while riding a bicycle was through his own fault
run into by a street car; he clung to the fender, was carried some
seventy-five feet, then fell under the wheels, and was killed. A
judgment against the street-car company was upheld only upon the
theory that after he had reached a position of danger from which he
could not extricate himself—that is, after his negligence had
ceased—the defendant’s employees were negligent in failing to discover
his peril and stop the car.

In Robinson _v._ Cone, 22 Vt. 213, 54 Am. Dec. 67, the writer of the
opinion said:—

“I should hesitate to say that if it appeared that the want of
ordinary care on the part of the plaintiff, _at the very time of the
injury_, contributed either to produce or to enhance the injury, he
could recover; because it seems to me that is equivalent to saying
that the plaintiff, by the exercise of ordinary care at the time,
could have escaped the injury.” (Page 223.)

The principle thus intimated was embodied in a decision in French _v._
The Grand Trunk Railway Co., 76 Vt. 441, 58 Atl. 722, where it was
said:—

“It is true that when a traveller has reached a point where he cannot
help himself, cannot extricate himself, and vigilance on his part will
not avert the injury, his negligence in reaching that position becomes
the condition and not the proximate cause of the injury, and will not
preclude a recovery; but it is equally true that if a traveller, when
he reaches the point of collision, is in a situation to help himself,
and by a vigilant use of his eyes, ears, and physical strength to
extricate himself and avoid injury, his negligence at that point will
prevent a recovery, notwithstanding the fact that the trainmen could
have stopped the train in season to have avoided injuring him. In such
a case the negligence of the plaintiff is concurrent with the
negligence of the defendant, and the negligence of each is operative
at the time of the accident. When negligence is concurrent and
operative at the time of the collision, and contributes to it, there
can be no recovery.” (Page 447.)

To the same effect are these extracts:—

* * * * *

[As to the rule holding the defendant liable notwithstanding the
contributory negligence of the plaintiff.]

Of the same rule it was said in O’Brien _v._ McGlinchy, 68 Me. 552:

“This rule applies usually in cases where the plaintiff or his
property is in some position of danger from a threatened contact with
some agency under the control of the defendant when the plaintiff
cannot and the defendant can prevent an injury.... But this principle
would not govern where both parties are contemporaneously and actively
in fault, and by their mutual carelessness an injury ensues to one or
both of them.” (Pages 557, 558.)

In Smith _v._ Railroad, 114 N. C. 728, 19 S. E. 863, 25 L. R. A. 287,
the general rule was thus concretely stated:—

“Applying the rule which we have stated to accidents upon railroad
tracks, it may be illustrated as follows: First, there must be a duty
imposed upon the engineer, as otherwise there can be no negligence to
which the negligence of the injured party is to contribute. The duty
under consideration is to keep a vigilant lookout ... in order to
discover and avoid injury to persons who may be on the track and who
are apparently in unconscious or helpless peril. When such a person is
on the track and the engineer fails to discover him in time to avoid a
collision, when he could have done so by the exercise of ordinary
care, the engineer is guilty of negligence. The decisive negligence of
the engineer is when he has reached that point when no effort on his
part can avert the collision. Hence, if A, being on the track and
after this decisive negligence, fails to look and listen and is in
consequence run over and injured, his negligence is not concurrent
merely but really subsequent to that of the engineer, and he cannot
recover, as he and not the engineer has ‘the last clear opportunity of
avoiding the accident.’ If, however, A is on the track ... and while
there, and before the decisive negligence of the engineer, he by his
own negligence becomes so entangled in the rails that he cannot
extricate himself in time to avoid the collision, and his helpless
condition could have been discovered had the engineer exercised
ordinary care, then the negligence of A would be previous to that of
the engineer, and the engineer’s negligence would be the proximate
cause, he, and not A, having the last clear opportunity of avoiding
the injury. The same result would follow in the case of a wagon
negligently stalled, when no effort of the owner could remove it, and
there are other cases to which the principle is applicable.” (Pages
755, 756.)

The principle running through these cases is reasonable and is
consistent with the general rules that have met with practically
universal acceptance. Applied to the facts of this case it requires an
affirmance of the judgment.

All the Justices concurring.

BAKER, J., IN CLEVELAND R. CO. _v._ KLEE
(1900) _154 Indiana, 430, 434, 435._

BAKER, J. It is alleged in the fifth paragraph: “That on or about the
22d day of June, 1894, this plaintiff, a child nine years of age, was
on the said crossing of Georgia and Helen streets and upon said track
of said defendant in said Georgia Street; and while in said position
and place, the defendant through and by its said employees and
servants, ran said locomotive against this plaintiff and negligently
dragged this plaintiff without fault or negligence on his part, a long
distance, to wit, two hundred feet; that the defendant knew that it
had run its locomotive against this plaintiff at said crossing; and
knew that it had knocked this plaintiff down in front of its said
locomotive upon its said track; and knew that this plaintiff was
dragging in front of said locomotive on said track; but that this
defendant negligently failed to stop said locomotive before this
plaintiff was injured, although by the exercise of due care and
caution it could have stopped said locomotive before this plaintiff
was injured; but negligently dragged this plaintiff as aforesaid,
without fault or negligence on the part of this plaintiff, and
negligently injured this plaintiff in his body, back, and limbs.” The
injury for which compensation is sought in this paragraph was not
sustained in the collision at the crossing, but was wholly inflicted
after appellant knew that appellee was being dragged along the track
in front of the engine. By the exercise of due care appellant could
have stopped the engine before appellee was injured, but failed to do
so. Appellee, after being struck and while being dragged along the
track, was free from fault contributing to his injury. These
allegations constitute a cause of action. Though the paragraph
confesses, by not denying, that appellee was guilty of negligence in
being upon the track, that negligence was only the remote condition,
not the proximate cause, of the injury complained of; for the injury
resulted, after the collision, entirely from occurrences in which it
is alleged that appellant was negligent and appellee was not.

HOLMES _v._ MISSOURI PACIFIC RAILWAY COMPANY
SUPREME COURT, MISSOURI, NOVEMBER 27, 1907.
_Reported in 207 Missouri Reports, 149._

Action by C. W. Holmes and wife to recover for the death of their
child, F. G. Holmes. The child, eight years old, was struck and killed
by a locomotive engine at the crossing of an avenue. Two points in
conflict were, whether defendant was negligent, and whether the child
was contributorily negligent.

The following instruction was given at plaintiff’s request: “(4) If
the jury believe from the evidence that Freeborn G. Holmes was a boy
of immature age, and had not the capacity of an adult, and that he
exercised such care as ought reasonably to have been expected for one
of his age and capacity, then he was not guilty of contributory
negligence.”

To this instruction defendant excepted.

An instruction given at the request of defendant was, that, if the
child failed to exercise such care and caution as an ordinarily
prudent boy of his age and capacity should have exercised under the
circumstances, and by reason thereof contributed to his own death,
then your verdict must be for the defendant, regardless of all other
facts in the case.

Verdict for plaintiff. Judgment for plaintiff in Circuit Court.
Defendant appealed.[216]

VALLIANT, J.... In the brief for defendant, pages 61 and 139, the idea
is advanced that the only theory on which the plaintiffs’ judgment
could be sustained would be that the defendant is liable for the
consequences of the reckless conduct of the deceased child. That is a
misconception of the theory on which the defendant’s liability rests.
The defendant is liable only for its own negligence, and if its plea
of contributory negligence is not sustained, still, it is not charged
with the consequence of the child’s negligence; but it is only not
excused thereby for the result of its own negligence. It is not always
essential to a plaintiff’s recovery, in an action for tort, that the
evidence should show that the accident was the result of the
defendant’s negligence alone. A defendant may be liable if his
negligence contributes with that of a third person to produce the
injury complained of; in such case he is not held liable for the
negligence of the third person, but only for his own negligence,
without the contributing force of which the negligence of the third
person would not have caused the injury. But the policy of the law is
such that ordinarily a defendant guilty of negligence is relieved from
the liability for his own conduct if the person injured was himself
guilty of negligence that contributed to the result. On that theory
the defendant’s act is none the less negligent, and he is none the
less culpable, but the law will not allow a plaintiff to recover when
he himself, or the person for whose injury he sues, was also guilty of
negligence contributing with that of defendant to the result. There is
reason and justice in that policy of the law; it is an admonition to
every one to exercise due care for his own safety, and it authorizes
another to presume that he will do so, and, so presuming, adjust his
own conduct. But common experience tells us that a child may be too
young and immature to observe the care necessary to his own
preservation and therefore when a person comes in contact with such a
child, if its youth and immaturity are obvious, he is chargeable with
knowledge of that fact and he cannot indulge the presumption that the
child will do what is necessary to avoid an impending danger.
Therefore one seeing such a child in such a position is guilty of
negligence if he does not take into account the fact that it is a
child and regulate his own conduct accordingly.[217] An act in
relation to a person of mature years might be free from the imputation
of negligence while an act of like character in view of a child would
be blameworthy. Therefore when the law says to the defendant although
the act of the deceased child contributed with your act to produce the
result, yet, because of his youth and immaturity, he is not adjudged
guilty of negligence, it does not charge the defendant with the
consequence of the child’s conduct, but it only does not, for that
reason, excuse him for its [his] own negligence.

If the defendant in such case had been guilty of no negligence there
would have been no accident.

_Judgment affirmed._

GANTT, C. J., and BURGESS, LAMM, and WOODSON, JJ., concur. FOX and
GRAVES, JJ., dissent.

CULBERTSON _v._ CRESCENT CITY RAILROAD CO.
SUPREME COURT, LOUISIANA, APRIL 6, 1896.
_Reported in 48 Louisiana Annual Reports_, Part 2, 1376.

Plaintiff sued for the killing of his son, 6 years and 11 months old,
who was hit by a car at a street crossing.

In the District Court, there was a verdict for plaintiff, and judgment
thereon. Defendant appealed.[218]

BREAUX, J. [After stating the claims of both parties, and reciting the
testimony of plaintiff’s witnesses and of part of defendant’s
witnesses.]

The motorman and the conductor substantially testify that everything
was done to prevent the accident; that the boy darted in front of the
car and, that the motorman quickly stopped the car.

After as careful and close an analysis of the evidence as it was
possible for us to make, we think that the weight of the testimony is
with the defendant.

Plaintiff’s theory that the little boy was standing on the track,
between the rails, and that the motorman ought to have seen him, is
not sustained by the evidence of his own witnesses; they do not
testify, with any degree of certainty, where he was just preceding the
accident. The witnesses for the defendant agree in stating that he was
not on the track, and that the accident was occasioned by the sudden
act of the child.

Granted as contended by the plaintiff that the motorman did not see
the child before he was knocked down by the fender: if the child had
escaped his attention, because of his sudden and unanticipated act
itself, it becomes evident that the defendant is not liable. Whether
he was seen or was not seen by the motorman would not render the
defendant responsible, if owing to thoughtless impulse of the child he
brought about the accident by a sudden act which could not be foreseen
or guarded against by the motorman or any one else in charge of the
car.

This brings us to the question of contributory negligence. Courts are
averse to finding children guilty of contributory negligence, and are
readily and properly inclined to disregard the thoughtlessness natural
to boyhood, but accidents may happen for which the unconscious agent
may not be responsible.

The fact that a child may not be capable of contributory negligence
does not always render a defendant liable upon the mere proof of the
injury. The test is negligence _vel non_. If the defendant or the
defendant’s agent or employee was not negligent, it is not liable.

The only alternative, after the conclusion reached, is to set aside
the verdict.

The verdict and judgment are reversed, annulled and avoided.

The demand of plaintiff is rejected and his action dismissed at his
cost in both courts.[219]

HUTCHINSON _v._ ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY
ST. LOUIS COURT OF APPEALS, MISSOURI, APRIL 9, 1901.
_Reported in 88 Missouri Appeal Reports, 376._

Appeal from St. Louis City Circuit Court.

Plaintiff (respondent) was injured while driving on the track of the
street railroad at the crossing of two streets. The car collided with
the rear of his wagon. Plaintiff testified that he had been driving for
some three hundred yards with the left wheels of his wagon inside the
north rail. Defendant’s (appellant’s) testimony tended to prove that
plaintiff did not drive on the track until he had either reached or was
near the crossing, and that he then turned and drove onto the track,
when the motor car coming up from behind collided with the rear of his
wagon.

What is undisputed is, that he did not look back to see if a car was
coming before attempting to cross, nor, according to his own testimony,
after he drove onto the track three hundred yards or more to the east.
He drove very slowly. There was testimony tending to show the motorneer
in charge of the car was watching a train on the railroad just south of
Manchester avenue, which inattention prevented him from observing
plaintiff’s perilous position until the car was within twenty or thirty
feet of the wagon. He was required by a city ordinance, to be watching
the track.

The evidence as to the warning of the car’s approach was conflicting.

The plaintiff was entitled to the use of the entire street, and,
therefore, was not a trespasser, while the defendant was entitled to the
right of way.

Failure to signal the car’s approach was omitted from the instructions.
The only ground of recovery submitted to the jury was alleged negligence
of the defendant’s motorneer in not using ordinary care to avoid
injuring plaintiff after he knew, or by the proper care might have
known, the latter was in a dangerous position. One instruction was given
that plaintiff was guilty of contributory negligence if he failed to
look back at reasonable intervals to see if a car was coming and to get
off the track if he saw one. This was practically telling them he was
actually negligent, for he admitted he did not look back.

GOODE, J. The general principle on which the case was referred to the
jury, commonly styled the humane doctrine, is well supported by
authorities. It is accepted in some form in most of the state and
federal jurisdictions. So far as this court is concerned, the rule is no
longer debatable. All uncertainty about it being a substantive part of
the law of torts has been set at rest by recent deliberate
pronouncements of the Supreme Court. The authority of the rule is not
impugned by the learned counsel for the appellant, who only insist that
it is inapplicable to the cause in hand on account of the plaintiff’s
clear contributory negligence which continued to the moment of the
collision. This contention requires a brief examination of some cases in
which the doctrine has been applied. They divide into two classes and
the disputation which has raged over it has been on the border line
between the two. As enforced in one class, the rule has always seemed to
the writer to be a phase of the doctrine of proximate cause, consistent
with the theory of the entire law of negligence and without which the
system would be incomplete. These instances are where the plaintiff’s
negligent act was detached from the injury so that the defendant’s want
of care was the sole active agency in inflicting it. When an accident
happens under such circumstances, the plaintiff ought not to be refused
a recovery because, though remiss, his fault does not contribute to the
injury. Illustrations of this class of cases are numerous in the books,
beginning with the one from which all the others proceeded. Davies _v._
Mann, 10 Mees. & W. 546, where the plaintiff had carelessly fettered his
beast in the highway and the defendant’s servant drove over him. It is
manifest that the original negligence of the owner was separated from
the injury, which was proximately caused solely by the defendant’s tort.
Another apt illustration is found in the Reardon case (114 Mo. 384),
where the plaintiff carelessly went on the railway track and fell in
endeavoring to get off when he saw a train coming. It was held that if
the engineer failed to employ ordinary care to stop the train when he
saw him prostrate, the company was liable. The same ruling has been made
in actions where plaintiffs had fallen asleep on tracks or become
fastened in cattle guards or switches or where the person hurt was a
child or otherwise not of full legal capacity (Gabel _v._ Railway Co.,
60 Mo. 475). The doctrine is exclusively met with, so far as our reading
has shown, in controversies arising from injuries due to violent impacts
and collisions. The above instances exemplify its use in such cases
where properly expounded, it does not clash with the doctrine of
contributory negligence, though some of the applications made have laid
it open to that charge. The reconciliation and harmonious working of the
two rules may be achieved by considering closely whether the defendant’s
carelessness was alone the proximate cause of the injury. If only the
defendant’s was the proximate cause, the plaintiff, while guilty of
negligence, was not guilty of contributory negligence; his failure to
use care did not proximately contribute to the mischief. Time elapsed
between his wrongful act and the injury, during which the wrongful act
of the defendant supervened or entered, as a separate agency, which, by
its own independent action, wrought the unfortunate result. If, however,
the plaintiff’s want of care continues to the instant of the accident,
or so near the instant as to be immediately influential in producing it,
he is as much to blame as the defendant, and if the latter is compelled
to compensate him, the theory of the law of negligence is thus far
abandoned. When it is deemed expedient to allow a recovery under such
circumstances, it must be done as a measure of public policy. The rule
then becomes, in fact, an exception to the law of contributory
negligence, as was said in Kelly _v._ Railway Co., 101 Mo. 67. The real
basis of it, as it obtains in many jurisdictions in respect to injuries
by cars and locomotives when the injured individual was negligent to the
very instant of the collision, is to be sought, on an ultimate analysis,
in its supposed necessity for the public security. The guilt of the
plaintiff is excused, while that of the defendant is punished. In such
instances, its administration in cases of injuries by cars and engines
is attended with serious difficulty, viz.: determining when the
employees of the railway company may be justly said to have had notice
that the injured party was in a position of danger. Persons frequently
remain on railway tracks when a car or train is approaching, until it
would be impossible to stop it in time to avoid striking them, but
easily get off themselves in time. Accustomed to take care of their
safety where cars are constantly moving, they grow dexterous in avoiding
them and run risks. Engineers and motormen have a right to presume an
individual travelling on the track will leave it, and to act on that
presumption until his situation becomes alarming. Riley _v._ Railway
Company, 68 Mo. App. 661. Just when this happens must often be largely
conjectural, which circumstance weighs heavily with many against the
rule in question.

The doctrine in its wider scope prevails in this State. The plaintiff
may recover, notwithstanding his negligence directly contributed to his
hurt, if the defendant by ordinary care could have prevented the
accident. In the Morgan case (60 S. W. Rep. 195), where a recovery was
sustained, this language is spoken: “There can be no doubt, under the
evidence, that the death of the plaintiff’s husband resulted from the
negligence of the defendant’s servants in charge of the train, _and the
negligence of the deceased himself contributing thereto_.” Similar
expositions have been made in many other cases. Schmidt _v._ R’y Co., 50
S. W. 921; Klockenbrink _v._ Railway Co., 81 Mo. App. 351; Cooney _v._
Railway Co., 80 Mo. App. 226. They seem in conflict with the opinion in
Hogan _v._ R’y Co., 150 Mo. 36. We must follow the latest controlling
decision. The Morgan case was decided in banc.

In view of the strong utterances to be found in the foregoing
authorities, it is useless to descant on the wisdom or fallacy of the
rule, to explore its foundation, extol its justice, or regret its
hardship. Our unmistakable duty is to enforce it as we would any other
part of the law. The present case differs in no material respect,
calling for its application, from the Morgan or Cooney cases, _supra_,
which become therefore controlling precedents. The Morgan case is
stronger because there the engineer did not see the deceased, who was
flagrantly careless, to the time the engine struck him; here the
motorman did not see the plaintiff. The court below did not err in
refusing an instruction to find the issue for the defendant, but rightly
submitted them. This practically disposes of the case.

* * * * *

_Judgment affirmed._[220]

STEINMETZ _v._ KELLY
SUPREME COURT, INDIANA, NOVEMBER TERM, 1880.
_Reported in 72 Indiana Reports, 442._

WORDEN, J. Action by the appellee against the appellant for assault and
battery. The complaint consisted of three paragraphs, a demurrer to each
of which, for want of sufficient facts, was overruled. The first, the
only one to which any specific objection is made in this Court, alleged
that the defendant, on, &c., “violently and unlawfully assaulted the
plaintiff, and struck him, and also threw him, the plaintiff, from the
house of the defendant on to the street pavement, in front of the
defendant’s house, with great violence, fracturing,” &c.

The defendant answered:—

_First._ [That there was a justifiable occasion for his use of force,
and that he used no more force than was necessary.]

_Second._ General denial.

The plaintiff replied by general denial to the first paragraph of the
answer. Trial by jury, verdict and judgment for the plaintiff for $500.

The counsel for the appellant in their brief say: “We shall not stop now
to discuss the merits of the complaint further than to say that the
first paragraph of the complaint shows an eviction from the defendant’s
premises, and we have thought that the paragraph should aver that the
injury occurred without the fault of the plaintiff.” The paragraph does
not charge an injury to the plaintiff arising out of the negligence of
the defendant, but an unlawful assault upon, and battery of, the
plaintiff’s person. In such cases it is not necessary to allege that the
plaintiff was without fault, or, in other words, was not guilty of
contributory negligence. There remains nothing more to be considered
except such questions as arise on a motion for a new trial.

[Omitting part of opinion.]

The defendant asked that the following interrogatory be answered by the
jury, if they should return a general verdict, viz.: “Did the fault or
negligence of the plaintiff contribute in any way to the injury of the
plaintiff, received on the evening of the 3d of March, 1876?” The Court
declined to direct the jury to answer the interrogatory, and in this we
think no error was committed.

The right of the plaintiff to recover depended not upon any negligence
of the defendant, but upon the assault and battery, which, if
perpetrated at all by the defendant, was intentional and purposed. It
may be that the defendant did not intend to inflict so severe an injury
upon the plaintiff as seemed to result from the excess of force applied
by him; but it does not therefore follow that he did not intend to apply
that force.

The doctrine that contributory negligence on the part of the plaintiff
will defeat his action has been generally applied in actions based on
the negligence of the defendant, in short, in cases involving mutual
negligence. But it has also been applied in some cases where the matter
complained of was not negligence merely, but the commission of some act
in itself unlawful, without reference to the manner of committing it, as
the wilful and unauthorized obstruction of a highway, whereby a person
is injured. Butterfield _v._ Forrester, 11 East, 60; Dygert _v._
Schenck, 23 Wend. 446.

The doctrine, however, can have no application to the case of an
intentional and unlawful assault and battery, for the reason that the
person thus assaulted is under no obligation to exercise any care to
avoid the same by retreating or otherwise, and for the further reason
that his want of care can in no just sense be said to contribute to the
injury inflicted upon him by such assault and battery.

An intentional and unlawful assault and battery inflicted upon a person
is an invasion of his right of personal security, for which the law
gives him redress, and of this redress he cannot be deprived on the
ground that he was negligent and took no care to avoid such invasion of
his right.

The trespass was purposely committed by the defendant. If he could
excuse it on the ground of the alleged misconduct of the plaintiff, and
if he employed no more force than was necessary and reasonable, that was
a complete defence. Otherwise the plaintiff, if he made out the
trespass, was entitled to recover, and no negligence on his part, as
before observed, could defeat his action. The case of Ruter _v._ Foy, 46
Iowa, 132, is in point. There the plaintiff alleged that the defendant
had assaulted and beat her with a pitchfork. On the trial the defendant
asked, but the Court refused, the following instruction: “If you find
from the evidence that the plaintiff was injured, or contributed to her
injury, by her own act or negligence, defendant would not be liable for
assault and battery upon her, and plaintiff cannot recover.” On appeal
the Court said upon this point: “The doctrine of contributory negligence
has no application in an action for assault and battery.”

The case here is entirely unlike that of Brown _v._ Kendall, 6 Cush.
292. There the defendant’s dog and another were fighting. The defendant
was beating the dogs with a stick in order to separate them, in doing
which he accidentally hit the plaintiff in the eye with the stick. It
was held that trespass _vi et armis_ was the proper form of action,
because the injury to the plaintiff was immediate; but that as the
parting of the dogs was a proper and lawful act, and as the hitting of
the plaintiff was not intentional, but a mere accident or casualty, the
plaintiff could not recover at all without showing a want of ordinary
care on the part of the defendant; and then that contributory negligence
on the part of the plaintiff would defeat the action.

Although, according to the common-law system of pleading, trespass _vi
et armis_ was the proper form of action in such case, the essential and
only ground on which the action could rest was the negligence of the
defendant in doing an act lawful in itself whereby the plaintiff was
injured, and this is so as fully as if the plaintiff had framed his
declaration in case for the negligence.

The difference between that case and the present is substantial and
vital. In that case the battery was unintentional, and the defendant
therein was guilty of no wrong save his negligence. Here the defendant
intentionally perpetrated the battery, and the plaintiff’s right to
recover was not based upon the negligence of the defendant at all.

[Omitting part of opinion.]

We find no error in the record.

The judgment below is affirmed with costs.

Petition for a rehearing overruled.

_Judgement affirmed._[221]

AIKEN _v._ HOLYOKE STREET RAILWAY CO.
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 21, 1903.
_Reported in 184 Massachusetts Reports, 269._

Tort by an infant against a street railway company for personal
injuries. Writ dated July 6, 1898.

At a previous stage of this case, reported in 180 Mass. 8, the
plaintiff’s exceptions were sustained by this court after a verdict had
been ordered in the Superior Court for the defendant. At the new trial
in the Superior Court before Lawton, J., the jury returned a verdict for
the plaintiff in the sum of $5000. The defendant alleged exceptions,
raising the questions stated by the court.

KNOWLTON, C. J. The most important question in this case grows out of
the instructions to the jury upon the third count. This count charges
the defendant, by its servants, with having started up the car
recklessly, wantonly and with gross disregard of the plaintiff’s safety,
while he was in a place of great peril upon the step of the car, and
with having thrown him upon the ground and under the wheels of the car.
There was evidence tending to show that the plaintiff, a boy six and one
half years of age, ran near or against the car, and was upon the lower
step at the forward end as the car was going around a curve from one
street into another, and was clinging to the step trying to get into a
stable position, and that he there cried out to the motorman, “Let me
off”; that the motorman saw and heard him and knew that he was in a
place of danger, and that he then turned on the power in a wanton and
reckless way, with a view to start the car quickly, and that the
plaintiff was thus thrown off and injured. This testimony was
contradicted, but it was proper for the consideration of the jury. The
judge instructed the jury that if they found the facts to be in
accordance with this contention of the plaintiff, they would be
warranted in finding that the conduct of the motorman was wanton and
reckless, and in returning a verdict for the plaintiff. He also
instructed them that to maintain the action on this ground, it must be
proved that the motorman wilfully and intentionally turned on the power,
with a view to making the car start forward rapidly and go at full speed
quickly, but that it was not necessary to prove that he did this with
the intention of throwing the boy off and injuring him. He also told
them that to warrant a recovery upon this state of facts, the plaintiff
need not show that he was in the exercise of due care. The defendant
excepted to that part of the instruction which relates to due care on
the part of the plaintiff.

The defendant contends that while it was not necessary for the plaintiff
to show due care anterior to the act of the motorman, he was bound to
show due care which was concurrent with this act and immediately
subsequent to it. This brings us to a consideration of the rules and
principles applicable to this kind of liability. It is familiar law that
in the absence of a statutory provision, mere negligence, whatever its
degree, if it does not include culpability different in kind from that
of ordinary negligence, does not create a liability in favor of one
injured by it, if his own negligence contributes to his injury. It is
equally true that one who wilfully and wantonly, in reckless disregard
of the rights of others, by a positive act or careless omission exposes
another to death or grave bodily injury, is liable for the consequences,
even if the other was guilty of negligence or other fault in connection
with the causes which led to the injury. The difference in rules
applicable to the two classes of cases results from the difference in
the nature of the conduct of the wrong-doers in the two kinds of cases.
In the first case the wrong-doer is guilty of nothing worse than
carelessness. In the last he is guilty of a wilful, intentional wrong.
His conduct is criminal or _quasi_ criminal. If it results in the death
of the injured person, he is guilty of manslaughter. Commonwealth _v._
Pierce, 138 Mass. 165; Commonwealth _v._ Hartwell, 128 Mass. 415. The
law is regardful of human life and personal safety, and if one is
grossly and wantonly reckless in exposing others to danger, it holds him
to have intended the natural consequences of his act, and treats him as
guilty of a wilful and intentional wrong. It is no defence to a charge
of manslaughter for the defendant to show that, while grossly reckless,
he did not actually intend to cause the death of his victim. In these
cases of personal injury there is a constructive intention as to the
consequences, which, entering into the wilful, intentional act, the law
imputes to the offender, and in this way a charge which otherwise would
be mere negligence, becomes, by reason of a reckless disregard of
probable consequences, a wilful wrong. That this constructive intention
to do an injury in such cases will be imputed in the absence of an
actual intent to harm a particular person, is recognized as an
elementary principle in criminal law. It is also recognized in civil
actions for recklessly and wantonly injuring others by carelessness.
Palmer _v._ Chicago, St. Louis & Pittsburgh Railroad, 112 Ind. 250;
Shumacher _v._ St. Louis & San Francisco Railroad, 39 Fed. Rep. 174;
Brannen _v._ Kokomo, Greentown & Jerome Gravel Road Co., 115 Ind. 115.
In an action to recover damages for an assault and battery, it would be
illogical and absurd to allow as a defence, proof that the plaintiff did
not use proper care to avert the blow. See Sanford _v._ Eighth Avenue
Railroad, 23 N. Y. 343, 346. It would be hardly less so to allow a
similar defence where a different kind of injury was wantonly and
recklessly inflicted. A reason for the rule is the fact that if a
wilful, intentional wrong is shown to be the direct and proximate cause
of an injury, it is hardly conceivable that any lack of care on the part
of the injured person could so concur with the wrong as also to be a
direct and proximate contributing cause to the injury. It might be a
condition without which the injury could not be inflicted. See Newcomb
_v._ Boston Protective Department, 146 Mass. 596. It might be a remote
cause, but it hardly could be a cause acting directly and proximately
with the intentional wrongful act of the offender. Judson _v._ Great
Northern Railway, 63 Minn. 248, 255. The offence supposed is different
in kind from the plaintiff’s lack of ordinary care. It is criminal or
_quasi_ criminal. Not only is it difficult to conceive of a plaintiff’s
negligence as being another direct and proximate cause foreign to the
first, yet acting directly with it, but it would be unjust to allow one
to relieve himself from the direct consequences of a wilful wrong by
showing that a mere lack of due care in another contributed to the
result. The reasons for the rule as to the plaintiff’s care in actions
for ordinary negligence are wanting, and at the same time the facts make
the rule impossible of application. The general rule that the
plaintiff’s failure to exercise ordinary care for his safety, is not a
good defence to an action for wanton and wilful injury caused by a
reckless omission of duty, has been recognized in many decisions, as
well as by writers of text-books. Aiken _v._ Holyoke Street Railway, 180
Mass. 8, 14, 15; Wallace _v._ Merrimack River Navigation & Express Co.,
134 Mass. 95; Banks _v._ Highland Street Railway, 136 Mass. 485, 486;
Palmer _v._ Chicago, St. Louis & Pittsburgh Railroad, 112 Ind. 250;
Brannen _v._ Kokomo, Greentown & Jerome Gravel Road Co., 115 Ind. 115;
Florida Southern Railway _v._ Hirst, 30 Fla. 1; Shumacher _v._ St. Louis
& San Francisco Railroad, 39 Fed. Rep. 174; 7 Am. & Eng. Encyc. of Law
(2d ed.) 443 and note; Beach, Contr. Neg. (3d ed.) §§ 46, 50, 64, 65;
Wood, Railroads (2d ed.), 1452; Elliott, Railroads, § 1175; Thompson,
Neg. § 206; Cooley, Torts (2d ed.), 810. We have been referred to no
case in which it is held that it makes any difference whether the
plaintiff’s lack of ordinary care is only previous to the defendant’s
wrong and continuing to the time of it, or whether there is such a lack
after the wrong begins to take effect. It is difficult to see how there
can be any difference in principle between the two cases. In this
Commonwealth, as in most other jurisdictions, liability does not depend
upon which of different causes contributing to an injury is latest in
the time of its origin, but upon which is the direct, active, efficient
cause, as distinguished from a remote cause, in producing the result.

There are expressions in some of the cases which imply the possibility
of contributory negligence on the part of the plaintiff in a case of
wanton and reckless injury by a defendant. If there is a conceivable
case in which a plaintiff’s want of due care may directly and
proximately contribute as a cause of an injury inflicted directly and
proximately by the wilful wrong of another, such a want of care must be
something different from the mere want of ordinary care to avoid an
injury coming in a usual way. There is nothing to indicate the existence
of peculiar conditions of this kind in the present case. Conduct of a
plaintiff which would be negligence precluding recovery if the injury
were caused by ordinary negligence of a defendant, will not commonly
preclude recovery if the injury is inflicted wilfully through wanton
carelessness. This is illustrated by the former decision in this case
and by many others. Aiken _v._ Holyoke Street Railway, 180 Mass. 8;
McKeon _v._ New York, New Haven, & Hartford Railroad, 183 Mass. 271. As
to this kind of liability of the defendant, it was certainly proper to
instruct the jury that, in reference to ordinary kinds of care to avoid
an injury from a car, the plaintiff need not show that he was in the
exercise of due care if a lack of such care would have no tendency to
cause the wilful and wanton injury. The fair interpretation of the
instruction given is, that it referred to ordinary kinds of care to
avoid an injury from an electric car. On this branch of the case there
seems to have been no reason for an instruction in regard to any special
care, and probably neither counsel nor the court had any care in mind
except that, in reference to which, in any view of the law, the
instruction was properly given. We are of opinion that the ruling
excepted to was correct.

[Omitting opinion on other points.]

_Exceptions overruled._[222]

BANKS _v._ BRAMAN
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 20, 1905.
_Reported in 188 Massachusetts Reports, 367._

Tort, for injuries from being struck by an automobile driven by the
defendant on Mount Auburn Street in Cambridge near its intersection with
Belmont Street shortly after eight o’clock on the evening of May 17,
1903. Writ dated November 18, 1903.

At the trial in the Superior Court before Aiken, C. J., the jury
returned a verdict for the plaintiff in the sum of $3750; and the
defendant alleged exceptions, raising the questions stated by the court.

KNOWLTON, C. J. This is an action to recover for injuries received from
being struck by an automobile alleged to have been negligently run at an
excessive rate of speed, and negligently managed by the defendant. The
case was submitted to the jury on two alleged grounds of liability: one,
that the defendant, with gross negligence, wantonly and recklessly
injured the plaintiff, and the other that the plaintiff was in the
exercise of due care, and that the injury was due to the defendant’s
negligence. On the first claim the judge instructed the jury as follows:
“Gross negligence is great negligence. To make out the proposition of
gross negligence, you must be satisfied that the way the machine was
operated by Braman was reckless, was careless to the degree of
recklessness; that it was run with a reckless disregard to the rights of
Banks in this street. If that is established, namely, that there was a
reckless disregard of the rights of Banks in the way this machine was
run, then Banks is not required to show that he was himself in the
exercise of due care. If the way—I repeat this for the purpose of
plainness perhaps unnecessarily—if the manner in which the machine—the
automobile, I mean by the machine—was run on the occasion of this
accident was such that it was grossly negligent, that is, careless to
such a degree that you can say it was reckless, using your common sense
and judgment, and applying them to the evidence, then Banks is not
required to show that he was in the exercise of due care; because if the
defendant’s carelessness was gross in the sense that has been defined to
you, there is an obligation to pay damages independent of the matter of
due care.” The defendant excepted to this instruction. The jury were
instructed as to the liability for a failure to exercise ordinary care,
but there was no fuller statement of the law on this branch of the case.

The question is whether the difference between the two kinds of
liability was sufficiently pointed out to give the jury an adequate
understanding of it. The difference in culpability of the defendant,
which distinguishes these different kinds of liability, is something
more than a mere difference in the degree of inadvertence. In one case
there need be nothing more than a lack of ordinary care, which causes an
injury to another. In the other case there is wilful, intentional
conduct whose tendency to injure is known, or ought to be known,
accompanied by a wanton and reckless disregard of the probable harmful
consequences from which others are likely to suffer, so that the whole
conduct together, is of the nature of a wilful, intentional wrong.

[Here the learned judge quoted at length from Aiken _v._ Holyoke Street
Railway, 184 Mass. 269, 271.]

In dealing with the same subject in Bjornquist _v._ Boston & Albany
Railroad, 185 Mass. 130, 134, the court said: “The conduct which creates
a liability to a trespasser in cases of this kind has been referred to
in the books in a variety of ways. Sometimes it has been called gross
negligence and sometimes wilful negligence. Plainly it is something more
than is necessary to constitute the gross negligence referred to in our
statutes and in decisions of this court. The term ‘wilful negligence’ is
not a strictly accurate description of the wrong. But wanton and
reckless negligence in this class of cases includes something more than
ordinary inadvertence. In its essence it is like a wilful, intentional
wrong. It is illustrated by an act which otherwise might be
unobjectionable, but which is liable or likely to do great harm, and
which is done in a wanton and reckless disregard of the probable
injurious consequences.” The ground on which it is held that, when an
act of the defendant shows an injury inflicted in this way, the
plaintiff need introduce no affirmative evidence of due care, is that
such a wrong is a cause so independent of previous conduct of the
plaintiff, which, in a general sense, may fall short of due care, that
this previous conduct cannot be considered a directly contributing cause
of the injury, and, in reference to such an injury, the plaintiff,
without introducing evidence, is assumed to be in a position to claim
his rights and to have compensation. So far as the cause of his injury
is concerned, he is in the position of one who exercises due care. Aiken
_v._ Holyoke Street Railway, _ubi supra_.

It is not easy to explain to a jury the nature of this liability. What
was said by the judge in this case comes very near to a correct
statement of the law. But it lacks something in fulness, and we think
the jury may have understood that negligence somewhat greater in degree
than a mere lack of ordinary care or a simple inadvertence, but not
different from it in kind, would constitute the gross negligence
referred to. We are of opinion that when there is an attempt to
establish this peculiar kind of liability, which exists independently of
a general exercise of due care by the plaintiff, the jury should be
instructed with such fulness as to enable them to know that they are
dealing with a wrong materially different in kind from ordinary
negligence. Because we think the instruction may have left the jury with
a misunderstanding of the law, the exceptions are sustained.

We are of opinion that there was evidence which justified the submission
of the case to the jury on this ground, as well as on the ground that
the plaintiff was in the exercise of due care.

_Exceptions sustained._[223]

GEORGIA PACIFIC RAILWAY CO. _v._ LEE
SUPREME COURT, ALABAMA, NOVEMBER TERM, 1890.
_Reported in 92 Alabama Reports, 262._

MCCLELLAN, J.[224] ... Many of the rulings of the trial court in
defining the gross negligence, recklessness or wantonness on the part
of the defendant, which will authorize recovery, notwithstanding
plaintiff’s contributory negligence, are presented for review. The
fault in the court’s definitions in this regard lies, in our opinion,
in the assumption that recklessness or wantonness implying wilful and
intentional wrong-doing may be predicated of a mere omission of duty,
under circumstances which do not, of themselves, impute to the person
so failing to discharge the duty a sense of the probable consequences
of the omission. The charges given by the court in this connection,
and its rulings on charges requested by the defendant, proceed on the
theory that a mere failure on the part of defendant’s employees to see
plaintiff’s wagon and team as soon as they might have seen them by the
exercise of due care was such recklessness or wantonness as implies a
willingness or a purpose on their part to inflict the injury
complained of. We do not think this proposition can be maintained
either logically or upon the authorities. The failure to keep a
lookout, which it was the duty of defendant’s employees to maintain,
and which would have sooner disclosed the peril of the driver and
plaintiff’s wagon and team—even conceding that such would have been
the case—was, at the most, mere negligence, inattention, inadvertence;
and it cannot be conceived, in the nature of things, how a purpose to
accomplish a given result can be imputed to mental conditions, the
very essence of which is the absence of all thought on the particular
subject. To say that one intends a result which springs solely from
his mind not addressing itself to the factors which conduce to it, to
imply a purpose to do a thing from inadvertence in respect of it, are
contradictions in terms. Wilful and intentional wrong, a willingness
to inflict injury, cannot be imputed to one who is without
consciousness, from whatever cause, that his conduct will inevitably
or probably lead to wrong and injury. In the case at bar, this
consciousness could not exist on the part of defendant’s employees
until they knew plaintiff’s wagon and team were in a position of
danger; and no degree of ignorance on their part of this state of
things, however reprehensible in itself, could supply this element of
conscious wrong, or reckless indifference to consequences, which, from
their point of view, would probably or necessarily ensue.

The true doctrine, and that supported by many decisions of this court,
as well as the great weight of authority in other jurisdictions, is
that notwithstanding plaintiff’s contributory negligence he may yet
recover, if, in a case like this, the defendant’s employees _discover
the perilous situation in time to prevent disaster by the exercise of
due care and diligence, and fail, after the peril of plaintiff’s
property becomes known to them as a fact_—and not merely after they
should have known it—_to resort to all reasonable effort to avoid the
injury_. Such failure, with such knowledge of the situation and the
probable consequences of the omission to act upon the dictates of
prudence and diligence to the end of neutralizing plaintiff’s fault
and averting disaster, notwithstanding his lack of care, is, strictly
speaking, not _negligence_ at all, though the term “gross negligence”
has been so frequently used as defining it that it is perhaps too
late, if otherwise desirable, to eradicate what is said to be an
unscientific definition, if not indeed a misnomer; but it is more than
any degree of negligence, inattention or inadvertence—which can never
mean other than the omission of action without intent, existing or
imputed, to commit wrong—it is that recklessness, or wantonness, or
worse, which implies a willingness to inflict the impending injury, or
a wilfulness in pursuing a course of conduct which will naturally or
probably result in disaster, or an intent to perpetrate wrong. The
theory of contributory negligence, as a defence, is that, conjointly
with _negligence_ on the part of the defendant, it conduces to the
damnifying result, and defeats any action, the _gravamen_ of which is
such negligence. If defendant’s conduct is not merely negligent, but
worse, there is nothing for plaintiff’s want of care to contribute
to—there is no lack of mere prudence and diligence of like kind on the
part of defendant to conjunctively constitute the efficient cause.
Mere negligence on the one hand cannot be said to aid wilfulness on
the other. And hence such negligence of a plaintiff is no defence
against the consequences of the wilfulness of the defendant. But
nothing short of the elements of actual knowledge of the situation on
the part of defendant’s employees, and their omission of preventive
effort after that knowledge is brought home to them, when there is
reasonable prospect that such effort will avail, will suffice to avoid
the defence of contributory negligence on the part of, or imputable
to, the plaintiff.

KELLOGG _v._ CHICAGO AND NORTHWESTERN RAILWAY COMPANY
SUPREME COURT, WISCONSIN, JUNE TERM, 1870.
_Reported in 26 Wisconsin Reports, 223._

Action to recover damages for destruction of hay, sheds, stables, &c.,
by a fire alleged to have originated in the negligence of the railway
company. Fire was communicated by sparks from railroad engine to dry
grass, weeds, &c., which had been allowed to accumulate on defendant’s
land, on both sides of the track; and thence the fire passed upon
plaintiff’s land where dry grass and weeds had also been permitted to
accumulate. A strong wind was blowing from the track toward plaintiff’s
buildings, about one hundred and forty rods distant. The dry and
combustible matter on the railroad land and on plaintiff’s land,
together with the wind, served to carry the fire to plaintiff’s
building, &c., which were destroyed.

Trial; verdict and judgment for plaintiff. Defendant appealed.[225]

DIXON, C. J. All the authorities agree that the presence of dry grass
and other inflammable material upon the way of a railroad, suffered to
remain there by the company without cause, is a fact from which the jury
may find negligence against the company. The cases in Illinois, cited
and relied upon by counsel for the defendant, hold this. They hold that
it is proper evidence for the jury, who may find negligence from it,
although it is not negligence _per se_. Railroad Co. _v._ Shanefelt, 47
Ill. 497; Illinois Central Railroad Co. _v._ Nunn, 51 id. 78; Railroad
Co. _v._ Mills, 42 id. 407; Bass _v._ Railroad Co., 28 id. 9. The Court
below ruled in the same way, and left it for the jury to say whether the
suffering of the combustible material to accumulate upon the right of
way and sides of the track, or the failure to remove the same, if the
jury so found, was or was not, under the circumstances, negligence on
the part of the company. No fault can be found with the instructions in
this respect; and the next question is as to the charge of the Court,
and its refusal to charge, respecting the alleged negligence of the
plaintiff contributing, as it is said, to the loss or damage complained
of. This is the leading and most important question in the case. It is a
question upon which there is some conflict of authority.

The facts were, that the plaintiff had permitted the weeds, grass, and
stubble, to remain upon his own land immediately adjoining the railway
of the defendant. They were dry and combustible, the same as the weeds
and grass upon the right of way, though less in quantity, because within
the right of way no mowing had ever been done, and the growth was more
luxuriant and heavy. The plaintiff had not cut and removed the grass and
weeds from his own land, nor ploughed in or removed the stubble, so as
to prevent the spread of fire in case the same should be communicated to
the dry grass and weeds upon the railroad, from the engines operated by
the defendant. The grass, weeds, and stubble, upon the plaintiff’s land,
together with the wind, which was blowing pretty strongly in that
direction, served to carry the fire to the stacks, buildings, and other
property of the plaintiff, which were destroyed by it, and which were
situated some distance from the railroad. The fire originated within the
line of the railroad, and near the track, upon the land of the
defendant. It was communicated to the dry grass and other combustible
material there, by coals of fire dropped from an engine of the defendant
passing over the road. The evidence tends very clearly to establish
these facts, and under the instructions the jury must have so found. The
plaintiff is a farmer, and, in the particulars here in controversy,
conducted his farming operations the same as other farmers throughout
the country. It is not the custom anywhere for farmers to remove the
grass or weeds from their waste lands, or to plough in or remove their
stubble, in order to prevent the spread of the fire originating from
such causes.

Upon this question, as upon the others, the Court charged the jury that
it was for them to say whether the plaintiff was guilty of negligence,
and, if they found he was, that then he could not recover. On the other
hand, the defendant asked an instruction to the effect that it was
negligence _per se_ for the plaintiff to leave the grass, weeds, and
stubble upon his own land, exposed to the fire which might be
communicated to them from the burning grass and weeds on the defendant’s
right of way, and that for this reason there could be no recovery on the
part of the plaintiff. The Court refused to give the instruction, and, I
think, rightly. The charge upon this point, as well as upon the other,
was quite as favorable to the defendant as the law will permit, and even
more so than some of the authorities will justify. The authorities upon
this point are, as I have said, somewhat in conflict. The two cases
first above cited from Illinois hold that it is negligence on the part
of the adjoining landowner not to remove the dry grass and combustible
material from his own land under such circumstances, and that he cannot
recover damages where the loss is by fire thus communicated. Those
decisions were by a divided Court, by two only of the three judges
composing it. They rest upon no satisfactory grounds, whilst the reasons
found in the opinions of the dissenting judge are very strong to the
contrary. Opposed to these are the unanimous decisions of the courts of
New York, and of the English Court of Exchequer, upon the identical
point. Cook _v._ Champlain Transportation Co., 1 Denio, 91; Vaughan _v._
Taff Vale Railway Co., 3 Hurl. and Nor. 743; Same _v._ Same, 5 id. 679.
These decisions, though made many years before the Illinois cases arose,
are not referred to in them. The last was the same case on appeal in the
Exchequer Chamber, where, although the judgment was reversed, it was
upon another point. This one was not questioned, but was affirmed, as
will be seen from the opinions of the judges, particularly of Cockburn,
C. J., and Willes, J. The reasoning of those cases is, in my judgment,
unanswerable. I do not see that I can add anything to it. They show that
the doctrine of contributory negligence is wholly inapplicable,—that no
man is to be charged with negligence because he uses his own property or
conducts his own affairs as other people do theirs, or because he does
not change or abandon such use, and modify the management of his
affairs, so as to accommodate himself to the negligent habits or gross
misconduct of others, and in order that such others may escape the
consequences of their own wrong, and continue in the practice of such
negligence or misconduct. In other words, they show that no man is to be
deprived of the free, ordinary, and proper use of his own property by
reason of the negligent use which his neighbor may make of his. He is
not his neighbor’s guardian or keeper, and not to answer for his
neglect. The case put by the Court of New York, of the owner of a lot
who builds upon it in close proximity to the shop of a smith, is an apt
illustration. Or let us suppose that A. and B. are proprietors of
adjoining lands. A. has a dwelling-house, barns, and other buildings
upon his, and cultivates some portion of it. B. has a planing mill, or
other similar manufacturing establishment upon his, near the line of A.,
operated by steam. B. is a careless man, habitually so, and suffers
shavings and other inflammable material to accumulate about his mills
and up to the line of A., and so near to the fire in the mill that the
same is liable at any time to be ignited. A. knows this, and
remonstrates with B., but B. persists. Upon A.’s land, immediately
adjoining the premises of B., it is unavoidable, in the ordinary course
of husbandry, or of A.’s use of the land, that there should be at
certain seasons of the year, unless A. removes them, dry grass and
stubble, which, when set fire to, will endanger his dwelling-house and
other property of a combustible nature, especially with the wind blowing
in a particular direction at the time. It may be a very considerable
annual expense and trouble to A. to remove them. It may require
considerable time and labor, a useless expenditure to him, diverting his
attention from other affairs and duties. The constant watching to guard
against the carelessness and negligence of B. is a great tax upon his
time and patience. The question is: Does the law require this of him,
lest, in some unguarded moment, the fire should break out, his property
be destroyed, and he be remediless? If the law does so require, if it
imposes on him the duty of guarding against B.’s negligence, and of
seeing that no injury shall come from it, or, if it does come, that it
shall be his fault and not B.’s, it is important to know upon what
principle it is that the burden is thus shifted from B. to himself. I
know of no such principle, and doubt whether any Court could be found
deliberately to announce or affirm it. And yet such is the result of
holding the doctrine of contributory negligence applicable to such a
case. A. is compelled, all his lifetime, at much expense and trouble, to
watch and guard against the negligence of B., and to prevent any
injuries arising from it, and for what? Simply that B. may continue to
indulge in such negligence at his pleasure. And he does so with
impunity. The law affords no redress against him. If the property is
destroyed, it is because of the combustible material on A.’s land, which
carries the fire, and which is A.’s fault, and A. is the loser. No loss
can ever possibly overtake him. A. is responsible for the negligence,
but not he himself. He kindles the fire, and A. stands guard over it. He
sets the dangerous element in motion, and uses and operates it for his
own benefit and advantage, negligently as he pleases, whilst A., with
sleepless vigilance, sees to it that no damage is done, or if there is,
that he will be the sufferer. This is the _reductio ad absurdum_ of
applying the doctrine of contributory negligence in such a case. And it
is absurd, I care not by what Court or where applied.

Now the case of a railroad company is like the case of an individual.
Both stand on the same footing with respect to their rights and
liabilities. Both are engaged in the pursuit of a lawful business, and
are alike liable for damage or injury caused by their negligence in the
prosecution of it. Fire is an agent of an exceedingly dangerous and
unruly kind, and, though applied to a lawful purpose, the law requires
the utmost care in the use of all reasonable and proper means to prevent
damage to the property of third persons. This obligation of care, the
want of which constitutes negligence according to the circumstances, is
imposed upon the party who uses the fire, and not upon those persons
whose property is exposed to danger by reason of the negligence of such
party. Third persons are merely passive, and have the right to remain
so, using and enjoying their own property as they will, so far as
responsibility for the negligence of the party setting the unruly and
destructive agent in motion is concerned. If he is negligent, and damage
ensues, it is his fault and cannot be theirs, unless they contribute to
it by some unlawful or improper act. But the use of their own property
as best suits their own convenience and purposes, or as other people use
theirs, is not unlawful or improper. It is perfectly lawful and proper,
and no blame can attach to them. He cannot, by his negligence, deprive
them of such use, or say to them, “Do this or that with your property,
or I will destroy it by the negligent and improper use of my fire.” The
fault, therefore, in both a legal and moral point of view, is with him,
and it would be something strange should the law visit all the
consequences of it upon them. The law does not do so, and it is an utter
perversion of the maxim _sic utere tuo, etc._, thus to apply it to the
persons whose property is so destroyed by the negligence of another. It
is changing it from “So use your own as not to injure another’s
property,” to “So use your own that another shall not injure your
property,” by his carelessness and negligence. It would be a very great
burden to lay upon all the farmers and proprietors of lands along our
extensive lines of railway, were it to be held that they are bound to
guard against the negligence of the companies in this way,—that the law
imposes this duty upon them. Always burdensome and difficult, it would,
in numerous instances, be attended with great expense and trouble.
Changes would have to be made in the mode of use and occupation, and
sometimes the use abandoned, or at least all profitable use. Houses and
buildings would have to be removed, and valuable timber cut down and
destroyed. These are, in general, very combustible, especially at
particular seasons of the year. The presence of these along or near the
line of the railroad would be negligence in the farmer or proprietor. In
the event of their destruction by the negligence of the company, he
would be remediless. He must remove them, therefore, for his own safety.
His only security consists in that. He must remove everything
combustible from his own land in order that the company may leave all
things combustible on its land and exposed without fear of loss or
danger to the company to being ignited at any moment by the fires from
its own engines. If this duty is imposed upon the farmers and other
proprietors of adjoining lands, why not require them to go at once to
the railroad and remove the dry grass and other inflammable material
there? There is the origin of the mischief, and there the place to
provide securities against it. It is vastly easier, by a few slight
measures and a little precaution, to prevent the conflagration in the
first place than to stay its ravages when it has once begun,
particularly if the wind be blowing at the time, as it generally is upon
our open prairies. With comparatively little trouble and expense upon
the road itself, a little labor bestowed for that purpose, the mischief
might be remedied. And this is an additional reason why the burden ought
not to be shifted from the company upon the proprietor of the adjoining
land; although, if it were otherwise, it certainly would not change what
ought to be the clear rule of law upon the subject.

And the following cases will be found in strict harmony with those above
cited, and strongly to sustain the principles there laid down, and for
which I contend: Martin _v._ Western Union Railroad Co., 23 Wis. 437;
Piggott _v._ Eastern Counties R. R. Co., 54 E. C. L. 228; Smith _v._
London and Southwestern R. R. Co., Law Reports, 5 C. P. 98; Vaughan _v._
Menlove, 7 C. & P. 525 [32 E. C. L. 613]; Hewey _v._ Nourse, 54 Me. 256;
Turberville _v._ Stampe, 1 Ld. Raym. 264; S. C. 1 Salk. 13; Pantam _v._
Isham, id. 19; Field _v._ N. Y. C. R. R., 32 N. Y. 339; Bachelder _v._
Heagan, 18 Maine, 32; Barnard _v._ Poor, 21 Pick. 378; Fero _v._ Buffalo
and State Line R. R. Co., 22 N. Y. 209; Fremantle _v._ The London and
Northwestern R. R. Co., 100 E. C. L. 88; Hart _v._ Western Railroad Co.,
13 Met. 99; Ingersoll _v._ Stockbridge & Pittsfield R. R. Co., 8 Allen,
438; Perley _v._ Eastern Railroad Co., 98 Mass. 414; Hooksett _v._
Concord Railroad, 38 N. H. 242; McCready _v._ Railroad Co., 2 Strobh.
Law R. 356; Cleveland _v._ Grand Trunk Railway Co., 42 Vt. 449; 1 Bl.
Comm. 131; Com. Dig. Action for Negligence (A. 6).

It is true that some of these cases arose under statutes creating a
liability on the part of railroad companies, but that does not affect
the principle. Negligence in the plaintiff, contributing to the loss, is
a defence to an action under the statutes, the same as to an action at
common law. 8 Allen, 440; 6 id. 87.

COLE, J., concurred.

PAINE, J., delivered a dissenting opinion.

_Judgment affirmed._

Defendants moved for a rehearing.

DIXON, C. J. (Sept. 21, 1871.)...

The learned counsel ... argue that, if logically carried out, the
doctrine would utterly abrogate the rule that a party cannot recover
damages where, by the exercise of ordinary care, he could have avoided
the injury; and so, in the present case, after discovering the fire, the
plaintiff might have leaned on his plough-handles and watched its
progress, without effort to stay it, where such effort would have been
effectual, and yet have been free from culpable negligence. The
distinction is between a known, present, or immediate danger, arising
from the negligence of another,—that which is imminent and certain,
unless the party does or omits to do some act by which it may be
avoided,—and a danger arising in like manner, but which is remote and
possible or probable only, or contingent and uncertain, depending on the
course of future events, such as the future conduct of the negligent
party, and other as yet unknown and fortuitous circumstances. The
difference is that between realization and anticipation. A man in his
senses, in face of what has been aptly termed a “seen danger” (Shearman
and Redfield, § 34, note 1), that is, one which presently threatens and
is known to him, is bound to realize it, and to use all proper care and
make all reasonable efforts to avoid it, and if he does not, it is his
own fault; and he having thus contributed to his own loss or injury, no
damage can be recovered from the other party, however negligent the
latter may have been. But, in case of a danger of the other kind, one
which is not “seen,” but exists in anticipation merely, and where the
injury may or may not accrue, but is probable or possible only from the
continued culpable negligence of another, there the law imposes no such
duty upon the person who is or may be so exposed, and he is not obliged
to change his conduct or the mode of transacting his affairs, which are
otherwise prudent and proper, in order to avoid such anticipated
injuries or prevent the mischiefs which may happen through another’s
default and culpable want of care.

_Rehearing denied._[226]

THE BERNINA
IN THE COURT OF APPEAL, JANUARY 24, 1887.
_Reported in Law Reports, 12 Probate Division, 58._

Appeal from a judgment of Butt, J. (in the Probate, Divorce, and
Admiralty Division, reported in 11 Prob. Div. 31), on a special case
stated for the opinion of the Court, in three actions brought _in
personam_ against the owners of the steamer Bernina.

Butt, J., held, on the authority of Thorogood _v._ Bryan, 8 C. B. 115,
that the plaintiffs were unable to recover against the defendants, and
dismissed the actions.

The plaintiffs appealed.[227]

LINDLEY, L. J. This was a special case. Three actions are brought in the
Admiralty Division of the High Court by the respective legal personal
representatives of three persons on board the Bushire against the owners
of the Bernina. Those persons were killed by a collision between the two
vessels, both of which were negligently navigated. One of the three
persons (Toeg) was a passenger on the Bushire; one (Armstrong) was an
engineer of the ship, though not to blame for the collision. The third
(Owen) was her second officer, and was in charge of her, and was himself
to blame for the collision. The questions for decision are, whether any,
and if any, which of these actions can be maintained? and if any of them
can, then whether the claims recoverable are to be awarded according to
the principles which prevail at common law, or according to those which
are adopted in the Court of Admiralty in cases of collision.

[The learned judge then decides that although actions under Lord
Campbell’s Act for causing death can now be brought in the Admiralty
Division, yet the assessment of damages is to be governed by the rules
prevailing in common-law actions.]

Having cleared the ground thus far, it is necessary to return to the
statute and see under what circumstances an action upon it can be
supported. The first matter to be considered is whether there has been
any such wrongful act, neglect, or default of the defendants as would,
if death had not ensued, have entitled the three deceased persons
respectively to have sued the defendants. Now, as regards one of them,
namely, Owen, the second officer, who was himself to blame for the
collision, it is clear that, if death had not ensued, he could not have
maintained an action against the defendants. There was negligence on his
part contributing to the collision, and no evidence to show that,
notwithstanding his negligence, the defendants could, by taking
reasonable care, have avoided the collision. There was what is called
such contributory negligence on his part as to render an action by him
unsustainable. It follows, therefore, that his representatives can
recover nothing under Lord Campbell’s Act for his widow and children,
and their action cannot be maintained. The other two actions are not so
easily disposed of. They raise two questions: (1) Whether the passenger
Toeg, if alive, could have successfully sued the defendants; and if he
could, then (2) whether there is any difference between the case of the
passenger and that of the engineer Armstrong. The learned judge whose
decision is under review felt himself bound by authority to decide both
actions against the plaintiffs. The authorities which the learned judge
followed are Thorogood _v._ Bryan, 8 C. B. 115, and Armstrong _v._
Lancashire & Yorkshire Ry. Co., Law Rep. 10 Ex. 47; and the real
question to be determined is whether they can be properly overruled or
not. Thorogood _v._ Bryan, _supra_, was decided in 1849, and has been
generally followed at Nisi Prius ever since when cases like it have
arisen. But it is curious to see how reluctant the Courts have been to
affirm its principle after argument, and how they have avoided doing so,
preferring, where possible, to decide cases before them on other
grounds. See, for example, Rigby _v._ Hewitt, 5 Ex. 240; Greenland _v._
Chaplin, 5 Ex. 243; Waite _v._ North Eastern Ry. Co., E. B. & E. 719. I
am not aware that the principle on which Thorogood _v._ Bryan, _supra_,
was decided has ever been approved by any Court which has had to
consider it. On the other hand, that case has been criticised and said
to be contrary to principle by persons of the highest eminence, not only
in this country, but also in Scotland and in America. And while it is
true that Thorogood _v._ Bryan, _supra_, has never been overruled, it is
also true that it has never been affirmed by any Court which could
properly overrule it, and it cannot be yet said to have become
indisputably settled law. I do not think, therefore, that it is too late
for a Court of Appeal to reconsider it, or to overrule it if clearly
contrary to well settled legal principles.

Thorogood _v._ Bryan, _supra_, was an action founded on Lord Campbell’s
Act. The facts were shortly as follows. The deceased was a passenger in
an omnibus, and he had just got off out of it. He was knocked down and
killed by another omnibus belonging to the defendants. There was
negligence on the part of the drivers of both omnibuses, and it appears
that there was also negligence on the part of the deceased himself. The
jury found a verdict for the defendants, and there does not seem to have
been any reason why the Court should have disallowed the verdict if not
driven to do so on technical grounds. In those days, however, a
misdirection by the judge to the jury compelled the Court to grant a new
trial, whether any injustice had been done or not; and accordingly the
plaintiff moved for a new trial on the ground of misdirection, and it is
with reference to this point that the decision of the Court is of
importance. The learned judge who tried the case told the jury in effect
to find for the defendant if they thought that the deceased was killed
either by reason of his own want of care or by reason of want of care on
the part of the driver of the omnibus out of which he was getting. The
last direction was complained of, but was upheld by the Court. The
_ratio decidendi_ was that if the death of the deceased was not
occasioned by his own negligence it was occasioned by the joint
negligence of both drivers, and that, if so, the negligence of the
driver of the omnibus off which the deceased was getting was the
negligence of the deceased; and the reason for so holding was that the
deceased had voluntarily placed himself under the care of the driver.
Maule, J., puts it thus: “The deceased must be considered as identified
with the driver of the omnibus in which he voluntarily became a
passenger, and the negligence of the driver was the negligence of the
deceased.” This theory of identification was quite new. No trace of it
is to be found in any earlier decision, nor in any legal treatise,
English or foreign, so far as I have been able to ascertain, nor has it
ever been satisfactorily explained. It must be assumed, for the purpose
of considering the grounds of the decision in question, that the
passenger was not himself in fault. Assuming this to be so, then, if
both drivers were negligent, and both caused the injury to the
passenger, it is difficult to understand why both drivers or their
masters should not be liable to him. The doctrine of identification laid
down in Thorogood _v._ Bryan, _supra_, is, to me, quite unintelligible.
It is, in truth, a fictitious extension of the principles of agency, but
to say that the driver of a public conveyance is the agent of the
passengers is to say that which is not true in fact. Such a doctrine, if
made the basis of further reasoning, leads to results which are wholly
untenable, _e. g._, to the result that the passengers would be liable
for the negligence of the person driving them, which is obviously
absurd, but which, of course, the Court never meant. All the Court meant
to say was that for purposes of suing for negligence the passenger was
in no better position than the man driving him. But why not? The driver
of a public vehicle is not selected by the passenger otherwise than by
being hailed by him as one of the public to take him up; and such
selection, if selection it can be called, does not create the relation
of principal and agent or master and servant between the passenger and
the driver, the passenger knows nothing of the driver and has no control
over him; nor is the driver in any proper sense employed by the
passenger. The driver, if not his own master, is hired, paid, or
employed by the owner of the vehicle he drives or by some other person
who lets the vehicle to him. The orders he obeys are his employer’s
orders. These orders, in the case of an omnibus, are to drive from such
a place to such a place and take up and put down passengers; and in the
case of a cab the orders are to drive where the passenger for the time
being may desire to go, within the limits expressly or impliedly set by
the employer. If the passenger actively interferes with the driver by
giving him orders as to what he is to do, I can understand the meaning
of the expression that the passenger identifies himself with the driver,
but no such interference was suggested in Thorogood _v._ Bryan, _supra_.
The principles of the law of negligence, and in particular of what is
called contributory negligence, have been discussed on many occasions
since that case was decided, and are much better understood now than
they were thirty years ago. Tuff _v._ Warman, 5 C. B. (N. S.) 573, in
the Exchequer Chamber, and Radley _v._ London & North Western Ry. Co., 1
App. Cas. 754, in the House of Lords, show the true grounds on which a
person himself guilty of negligence is unable to maintain an action
against another for an injury occasioned by the combined negligence of
both. If the proximate cause of the injury is the negligence of the
plaintiff as well as that of the defendant, the plaintiff cannot recover
anything. The reason for this is not easily discoverable. But I take it
to be settled that an action at common law by A. against B. for injury
directly caused to A. by the want of care of A. and B. will not lie. As
Pollock, C. B., pointed out in Greenland _v._ Chaplin, _supra_, the jury
cannot take the consequences and divide them in proportion according to
the negligence of the one or the other party. But if the plaintiff can
show that although he has himself been negligent, the real and proximate
cause of the injury sustained by him was the negligence of the
defendant, the plaintiff can maintain an action, as is shown not only by
Tuff _v._ Warman, _supra_, and Radley _v._ London & North Western Ry.
Co., _supra_, but also by the well-known case of Davies _v._ Mann, 10 M.
& W. 546, and other cases of that class. The cases which give rise to
actions for negligence are primarily reducible to three classes, as
follows:—

1. A. without fault of his own is injured by the negligence of B., then
B. is liable to A. 2. A. by his own fault is injured by B. without fault
on his part, then B. is not liable to A. 3. A. is injured by B. by the
fault more or less of both combined; then the following further
distinctions have to be made: (_a_) if, notwithstanding B.’s negligence,
A. with reasonable care could have avoided the injury, he cannot sue B.:
Butterfield _v._ Forrester, 11 East, 60; Bridge _v._ Grand Junction Ry.
Co., 3 M. & W. 244; Dowell _v._ General Steam Navigation Co., 5 E. & B.
195; (_b_) if, notwithstanding A.’s negligence, B. with reasonable care
could have avoided injuring A., A. can sue B.: Tuff _v._ Warman,
_supra_; Radley _v._ London & North Western Ry. Co., _supra_; Davies
_v._ Mann, _supra_; (_c_) if there has been as much want of reasonable
care on A.’s part as on B.’s or, in other words, if the proximate cause
of the injury is the want of reasonable care on both sides, A. cannot
sue B. In such a case A. cannot with truth say that he has been injured
by B.’s negligence, he can only with truth say that he has been injured
by his own carelessness and B.’s negligence, and the two combined give
no cause of action at common law. This follows from the two sets of
decisions already referred to. But why in such a case the damages should
not be apportioned, I do not profess to understand. However, as already
stated, the law on this point is settled, and not open to judicial
discussion. If now another person is introduced the same principles will
be found applicable. Substitute in the foregoing cases B. and C. for B.,
and unless C. is A.’s agent or servant there will be no difference in
the result, except that A. will have two persons instead of one liable
to him. A. may sue B. and C. in one action, and recover damages against
them both; or he may sue them separately and recover the whole damage
sustained against the one he sues: Clark _v._ Chambers, 3 Q. B. D. 327,
where all the previous authorities were carefully examined by the late
L. C. J. Cockburn. This is no doubt hard on the defendant, who is alone
sued, and this hardship seems to have influenced the Court in deciding
Thorogood _v._ Bryan, _supra_. In that case the Court appears to have
thought it hard on the defendant to make him pay all the damages due to
the plaintiff, and that it was no hardship to the plaintiff to exonerate
the defendant from liability, as the plaintiff had a clear remedy
against the master of the omnibus in which he was a passenger. But it is
difficult to see the justice of exonerating the defendant from all
liability in respect of his own wrong and of throwing the whole
liability on some one who was no more to blame than he. The injustice to
the defendant, which the Court sought to avoid, is common to all cases
in which a wrong is done by two people and one of them alone is made to
pay for it. The rule which does not allow of contribution among
wrong-doers is what produces hardship in these cases, but the hardship
produced by that rule (if really applicable to such cases as these under
discussion) does not justify the Court in exonerating one of the
wrong-doers from all responsibility for his own misconduct or the
misconduct of his servants. I can hardly believe that if the plaintiff
in Thorogood _v._ Bryan, _supra_, had sued the proprietors of both
omnibuses it would have been held that he had no right of action against
one of them. Having given my reasons for my inability to concur in the
doctrine laid down in Thorogood _v._ Bryan, _supra_, I proceed to
consider how far that doctrine is supported by other authorities. [After
commenting on various authorities]; Thorogood _v._ Bryan, _supra_, and
Armstrong _v._ Lancashire & Yorkshire Ry. Co., _supra_, affirm that,
although if A. is injured by the combined negligence of B. and C., A.
can sue B. and C., or either of them, he cannot sue C. if he, A., is
under the care of B. or in his employ. From this general doctrine I am
compelled most respectfully to dissent, but if B. is A.’s agent or
servant the doctrine is good. In Scotland the decision in Thorogood _v._
Bryan, _supra_, was discussed and held to be unsatisfactory in the case
of Adams _v._ Glasgow & South Western Ry. Co., 3 Court Sess. Cas. 215.
In America the subject was recently examined with great care by the
Supreme Court of the United States in Little _v._ Hackett, 14 Am. Law
Record, 577, 54 Am. Rep. 15,[228] in which the English and American
cases were reviewed, and the doctrine laid down in Thorogood _v._ Bryan,
_supra_, was distinctly repudiated as contrary to sound principles. In
this case the plaintiff was driving in a hackney carriage and was
injured by a collision between it and a railway train on a level
crossing. There was negligence on the part of the driver of the carriage
and on the part of the railway company’s servants, but it was held that
the plaintiff was not precluded from maintaining an action against the
railway company. In this country Thorogood _v._ Bryan, _supra_, was
distinctly disapproved by Dr. Lushington in The Milan, Lush. 388; and
even Lord Bramwell, who has gone further than any other judge in
upholding the decision, has expressed disapproval of the grounds on
which it was based. No text-writer has approved of it, and the comments
in Smith’s Leading Cases are adverse to it (vol. i. p. 266, 6th ed.).
For the reasons above stated, I am of opinion that the doctrines laid
down in Thorogood _v._ Bryan, _supra_, and Armstrong _v._ Lancashire &
Yorkshire Ry. Co., _supra_, are contrary to sound legal principles, and
ought not to be regarded as law. Consequently, I am of opinion that the
decision in Toeg’s and Armstrong’s case ought to be reversed.

Concurring opinions were delivered by LORD ESHER, M. R., and LOPES, L.
J., the former elaborately reviewing the authorities.

Extract from opinion of LOPES, L. J.:—

If, again, the passenger is to be considered in the same position as the
driver or owner, and their negligence is to be imputed to him, he would
be liable to third parties; for instance, in case of a collision between
two omnibuses, where the driver of one was entirely in fault, every
passenger in the omnibus free from blame would have an action against
every passenger in the other omnibus, because every such passenger would
be identified with the driver, and is responsible for his negligence.
Nor, again, in the case just put, could any passenger in the other
omnibus bring an action against the owner of the omnibus in which he was
carried, because the negligence of the driver is to be imputed to the
passenger. If the negligence of the driver is to be attributed to the
passenger for one purpose, it would be impossible to say he is not to be
affected by it for others. Other cases might be put.

The more the decision in Thorogood _v._ Bryan, _supra_, is examined, the
more anomalous and indefensible that decision appears.

The theory of the identification of the passengers with the negligent
driver or owner is, in my opinion, a fallacy and a fiction, contrary to
sound law and opposed to every principle of justice. A passenger in an
omnibus whose injury is caused by the joint negligence of that omnibus
and another, may, in my opinion, maintain an action, either against the
owner of the omnibus in which he was carried or the other omnibus, or
both. I am clearly of opinion Thorogood _v._ Bryan, _supra_, should be
overruled.

Extract from opinion of LORD ESHER, M. R.:—

In Armstrong’s action a point is suggested that he ought not to recover
against the defendants, the owners of the Bernina, because he could not
recover against the owners of the Bushire. He would, it is rightly said,
in an action against the latter, be met by the doctrine of the accident
being occasioned by the negligence of a fellow-servant. The suggestion
would go too far. It would apply where passengers or goods are carried
by railway, or in ship, under a notice limiting the liability of that
railway company or shipowner. It would work manifest injustice by
enabling a person to take advantage of a contract to which he was a
stranger, and for the advantage of which he had given no consideration.
The rule of law is, that a person injured by more than one wrong-doer
may maintain an action for the whole damage done to him against any of
them. There is no condition that he cannot do so unless he might, if he
pleased, maintain an action against each of them. There is no
disadvantage to the one sued, because there is no contribution between
joint wrong-doers. The plaintiff Armstrong is therefore entitled to
judgment for the whole of the damages he may be able to prove, according
to the rule of damages laid down in Lord Campbell’s Act. So in the case
of the plaintiff Toeg. In the case of Owen, the deceased was personally
negligent, so as that his negligence was partly directly a cause of the
injury. He could not have recovered, neither can his administratrix.

_Appeal allowed._

Affirmed in the House of Lords under the name of Mills _v._ Armstrong;
L. R. 13 App. Cases, 1.[229]

SHULTZ _v._ OLD COLONY STREET RAILWAY COMPANY
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 1, 1907.
_Reported in 193 Massachusetts Reports, 309._

Tort for personal injuries caused by the collision of an electric car of
defendant with a carriage in which the plaintiff was being driven.

At the trial the evidence for plaintiff tended to show that plaintiff
was being driven in a carriage by her friend B; that B owned the horse
and carriage and was giving her a ride to her home; that plaintiff in no
way interfered with B’s driving, in no manner controlled him or directed
how he should drive, but left the driving to him; and that the
defendant’s car from behind, without any warning, ran into the hind
wheels of the carriage.

Defendant’s evidence tended to show that the collision was due to B’s
negligently turning suddenly across the track.

The judge instructed the jury (_inter alia_) that if B was careless in
driving and if his carelessness contributed to the injury, then
plaintiff was bound by his carelessness and could not recover. To this
instruction plaintiff excepted.

Verdict for defendant.[230]

RUGG, J. This case fairly raises the question as to whether the
negligence of the driver of a vehicle is to be imputed to a guest,
riding with him gratuitously, and personally in the exercise of all the
care which ordinary caution requires.

[The learned judge then elaborately reviewed the authorities; and, both
upon authority and principle, sustained the view reached in The Bernina,
_ante_. He then continued:]

The rule fairly deducible from our own cases, and supported by the great
weight of authority by courts of other jurisdictions, is that where an
adult person, possessing all his faculties and personally in the
exercise of that degree of care, which common prudence requires under
all the attending circumstances, is injured through the negligence of
some third person and the concurring negligence of one with whom the
plaintiff is riding as guest or companion, between whom and the
plaintiff the relation of master and servant or principal and agent, or
mutual responsibility in a common enterprise, does not in fact exist,
the plaintiff being at the time in no position to exercise authority or
control over the driver, then the negligence of the driver is not
imputable to the injured person, but the latter is entitled to recover
against the one through whose wrong his injuries were sustained.
Disregarding the passenger’s own due care, the test whether the
negligence of the driver is to be imputed to the one riding depends upon
the latter’s control or right of control of the actions of the driver,
so as to constitute in fact the relation of principal and agent or
master and servant, or his voluntary, unconstrained, non-contractual
surrender of all care for himself to the caution of the driver.[231]

Applying this statement of the law to the present case, the result is
that the plaintiff would not be entitled to recover if in the exercise
of common prudence she ought to have given some warning to the driver of
carelessness on his part, which she observed or might have observed in
exercising due care for her own safety,[232] nor if she negligently
abandoned the exercise of her own faculties and trusted entirely to the
vigilance and care of the driver.[233] She cannot hide behind the fact
that another is driving the vehicle in which she is riding, and thus
relieve herself of her own negligence. What degree of care she should
have exercised, in accepting the invitation to ride, or in observing and
calling to the attention of the driver perils unnoticed by him, depends
upon the circumstances at the time of the injury. On the other hand, she
would be permitted to recover if, in entering and continuing in the
conveyance, she acted with reasonable caution, and had no ground to
suspect incompetency and no cause to anticipate negligence on the part
of the driver, and if the impending danger, although in part produced by
the driver, was so sudden or of such a character as not to permit or
require her to do any act for her own protection.

In view of the facts of the case the requests for rulings presented by
the plaintiff were not correct propositions of law and were properly
refused, but the portion of the charge excepted to failed to express
with accuracy and fulness the rights of the plaintiff and the liability
of the defendant to her. The jury were instructed to treat the plaintiff
as identified with the driver, and burdened with his negligence. For the
reasons we have stated and under the circumstances disclosed, this was
not an accurate statement of the law.

_Exceptions sustained._[234]

KOPLITZ _v._ CITY OF ST. PAUL
SUPREME COURT, MINNESOTA, JUNE 6, 1902.
_Reported in 86 Minnesota Reports, 373._

Action in the District Court for Ramsey County to recover $2040 for
personal injuries caused by a defective street in defendant city. The
case was tried before Brill, J., and a jury, which rendered a general
verdict in favor of plaintiff for $300. The jury also returned a special
verdict, in answer to the specific question submitted by the court, that
the driver of the vehicle from which plaintiff was thrown was guilty of
negligence which contributed to the injury. From a judgment entered
pursuant to the general verdict, defendant appealed.

START, C. J. The plaintiff was one of a party of twenty-six young people
who celebrated the Fourth of July last by a picnic at Lake Johanna,
about twelve miles from St. Paul. The picnic was a mutual affair, in
that the party consisted of about an equal number of young men and young
women, each lady being invited and escorted by a gentleman, for whom and
herself she furnished lunch; but at meal time the several lunches were
merged, and became a common spread. The ladies had nothing to do with
the matter of the transportation of the party to and from the lake. This
was the exclusive business of the gentlemen, with which the ladies had
no more to do than the young men had with the lunches. The gentlemen
selected one of their number (Mr. Gibbons) to manage the transportation
of the party. He hired for this purpose a long covered omnibus, drawn by
four horses, and a driver and assistant, to drive the party to the lake
and return. The party were driven to and from the lake in this
conveyance, with the hiring of which, or the payment therefor, or the
control thereof, the ladies, including the plaintiff, had nothing to do,
other than may be inferred, if at all, from the fact that they were
members of the picnic party. On the return trip, when the conveyance had
reached Dale Street, in the city of St. Paul, it was tipped over, by
reason of an embankment therein, whereby the plaintiff was injured.

At the time of the accident all of the party were riding inside of the
omnibus, except Mr. Gibbons, who was outside, on the driver’s seat, with
the driver and his assistant, and was then driving the horses; but this
fact was unknown to the plaintiff or any of the party inside of the
conveyance. The negligence of the city in the care of the street was the
proximate cause of the plaintiff’s injury, but the negligence of Mr.
Gibbons in driving the horses contributed thereto. The plaintiff was
personally free from any negligence in the premises. This action was
brought by the plaintiff to recover damages on account of such injuries,
and the jury returned a verdict for $300, and a special verdict that Mr.
Gibbons was guilty of contributory negligence in driving the conveyance.
Thereupon the defendant moved for judgment in its favor upon the special
verdict, notwithstanding the general verdict for the plaintiff. The
motion was denied, and judgment entered for the plaintiff, from which
the defendant appealed to this court.

The only question for our decision is whether the negligence of Mr.
Gibbons must be imputed to the plaintiff, and a recovery denied her for
that reason. The rule as to imputed negligence, as settled by this court
in cases other than those where the parties stand in the relation of
parent and child or guardian and ward, is that negligence in the conduct
of another will not be imputed to a party if he neither authorized such
conduct, nor participated therein, nor had the right or power to control
it. If, however, two or more persons unite in the joint prosecution of a
common purpose under such circumstances that each has authority,
expressed or implied, to act for all in respect to the control of the
means or agencies employed to execute such common purpose, the
negligence of one in the management thereof will be imputed to all the
others. Follman _v._ City of Mankato, 35 Minn. 522, 29 N. W. 317;
Flaherty _v._ Minneapolis & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160;
Howe _v._ Minneapolis, St. P. & S. Ste. M. Ry. Co., 62 Minn. 71, 64 N.
W. 102; Johnson _v._ St. Paul City Ry. Co., 67 Minn. 260, 69 N. W. 900;
Finley _v._ Chicago, M. & St. P. Ry. Co., 71 Minn., 471, 74 N. W. 174;
Wosika _v._ St. Paul City Ry. Co., 80 Minn. 364, 83 N. W. 386; Lammers
_v._ Great Northern Ry. Co., 82 Minn. 120, 84 N. W. 728.

It is too obvious to justify discussion that the plaintiff in this case
neither expressly nor impliedly had any control over the drivers of the
omnibus, or either of them, or of Mr. Gibbons, and that he and she were
not engaged in a joint enterprise in any such sense as made her so far
responsible for his negligence in driving the horses that it must be
imputed to her. The claim of the defendant to the contrary is
unsupported by the facts as disclosed by the record.

_Judgment affirmed._[235]

FECHLEY _v._ SPRINGFIELD TRACTION COMPANY
ST. LOUIS COURT OF APPEALS, MISSOURI, MAY 8, 1906.
_Reported in 119 Missouri Appeal Reports, 358._

Error to Circuit Court, Greene County. Verdict and judgment for
defendant. Plaintiff appeals.

Appellant, Fechley, was damaged by the collision of a street car with a
one-horse buggy in which he was riding. The buggy was owned and driven
by Pierce, at whose invitation Fechley was riding. Pierce, upon his own
statement, was negligent in not seasonably looking, or taking proper
precautions, to ascertain if a car was approaching before he attempted
to drive across two parallel railway tracks. The facts as to the alleged
negligence of Fechley are sufficiently stated in the extracts from the
opinion, given below.

One error assigned was the submission to the jury of the issue of
appellant’s contributory negligence.[236]

GOODE, J. [After stating the case; and holding that the negligence of
Pierce would not bar Fechley from recovering against the company if the
motorman’s negligence was in part the proximate cause of the collision.]

Appellant himself must have been free from negligence proximately
contributing to his injury or he is entitled to no damages, granting
that Pierce’s fault does not preclude a recovery and that the motorman’s
fault was a factor in bringing about the casualty. Few, if any, courts
have held that an occupant of a vehicle may entrust his safety
absolutely to the driver of a vehicle, regardless of the imminence of
danger or the visible lack of ordinary caution on the part of the driver
to avoid harm. The law in this state, and in most jurisdictions, is that
if a passenger who is aware of the danger and that the driver is remiss
in guarding against it, takes no care himself to avoid injury, he cannot
recover for one he receives. This is the law not because the driver’s
negligence is imputable to the passenger, but because the latter’s own
negligence proximately contributed to his damage. Marsh _v._ Railroad,
104 Mo. App. 577, 78 S. W. 284; Dean _v._ Railroad, 129 Pa. St. 514;
Township of Crescent _v._ Anderson, 114 Pa. St. 643; Koehler _v._
Railroad, 66 Hun, 566; Hoag _v._ Railroad, 111 N. Y. 179; Brickell _v._
Railroad, 120 N. Y. 290; 2 Thompson, Negligence, sec. 1620; Beach, Con.
Neg., sec. 115; 3 Elliott, Railroads, sec. 1174.

[After discussing the pleadings.]

Therefore the question occurs whether, on the testimony for appellant,
the court would have been justified in holding him guilty of
contributory negligence; and we hold that such a ruling would have been
proper. Appellant swore he knew cars were operated east and west on
Commercial Street, but did not know there were double tracks on it. The
two tracks were right before his eyes as he drove down Commercial Street
and as Pierce turned the horse to cross them. He said he could have
looked out of the buggy by merely pushing the curtain back with his
hand. He was not bound to do this if Pierce’s conduct was of such a
character as to induce a reasonably prudent man to think there was no
danger in driving across the tracks. But Fechley did not have the right
to rely on the precaution taken by Pierce, unless, under the
circumstances, a man of ordinary prudence would have relied on it. As we
have pointed out, the testimony shows Pierce took no precaution which
could be effective. He did not stop at all; nor did he look for a car
until the horse was stepping over the south rail of the north track. The
two tracks were less than five feet apart and the buggy moved but a few
feet after Pierce looked, before the car struck it near the front of the
rear wheels. Meanwhile Fechley was leaning back in the buggy, though he
must have seen they had crossed the south track and were advancing
diagonally on the north one, and, if he was paying any attention to the
situation, must have known that a car was likely to come along on that
track from the east. Pierce’s behavior was so grossly careless, that
Fechley was imprudent in doing nothing personally to insure his safety.
The essential fact is that Pierce did not look in time, as Fechley knew,
or, in reason, ought to have known. Therefore Fechley should have
stopped Pierce or told him to look for a car, or have looked himself,
before they had advanced so far into danger. It is palpable from
appellant’s own testimony that he was giving no heed to his safety, but
either was relying blindly on Pierce, or, for some reason, was not aware
of the proximity of the tracks.

[After stating authorities.]

On the testimony for appellant the case strikes us as one of concurrent
negligence; for the buggy had not gone more than from six to twelve feet
after Pierce looked for a car, until the collision occurred. There is an
inconsistency in appellant’s theory. He would have it that there was an
appearance of danger of a collision which should have warned the
motorman, as soon as the buggy was turned to go over the tracks and
before Pierce looked for a car, but that appellant himself was not
negligent in failing to guard against this apparent danger. That
argument for appellant emphasizes and makes clear his own carelessness.
The counsel in the case give several close calculations in support of
their respective theories, and appellant’s attorneys endeavor to
demonstrate that the motorman could have stopped the car before it
reached the buggy, if he had begun to get control of it when the horse
turned to go over the south track. They insist that appellant, though he
may have been guilty of contributory negligence, was entitled to a
finding by the jury, under proper instructions, on the issue of whether
or not the motorman could have prevented the accident after the turn, it
being assumed that the danger of a collision then became apparent. The
court submitted that issue by a charge which was extremely favorable to
appellant.

[Omitting remainder of opinion.]

_Judgment affirmed._

NEWMAN _v._ PHILLIPSBURG HORSE CAR COMPANY
SUPREME COURT, NEW JERSEY, JULY TERM, 1890.
_Reported in 52 New Jersey Law Reports, 446._

The plaintiff was a child two years of age; she was in the custody of
her sister, who was twenty-two; the former, being left by herself for a
few minutes, got upon the railroad track of the defendant, and was hurt
by the car. The occurrence took place in a public street of the village
of Phillipsburg. The carelessness of the defendant was manifest, as at
the time of the accident there was no one in charge of the horse drawing
the car, the driver being in the car collecting fares.

The Circuit judge submitted the three following propositions to this
Court for its advisory opinion, viz.:—

_First._ Whether the negligence of the persons in charge of the
plaintiff, an infant minor, should be imputed to the said plaintiff.

_Second._ Whether the conduct of the persons in charge of the plaintiff
at the time of the injury complained of, was not so demonstrably
negligent that the said Circuit Court should have nonsuited the
plaintiff, or that the Court should have directed the jury to find for
the defendant.

_Third._ Whether a new trial ought not to be granted, on the ground that
the damages awarded are excessive.

Argued at February term, 1890, before BEASLEY, C. J., and SCUDDER, DIXON
and REED, JJ.

The opinion of the court was delivered by—

BEASLEY, C. J. There is but a single question presented by this case,
and that question plainly stands among the vexed questions of the law.

The problem is, whether an infant of tender years can be vicariously
negligent, so as to deprive itself of a remedy that it would otherwise
be entitled to. In some of the American states this question has been
answered by the Courts in the affirmative, and in others in the
negative. To the former of these classes belongs the decision in
Hartfield _v._ Roper & Newell, reported in 21 Wend. 615. This case
appears to have been one of first impression on this subject, and it is
to be regarded, not only as the precursor, but as the parent of all the
cases of the same strain that have since appeared.

The inquiry with respect to the effect of the negligence of the
custodian of the infant, too young to be intelligent of situations and
circumstances, was directly presented for decision in the primary case
thus referred to, for the facts were these: The plaintiff, a child of
about two years of age, was standing or sitting in the snow in a public
road, and in that situation was run over by a sleigh driven by the
defendants. The opinion of the Court was, that as the child was
permitted by its custodian to wander into a position of such danger it
was without remedy for the hurts thus received, unless they were
voluntarily inflicted, or were the product of gross carelessness on the
part of the defendants. It is obvious that the judicial theory was, that
the infant was, through the medium of its custodian, the doer, in part,
of its own misfortune, and that, consequently, by force of the
well-known rule, under such conditions, he had no right to an action.
This, of course, was visiting the child for the neglect of the
custodian, and such infliction is justified in the case cited in this
wise: “The infant,” says the Court, “is not _sui juris_. He belongs to
another, to whom discretion in the care of his person is exclusively
confided. That person is keeper and agent for this purpose; in respect
to third persons his act must be deemed that of the infant; his neglects
the infant’s neglects.”

It will be observed that the entire content of this quotation is the
statement of a single fact, and a deduction from it; the premise being,
that the child must be in the care and charge of an adult, and the
inference being that, for that reason, the neglects of the adult are the
neglects of the infant. But surely this is, conspicuously, a _non
sequitur_. How does the custody of the infant justify, or lead to, the
imputation of another’s fault to him? The law, natural and civil, puts
the infant under the care of the adult, but how can this right to care
for and protect be construed into a right to waive, or forfeit, any of
the legal rights of the infant? The capacity to make such waiver or
forfeiture is not a necessary, or even convenient, incident of this
office of the adult, but, on the contrary, is quite inconsistent with
it, for the power to protect is the opposite of the power to harm,
either by act or omission. In this case in Wendell it is evident that
the rule of law enunciated by it is founded in the theory that the
custodian of the infant is the agent of the infant; but this is a mere
assumption without legal basis, for such custodian is the agent, not of
the infant, but of the law. If such supposed agency existed, it would
embrace many interests of the infant, and could not be confined to the
single instance where an injury is inflicted by the coöperative tort of
the guardian. And yet it seems certain that such custodian cannot
surrender or impair a single right of any kind that is vested in the
child, nor impose any legal burthen upon it. If a mother travelling with
her child in her arms should agree with a railway company, that in case
of an accident to such infant by reason of the joint negligence of
herself and the company the latter should not be liable to a suit by the
child, such an engagement would be plainly invalid on two grounds:
_first_, the contract would be _contra bonos mores_, and _second_,
because the mother was not the agent of the child authorized to enter
into the agreement. Nevertheless, the position has been deemed
defensible that the same evil consequences to the infant will follow
from the negligence of the mother, in the absence of such supposed
contract, as would have resulted if such contract should have been made
and should have been held valid.

In fact, this doctrine of the imputability of the misfeasance of the
keeper of a child to the child itself, is deemed to be a pure
interpolation into the law, for until the case under criticism it was
absolutely unknown; nor is it sustained by legal analogies. Infants have
always been the particular objects of the favor and protection of the
law. In the language of an ancient authority this doctrine is thus
expressed: “The common principle is, that an infant in all things which
sound in his benefit shall have favor and preferment in law as well as
another man, but shall not be prejudiced by anything in his
disadvantage.” 9 Vin. Abr. 374. And it would appear to be plain that
nothing could be more to the prejudice of an infant than to convert, by
construction of law, the connection between himself and his custodian
into an agency to which the harsh rule of _respondeat superior_ should
be applicable. The answerableness of the principal for the authorized
acts of his agent is not so much the dictate of natural justice as of
public policy, and has arisen, with some propriety, from the
circumstances, that the creation of the agency is a voluntary act, and
that it can be controlled and ended at the will of its creator. But in
the relationship between the infant and its keeper, all these decisive
characteristics are wholly wanting. The law imposes the keeper upon the
child who, of course, can neither control or remove him, and the
injustice, therefore, of making the latter responsible, in any measure
whatever, for the torts of the former, would seem to be quite evident.
Such subjectivity would be hostile, in every respect, to the natural
rights of the infant, and, consequently, cannot, with any show of
reason, be introduced into that provision which both necessity and law
establish for his protection. Nor can it be said that its existence is
necessary to give just enforcement to the rights of others. When it
happens that both the infant and its custodian have been injured by the
coöperative negligence of such custodian and a third party, it seems
reasonable, at least in some degree, that the latter should be enabled
to say to the custodian, “You and I, by our common carelessness, have
done this wrong, and, therefore, neither can look to the other for
redress;” but when such wrong-doer says to the infant, “Your guardian
and I, by our joint misconduct, have brought this loss upon you,
consequently you have no right of action against me, but you must look
for indemnification to your guardian alone,” a proposition is stated
that appears to be without any basis either in good sense or law. The
conversion of the infant, who is entirely free from fault, into a
wrong-doer, by imputation, is a logical contrivance uncongenial with the
spirit of jurisprudence. The sensible and legal doctrine is this: An
infant of tender years cannot be charged with negligence; nor can he be
so charged with the commission of such fault by substitution, for he is
incapable of appointing an agent, the consequence being, that he can, in
no case, be considered to be the blamable cause, either in whole or in
part, of his own injury. There is no injustice, nor hardship, in
requiring all wrong-doers to be answerable to a person who is incapable
either of self-protection or of being a participator in their
misfeasance.

Nor is it to be overlooked that the theory here repudiated, if it should
be adopted, would go the length of making an infant in its nurse’s arms
answerable for all the negligences of such nurse while thus employed in
its service. Every person so damaged by the careless custodian would be
entitled to his action against the infant. If the neglects of the
guardian are to be regarded as the neglects of the infant, as was
asserted in the New York decision, it would, from logical necessity,
follow, that the infant must indemnify those who should be harmed by
such neglects. That such a doctrine has never prevailed is conclusively
shown by the fact that in the reports there is no indication that such a
suit has ever been brought.

It has already been observed that judicial opinion, touching the subject
just discussed, is in a state of direct antagonism, and it would,
therefore, serve no useful purpose to refer to any of them. It is
sufficient to say, that the leading text-writers have concluded that the
weight of such authority is adverse to the doctrine that an infant can
become, in any wise, a tortfeasor by imputation. 1 Shearm. & R. Neg., §
75; Whart. Neg. § 311; 2 Wood Railw. L., p. 1284.

In our opinion, the weight of reason is in the same scale.

It remains to add that we do not think the damages so excessive as to
place the verdict under judicial control.

Let the Circuit Court be advised to render judgment on the finding of
the jury.[237]

BISAILLON _v._ BLOOD
SUPREME COURT, NEW HAMPSHIRE, JUNE, 1888.
_Reported in 64 New Hampshire Reports, 565._

Case, for the negligent injury of the plaintiff. Verdict for the
defendant.

In October, 1886, the defendant, while driving a horse in a carriage on
a public street of Manchester, ran over and injured the plaintiff, an
infant then five years old, who had wandered from his home without an
attendant or custodian, and was playing in the street with other
children of about the same age.

The jury were instructed that the plaintiff being too young to exercise
care for himself, it was the duty of his parents or natural guardians to
exercise care and prudence for him to prevent his being injured, and if
they were negligent in this respect, and their neglect contributed to
produce the injury complained of, he cannot recover. To these
instructions the plaintiff excepted.

CARPENTER, J. The plaintiff would be entitled to damages for the
defendant’s negligent injury of his property similarly exposed to danger
by the carelessness of his guardian. Davies _v._ Mann, 10 M. & W. 546;
Smith _v._ Railroad, 35 N. H. 366, 367; Giles _v._ Railroad, 55 N. H.
555. An infant of such tender years as to be incapable of exercising
care is not less under the protection of the law than his chattel. The
previous negligence of the plaintiff’s parents was immaterial. The only
question for the jury was, whether the defendant by the exercise of
ordinary care could have prevented the injury; if she could not, she was
without fault, and is not liable; if she could, she is liable whether
the plaintiff was in the street by reason of, or without, his parents’
negligence. In cases of this character, where an irresponsible child or
an idiot is, by the negligence of the parent or guardian, exposed to
peril without an attendant, or where a chattel is in like manner placed
by the owner in a dangerous position, and either is injured by the act
of a “voluntary agent present and acting at the time” (State _v._
Railroad, 52 N. H. 528, 557), the question of contributory negligence is
not involved. The only question is, whether the defendant by ordinary
care could or could not have prevented the injury. Nashua Iron & S. Co.
_v._ Nashua Railroad, 62 N. H. 159, and cases cited.

_Exceptions sustained._[238]

CONSOLIDATED TRACTION COMPANY _v._ HONE
SUPREME COURT, NEW JERSEY, NOVEMBER TERM, 1896.
_Reported in 59 New Jersey Law Reports, 275._

BEASLEY, C. J. This is a suit brought by Henry Hone as the administrator
of the estate of his deceased son, who was a minor and was killed by the
carelessness of the servants of the plaintiff in error, the Consolidated
Traction Company, in the management of one of their cars.

The statute lying at the basis of the suit provides “that whenever the
death of a person shall be caused by wrongful act, neglect or default,
and the act, neglect or default is such as would, if death had not
ensued, have entitled the party injured to maintain an action and
recover damages in respect thereof, then and in every such case the
person who or the corporation which would have been liable if death had
not ensued, shall be liable to an action of damages notwithstanding the
death of the person injured,” etc. Gen. Stat., p. 1188, § 10.[239]

The following section directs “that the action shall be brought by and
in the name of the personal representatives of the deceased person, and
that the amount recovered shall be for the exclusive benefit of the
widow and next of kin of such deceased person; and that in every such
action the jury may give such damages as they shall deem fair and just,
with reference to the pecuniary injury resulting from such death to the
wife and next of kin of such deceased person,” etc. Id., § 11.

From these extracts from the statute it will be at once perceived that
in this suit founded upon it, as in all others of the same class, but
two questions are raised, and but two can be raised upon the record,
viz., first, could the deceased, if he had survived, have maintained an
action? and second, this being so, what pecuniary loss has fallen on his
next of kin by reason of his death?

These are the facts constituting the issue to be tried, and no subject
for trial can be more clearly defined.

Notwithstanding this it is contended in this case by the counsel of this
traction company that they have the right to defeat the action if they
can show that the death in question was the result in part of the
negligent conduct of the next of kin, although such negligent conduct is
not to be imputed to the infant who is deceased. The plaintiff in the
present case is not only the personal representative, but is likewise
the next of kin, and it is insisted that as the damages that may be
recovered will enure exclusively to his benefit, he should in justice
not be allowed to recover them if he was in part the cause of their
production.

But it is to be remembered that the legal doctrine that bars a party
injured by the unintentional misconduct of another by reason of his
having himself been, in a measure, the occasion of the resulting damage,
is rather an artificial rule of the law than a principle of justice, for
its effect generally is to cast the entire loss ensuing from the joint
fault upon one of the culpable parties, and oftentimes upon him who is
but little to blame. Such a legal regulation has no claim to extension,
and to apply it as is now insisted on would be to use it in a novel way.
The question whether the deceased was negligent is within the issue
formed by the pleading; while the question whether a third person who in
his individual capacity has no connection with the suit was negligent
has nothing whatever to do with such issue. In the legal practice of
this state it is the established course to exclude everything that is
not embraced in the issue as the parties have framed it and as it
appears upon the record. On the trial of this case the inquiry whether
the father of the deceased minor had, by his want of care, been
instrumental in the production of the accident, was a matter utterly
irrelevant to the subject then submitted to judicial inquiry.

The statute of Iowa, relating to this subject, and our own are similar,
and in Wymore’s case (78 Iowa, 396)[240] the court of that state
expressed very distinctly what is deemed the correct view of this topic,
in these words: “If,” says the opinion, “his parents, by their
negligence, contributed to his death, that does not seem to be a
sufficient reason for denying his estate relief. Such negligence would
prevent a recovery by the parents in their own right.... It is claimed
that, ... since they inherited his estate, the rule which would bar a
negligent parent from recovering in such case in his own right ought to
apply. But the plaintiff seeks to recover in right of the child and not
of the parents. It may be that a recovery in this case will result in
conferring an undeserved benefit upon the father, but that is a matter
which we cannot investigate. If the facts are such that the child could
have recovered had his injuries not been fatal, his administrator can
recover the full amount of damages which the estate of the child
sustained.”

The subject will be found illustrated by a reference to many cases in 4
Am. & Eng. Encycl. L. 88.

My conclusion is that there is no fault to be found with the trial of
this case in reference to this point.

[After overruling another objection.]

_Judgment affirmed._

[By writ of error to review the above judgment of the Supreme Court, the
case was brought before the Court of Errors and Appeals. That court was
equally divided upon the question whether contributory negligence on the
part of the sole next of kin would defeat the action. No opinions on
that question are reported. Consolidated Traction Co. _v._ Hone, 60 New
Jersey Law, 444.][241]

RICHMOND, FREDERICKSBURG & POTOMAC R. CO. _v._ MARTIN’S ADM’R
SUPREME COURT OF APPEALS, VIRGINIA, DECEMBER 9, 1903.
_Reported in 102 Virginia Reports, 201._

WHITTLE, J.... This action was brought by the defendant in error,
Patrick Martin, administrator of Alice Martin, deceased, against the
plaintiff in error, the Richmond, Fredericksburg & Potomac Railroad
Company, to recover damages for the negligent killing of his intestate,
a daughter seven years of age, by a passenger train of the defendant
company at a public crossing. The mother of the child was killed in the
same collision, and the action was instituted for the sole benefit of
the father, who, under the statute, is entitled to the recovery. At the
trial there was a verdict for the plaintiff, upon which the judgment
under review was rendered.

The defendant adduced evidence tending to prove that Patrick Martin,
Jr., a minor eleven years old, and a son of the plaintiff, was put in
charge of a two-horse Dayton wagon, as driver by his father, in which
his mother and two younger sisters and a negro boy were to be driven
from their home in the country to the city of Fredericksburg; that
Patrick Martin, Jr., negligently drove upon and attempted to cross the
railway track at Falmouth crossing, in plain view of a rapidly
approaching train; and that in the collision which followed his mother
and two sisters, who occupied a rear seat in the vehicle, were instantly
killed. Thereupon the defendant moved the court to instruct the jury
that if they believed from the evidence that Patrick Martin, Jr., the
son and servant of the plaintiff, attempted to cross the track under the
circumstances detailed, his conduct constituted such contributory
negligence as to bar a recovery. The court refused to give the
instruction, which ruling presents for decision the sole question in the
case, namely, whether a father, whose negligence has contributed to the
death of his minor child, can, under the statute, in an action
instituted by him as administrator, suing for his own benefit, recover
damages for the death of the child. The statute requires such actions to
be brought by and in the name of the personal representative of the
deceased person, and empowers the jury to award such damages as to it
may seem fair and just, not exceeding ten thousand dollars.

The primary object of the statute in allowing an action to recover
damages for death by wrongful act of another, like its prototype, Lord
Campbell’s act, was to compensate the family of the deceased, and was
not in the interest of the general estate, the provision being that:
“The amount recovered in any such action shall, after the payment of
costs and reasonable attorneys’ fees, be paid to the wife, husband,
parent, and child of the deceased, in such proportion as the jury may
have directed, or, if they have not directed, according to the statute
of distributions, and shall be free from all debts and liabilities of
the deceased; but if there be no wife, husband, parent, or child, the
amount so received shall be assets in the hands of the personal
representative, to be disposed of according to law.” Code 1887, secs.
2903, 2905.

It will be observed that by the express language of the statute the
damages awarded cannot become assets in the hands of the administrator,
to be disposed of according to law, if the decedent is survived by a
wife, husband, parent, or child; and the recovery is also made free from
all debts of the decedent, thus leaving no doubt of the legislative
intent to treat the recovery as wholly independent of the decedent and
his estate in the event of the survival of any one of the enumerated
kin, and making it enure directly and personally to such next of kin by
force of the statute, and not derivatively from the decedent, to whom it
never belonged either in fact or in contemplation of law.

The authorities all agree that there can be no recovery where the action
is brought in the name and for the benefit of one whose negligence has
contributed to the accident. Thus, if the child in this instance had
been injured, instead of killed, and the father had brought a common-law
action to recover damages for the injury, contributory negligence on his
part, if established, would have constituted a bar to the action. But
the contributory negligence of the father would interpose no defence to
an action by the child for such injury. The rule is that the child’s
want of responsibility for negligence can no more be invoked to maintain
the action of the negligent father than can the negligence of the latter
be imputed to the child to defeat an action by him.

In this case both parties, at the time of the accident, were represented
by agents—the defendant company by its employees, and the plaintiff, by
his son, to whose care he had confided the custody of the younger
sister—and both were responsible for the acts and omissions of their
respective agents. Glassey _v._ Ry. Co., 57 Pa. 172.

In Bellefontaine Ry. Co. _v._ Snyder, 24 Ohio St. 670, the court said:
“Where an infant intrusted to the care and custody of another by the
father, is injured through the negligence of a railroad company, the
custodian of the child also being guilty of negligence which contributed
to the result, although the infant may maintain an action for such
injury, the father cannot; the negligence of his agent, the custodian of
the child, being in law ‘the negligence of the father.’”

“When an action for negligent injury of an infant is brought by the
parent, or for the parent’s own benefit, it is very justly held that the
contributory negligence of such parent may be shown in bar of the
action, the negligence of his agent to whom he had intrusted the child
having contributed to cause the injury; and such negligence, being, in
contemplation of law, the parent’s negligence, was held to bar the
action.” Beach on Con. Neg., sec. 131.

The doctrine of imputed negligence has no application to the case, but
the rule that the negligent father cannot recover is founded upon the
fundamental principle that no one can acquire a right of action by his
own negligence. The principle involves a maxim of the law as old as the
common law itself. The difference between an action by the father for
injuries to the child where death does not ensue and an action by the
father as administrator of his dead child, brought under the statute for
his own benefit, is a difference in form merely, not in substance, and
on principle there can be no more reason for permitting a recovery in
the latter case than in the former. In both the father is the
substantial plaintiff and the sole beneficiary. To allow a recovery in
either would be a violation of the policy of the law, which forbids that
one shall reap a benefit from his own misconduct. Accordingly the
authorities are practically unanimous to the effect that the guiding
principle in both classes of cases is identical, and the contributory
negligence of the beneficial plaintiff will as effectually defeat a
recovery in the one case as in the other.

In Kinkead’s Com. on Torts, sec. 474, the author says the rule is well
settled that the negligence of a parent of a minor is a bar to an action
by him to recover damages for an injury to the minor, and adds: “It may,
however, be contended with equal force that the fact that a parent is a
beneficiary in case of death, that contributory negligence on his part
should be a defence to an action brought under the statutes now being
considered, as well as in an action in his own name for a personal
injury. The policy of the law is not to allow a recovery for the benefit
of a wrong-doer, and this should be applied as well to actions in the
name of another for the benefit of those who may have contributed to the
wrong. What shall constitute a defence to this class of actions is not
prescribed in these statutes, but is governed by the same principles
applicable to personal injuries. It is considered by the majority of
cases that the administrator is only a trustee or a mere nominal party,
and that the action will be defeated by the contributory negligence of
the beneficiaries.” [Remainder of opinion omitted.]

_Judgment reversed. Case remanded for a new trial._[242]

WELCH _v._ WESSON
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER TERM, 1856.
_Reported in 6 Gray, 505._

Action of tort for running down the plaintiff while driving on the
highway, and breaking his sleigh. Trial in the Court of Common Pleas,
before Mellen, C. J., who signed a bill of exceptions, the substance of
which is stated in the opinion.

MERRICK, J. It appears from the bill of exceptions to have been fully
proved upon the trial that the defendant wilfully ran down the plaintiff
and broke his sleigh, as is alleged in the declaration. No justification
or legal excuse of this act was asserted or attempted to be shown by the
defendant; but he was permitted, against the plaintiff’s objection, to
introduce evidence tending to prove that it was done while the parties
were trotting horses in competition with each other for a purse of
money, the ownership of which was to be determined by the issue of the
race. And it was ruled by the presiding judge, that if this fact was
established, no action could be maintained by the plaintiff to recover
compensation for the damages he had sustained, even though the injury
complained of was wilfully inflicted. Under such instructions, the jury
returned a verdict for the defendant.

We presume it may be assumed as an undisputed principle of law, that no
action will lie to recover a demand, or a supposed claim for damages,
if, to establish it, the plaintiff requires aid from an illegal
transaction, or is under the necessity of showing, and depending in any
degree upon an illegal agreement, to which he himself had been a party.
Gregg _v._ Wyman, 4 Cush. 322; Woodman _v._ Hubbard, 5 Foster, 67;
Phalen _v._ Clark, 19 Conn. 421; Simpson _v._ Bloss, 7 Taunt. 246. But
this principle will not sustain the ruling of the Court, which went far
beyond it, and laid down a much broader and more comprehensive doctrine.
Taken without qualification, and just as they were given to the jury,
the instructions import that, if two persons are engaged in the same
unlawful enterprise, each of them, during the continuance of such
engagement, is irresponsible for wilful injuries done to the property of
the other. No such proposition as this can be true. He who violates the
law must suffer its penalties; but yet in all other respects he is under
its protection, and entitled to the benefit of its remedies.

But in this case the plaintiff had no occasion to show, in order to
maintain his action, that he was engaged, at the time his property was
injured, in any unlawful pursuit, or that he had previously made any
illegal contract. It is true that, when he suffered the injury, he was
acting in violation of the law; for all horse trotting upon wagers for
money is expressly declared by statute to be a misdemeanor punishable by
fine and imprisonment. St. 1846, c. 200. But neither the contract nor
the race had, as far as appears from the facts reported in the bill of
exceptions, or from the intimations of the Court in its ruling, anything
to do with the trespass committed upon the property of the plaintiff.
That he had no occasion to show into what stipulations the parties had
entered, or what were the rules or regulations by which they were to be
governed in the race, or whether they were in fact engaged in any such
business at all, is apparent from the course of the proceedings at the
trial. The plaintiff introduced evidence tending to prove the wrongful
acts complained of in the writ, and the damage done to his property, and
there rested his case. If nothing more had been shown, he would clearly
have been entitled to recover. He had not attempted to derive assistance
either from an illegal contract or an illegal transaction. It was the
defendant, and not the plaintiff, who had occasion to invoke assistance
from proof of the illegal agreement and conduct in which both parties
had equally participated. From such sources neither of the parties
should have been permitted to derive a benefit. The plaintiff sought
nothing of this kind, and the mutual misconduct of the parties in one
particular cannot exempt the defendant from his obligation to respond
for the injurious consequences of his own illegal misbehavior in
another.

_Exceptions sustained._[243]

BOSWORTH _v._ INHABITANTS OF SWANSEY
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER TERM, 1845.
_Reported in 10 Metcalf, 363._

This was an action on the Rev. Sts., c. 25, § 22, for an injury alleged
to have been received by the plaintiff, by reason of a defect in a
highway, in the town of Swansey, which said town was by law obliged to
repair.

At the trial in the Court of Common Pleas, before Wells, C. J., it
appeared that the injury set forth in the plaintiff’s declaration was
sustained by him, as therein alleged, on the 11th of June, 1843, being
the Lord’s day, in the forenoon of said day, as he was travelling from
Warren (R. I.), where he resided, to Fall River, on business connected
with the conduct of a cause then pending in the District Court of the
United States in Rhode Island. The defendants admitted that they were by
law bound to keep said highway in repair.

The judge instructed the jury, that the plaintiff would not be entitled
to recover, unless he satisfied them that his travelling on the Lord’s
day was from necessity or for purposes of charity; that it being
admitted that his business was of a secular character, the burden was
upon him to show the necessity of transacting this business on the
Lord’s day.

The jury found a verdict for the defendants, and the plaintiff alleged
exceptions to the judge’s instructions.[244]

SHAW, C. J. This was an action to recover damages against a town for a
defect in their highway, by means of which the plaintiff sustained a
loss. It appeared that the accident occurred on the Lord’s day.

It has been repeatedly decided that, to maintain this action, it must
appear that the accident was occasioned exclusively by the defect of the
highway; to establish which, it must appear that the plaintiff himself
is free from all just imputation of negligence or fault. Smith _v._
Smith, 2 Pick. 621; Howard _v._ North Bridgewater, 16 Pick. 189. And in
these and other cases, it has been held that the burden of proof is on
the plaintiff, to prove affirmatively that he was so free from all
fault. Adams _v._ Carlisle, 21 Pick. 146; Lane _v._ Crombie, 12 Pick.
177. The Court are of opinion that this case comes within this
principle. The Rev. Sts., c. 50, § 2, provide that “no person shall
travel on the Lord’s day, except from necessity or charity,” and that
“every person so offending shall be punished by a fine, not exceeding
ten dollars for every offence.” The act of the plaintiff, therefore, in
doing which the accident occurred, was plainly unlawful, unless he could
bring himself within the excepted cases; and this would be a species of
fault on his part, which would bring him within the principle of the
cases cited. It would show that his own unlawful act concurred in
causing the damage complained of. Then if he would bring himself within
either of the exceptions, he must prove the fact which the statute makes
an exception. In the case last above cited, Lane _v._ Crombie, the
verdict was set aside, because the judge instructed the jury, that after
the negligence of the defendants had been proved, if they relied on want
of due care on the part of the plaintiff, the burden was upon them to
prove it. This was held to be erroneous, and the burden was decided to
be on the plaintiff to prove herself free from all fault. On this ground
the verdict was set aside, although the evidence was such that probably
the direction in regard to burden of proof had not much influence.

The Court are therefor of opinion that the instruction of the judge was
right, that the burden of proof was on the plaintiff to show that his
travelling on the Lord’s day was from necessity or for purposes of
charity.

What constitutes such necessity or purpose of charity, are questions not
raised by the bill of exceptions.

_Exceptions overruled._[245]

SUTTON _v._ TOWN OF WAUWATOSA
SUPREME COURT, WISCONSIN, JUNE TERM, 1871.
_Reported in 29 Wisconsin Reports, 21._

Appeal from County Court for Milwaukee County.

Action against a town to recover damages for injuries to plaintiff’s
cattle, caused by the breaking down of a defective bridge which they
were crossing.

The plaintiff started from Columbus on a Friday morning with a drove of
about fifty cattle, intending to take them to Milwaukee, and sell them.
Stopping at Hartland over Saturday night, he resumed his journey on
Sunday morning, and at about four o’clock, P. M., reached a public
bridge of about seventy-two feet span, over the Menomonee River, in the
town of Wauwatosa. The cattle were driven upon the bridge, and when the
greater part of them were near the middle of the span the stringers
broke, some twelve feet from the abutments at each end, and precipitated
the structure, with the cattle upon it, into the river, causing the
death of some, severely injuring others, and rendering the remainder for
a time unsalable.

The complaint alleges, that the injury was caused by the dangerous,
unsafe, and rotten condition of the bridge, and the neglect of the
defendant to keep it in proper repair.

The answer denies the negligence charged to the defendant, and alleges
that the cattle were driven upon the bridge in so careless and negligent
a manner as to cause it to break; and, also, that they were so driven
upon the bridge on Sunday.

After hearing the evidence on the part of the plaintiff, the Court
granted a nonsuit, on the ground that the plaintiff, being in the act of
violating the statute prohibiting the doing of secular business on
Sunday, when the injury occurred, could not recover therefor. The
plaintiff appealed.[246]

DIXON, C. J. It is very clear that the plaintiff, in driving his cattle
along the road and over the bridge, to a market, on Sunday, was at the
time of the accident in the act of violating the provisions of the
statute of this State, which prohibits, under a penalty not exceeding
two dollars for each offence, the doing of any manner of labor,
business, or work on that day, except only works of necessity or
charity, R. S., c. 183, § 5. It was upon this ground the nonsuit was
directed by the Court below, and the point thus presented, that the
unlawful act of the plaintiff was negligence, or a fault on his part
contributing to the injury, and which will preclude a recovery against
the town, is not a new one; nor is the law, as the Court below held it
to be, without some adjudications directly in its favor, and those by a
judicial tribunal as eminent and much respected for its learning and
ability as any in this country. Bosworth _v._ Swansey, 10 Met. 363;
Jones _v._ Andover, 10 Allen, 18. A similar, if not the very same
principle has been maintained in other decisions of the same tribunal.
Gregg _v._ Wyman, 4 Cush. 322; May _v._ Foster, 1 Allen, 408. But in
others still, as we shall hereafter have occasion to observe, the same
learned Court has, as it appears to us, held to a different and
contradictory rule in a class of cases which it would seem ought
obviously to be governed by the same principle. The two first above
cases were in all material respects like the present, and it was held
there could be no recovery against the towns. In the first, the opinion,
delivered by Chief Justice Shaw, and which is very short, commences with
a statement of the proposition, repeatedly decided by that Court, “that
to maintain the action it must appear that the accident was occasioned
exclusively by the defect of the highway; to establish which, it must
appear that the plaintiff himself is free from all just imputation of
negligence or fault.” The authorities to this proposition are cited, and
the statute against the pursuit of secular business and travel on the
Lord’s day then referred to, and the opinion proceeds: “The act of the
plaintiff, therefore, in doing which the accident occurred, was plainly
unlawful, unless he could bring himself within the excepted cases; and
this would be a species of fault on his part which would bring him
within the principle of the cases cited. It would show that his own
unlawful act concurred in causing the damage complained of.” This is all
of the opinion touching the point under consideration.

In the next case there was a little, and but a little, more effort at
reasoning upon the point. The illustrations on page 20, of negligence in
a railway company in omitting to ring the bell of the engine, or to
sound the whistle at the crossing of a highway, and of the traveller on
the wrong side of the road with his vehicle at the time of the
collision, and the language of the Court alluding to such “conduct of
the party as contributing to the accident or injury which forms the
groundwork of the action,” very clearly indicate the true ground upon
which the doctrine of contributory negligence, or want of due care in
the plaintiff, rests, but it is not shown how or why the mere violation
of a statute by the plaintiff constitutes such ground. Upon this point
the Court only say: “It is true that no direct unlawful act of omission
or commission by the plaintiff, done at the moment when the accident
occurred, and tending immediately to produce it, is offered to be shown
in evidence. But it is also true that, if the plaintiff had not been
engaged in the doing of an unlawful act, the accident would not have
happened, and the negligence of the defendants in omitting to keep the
road in proper repair would not have contributed to produce an injury to
the plaintiff. It is the disregard of the requirements of the statute by
the plaintiff which constitutes the fault or want of due care, which is
fatal to the action.” It would seem from this language that the
violation of the statute by the plaintiff is regarded only as a species
of remote negligence, or want of proper care on his part contributing to
the injury.

The two other cases above cited were actions of tort by the owners, to
recover damages from the bailees for injuries to personal property
loaned and used on Sunday,—horses loaned and immoderately driven on that
day. They were decided against the plaintiffs, and chiefly on the ground
of the unlawfulness of the act of loaning or letting on Sunday of the
horses, to be driven on that day in violation of the statute, which the
plaintiffs themselves were obliged to show, and the doctrine of _par
delictum_ was applied. It was in substance held in each case that the
plaintiff, by the first wrong committed by him, had placed himself _in
pari delicto_ with the defendant, with respect to the subsequent and
distinct wrong committed by the latter, and the actions were dismissed
upon the principle that the law will not permit a party to prove his own
illegal acts in order to establish his case.

In direct opposition to the above decisions are the numerous cases
decided by the Courts of other States, the Supreme Court of the United
States, and the Courts of Great Britain, which have been so diligently
collected and ably and forcibly presented in the brief of the learned
counsel for the present plaintiff. Of the cases thus cited, with some
others, we make particular note of the following: Woodman _v._ Hubbard,
5 Foster, 67; Mohney _v._ Cook, 26 Penn. 342; Norris _v._ Litchfield, 35
N. H. 271; Corey _v._ Bath, id. 530; Merritt _v._ Earle, 29 N. Y. 115;
Bigelow _v._ Reed, 51 Maine, 325; Hamilton _v._ Goding, 55 id. 428;
Baker _v._ The City of Portland, 58 id. 199; Kerwhacker _v._ Railway
Co., 3 Ohio St. 172; Phila., &c. Railway Co. _v._ Phila., &c. Tow Boat
Co., 23 How. (U. S.) 209; Bird _v._ Holbrook, 4 Bing. 628; Barnes _v._
Ward, 9 M. G. & S. 420.

It seems quite unnecessary, if indeed it were possible, to add anything
to the force or conclusiveness of the reasons assigned in some of these
cases in support of the views taken and decisions made by the Courts.
The cases may be summed up and the result stated generally to be the
affirmance of two very just and plain principles of law as applicable to
civil actions of this nature, namely: first, that one party to the
action, when called upon to answer for the consequences of his own
wrongful act done to the other, cannot allege or reply the separate or
distinct wrongful act of the other, done not to himself nor to his
injury, and not necessarily connected with, or leading to, or causing or
producing the wrongful act complained of; and, secondly, that the fault,
want of due care or negligence on the part of the plaintiff, which will
preclude a recovery for the injury complained of, as contributing to it,
must be some act or conduct of the plaintiff having the relation to that
injury of a cause to the effect produced by it. Under the operation of
the first principle, the defendant cannot exonerate himself or claim
immunity from the consequences of his own tortious act, voluntarily or
negligently done to the injury of the plaintiff, on the ground that the
plaintiff has been guilty of some other and independent wrong or
violation of law. Wrongs or offences cannot be set off against each
other in this way. “But we should work a confusion of relations, and
lend a very doubtful assistance to morality,” say the Court in Mohney
_v._ Cook, “if we should allow one offender against the law, to the
injury of another, to set off against the plaintiff that he too is a
public offender.” Himself guilty of a wrong, not dependent on nor caused
by that charged against the plaintiff, but arising from his own
voluntary act or his neglect, the defendant cannot assume the
championship of public rights, nor to prosecute the plaintiff as an
offender against the laws of the State, and thus to impose upon him a
penalty many times greater than what those laws prescribe. Neither
justice nor sound morals require this, and it seems contrary to the
dictates of both that such a defence should be allowed to prevail. It
would extend the maxim, _ex turpi causa non oritur actio_, beyond the
scope of its legitimate application, and violate the maxim, equally
binding and wholesome, and more extensive in its operation, that no man
shall be permitted to take advantage of his own wrong. To take advantage
of his own wrong, and to visit unmerited and over-rigorous punishment
upon the plaintiff, constitute the sole motive for such defence on the
part of the person making it. In the cases of the horses let to be
driven on Sunday, so far as the owners were obliged to resort to an
action on the contract which was executory and illegal, of course there
could be no recovery; but to an action of tort, founded not on the
contract, but on the tort or wrong subsequently committed by the
defendant, the illegality of the contract furnished no defence, as is
clearly demonstrated in Woodman _v._ Hubbard, and the cases there cited.
The decisions under the provision of the constitution of this State
abolishing imprisonment for debt arising out of or founded on a contract
express or implied, and some others in this Court strongly illustrate
the same distinction. In re Mowry, 12 Wis. 52, 56, 57; Cotton _v._
Sharpstein, 14 Wis. 229, 230; Schennert _v._ Kœhler, 23 Wis. 523, 527.

And as to the other principle, that the act or conduct of the plaintiff
which can be imputed to him as a fault, want of due care or negligence
on his part contributing to the injury, must have some connection with
the injury as cause to effect, this also seems almost too clear to
require thought or elaboration. To make good the defence on this ground,
it must appear that a relation existed between the act or violation of
law on the part of the plaintiff, and the injury or accident of which he
complains, and that relation must have been such as to have caused or
helped to cause the injury or accident, not in a remote or speculative
sense, but in the natural and ordinary course of events as one event is
known to precede or follow another. It must have been some act,
omission, or fault naturally and ordinarily calculated to produce the
injury, or from which the injury or accident might naturally and
reasonably have been anticipated under the circumstances. It is obvious
that a violation of the Sunday law is not of itself an act, omission, or
fault of this kind, with reference to a defect in the highway or in a
bridge over which a traveller may be passing, unlawfully though it may
be. The fact that the traveller may be violating this law of the State,
has no natural or necessary tendency to cause the injury which may
happen to him from the defect. All other conditions and circumstances
remaining the same, the same accident or injury would have happened on
any other day as well. The same natural causes would have produced the
same result on any other day, and the time of the accident or injury, as
that it was on Sunday, is wholly immaterial so far as the cause of it or
the question of contributory negligence is concerned. In this respect it
would be wholly immaterial also that the traveller was within the
exceptions of the statute, and travelling on an errand of necessity or
charity, and so was lawfully upon the highway.

The mere matter of time, when an injury like this takes place, is not in
general an element which does or can enter at all into the consideration
of the cause of it. Time and place are circumstances necessary in order
that any event may happen or transpire, but they are not ordinarily, if
they ever are, circumstances of cause in transactions of this nature.
There may be concurrence or connection of time and place between two or
three or more events, and yet one event not have the remotest influence
in causing or producing either of the others. A traveller on the
highway, contrary to the provisions of the statute, yet peaceably and
quietly pursuing his course, might be assaulted and robbed by a
highwayman. It would be difficult in such case to perceive how the
highwayman could connect the unlawful act of the traveller with his
assault and robbery so as to justify or excuse them, or how it could be
said, that the former had any natural or legitimate tendency to cause or
produce the latter. It is true, it might be said, if the traveller had
not been present at that particular time or place, he would not have
been assaulted and robbed, but that too might be said of any other
assault or robbery committed upon him; for if his presence at one time
and place be a fault or wrong on his part, contributing to the assault
and robbery in the nature of cause to effect, it must be equally so at
every other time and place, and so always a defence in the mouth of the
highwayman. Every highwayman must have his opportunity by the passing of
some traveller, and so some one must pass over a rotten and unsafe
bridge or defective highway before any accident or injury can happen
from that cause. Connection, therefore, merely in point of time, between
the unlawful act or fault of the plaintiff, and the wrong or omission of
the defendant, the same being in other respects disconnected and
independent acts or events, does not suffice to establish contributory
negligence or to defeat the plaintiff’s action on that ground. As
observed in Mohney _v._ Cook, such connection, if looked upon as in any
sense a cause, whether sacred and mysterious or otherwise, clearly falls
under the rule _causa proxima non remota spectatur_.

“The cause of an event,” says Appleton, C. J., in Moulton _v._ Sanford,
51 Maine, 134, “is the sum total of the contingencies of every
description, which, being realized, the event invariably follows. It is
rare, if ever, that the invariable sequence of events subsists between
one antecedent and one consequent. Ordinarily that condition is usually
termed the cause, whose share in the matter is the most conspicuous and
is the most immediately preceding and proximate to the event.”

In the present case the weight of the same cattle, upon the same bridge,
either the day before or the day after the event complained of, when the
plaintiff would have been guilty of no violation of law in driving them,
would most unquestionably have produced the same injurious result. And
if, on that day even, the driving had been a work of necessity or
charity, as if the city of Milwaukee had been in great part destroyed by
fire, as Chicago recently was, and great numbers of her inhabitants in a
condition of helplessness and starvation, and the plaintiff hurrying up
his drove of beef cattle for their relief, no one doubts the same
accident would then have happened, and the same injuries have ensued.
The law of gravitation would not then have been suspended, nor would the
rotten and defective stringers have refused to give way under the
superincumbent weight, precisely as they did do on the present occasion.
There are many other violations of law, which the traveller or other
person passing along the highway may, at the time he receives an injury
from a defect in it, be in the act of committing, and which are quite as
closely connected with the injury, or the cause of it, as is the
violation of which complaint is made against the present plaintiff. He
may be engaged in cruelly beating or torturing his horse, or ox, or
other animal; he may be in the pursuit of game, with intent to kill or
destroy it, at a season of the year when this is prohibited; he may be
exposing game for sale, or have it in his possession, when these are
unlawful; he may be in the act of committing an assault, or resisting an
officer; he may be fraudulently passing a toll gate, without paying his
toll; and he may be unlawfully setting or using a net or seine, for the
purpose of catching fish, in an inland lake or stream.

All of these are acts prohibited by the same chapter or statute in which
we find the prohibition from work and labor on Sunday, and some of them
under the same, but most under a greater penalty than is prescribed for
that offence, thus showing the character or degree of culpability which
was variously attached to them in the opinion of the legislature. And
there are many other minor offences, _mala prohibita_ merely, created by
statute, which might be in like manner committed. There are in
Massachusetts, and doubtless in many of the States, statutes against
blasphemy and profane cursing and swearing, the prevention of which
seems to be equally if not more an object of solicitude and care on the
part of the legislature, than the prevention of labor, travel, or other
secular pursuits on Sunday, because more severely punished. It has not
yet transpired, we believe, even in Massachusetts, that the action of
any person to recover damages for an injury sustained by reason of
defects in a highway, has been peremptorily dismissed because he was
engaged at the time in profane cursing or swearing, or because he was in
a state of voluntary intoxication, likewise prohibited under penalty by
statute.

It is obvious that the breaking down of a bridge from the rottenness of
the timbers, or their inability to sustain the weight of the person or
of his horses and carriage, could not be affected by either of these
circumstances, and yet, on the principle of the decisions above referred
to in that State, it is not easy to see why the action must not be
dismissed. On principle there could be no discrimination between the
cases, and it could make no difference in what the unlawful act of the
plaintiff consisted at the time of receiving the injury. We must reject
the doctrine of those cases entirely and adopt that of the other cases
cited, and which is well expressed by the Supreme Court of Maine, in
Baker _v._ Portland, 58 Maine, 199, 204, as follows: “The defendant’s
counsel contends that the simple fact that the plaintiff is in the act
of violating the law, at the time of the injury, is a bar to the right
of recovery. Undoubtedly there are many cases where the contemporaneous
violation of the law by the plaintiff is so connected with his claim for
damages as to preclude his recovery: but to lay down such a rule as the
counsel claims, and disregard the distinction in the ruling of which he
complains, would be productive oftentimes of palpable injustice. The
fact that a party plaintiff in an action of this description was at the
time of the injury passing another wayfarer on the wrong side of the
street, or without giving him half the road, or that he was travelling
on runners without bells, in contravention of the statute, or that he
was smoking a cigar in the street, in violation of municipal ordinance,
while it might subject the offender to a penalty, will not excuse the
town for a neglect to make its way safe and convenient for travellers,
if the commission of the plaintiff’s offence did not in any degree
contribute to produce the injury of which he complains.”

Strong analogy is afforded and much weight and force of reason bearing
upon this question are found in some of the cases which have arisen upon
life policies, and as to the meaning and effect to be given to the
condition usually contained in them, exempting the company from
liability in case the assured “shall die in the known violation of any
law,” &c., and it has been held that the violation must be such as is
calculated to endanger life, by leading to acts of violence against, or
to the bodily or personal injury or exposure of, the assured, and so to
operate in producing his death in the connection of cause to effect. See
opinions in Bradley _v._ Mutual Benefit Life Ins. Co., 45 N. Y. 422.

In the case of Clemens _v._ Clemens, recently decided by this Court, it
became necessary to consider the same question, though under different
circumstances, as to what violation of law on the part of the plaintiff
would bar his action in a Court of justice and leave him remediless in
the hands of an overreaching and dishonest antagonist, and the views
there expressed are not without their relevancy and adaptation to the
question as here presented. In that case, this Court adopted the rule of
law as settled in Massachusetts, favoring the remedy of the plaintiff,
against the opposite rule sustained by the adjudications in some of the
other States, and consistency of decision seems now clearly to require
that our action should be reserved with respect to the rule established
by the cases here referred to. The inconsistency upon general principle
between these decisions of the same learned Court and those there relied
upon and adopted, will, we think, be readily perceived and conceded when
carefully examined and considered in connection with each other.

* * * * *

_Judgment reversed, and a venire de novo awarded._[247]

STEELE _v._ BURKHARDT
SUPREME JUDICIAL COURT, MASSACHUSETTS, MARCH, 1870.
_Reported in 104 Massachusetts Reports, 59._

Tort for injury alleged to have been caused to the plaintiffs’ horse by
the negligence of the defendant’s servant; submitted to the judgment of
the Superior Court, and, on appeal, of this Court, upon the following
award of an arbitrator as upon a statement of agreed facts:—

“I find that the injury to the plaintiffs’ horse, for which they seek to
recover damages in this action, was occasioned by the negligence and
want of due care of the defendant’s servant, then in the employment of
the defendant. At the time of the injury, the plaintiffs’ wagon, to
which the injured horse was attached, was placed in Clinton Street in
the city of Boston, by the plaintiffs’ driver, having the care of the
wagon for the loading of certain articles, the weight of which in each
and every package thereof was less than five hundred pounds; and the
wagon was then wholly or in part backed and placed across Clinton
Street, and thereby the plaintiffs were guilty of a violation of an
ordinance of the city, which provides as follows: ‘And for the loading
or unloading of any dirt, bricks, stones, sand, gravel, or of any
articles, whether of the same description or not, the weight of which in
any one package shall be less than five hundred pounds, no truck, cart,
wagon, sleigh, sled, or other vehicle shall be wholly or in part backed
or placed across any street, square, lane, or alley, or upon flag-stones
or crossings of the same, but shall be placed lengthwise, and as near as
possible to the abutting stone of the sidewalk or footway; and any owner
or driver or other person having the care of any such vehicle, violating
either of the provisions of this section, shall be liable to a fine of
not less than five dollars, nor more than twenty dollars, for each
offence.’ It is in evidence that, at the time of the injury, there was
sufficient room, with proper care, for the defendant’s team to pass
through Clinton Street (a greater degree of care being required by
reason of the position of the plaintiffs’ team as aforesaid, but not
greater than the defendant was bound to use, in my judgment), but the
defendant’s servant, in passing between the plaintiffs’ horse and the
opposite curbstone, ran over and upon the hoof of the plaintiff’s horse,
with a heavy team, and in so doing was guilty of the negligence which I
report; and I further find, that the only fault upon the part of the
plaintiffs is the fact of their horse and wagon having been placed
against the curb in violation of the city ordinance above mentioned.

“In case the Court shall find, under the foregoing statement of facts,
that the violation hereinbefore mentioned of said ordinance, on the part
of the plaintiffs’ driver, debarred the plaintiffs from maintaining
their action for damages, my award would be judgment for the defendant
for his costs of court, with the costs of this reference; otherwise, my
award would be for the plaintiffs, for the sum of $225 and their costs
of court.”

CHAPMAN, C. J. The act complained of by the plaintiffs is, that while
their horse was standing on Clinton Street, the defendant’s servant,
while driving a heavy team along the street, carelessly drove it upon
the hoof of the plaintiffs’ horse, and injured him. The award, which the
parties have agreed to accept as a statement of facts, finds that the
injury was occasioned by negligence and want of due care in the
defendant’s servant. The terms of this finding imply that there was no
negligence on the part of the plaintiffs, which contributed to the
injury. And it is further found that, though the plaintiffs’ team was
standing there in violation of a city ordinance, yet there was room for
the defendant’s team to pass by, using due care, and the only fault of
the plaintiffs consisted in the violation of the city ordinance. It is
not found that this violation contributed to the injury. It is said by
Bigelow, C. J., in Jones _v._ Andover, 10 Allen, 20, that, “in case of a
collision of two vehicles on a highway, evidence that the plaintiff was
travelling on the left side of the road, in violation of the statute,
when he met the defendant, would be admissible to show negligence.” So
the evidence that the plaintiffs’ team was standing in the street in
violation of a city ordinance was admissible to show negligence on their
part. It did show negligence in respect to keeping the ordinance, but
did not necessarily show negligence that contributed to the injury. And,
notwithstanding this evidence, it was competent to the arbitrator to
find, as a fact, that, towards the defendant, the plaintiffs were guilty
of no negligence, but were careful to leave him ample room to pass. He
did so find in substance; and his finding is agreed to as a fact.

A collision on the highway sometimes happens, when both parties are in
motion, and both are active in producing it. In such cases, the
plaintiff must prove that he was not moving carelessly. But the
collision sometimes happens, as in this case, when the plaintiffs’ team
is standing still. In such a case, he must prove that his position was
not so carelessly taken as to contribute to the collision. The fact is
here found that it was not so taken, though it was in violation of the
ordinance. There was therefore no such negligence on his part as to
defeat the action.

Actions founded on negligence are governed by a plain principle. The
plaintiffs’ declaration alleges that the injury happened in consequence
of the negligence of the defendant. This is held to imply that there was
no negligence on the part of the plaintiff which contributed to the
injury; and to throw upon him the burden of proving the truth of the
allegation. It may depend upon care exercised by himself personally, or
by his coachman, if he is riding; or by his teamster, in his absence; or
by the person in charge of him, if he is an invalid, or an infant of
tender years, or in any way so situated as to need the care of another
person in respect to the matter. If there was want of care, either on
the part of himself or the person acting for him, and the injury is
partly attributable directly to that cause, he cannot recover, simply
because he cannot prove what he has alleged. Among the numerous cases
sustaining this view are, Parker _v._ Adams, 12 Met. 415; Horton _v._
Ipswich, 12 Cush. 488; Holly _v._ Boston Gas Light Co., 8 Gray, 131;
Wright _v._ Malden & Melrose Railroad Co., 4 Allen, 283; Callahan _v._
Bean, 9 Allen, 401.

But it is further contended that these plaintiffs are compelled to prove
their own violation of law in order to establish their case, and
therefore the action cannot be maintained. The substance of the
ordinance referred to is, that for loading and unloading packages
weighing less than five hundred pounds, wagons shall stand lengthwise of
streets, and not crosswise, under a prescribed penalty. The plaintiffs
were loading packages of less weight, and their wagon was standing
crosswise of the street. But proof of the weight of these packages was
not necessary. In this respect the case is like that of Welch _v._
Wesson, 6 Gray, 505, where the plaintiff was injured while he was
trotting his horse illegally. It is unlike the cases of Gregg _v._
Wyman, 4 Cush. 322, and Way _v._ Foster, 1 Allen, 408, which were
decided in favor of the defendant upon the ground that the plaintiff was
obliged to lay the foundation of his action in his own violation of law.
Even in those cases, the violation of law by the plaintiffs would not
have justified an assault and battery or a false imprisonment of the
plaintiffs. In this case, if the packages had weighed more than five
hundred pounds, the position of the team would have been the same. In
Spofford _v._ Harlow, 3 Allen, 176, it was held that, though the
plaintiff’s sleigh was on the wrong side of the street, in violation of
law, the defendant was liable, if his servant ran into the plaintiff
carelessly and recklessly, the plaintiff’s negligence not contributing
to the injury. And it is true generally, that while no person can
maintain an action to which he must trace his title through his own
breach of the law, yet the fact that he is breaking the law does not
leave him remediless for injuries wilfully or carelessly done to him,
and to which his own conduct has not contributed.

_Judgment for the plaintiffs._

NEWCOMB _v._ BOSTON PROTECTIVE DEPARTMENT
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 25, 1888.
_Reported in 146 Massachusetts Reports, 596._

Tort for personal injuries occasioned to the plaintiff, a cab-driver, by
a collision between the cab and a wagon of the defendant.

At the trial in the Superior Court, before Blodgett, J., evidence was
introduced tending to show that the defendant was incorporated under the
St. of 1874, c. 61,[248] for the protection of life and property at
fires in the city of Boston, and that the collision occurred while one
of its wagons, with its regular complement of men, was responding to a
fire alarm; that the wagon was proceeding along Washington Street in a
northerly direction; that the cab, upon which the plaintiff was sitting,
was one of several cabs standing in a line upon the easterly side of
Washington Street between the easterly track of a street railway and the
curbstone; that the plaintiff’s cab and horse were not drawn up
lengthwise of the street and as near as possible to the curbstone, but
that the horse was facing the sidewalk at an angle so that the body of
the cab projected eighteen or twenty inches into the street beyond the
line of the other cabs; and that the wagon of the defendant was driven
negligently into the cab, causing the accident.

The defendant asked the judge to instruct the jury as follows:—

“1. If the plaintiff, at the time of the accident, was violating the
ordinance of the city of Boston, to wit, ‘Every owner, driver, or other
person having the care and ordering of a vehicle shall, when stopping in
a street, place his vehicle and the horse or horses connected therewith
lengthwise with the street, as near as possible to the sidewalk,’ that
was an unlawful act, and he cannot recover in this action. 2. If that
unlawful act contributed to cause the alleged injury, the plaintiff was
not in the exercise of due care, and therefore he cannot maintain this
action. 3. Under section 3, chapter 61, of the Acts of 1874, ‘The
officers and men of the Boston Protective Department, with their teams
and apparatus, shall have the right of way, while going to a fire,
through any street, lane, or alley in the city of Boston,’ said
defendant is not liable for an accident caused by the collision of one
of its teams, while going to a fire, with a vehicle standing in the
streets, in violation of either of the city ordinances. 4. If the
plaintiff, at the time of the action, was violating the ordinance of the
city of Boston, to wit, ‘Every driver of a vehicle shall remain near it
while it is unemployed or standing in a street, unless he is necessarily
absent in the course of his duty and business, and he shall so keep his
horse or horses and vehicle as not to obstruct the streets,’ that was an
unlawful act, and he cannot recover in this action. 5. If that unlawful
act contributed to cause the alleged injury, the plaintiff was not in
the exercise of due care, and therefore he cannot maintain this action.”

The judge refused to give these instructions, but instructed the jury as
to the effect of a violation of the ordinance as to the position of a
vehicle and horse while standing in a street, stating that the rule was
applicable to both ordinances as follows:—

“Bearing in mind the provision of the regulation as to the position of a
vehicle when not in motion, I instruct you as to the law, that if, at
the time of the injury to the plaintiff, he allowed his carriage to
stand in the street in violation of this ordinance, such violation is
evidence of negligence on his part; and, if such negligence directly
contributed to the injury, the plaintiff cannot maintain the action. It
cannot be said, as matter of law, that the fact that the plaintiff was
violating a city ordinance necessarily shows negligence that contributed
to the injury. Whether the position of the plaintiff’s horse and
carriage, in violation of an ordinance, did or did not contribute to the
injury, is a question of fact for the jury; and in determining this
question, the jury will take into consideration all the surrounding
facts and circumstances.... The plaintiff must prove that his position
was not so carelessly taken as to contribute to the collision; and the
fact that his position was in violation of the ordinance is not
conclusive proof of negligence which contributed to the injury. Or,
stating the general rule in a somewhat different form, the fact that the
plaintiff is engaged in violating the law does not prevent him from
recovering damages of the defendant for an injury which the defendant
could have avoided by the exercise of ordinary care, unless the unlawful
act contributed proximately to produce the injury.... If, applying these
rules, you are of the opinion that there was no negligence, in other
words, no carelessness, on the part of the plaintiff, which directly
contributed to the injury, then the plaintiff is entitled to maintain
this action, if he proves another proposition; and as to that, the
burden is upon him. And that proposition is, that the defendant’s
servants, in the care and management of this wagon, at the time the
plaintiff was injured, were negligent.”

The jury returned a verdict for the plaintiff; and the defendant alleged
exceptions.

KNOWLTON, J. The plaintiff brought his action to recover for injuries
received while sitting upon his cab, from the negligent driving of a
wagon against it by a servant of the defendant corporation. There was
evidence tending to show that, at the time of the accident, he was
violating an ordinance of the city of Boston, by waiting in a street
without placing his vehicle and horse lengthwise with the street, as
near as possible to the sidewalk, and that this illegal conduct
contributed to the injury. There was evidence applicable in like manner
to another similar ordinance, which requires every driver of a vehicle
standing in a street so to keep his horse or horses and vehicle as not
to obstruct the streets.

As to the alleged violation of each of these ordinances, the defendant
asked the Court to instruct the jury as follows: “If that unlawful act
contributed to cause the alleged injury, the plaintiff was not in the
exercise of due care, and therefore he cannot maintain this action.” The
presiding judge declined to give this instruction, and gave none which
we deem to be equivalent to it. He instructed the jury in these words:
“If, at the time of the injury to the plaintiff, he allowed his carriage
to stand in the street in violation of this ordinance, such violation is
evidence of negligence on his part; and, if such negligence directly
contributed to the injury, the plaintiff cannot maintain the action. It
cannot be said, as matter of law, that the fact that the plaintiff was
violating a city ordinance necessarily shows negligence that contributed
to the injury.” In another part of the charge it was indirectly
intimated that, if the plaintiff’s unlawful act contributed proximately
to produce the injury, he could not recover, but it was nowhere
expressly stated.

The question before us then is, whether or not the defendant was
entitled to this instruction,—in other words, whether, if the
plaintiff’s unlawful act contributed to cause his injury, it was a bar
to his recovery, or merely evidence of negligence which might or might
not bar him, according to the view which the jury should take of his
conduct as a whole, in its relation to the accident.

It has often been held that a violation of law at the time of an
accident, by one connected with it, is evidence of his negligence, but
not conclusive. Hanlon _v._ South Boston Horse Railroad, 129 Mass. 310;
Hall _v._ Ripley, 119 Mass. 135; Damon _v._ Scituate, 119 Mass. 66. In
recent times a large number of penal statutes have been enacted, in
which the legislature has seen fit to punish acts which are not _mala in
se_, and sometimes when in a given case there is no actual criminal
intent. On grounds of public policy, laws have been passed under which a
person is bound to know the facts in regard to the subject with which he
is dealing, when under possible circumstances ignorance would not be
inconsistent with proper care. One who sells milk must know that it is
not adulterated. An unlicensed person must know that what he sells is
not intoxicating liquor. Commonwealth _v._ Boynton, 2 Allen, 160. And if
in a possible case he trespasses in innocent ignorance, the law gives
him no relief. He can only appeal to the sense of justice and the
discretion of the public authorities to save him from the punishment
which the law would inflict. It is obvious that in suits for negligence,
if the contributing conduct of the plaintiff is to be considered as a
whole, it may sometimes be found that he has not been guilty of actual
negligence or fault, although he has violated the law. One element of
his action may be neglect of a duty prescribed by a statute, when there
are other concurring elements which show that his course was entirely
justifiable.

As a general rule, in deciding a question in relation to negligence,
each element which enters as a factor into one’s act to give it
character is to be considered in connection with every other, and the
result is reached by considering all together. But, for reasons which
will presently appear, illegal conduct of a plaintiff directly
contributing to the occurrence on which his action is founded, is an
exception to this rule. Such illegality may be viewed in either of two
aspects: looking at the transaction to which it pertains as a whole, it
may be considered as a circumstance bearing upon the question whether
there was actual negligence; or looking at it simply in reference to the
violated law, the act may be tried solely by the test of that law. In
the latter aspect it wears a hostile garb, and an inquiry is at once
suggested, whether the plaintiff, as a transgressor of the law, is in a
position to obtain relief at the hand of the law. In the first view, the
illegal conduct comes within the general rule just stated; in the
second, it does not. This distinction has not always been observed. A
plaintiff’s violation of law has usually been discussed in connection
with the subject of due care.

In Bosworth _v._ Swansey, 10 Met. 363, Chief Justice Shaw, after
referring to the rule that a plaintiff must be free from “imputation of
negligence or fault,” says, in reference to unlawful travelling on the
Lord’s day, “This would be a species of fault on his part, which would
bring him within the principle of the cases cited.”

In Jones _v._ Andover, 10 Allen, 18, Chief Justice Bigelow says, “The
term ‘due care,’ as usually understood, in cases where the gist of the
action is the negligence of the defendant, implies not only that a party
has not been negligent or careless, but that he has been guilty of no
violation of law in relation to the subject-matter or transaction which
constitutes the cause of action.”

In Steele _v._ Burkhardt, 104 Mass. 59, an action for negligence in
driving against the plaintiffs’ horse, which was left standing in a
street in violation of an ordinance, Chief Justice Chapman considers the
general subject of the plaintiffs’ due care, and then treats
particularly the contention of the defendant that the plaintiffs were
compelled to prove their violation of law in order to establish their
case.

McGrath _v._ Merwin, 112 Mass. 467, was an action founded on the
defendant’s alleged negligence in starting the machinery of a mill,
while the plaintiff was at work in the wheel-pit making repairs on the
Lord’s day, and Mr. Justice Morton, in delivering the opinion, deals
with the case solely upon the principle that Courts will not aid a
plaintiff whose action is founded upon his own illegal act, and says,
“The decisions in this Commonwealth are numerous and uniform to the
effect that the plaintiff, being engaged in a violation of law, cannot
recover, if his own illegal act was an essential element of his case as
disclosed upon all the evidence.” He further states the rule in such
cases to be, that, “if the illegal act of the plaintiff contributed to
his injury, he cannot recover; but though the plaintiff at the time of
the injury was acting in violation of law, if his illegal act did not
contribute to the injury, but was independent of it, he is not precluded
thereby from recovering.”

In Davis _v._ Guarnieri, 45 Ohio St. 470, Owen, C. J., states, as the
second of three considerations upon which the doctrine of contributory
negligence is founded, “the principle which requires every suitor who
seeks to enforce his rights or redress his wrongs to go into court with
clean hands, and which will not permit him to recover for his own
wrong.”

No case has been brought to our attention, and upon careful
investigation we have found none, in which a plaintiff whose violation
of law contributed directly and proximately to cause him an injury has
been permitted to recover for it; and the decisions are numerous to the
contrary. Hall _v._ Ripley, 119 Mass. 135; Banks _v._ Highland Street
Railway, 136 Mass. 485; Tuttle _v._ Lawrence, 119 Mass. 276, 278; Lyons
_v._ Desotelle, 124 Mass. 387; Heland _v._ Lowell, 3 Allen, 407; Steele
_v._ Burkhardt, 104 Mass. 59; Damon _v._ Scituate, 119 Mass. 66; Marble
_v._ Ross, 124 Mass. 44; Smith _v._ Boston & Maine Railroad, 120 Mass.
490. And it is quite immaterial whether or not a plaintiff’s unlawful
act contributing to his injury is negligent or wrong when considered in
all its relations. He is precluded from recovering on the ground that
the Court will not lend its aid to one whose violation of law is the
foundation of his claim. Hall _v._ Corcoran, 107 Mass. 251.

While this principle is universally recognized, there is great practical
difficulty in applying it. The best minds often differ upon the question
whether, in a given case, illegal conduct of a plaintiff was a direct
and proximate cause contributing with others to his injury, or was a
mere condition of it; or, to state the question in another way,
appropriate to the reason of the rule, whether or not his own illegal
act is an essential element of his case as disclosed upon all the
evidence. Upon this point it is not easy to reconcile the cases. It has
been unanimously decided that in Gregg _v._ Wyman, 4 Cush. 322, there
was error in holding a plaintiff’s illegal conduct to be an essential
element of his case, when in fact it was merely incidental to it. Hall
_v._ Corcoran, _ubi supra_. But whatever criticisms may have been made
upon the decisions or the assumptions in certain cases, that illegal
action of a plaintiff contributed to the result, or was to be treated as
a concurring cause, or upon language in disregard of the distinction
between a cause and a condition, there has been none upon the doctrine
that, when a plaintiff’s illegal conduct does directly contribute to his
injury, it is fatal to his recovery of damages. Baker _v._ Portland, 58
Maine, 199; Norris _v._ Litchfield, 35 N. H. 271; Sutton _v._ Wauwatosa,
29 Wis. 21.

The plaintiff relies with great confidence upon the case of Hanlon _v._
South Boston Horse Railroad, 129 Mass. 310, in which the presiding judge
at the trial refused to rule, that, “if the defendant was driving at a
rate of speed prohibited by the ordinance of the city of Boston, and
this speed contributed to the injury, this fact would itself constitute
negligence on the part of the defendant, and would entitle the plaintiff
to recover if he was in the exercise of due care,” and his refusal was
held right by this Court. In giving the opinion, after pointing out that
driving at a rate of speed forbidden by the ordinance might have
occurred without fault of the driver, and might have been justified by
circumstances authorizing the jury to find that there was no negligence,
Mr. Justice Colt said, “It is not true that, if an unlawful rate of
speed contributed to the injury, that alone would give the plaintiff a
right to recover, if he was without fault.” There are intimations,
without adjudication, to the same effect, in Wright _v._ Malden &
Melrose Railroad, 4 Allen, 283, and in Lane _v._ Atlantic Works, 111
Mass. 136. See also Kirby _v._ Boylston Market Association, 14 Gray,
249; Heeney _v._ Sprague, 11 R. I. 456; Brown _v._ Buffalo & State Line
Railroad, 22 N. Y. 191; Flynn _v._ Canton Co., 40 Md. 312.

But there is nothing in the language used in Hanlon _v._ South Boston
Horse Railroad inconsistent with the principle which we have already
stated. That decision related to the liability of a defendant. It may
be, where a penal statute does not purport to create a civil liability,
or to protect the rights of particular persons, that a violation of it
will not subject the violator to an action for damages, unless his act,
when viewed in connection with all the attendant circumstances, appears
to be negligent or wrongful. And at the same time Courts may well hold
that, in the sanctuary of the law, a violator of law imploring relief
from the consequences of his own transgression will receive no favor.

The instruction requested in the case at bar would have become
applicable only upon a finding by the jury that the plaintiff’s unlawful
act contributed to cause the injury. The jury may have so found; and we
are of opinion that upon such a finding, irrespective of the question
whether viewed in all its aspects his act was negligent or not, the
Court could not properly permit him to recover. The instruction,
therefore, should have been given.

The Court rightly refused the instruction requested, that the plaintiff
could not recover if at the time of the accident he was violating the
ordinance, and so doing an unlawful act. This request ignored the
distinction between illegality which is a cause, and illegality which is
a condition of a transaction relied on by a plaintiff, or between that
which is an essential element of his case when all the facts appear, and
that which is no part of it, but only an attendant circumstance. The
position of a vehicle, which has been struck by another, may or may not
have been one of the causes of the striking. Of course it could not have
been struck if it had not been in the place where the blow came. But
this is a statement of an essential condition, and not of a cause of the
impact. The distinction is between that which directly and proximately
produces, or helps to produce, a result as an efficient cause, and that
which is a necessary condition or attendant circumstance of it. If the
position of the plaintiff’s vehicle was such as, in connection with
ordinary and usual concurring causes, would naturally produce such an
accident, that indicates that it contributed to it. But even in that
case, external causes may have been so exclusive in their operation, and
so free from any relation to the position of the vehicle, as to have
left that a mere condition, without agency in producing the result. What
is a contributing cause of an accident is usually a question for a jury,
to be determined by the facts of the particular case; and such it has
been held to be in many cases like the one before us. Damon _v._
Scituate, 119 Mass. 66; Hall _v._ Ripley, 119 Mass. 135; Welch _v._
Wesson, 6 Gray, 505; Spofford _v._ Harlow, 3 Allen, 176; White _v._
Lang, 128 Mass. 598; Baker _v._ Portland, 58 Maine, 199; Norris _v._
Litchfield, 35 N. H. 271; Sutton _v._ Wauwatosa, 29 Wis. 21.

The defendant’s third request for an instruction was rightly refused,
for reasons which have already been stated. The statute referred to does
not relieve the defendant from liability for negligence to a plaintiff
whose unlawful act or want of due care does not contribute to his
injury. In the opinion of a majority of the Court the entry must be—

_Exceptions sustained._[249]

HEMMING _v._ CITY OF NEW HAVEN
SUPREME COURT OF ERRORS, CONNECTICUT, JANUARY 4, 1910.
_Reported in 82 Connecticut Reports, 661._

RORABACK, J. On September 21st, 1907, Ley & Company, electrical
contractors, were constructing a conduit on Chapel Street in New Haven,
under a contract with the United Illuminating Company, for the purpose
of laying its underground system of wiring in said highway, and for that
purpose had caused an excavation to be made on Chapel Street. On
September 21st an automobile owned by the plaintiff, and driven by him
personally, came through Temple Street in a southerly direction and ran
into this excavation, causing the injuries described in the complaint.
This automobile had been purchased by the plaintiff on July 27th, 1906,
of one Holcombe. Prior thereto the plaintiff had owned another
automobile, which was duly registered by the secretary of State,
pursuant to the statute then in force. The plaintiff had not made
application to the secretary of State for registration of the automobile
last purchased, until September 21st, 1907, when he mailed his
application, enclosing his check for registration fee, at the
post-office in New Haven, to the secretary of State, by whom it was
received on September 23d, 1907. On September 28th, 1907, a certificate
of registration for the automobile driven by the plaintiff at the time
of the accident was issued by the secretary of State, as provided for by
law. The registration mark displayed by the plaintiff at the time of the
accident bore the number which had been assigned to him as the owner of
another automobile owned by him, and which had been disposed of prior to
the accident.

The reasons of appeal relied upon are that the court erred in refusing
to charge as requested, and in the charge as given.

The defendant requested the court to instruct the jury as follows: “The
burden of proof is on the plaintiff to prove by a preponderance of the
evidence that at the time of the accident he had the authority of the
State of Connecticut to use his machine on the highways of the State,
and if the plaintiff does not prove that he had such authority and
license, he cannot recover, and your verdict should be for the
defendant. If at the time of the accident the plaintiff did not have the
authority of the State of Connecticut to use his automobile described in
the complaint on the highways of the State, he cannot recover and your
verdict should be for the defendant.”

The court declined to give these rulings, but instructed the jury that
the plaintiff’s failure to register would not of itself bar his right to
recover, since the law does not provide that one who fails to register
his automobile cannot make use of it upon the highway. “The failure of
the plaintiff to register his automobile cannot be held to tend to prove
contributory negligence on the part of the plaintiff, unless you find
that such conduct was illegal, and that it directly contributed to the
accident upon which this case is founded; that is, unless you find it to
have been the cause, or one of the causes, of this accident; and no such
claim, that is, that this did directly contribute to the accident, is
made in this case as I understand the contention of counsel.”

The statute relative to automobiles then in force (Public Acts of 1907,
chap. 221, pp. 821 to 828), provides, in § 2, for the registering of
automobiles and the placing of numbers on machines so registered. The
penalty to any person having failed to register or display his number
was not more than $100, or imprisonment not more than thirty days, or
both.

The plaintiff was violating the statute relating to the registration of
automobiles, but that fact does not relieve the defendant. This statute
imposed an obligation upon the plaintiff to register his automobile, and
for its violation prescribed a penalty. The statute goes no further, and
it cannot be held that the right to maintain an action for damages
resulting from the omission of the defendant to perform a public duty is
taken away because the person injured was at the time his injuries were
sustained disobeying a statute law which in no way contributed to the
accident. A traveller with an unregistered and unnumbered automobile is
not made a trespasser upon the street, neither does it necessarily
follow that the property which he owns is outside of legal protection
when injured by the unlawful acts of another. “There is some real and
more apparent conflict of opinion in the many cases treating of the
relation between an illegal act and a coincident injury. In doing an
unlawful act a person does not necessarily put himself outside the
protection of the law. He is not barred of redress for an injury
suffered by himself, nor liable for an injury suffered by another,
merely because he is a lawbreaker. In actions to recover for injuries
not intentionally inflicted but resulting from a breach of duty which
another owed to the party injured—commonly classed as actions for
negligence—the fact that the plaintiff or defendant at the time of the
injury was a lawbreaker may possibly be relevant as an incidental
circumstance, but is otherwise immaterial unless the act of violating
the law is in itself a breach of duty to the party injured in respect to
the injury suffered.” Monroe _v._ Hartford Street Ry. Co., 76 Conn. 201,
206, 56 Atl. 498.

The registration of the plaintiff’s machine was of no consequence to the
defendant. His failure to register and display his number in no way
contributed to cause the injury. The accident would have happened if the
law in this respect had been fully observed. The plaintiff’s unlawful
act was not the act of using the street, but in making a lawful use of
it without having his automobile registered and marked as required by
law. The statute contains no prohibition against using an unlicensed and
unnumbered automobile upon the highways and streets of the State.

The defendant placed much reliance upon the authority of Dudley _v._
Northampton Street Ry. Co., 202 Mass. 443, 446, 89 N. E. 25. In that
case the Supreme Court of Massachusetts was called upon to construe the
effect of a statute which provided that no automobile should be operated
upon any public highway unless it was registered, &c. Dudley, the
plaintiff in that action, was a resident of Connecticut. He had fully
complied with the laws of Connecticut, and had a right to operate his
machine on the highways of Massachusetts for a period not exceeding
fifteen days. After being in Massachusetts more than fifteen days,
Dudley’s automobile collided with the defendant’s trolley-car. The
Massachusetts court held that Dudley was a trespasser against the rights
of all persons lawfully controlling or using the public highways of
Massachusetts.

The difference between the Dudley case and the one now under
consideration is that in Massachusetts there was a statutory prohibition
against using upon the highways of that State an automobile unregistered
and unmarked. As already stated, no such provisions appeared in the
Connecticut statutes which were in force when the plaintiff’s automobile
was injured.

There is no error.

In this opinion the other judges concurred.[250]

CHAPTER III
UNINTENDED NON-NEGLIGENT INTERFERENCE

SECTION I
TRESPASS ON LAND BY ANIMALS

NOYES _v._ COLBY
SUPREME COURT, NEW HAMPSHIRE, JULY TERM, 1855.
_Reported in 30 New Hampshire Reports, 143._

Trespass, for breaking and entering the plaintiff’s close in Franklin.

Plea, general issue.

The plaintiff proved that towards night, on June 27, the defendant’s cow
was upon his premises grazing, between his house and stable. There was
no fence between his land and the highway.

The defendant then proposed to prove that, at that time he pastured his
cow in a pasture, on the road to Salisbury, and that one Heath also
pastured his cow in the same pasture. On the evening in question, when
Heath drove home his own cow, he also let the defendant’s cow out of the
pasture. He did this without the knowledge or assent of the defendant,
and without any authority, and had never done so before, and after this
transaction was requested by the defendant not to do so again. He drove
the cow down the road until she came to the point where it connects with
the road through the village of Franklin, about two hundred feet from
the plaintiff’s land, when she strayed along the road and committed the
trespass complained of.

The defendant contended that, under such circumstances he could not be
held to be a trespasser merely from the fact that he owned the cow; that
he had done no wrongful or improper act; that the act of Heath, being
without his knowledge or assent, and without his authority, could not
make him liable in trespass; that the action should not have been
brought against him, but if any trespass had been committed, should have
been brought against Heath.

There being no dispute about the facts, the Court ruled that the action
could not be maintained; whereupon a verdict was taken for the
defendant, upon which judgment was to be rendered, or it was to be set
aside, and judgment rendered for the plaintiff for twenty-five cents
damages, as this Court might order.[251]

WOODS, C. J. “A man is answerable for not only his own trespass, but
that of his cattle also; for if by his negligent keeping they stray upon
the land of another (and much more if he permits or drives them on), and
they there tread down his neighbor’s herbage, and spoil his corn or his
trees, this is a trespass for which the owner must answer in damages.” 3
Black. Com. 211. Such is the law as stated in the words of the author of
the Commentaries, which are themselves very high authority on such
subjects, and such has been the uniform practice and understanding of
the law in all times, so far as the books show, and it is therefore too
late to inquire whether the remedy by an action of trespass is founded
upon the strictest logical propriety, where the cause of the damage is
the negligence, and not the wilful act of the owner of the mischievous
beasts.

It is hardly necessary to remark, but for the course of the defendant’s
argument, that the proposition quoted from Blackstone relates to the
case in which the beasts “stray upon, the land of another,” and not to
the case in which they are driven upon it by a stranger; for then the
stranger is the author of the wrong, and the horse that he rides, or
drives, is the mere passive instrument in his hands, and the owner of
it, unless he have lent it for the purpose of the wrong, is as wholly
guiltless as any other person. For in that case, the beast does not by
the owner’s negligent keeping stray upon the land of his neighbors.

It is substantially upon this ground that Tewksbury _v._ Bucklin, 7 N.
H. Rep. 518, was decided; in which it was held that a party having the
custody of the cattle was answerable for the trespass which they
committed by straying upon another’s inclosure.

The case finds that the cow “strayed along the road,” and committed the
act complained of. It would not be just to hold the party to the strict
meaning of a single word, if it appeared by the context to have been
used inaccurately; but it appears distinctly that the animal, although
driven by Heath some distance from the pasture in the direction of the
_locus in quo_, was not driven upon it so as to be in his hands a mere
instrument for committing a trespass. Heath’s trespass was upon the
chattel of the defendant, but not upon the soil of the plaintiff. He
abandoned the cow, and she being no longer in his custody, “strayed,”
and involved the owner in the consequences ordinarily incident to
permitting beasts to stray into the inclosures of others.

When Heath abandoned the cow, she was about twelve rods from the lands
of the plaintiff. From that period she was no longer under the control
of Heath, but was again in the legal possession of the defendant, and
under his general custody and control; and like other owners having the
care and custody of their beasts at the time, he is answerable in
trespass for her act in straying upon the close in question, and grazing
there.

* * * * *

For misdirection of the judge who tried the cause, the verdict must be
set aside, and a

_New trial granted_.[252]

BEARDSLEY, C. J., IN TONAWANDA R. CO. _v._ MUNGER
(1848) _5 Denio, 255, 267–268_.

The Court seem to have held that if the plaintiff’s oxen escaped from
his enclosure after the exercise of “ordinary care and prudence in
taking care of” them, he was not responsible for their trespass on the
defendants’ land. This view of the law, we think, cannot be sustained.
The plaintiff was bound at his peril to keep his cattle at home, or at
all events to keep them out of the defendants’ close, and no degree of
“care and prudence,” if the cattle found their way onto the defendants’
land, would excuse the trespass. It would be a new feature in the law of
trespass, if the owner of cattle could escape responsibility for their
trespasses by showing he had used “ordinary,” or even extraordinary
“care and prudence” to keep them from doing mischief.[253]

TILLETT _v._ WARD
IN THE QUEEN’S BENCH DIVISION, NOVEMBER 27, 1882.
_Reported in Law Reports, 10 Queen’s Bench Division, 17._

Appeal by special case from the decision of the judge of the County
Court of Lincolnshire, holden at Stamford.

The action was to recover £1 for the damage done to goods in the
plaintiff’s shop.

It appeared that on the 15th of May, 1882, an ox of the defendant was
being driven from the live-stock market in Broad Street, Stamford, along
a public street called Ironmonger Street, to the defendant’s premises.
Ironmonger Street has a paved carriage road with a foot pavement on
either side, and the plaintiff was the occupier of an ironmonger’s shop
in the street. The ox, after having gone for some distance down the
paved carriage road of Ironmonger Street, driven by the defendant’s men,
went for a short distance upon the foot pavement on the near or
left-hand side, and was driven therefrom by one of the drovers in charge
on to the carriage road, and after continuing for a farther distance
upon such carriage road, turned again on the pavement about twelve yards
from the plaintiff’s shop, and continued upon the pavement until it came
opposite the plaintiff’s shop, when it passed through the open doorway
into the shop and did damage to goods therein to the amount claimed. The
ox was, as soon as possible after such entry and damage, driven by the
defendant’s men from the shop to the carriage road and to defendant’s
premises in another street; but they did not succeed in getting it out
until about three-quarters of an hour from the time when it entered. No
special act of negligence was proved on the part of the persons in
charge of the ox, and there was no evidence that it was of a vicious or
unruly nature, or that the defendant had any notice that there was
anything exceptional in its temper or character, or that it would be
unsafe to drive it through the public streets in the ordinary and usual
way. It was proved that at the time the ox left the carriage-way the
second time, one of the two men of the defendant in charge of the animal
was walking by its side, having his hand upon it, and that the other man
was walking about three yards in the rear of it. The two men in charge
proved that they drove it unaccompanied by other cattle from the market,
and they both declared that they did all they could under the
circumstances to prevent it going on to the foot pavement and entering
the open doorway of the plaintiff’s shop, and they stated that the
movement of the ox from the carriage-way on to the foot pavement was
sudden and could not by any reasonable or available means have been
prevented. It was alleged by the defendant’s witnesses, and not
contradicted, that it was a usual thing for several oxen to be driven
from the Stamford market in charge of two men, and sometimes one man. It
was admitted that it was not customary to drive oxen with halters, and
that they would probably not go quietly if led by halters.

The County Court judge gave a verdict for the amount claimed, giving the
defendant leave to appeal.

The question for the opinion of the Court was, whether upon the facts
the plaintiff was entitled to the verdict.[254]

LORD COLERIDGE, C. J. In this action the County Court judge has found as
a fact that there was no negligence on the part of the drivers of the
ox, or, at all events, he has not found that there was negligence, and
as it lies on the plaintiff to make out his case, the charge of
negligence, so far as it has any bearing on the matter, must be taken to
have failed.

Now, it is clear as a general rule that the owner of cattle and sheep is
bound to keep them from trespassing on his neighbor’s land, and if they
so trespass an action for damages may be brought against him,
irrespective of whether the trespass was or was not the result of his
negligence. It is also tolerably clear that where both parties are upon
the highway, where each of them has a right to be, and one of them is
injured by the trespass of an animal belonging to the other, he must, in
order to maintain his action, show that the trespass was owing to the
negligence of the other or of his servant. It is also clear that where a
man is injured by a fierce or vicious animal belonging to another, that
_prima facie_ no action can be brought without proof that the owner of
the animal knew of its mischievous tendencies.

In the present case the trespass, if there was any, was committed off
the highway upon the plaintiff’s close, which immediately adjoined the
highway, by an animal belonging to the defendant which was being driven
on the highway. No negligence is proved, and it would seem to follow
from the law that I have previously stated that the defendant is not
responsible. We find it established as an exception upon the general law
of trespass, that where cattle trespass upon unfenced land immediately
adjoining a highway the owner of the land must bear the loss. This is
shown by the judgment of Bramwell, B., in Goodwyn _v._ Cheveley, 28 L.
J. (Ex.) 298. That learned judge goes into the question whether a
reasonable time had or had not elapsed for the removal of cattle who had
trespassed under similar circumstances, and this question would not have
arisen if a mere momentary trespass had been by itself actionable. There
is also the statement of Blackburn, J., in Fletcher _v._ Rylands, L. R.
1 Ex. 265, that persons who have property adjacent to a highway may be
taken to hold it subject to the risk of injury from inevitable risk. I
could not, therefore, if I were disposed, question law laid down by such
eminent authorities, but I quite concur in their view, and I see no
distinction for this purpose between a field in the country and a street
in a market town. The accident to the plaintiff was one of the necessary
and inevitable risks which arise from driving cattle in the streets in
or out of town. No cause of action is shown, and the judgment of the
County Court judge must be reversed.

STEPHEN, J. I am of the same opinion. As I understand the law, when a
man has placed his cattle in a field it is his duty to keep them from
trespassing on the land of his neighbors, but while he is driving them
upon a highway he is not responsible, without proof of negligence on his
part, for any injury they may do upon the highway, for they cannot then
be said to be trespassing. The case of Goodwyn _v._ Cheveley, _supra_,
seems to me to establish a further exception, that the owner of the
cattle is not responsible without negligence when the injury is done to
property adjoining the highway,—an exception which is absolutely
necessary for the conduct of the common affairs of life. We have been
invited to limit this exception to the case of high roads adjoining
fields in the country, but I am very unwilling to multiply exceptions,
and I can see no solid distinction between the case of an animal
straying into a field which is unfenced or into an open shop in a town.
I think the rule to be gathered from Goodwyn _v._ Cheveley, _supra_, a
very reasonable one, for otherwise I cannot see how we could limit the
liability of the owner of the cattle for any sort of injury which could
be traced to them.

_Judgment for defendant._[255]

COOLEY ON TORTS, 2D ED., 398–400.

The statutes which, under some circumstances, or for some purposes,
require lands to be fenced by their owners, are so various in the
several States that it is not easy even to classify them. Some of them
provide merely that unless the owner shall cause his lands to be
fenced with such a fence as is particularly described, he shall
maintain no action for the trespasses of beasts upon them. These
statutes are generally limited in their force to exterior fences, and
are intended as a part of a system under which cattle are or may be
allowed to depasture the highway. In some States, from the earliest
days, beasts have been allowed to roam at large in the highways and
unenclosed lands, either by general law or on a vote of the township
or county to that effect; a futile permission, if owners of lands are
not required to fence against them. A more common provision is one
requiring the owners of adjoining premises to keep up, respectively,
one-half the partition fence between them, this being apportioned for
the purpose by agreement, by prescription, or by the order of
fence-viewers. A neglect of duty under these statutes would not only
preclude the party in fault from maintaining suit for injuries
suffered by himself in consequence thereof, but it would seem that if
the domestic animals of his neighbor should wander upon his lands,
invited by his own neglect, and should there fall into pits, or
otherwise receive injury, he would be responsible for this injury, as
one occurring proximately from his own default. The statutes which
require the construction of partition fences do so for the benefit
exclusively of the adjoining proprietors. These proprietors may, at
their option, by agreement, dispense with them, and even if they do
not agree to do so, but fail to maintain them as the law contemplates,
still, if the cattle of the third persons come wrongfully upon one
man’s lands, and from there enter the adjoining enclosure, it is no
answer to an action of trespass brought by the owner of the latter
that the partition fence provided for by the law was not
maintained.[256]

WAGNER _v._ BISSELL
SUPREME COURT, IOWA, DECEMBER TERM, 1856.
_Reported in 3 Iowa Reports, 396._

Appeal from the Jones District Court.

This was an action of replevin for certain cattle. Defendant answered,
denying the plaintiff’s right to the possession, and also alleging as a
special ground of defence, that said cattle (which he admits to be the
property of plaintiff) did on the 17th day of August, 1856, trespass
upon the uninclosed land of defendant, and while so trespassing, and
after he had suffered damage to the amount of fifty dollars, he, said
defendant, distrained the same, as he had a right to do; and while thus
lawfully distrained, and while he thus rightfully had the possession,
the said plaintiff replevied the said cattle, without paying, or
offering to pay, for the damages sustained. To this answer the plaintiff
demurred, which was sustained. Defendant refused to answer over, and
judgment being against him, he appeals.[257]

WRIGHT, C. J. [After deciding a point of pleading.] There is then but
one question in the case, and that is, whether the defendant, for the
reasons stated in his answer, was entitled to the possession of the
property, as against the plaintiff and owner. We are of opinion that he
was not, and that the demurrer was therefore properly sustained.

That at common law, every man was bound to keep his cattle within his
own close, under the penalty of answering in damage for all injuries
arising from their being abroad, is admitted by all. And a part of the
same rule is, that the owner of land is not bound to protect his
premises from the intrusion of the cattle of a stranger, or third
person; and that if such cattle shall intrude or trespass upon his
premises, whether inclosed or not, he may, at his election, bring his
action to recover the damages sustained, or distrain such trespassing
animals, until compensated for such injury. We need not at present stop
to ascertain the origin or reason of this rule. It is sufficient to say,
that as a principle of the common law, it is well, and we believe
universally settled. We are then led to inquire, whether, independent of
any statutory provisions, this rule is applicable to our condition and
circumstances as a people; and if it is, then whether it has or has not,
been changed by legislative action.

Unlike many of the States, we have no statute declaring in express terms
the common law to be in force in this State. That it is, however, has
been frequently decided by this Court, and does not, perhaps, admit of
controversy. But while this is true, it must be understood that it is
adopted only so far as it is _applicable_ to us as a people, and may be
of a general nature. At this time we need only discuss the question
whether the principle contended for is applicable; for there can be no
fair ground for claiming that it is not of a general nature.

We have assumed that it is only so much of the common law as is
_applicable_ that can be said to be in force, or recognized as a rule of
action in this State. To say that every principle of that law, however
inapplicable to our wants or institutions, is to continue in force,
until changed by some legislative rule, we believe has never been
claimed, neither indeed could it be, with any degree of reason. What is
meant however, by the term “applicable,” has been thought to admit of
some controversy. As stated by Catron, J., in the dissenting opinion in
the case of Seely _v._ Peters, 5 Gilm. 130, “Does it mean applicable to
the nature of our political institutions, and to the genius of our
republican form of government, and to our Constitution, or to our
domestic habits, our wants, and our necessities?” He then maintains that
the former only is meant, and that to adopt the latter is a clear
usurpation of legislative power by the courts. A majority of the Court
held in that case, however, as had been previously decided in Boyer _v._
Sweet, 3 Scam. 121, “that in adopting the common law, it must be
applicable to the habits and condition of our society, and in harmony
with the genius, spirit, and objects of our institutions.” And we can
see no just or fair objection to this view of the subject. Indeed, there
would seem to be much propriety in saying that the distinction attempted
is more speculative than practical or real. For what is applicable to
our wants, habits, and necessities as a community or state, must
necessarily to some extent be determined from the nature and genius of
our government and institutions. Or, in other words, to determine
whether a particular principle harmonizes with the spirit of our
institutions, we must look to the habits and condition of the society
which has created and lived under these institutions. We have adopted a
republican form of government, because we believe it to be better suited
to our condition, as it is to that of all people,—and thereunder we
believe our wants, rights, and necessities, as individuals and as a
community, are more likely to be protected and provided for. And the
conclusion would seem to fairly follow, that a principle or rule which
tends to provide for, and protect our rights and wants, would harmonize
with that form of government or those institutions which have grown up
under it.

But, however this may be, we do not believe that in determining as a
Court, whether a particular rule of the unwritten law is applicable, we
are confined alone to its agreement or disagreement with our peculiar
form of government. To make the true distinction between the rules which
are, and are not, applicable, may be frequently embarrassing and
difficult to courts.

Where the common law has been repealed or changed by the constitutions
of either the States or national government, or by their legislative
enactments, it is, of course, not binding. So also, it is safe to say,
that where it has been varied by custom, not founded in reason, or not
consonant to the genius and manners of the people, it ceases to have
force. Bouvier’s Law Dict., title Law, Common. And in accordance with
this position, are the following authorities: “The common law of England
is not to be taken in all respects to be that of America. Our ancestors
brought with them its general principles, and claimed it as their
birthright; but they brought with them and adopted only that portion
which was applicable to their situation.” Van Ness _v._ Packard, 2
Peters, 137. And see other remarks of the learned judge, in delivering
the opinion in that case, page 143, which have a bearing upon the
principal question involved in this.

In Goring _v._ Emery, 16 Pick. 107, in speaking of what parts of the
common law and the statutes of England are to be taken as in force in
Massachusetts, Shaw, C. J., says: “That what are to be deemed in force
is often a question of difficulty, depending upon the nature of the
subject, the difference between the character of our institutions, and
our general course of policy, and those of the parent country, and upon
fitness and usage.” And in The Commonwealth _v._ Knowlton, 2 Mass. 534,
it is said that “our ancestors, when they came into this new world,
claimed the common law as their birthright, and brought it with them,
except such parts as were adjudged inapplicable to their new state and
condition.”

In Ohio the rule is laid down as follows: “It has been repeatedly
decided by the courts of this State that they will adopt the principles
of the common law, as the rule of decision, so far only as those
principles are adapted to our circumstances, state of society, and form
of government.” Lindsley _v._ Coats, 1 Ham. 243; see also Penny _v._
Little, 3 Scam. 301.

Is the rule of the common law, relied upon by the appellant in this
case, applicable to our situation, condition, and usage, as a people? Is
it in accordance with our habits, wants, and necessities? As applied to
this State, is it founded in reason and the fitness of things? The
legislature has certainly not so regarded it. On the contrary, we hope
to be able to show that what legislation we have clearly recognizes the
opposite rule. At present, we are considering the question without
reference to any legislative interpretation or action.

These same inquiries were substantially discussed in the case of Seely
_v._ Peters, above referred to; and as we could not hope to answer them
more satisfactorily than is there done, we adopt the language used in
that case, the appropriateness of which, as applied to this State, will
be fully appreciated when we reflect that in their resources and
necessities, Illinois and Iowa are almost twin sisters. Both alike are
agricultural States—both alike have large and extensive prairies—and are
alike destitute of timber, as compared with the eastern and older States
of the Union.

Says Trumbull, J., in delivering that opinion: “However well adapted the
rule of the common law may be to a densely populated country like
England, it is surely but ill-adapted to a new country like ours. If
this common-law rule prevails now, it must have prevailed from the time
of the earliest settlement of the State, and can it be supposed that
when the early settlers of this country located upon the borders of our
extensive prairies, that they brought with them, and adopted as
applicable to their condition, a rule of law requiring each one to fence
up his cattle? that they designed the millions of fertile acres
stretched out before them, to go ungrazed, except as each purchaser from
the government was able to inclose his part with a fence? This State is
unlike any of the eastern States in their early settlement, because,
from the scarcity of timber, it must be many years yet before our
extensive prairies can be fenced; and their luxuriant growth, sufficient
for thousands of cattle, must be suffered to rot and decay where it
grows, unless settlers upon their borders are permitted to turn their
cattle upon them. Perhaps there is no principle of the common law so
inapplicable to the condition of our country and the people as the one
which is sought to be enforced now, for the first time, since the
settlement of the State. It has been the custom of Illinois, so long
that the memory of man runneth not to the contrary, for the owners of
stock to suffer them to run at large. Settlers have located themselves
contiguous to prairies, for the very purpose of getting the benefit of
the range. The right of all to pasture their cattle upon uninclosed
ground is universally conceded. No man has questioned this right,
although hundreds of cases must have occurred where the owners of cattle
have escaped the payment of damages on account of the insufficiency of
the fences through which their stock have broken; and never till now has
the common-law rule that the owner of cattle is bound to fence them up
been suffered to prevail, or to be applicable to our condition. The
universal understanding of all classes of community, upon which they
have acted by inclosing their crops and letting their cattle run at
large, is entitled to no little consideration in determining what the
law is; and we should feel inclined to hold, independent of any statutes
upon the subject, on account of the inapplicability of the common-law
rule to the condition and circumstances of our people, that it does not,
and never has, prevailed in Illinois.”

The learned judge then proceeds to show that it is not necessary to
assume that ground in the case before him, for the reason, as he says,
that their entire legislation clearly shows that this rule of the common
law never prevailed in that State. In like manner, we now propose to
refer to some of our own legislation which, we think, will clearly show
that it was never supposed to prevail in this State. [Here WRIGHT, C.
J., stated, and commented upon, various statutes.]

This brief reference to these several acts must be sufficient, in our
opinion, to satisfy any mind that the legislature never understood that
the rule of the common law prevailed in this State. We do not maintain
that these provisions expressly change the common-law rule. And did we
believe that this principle had, at any time, been well established in
this State, we should perhaps hold that it had not been changed by these
different statutes. Where, however, it is, to say the least, doubtful
whether the rule contended for is in accordance with our situation,
condition, and wants as a people, where for a series of years there has
been no legislation recognizing the existence of such a rule, and where
custom and habit have uniformly negatived its existence, we feel
entirely justified in giving force to these acts which, if they do not
expressly, certainly do impliedly, change the unwritten law.

* * * * *

_Judgment affirmed._[258]

BEINHORN _v._ GRISWOLD
SUPREME COURT, MONTANA, JULY 14, 1902.
_Reported in 27 Montana Reports, 79._

PIGOTT, J.[259] Action to recover damages for injuries alleged to have
been caused by the negligence of the defendant. The complaint states
that the defendant negligently left exposed a vat containing poisonous
liquid; that by reason of such negligence certain cattle of plaintiff
and of one Holm drank from the vat some of the liquid, and died from the
effects of the poison; and that Holm assigned his demand for damages to
the plaintiff. The answer puts in issue the allegation of negligence,
and avers that the death of the cattle was caused by the carelessness of
the plaintiff and Holm. The plaintiff secured a judgment, and the
defendant moved for a new trial on several grounds, one being the
insufficiency of the evidence to prove negligence on the part of the
defendant. From the order denying a new trial the defendant has
appealed.

The facts upon which the plaintiff bases his allegations of negligence
are substantially these: During the year 1898 the defendant was the
lessee in possession of the Non-Such gold mine and mill site. The
property was not inclosed by a legal fence. For the proper conduct of
his mining operations he employed the cyanide process, using large
quantities of poisonous chemicals, consisting principally of cyanide of
potassium, which he diluted with water, and kept in suitable receptacles
on the surface of the mining property, but not sufficiently covered to
prevent easy access to the poisonous solution. In appearance it
resembled water. Cattle of the plaintiff and of Holm, while ranging on
the public domain, wandered over to and upon the defendant’s mine and
mill site, and there drank the poisonous liquid contained in the vats or
tubs. The defendant knew that the cattle were in the habit of straying
upon his uninclosed property, and he had driven them away whenever he
saw them there.

The plaintiff insists there is but one question involved, which he
states thus: Is a “landowner who negligently leaves exposed upon his
uninclosed premises, where he knows stock are wont to stray, dangerous
places or substances, whereby another’s cattle, straying thereon, are
injured, liable for such injury?” He argues that, as the defendant’s
mining property was not inclosed by a legal fence, the cattle were not
trespassing upon his property, but were rightfully thereon, and that
therefore he owed to the plaintiff the duty so to use his property and
conduct his business as not to injure the plaintiff’s cattle; that, in
failing to cover the poisonous solution so as to prevent the cattle from
drinking of it, he violated this alleged duty, and as such negligence
resulted in the death of the cattle, and consequent loss to the
plaintiff, the defendant is liable in damages. In support of his
contention the plaintiff cites Monroe _v._ Cannon, 24 Montana Reports,
316 (61 Pac. 863, 81 Am. St. Rep. 439), where the owner of pasture land
was held entitled to recover the value of grass consumed by bands of
sheep deliberately and intentionally driven on it by the herder in
charge of them; the opinion containing the following language: “If in
the case now under consideration the damage sustained by respondent had
resulted from trespasses committed by cattle or sheep or other animals
named in the statute, lawfully at large, and not under the direction and
control of their owner, then appellant’s position would be sound.”
Neither this language, nor anything said in the opinion, lends
countenance to the contention of the plaintiff in the case at bar. The
decision does not declare or define any duty owing by the landowner to
the owner of straying cattle. These observations apply also to Section
3258 of the Political Code, which reads: “If any cattle, horse, mule,
ass, hog, sheep, or other domestic animal break into any inclosure, the
fence being legal, as hereinbefore provided, the owner of such animal is
liable for all damages to the owner or occupant of the inclosure which
may be sustained thereby. This section must not be construed so as to
require a legal fence in order to maintain an action for injury done by
animals running at large contrary to law.” Even if it be conceded that
the cattle of the plaintiff were not wrongfully upon defendant’s
property, no liability would be incurred from the fact that they were
injured while there, unless it was the defendant’s duty to protect from
injury all cattle on his property whose trespass was not of such a
nature as to render their owners liable for the trespass. Counsel for
the plaintiff urge that, if these cattle were not wrongfully on the
defendant’s property, they must have been rightfully there; asserting
that if there was no remedy by action, there could not be a trespass. To
this we cannot yield assent.

The owner is entitled to the exclusive possession of his land, whether
fenced or not; and it is beyond the power of the legislature to
prescribe, or of custom to create, a right in another to occupy the land
or enjoy its fruits. Either written law or custom may withhold from the
owner who does not fence his land a remedy for loss suffered by reason
of casual trespasses by cattle which stray upon it, and may give a
remedy for such trespasses to those only who inclose their land. By
custom as well as by statute the common law of England has been so
modified in Montana. This is undoubtedly a legitimate exercise of the
police power. It falls far short, however, of conferring a legal right
to dispossess the nonfencing owner. He may at pleasure lawfully drive
the intruding cattle from his land, and keep them away from it. This is
his right, for the cattle are trespassing. The owners of domestic
animals hold no servitude upon or interest, temporary or permanent, in
the open land of another, merely because it is open. If the landowner
fails to “fence out” cattle lawfully at large, he may not successfully
complain of loss caused by such live stock straying upon his uninclosed
land. For under these circumstances the trespass is condoned or
excused,—the law refuses to award damages. While the landowner, by
omitting to fence, disables himself from invoking the remedy which is
given to those who inclose their property with a legal fence, and while
the cattle owner is thereby relieved from liability for casual
trespasses, it is nevertheless true that the cattle owner has no _right_
to pasture his cattle on the land of another, and that cattle thus
wandering over such lands are not rightfully there. They are there
merely by the forbearance, sufferance, or tolerance of the nonfencing
landowner; there they may remain only by his tolerance.

The cattle-owning plaintiff did not owe to the land-owning defendant the
duty to fence his cattle in; the latter did not owe to the former the
duty to fence them out; neither of them was under obligation to the
other in that regard. The defendant is not liable in this action unless
he was negligent. There cannot be negligence without breach of duty.
Hence, manifestly, the defendant was not guilty of negligence in
omitting to prevent the plaintiff’s cattle from going upon his unfenced
land.

As has just been said, the straying of the plaintiff’s cattle upon the
defendant’s land did not involve the violation of any legal duty upon
the part of the defendant. There would therefore seem to be no basis for
the plaintiff’s charge of negligence on the part of the defendant,
unless it consists in the defendant’s alleged failure to protect the
cattle from injury while on his land. The damage resulted from a
permissive, not an active, cause of injury. We are asked to hold that
the law imposed upon the defendant, in addition to the duty of
refraining from intentional or wanton injury to the cattle, the duty so
to use his property and so to conduct his mining operations thereon as
to avoid all dangers to which these trespassing beasts might expose
themselves. Counsel invoke the provisions of Section 2296 of the Civil
Code, which is declaratory of the common law: “Every one is
responsible ... for an injury occasioned to another by his want of
ordinary care or skill in the management of his property....” Giving to
the principle thus expressed full recognition, and measuring the rights
of the parties by the test of negligence thus furnished, we are unable
to find in the record evidence of acts or omissions by the defendant
constituting negligence in the management of his property. But the
plaintiff contends that, irrespective of Section 2296, the defendant has
been guilty of negligence in so using his property as to imperil, and in
this case actually injure, the property of another. We think the
principles which he invokes have no application to the facts disclosed
by the record. To a naked trespasser or mere licensee by sufferance (if
the expression may correctly be used) the landowner owes the duty to
refrain from any wilful or wanton act causing injury to his person or
chattels, and, after discovering that the trespasser is in imminent
danger or immediate peril, to use reasonable care to avoid an active
cause of injury. Egan _v._ Montana Central Railway Co., 24 Montana
Reports, 569, 63 Pac. 831. The rule is different in respect of those who
go upon property because of the owner’s invitation, either express or
implied. As to such persons he is bound, at his peril, to use reasonable
care and diligence in keeping his property in safe condition. To a mere
licensee or naked trespasser the landowner does not owe the active duty
of being diligent or using care in providing against the danger of
accident. The distinction is well expressed in Sweeny _v._ Old Colony &
Newport Railroad Co., 10 Allen, 368, 87 Am. Dec. 644:

[A long quotation from the opinion in that case is omitted.]

The methods pursued by the defendant in the management and use of his
property involved no danger to the plaintiff or his cattle, nor exposed
either to risk, so long as he and they remained within the limits of the
plaintiff’s rights. The contention of the plaintiff rests upon the
erroneous theory, heretofore considered, that the cattle owners hold a
personal servitude upon, or the right of commons or profit in, all
unfenced land, by virtue of which they are supposed to be entitled, as
of right, to use for grazing and pasture all of the uninclosed lands of
other persons. Such burden upon or easement in gross in open lands has
not been granted, and does not exist. We have already decided that such
use, while it does not constitute an actionable wrong, is not the
exercise of a legal right; and as the cattle owner possessed no right to
have his live stock upon the defendant’s land, and the latter was
clothed with the unquestioned right to drive them away because they were
not rightfully there, clearly the defendant had no active duty in
respect of them while there. He was, of course, bound to refrain from
intentional or wanton injury; if he stood by and knowingly permitted
them to drink of the poisonous solution, without making an effort to
prevent them from doing so, he might, perhaps, be liable; but neither of
these conditions is in the case at bar.

We think there is no proof in the record which justifies the application
of the doctrine of invitation, enticement, allurement or attraction.
Deane _v._ Clayton, 7 Taunt. 489, 531, 533; Jordin _v._ Crump, 8 Mees. &
W. 782; Ponting _v._ Noakes, (1894) 2 Q. B. 281; Stendal _v._ Boyd, 67
Minn. 279, 69 N. W. 899; Twist _v._ Railroad Co., 39 Minn. 164, 39 N. W.
402, 12 Am. St. Rep. 626. The soundness of the principles upon which the
so-called “turn-table” and similar cases are supported is not presented
for decision.

We have read the opinions which are opposed to the conclusions here
announced. They need not be referred to or discussed. We are entirely
satisfied that our conclusions are based upon correct fundamental
principles.

The order refusing a new trial is reversed, with costs to the appellant,
and the cause is remanded.

_Reversed and remanded._[260]

MR. CHIEF JUSTICE BRANTLY: I concur.

MR. JUSTICE MILBURN: Considering only the facts appearing in this case,
I concur in the reversal of the order denying a new trial. I do not
concur in all that is said in the opinion with reference to absence of
duty owing by one person to another who is trespassing upon the premises
of the former, or to the owner of live stock which wander upon such
premises.

SECTION II
INJURIES BY ANIMALS

MAY _v._ BURDETT
IN THE QUEEN’S BENCH, JUNE 2, 1846.
_Reported in 9 Queen’s Bench Reports_ (_Adolphus & Ellis_, N. S.), 101.

Case. The declaration stated that defendant, “before and at the time of
the damage and injury hereinafter mentioned to the said Sophia, the wife
of the said Stephen May, wrongfully, and injuriously kept a certain
monkey, he the defendant well knowing that the said monkey was of a
mischievous and ferocious nature, and was used and accustomed to attack
and bite mankind, and that it was dangerous and improper to allow the
monkey to be at large and unconfined; which said monkey, whilst the said
defendant kept the same as aforesaid, heretofore and before the
commencement of this suit, to wit, on the 2d of September, 1844, did
attack, bite, wound, lacerate, and injure the said Sophia, then and
still being the wife of said Stephen May, whereby the said Sophia became
and was greatly terrified and alarmed, and became and was sick, sore,
lame, and disordered, and so remained and continued for a long time, to
wit, from the day and year last aforesaid to the time of the
commencement of this suit; whereby, and in consequence of the alarm and
fright occasioned by the said monkey so attacking, biting, wounding,
lacerating, and injuring her as aforesaid, the said Sophia has been
greatly injured in her health,” &c.

Plea, not guilty. Issue thereon.

On the trial, before Wightman, J., at the sittings in Middlesex, after
Hilary term, 1845, a verdict was found for the plaintiff with £50
damages. Cockburn, in the ensuing term, obtained a rule to show cause
why judgment should not be arrested.

[The cause was argued] before LORD DENMAN, C. J., PATTESON, J.,
COLERIDGE, J., and WIGHTMAN, J.[261]

LORD DENMAN, C. J., now delivered the judgment of the Court.

This was a motion to arrest the judgment in an action on the case for
keeping a monkey which the defendant knew to be accustomed to bite
people, and which bit the female plaintiff. The declaration stated that
the defendant wrongfully kept a monkey, well knowing that it was of a
mischievous and ferocious nature and used and accustomed to attack and
bite mankind, and that it was dangerous to allow it to be at large; and
that the monkey, whilst the defendant kept the same as aforesaid, did
attack, bite, and injure the female plaintiff, whereby, &c.

It was objected on the part of the defendant that the declaration was
bad for not alleging negligence or some default of the defendant in not
properly or securely keeping the animal; and it was said that,
consistently with this declaration, the monkey might have been kept with
due and proper caution, and that the injury might have been entirely
occasioned by the carelessness and want of caution of the plaintiff
herself.

A great many cases and precedents were cited upon the argument; and the
conclusion to be drawn from them appears to us to be that the
declaration is good upon the face of it; and that whoever keeps an
animal accustomed to attack and bite mankind, with knowledge that it is
so accustomed, is _prima facie_ liable in an action on the case at the
suit of any person attacked and injured by the animal, without any
averment of negligence or default in the securing or taking care of it.
The gist of the action is the keeping the animal after knowledge of its
mischievous propensities.

The precedents, both ancient and modern, with scarcely an exception,
merely state the ferocity of the animal and the knowledge of the
defendant, without any allegation of negligence or want of care. A great
many were referred to upon the argument, commencing with the Register
and ending with Thomas _v._ Morgan, 2 C. M. & R. 496; S. C. 5 Tyr. 1085;
and all in the same form, or nearly so. In the Register, 110, 111, two
precedents of writs are given, one for keeping a dog accustomed to bite
sheep, and the other for keeping a boar accustomed to attack and wound
other animals. The cause of action, as stated in both these precedents,
is the propensity of the animals, the knowledge of the defendant, and
the injury to the plaintiff; but there is no allegation of negligence or
want of care. In the case of Mason _v._ Kneeling, reported in 1 Ld. Ray.
and 12 Mod., and much relied upon on the part of the defendant, want of
due care was alleged, but the scienter was omitted; and the question
was, not whether the declaration would be good without the allegation of
want of care, but whether it was good without the allegation of
knowledge, which it was held that it was not. No case was cited in which
it had been decided that a declaration stating the ferocity of the
animal and the knowledge of the defendant was bad for not averring
negligence also; but various _dicta_ in the books were cited to show
that this is an action founded on negligence, and therefore not
maintainable unless some negligence or want of care is alleged.

In Comyns’ Digest, tit. Action upon the Case for Negligence (A 5), it is
said that “an action upon the case lies for a neglect in taking care of
his cattle, dog, &c.;” and passages were cited from the older
authorities, and also from some cases at _nisi prius_, in which
expressions were used showing that, if persons suffered animals to go at
large, knowing them to be disposed to do mischief, they were liable in
case any mischief actually was done; and it was attempted to be inferred
from this that the liability only attached in case they were suffered to
go at large or to be otherwise ill secured. But the conclusion to be
drawn from an examination of all the authorities appears to us to be
this: that a person keeping a mischievous animal with knowledge of its
propensities is bound to keep it secure at his peril, and that if it
does mischief, negligence is presumed, without express averment. The
precedents as well as the authorities fully warrant this conclusion. The
negligence is in keeping such an animal after notice. The case of Smith
_v._ Pelah, 2 Stra. 1264, and a passage in 1 Hale’s Pleas of the Crown,
430,[262] put the liability on the true ground. It may be that if the
injury was solely occasioned by the wilfulness of the plaintiff after
warning, that may be a ground of defence, by plea in confession and
avoidance; but it is unnecessary to give any opinion as to this; for we
think that the declaration is good upon the face of it, and shows a
_prima facie_ liability in the defendant.

It was said, indeed, further, on the part of the defendant, that, the
monkey being an animal _ferae naturae_, he would not be answerable for
injuries committed by it if it escaped and went at large without any
default on the part of the defendant, during the time it had so escaped
and was at large, because at that time it would not be in his keeping
nor under his control; but we cannot allow any weight to this objection;
for, in the first place, there is no statement in the declaration that
the monkey had escaped, and it is expressly averred that the injury
occurred whilst the defendant kept it; we are besides of opinion, as
already stated, that the defendant, if he would keep it, was bound to
keep it secure at all events.

The rule therefore will be discharged.

_Rule discharged._[263]

FILBURN _v._ PEOPLE’S PALACE AND AQUARIUM COMPANY, LIMITED
IN THE COURT OF APPEAL, JUNE 30, 1890.
_Reported in Law Reports, 25 Queen’s Bench Division, 258._

Appeal from a judgment of DAY, J.

The action was brought to recover damages for injuries sustained by the
plaintiff by his being attacked by an elephant, which was the property
of the defendants, and was being exhibited by them. The learned judge
left three questions to the jury: whether the elephant was an animal
dangerous to man; whether the defendant knew the elephant to be
dangerous, and whether the plaintiff brought the attack on himself. The
jury answered all three questions in the negative. The learned judge
entered judgment for the plaintiff for a sum agreed upon in case the
plaintiff should be entitled to recover.

The defendants appealed.

_Lockwood_, Q. C., and _Cyril Dodd_, Q. C., in support of the appeal.
There are certain animals recognized as being of an untamable nature,
and these a person keeps at his peril. In Hale’s Pleas of the Crown
(vol. i, p. 430), it is said: “Tho’ he have no particular notice that he
did any such thing before, yet if it be a beast, that is _ferae
naturae_, as a lion, a bear, a wolf, yea an ape or a monkey, if he get
loose and do harm to any person, the owner is liable to an action for
the damage.” There is, however, no hard and fast line which prevents an
animal _ferae naturae_ ceasing to belong to that class and becoming
domesticated. The distinction is drawn in Rex _v._ Huggins, 2 Ld. Raym.
1574, where it is said: “There is a difference between beasts that are
_ferae naturae_, as lions and tygers, which a man must always keep up at
his peril; and beasts that are _mansuetae naturae_, and break through
the tameness of their nature, such as oxen and horses. In the latter
case an action lies, if the owner has had notice of the quality of the
beast; in the former case an action lies without such notice.” All
animals are wild by nature, and the reason for the distinction is, that
some of them are treated as domesticated, because they have been tamed
and are used in the service of man. Though there are wild elephants,
just as there are wild oxen and horses, a great number have been tamed,
and are used in the service of man; and the same ruling should apply to
individuals of this class as to domesticated animals generally. The jury
have negatived any knowledge on the part of the defendants of any
dangerous character in this elephant, and they are, under these
circumstances, entitled to the verdict.

LORD ESHER, M. R. The only difficulty I feel in the decision of this
case is whether it is possible to enunciate any formula under which this
and similar cases may be classified. The law of England recognizes two
distinct classes of animals; and as to one of those classes, it cannot
be doubted that a person who keeps an animal belonging to that class
must prevent it from doing injury, and it is immaterial whether he knows
it to be dangerous or not. As to another class, the law assumes that
animals belonging to it are not of a dangerous nature, and any one who
keeps an animal of this kind is not liable for the damage it may do,
unless he knew that it was dangerous. What, then, is the best way of
dealing generally with these different cases? I suppose there can be no
dispute that there are some animals that every one must recognize as not
being dangerous on account of their nature. Whether they are _ferae
naturae_ so far as rights of property are concerned is not the question;
they certainly are not so in the sense that they are dangerous. There is
another set of animals that the law has recognized in England as not
being of a dangerous nature, such as sheep, horses, oxen, dogs, and
others that I will not attempt to enumerate. I take it this recognition
has come about from the fact that years ago, and continuously to the
present time, the progeny of these classes has been found by experience
to be harmless, and so the law assumes the result of this experience to
be correct without further proof. Unless an animal is brought within one
of these two descriptions,—that is, unless it is shown to be either
harmless by its very nature, or to belong to a class that has become so
by what may be called cultivation,—it falls within the class of animals
as to which the rule is, that a man who keeps one must take the
responsibility of keeping it safe. It cannot possibly be said that an
elephant comes within the class of animals known to be harmless by
nature, or within that shown by experience to be harmless in this
country, and consequently it falls within the class of animals that a
man keeps at his peril, and which he must prevent from doing injury
under any circumstances, unless the person to whom the injury is done
brings it on himself. It was, therefore, immaterial in this case whether
the particular animal was a dangerous one, or whether the defendants had
any knowledge that it was so. The judgment entered was in these
circumstances right, and the appeal must be dismissed.

LINDLEY, L. J. I am of the same opinion. The last case of this kind
discussed was May _v._ Burdett, 9 Q. B. 101, but there the monkey which
did the mischief was said to be accustomed to attack mankind, to the
knowledge of the person who kept it. That does not decide this case. We
have had no case cited to us, nor any evidence, to show that elephants
in this country are not as a class dangerous; nor are they commonly
known here to belong to the class of domesticated animals. Therefore a
person who keeps one is liable, though he does not know that the
particular one that he keeps is mischievous. Applying that principle to
this case, it appears that the judgment for the plaintiff was right, and
this appeal must be dismissed.

BOWEN, L. J. I am of the same opinion. The broad principle that governs
this case is that laid down in Fletcher _v._ Rylands, Law Rep. 1 Ex.
265; Law Rep. 3 H. L. 330, that a person who brings upon his land
anything that would not naturally come upon it, and which is in itself
dangerous, must take care that it is kept under proper control. The
question of liability for damage done by mischievous animals is a branch
of that law which has been applied in the same way from the times of
Lord Holt[264] and of Hale until now. People must not be wiser than the
experience of mankind. If from the experience of mankind a particular
class of animals is dangerous, though individuals may be tamed, a person
who keeps one of the class takes the risk of any damage it may do. If,
on the other hand, the animal kept belongs to a class which, according
to the experience of mankind, is not dangerous, and not likely to do
mischief, and if the class is dealt with by mankind on that footing, a
person may safely keep such an animal, unless he knows that the
particular animal that he keeps is likely to do mischief. It cannot be
doubted that elephants as a class have not been reduced to a state of
subjection; they still remain wild and untamed, though individuals are
brought to a degree of tameness which amounts to domestication. A
person, therefore, who keeps an elephant, does so at his own risk, and
an action can be maintained for any injury done by it, although the
owner had no knowledge of its mischievous propensities. I agree,
therefore, that the appeal must be dismissed.

_Appeal dismissed._[265]

MAUNG KYAW DUN _v._ MA KYIN
BEFORE THE JUDICIAL COMMISSIONER OF UPPER BURMA, MAY 7, 1900.
_Reported in 2 Upper Burma Rulings (1897–1901), Civil, 570._

H. THIRKELL WHITE, ESQ., JUDICIAL COMMISSIONER.

The plaintiff-appellant sued to recover damages on account of the death
of his elephant “Do,” which died from the effect of wounds inflicted by
the respondents’ elephant, “Kya Gyi.”

The issues which arise in a case of this kind have been stated in two
cases of this court. In Maung Gyi _v._ Po To [same vol., p. 565] it was
observed that the issue generally would no doubt be the usual issue as
to the existence of negligence on the part of the owner of the animal
doing the damage. In Maung Saw _v._ Maung Kyaw [same vol., p. 567],
points which arise in a case very similar to the present were indicated.
There has been some argument in this court on the application of the
doctrine of _scienter_. It is said that “any one who keeps a wild
animal, as a tiger or bear, which escapes and does damage, is liable
without any proof of notice of the animal’s ferocity; but where the
damage is done by a domestic animal, the plaintiff must show that the
defendant knew the animal was accustomed to do mischief.” Collett on
Torts, 7th edition, p. 100. Again, “a person keeping a mischievous
animal with knowledge of its propensities is bound to keep it secure at
his peril. If it escapes and does mischief, he is liable without proof
of negligence, neither is proof required that he knew the animal to be
mischievous, if it is of a notoriously fierce or mischievous species.”
Pollock on Torts, 3d edition, p. 442. In Smith’s Leading Cases in the
notes on Fletcher v. Rylands, 10th edition, vol. i, p. 827, it is said:
“The law of England recognizes two distinct classes of animals. The
first class consists of such animals as sheep, horses, oxen, and dogs,
which the law assumes not to be of a dangerous nature, and a person who
keeps an animal of this class is not liable for any damage it may do,
when not trespassing, unless he knew that it was in fact dangerous. The
other class consists of animals which have not been shown by experience
to be harmless by nature; and one who keeps animals of this class must
prevent them from doing injury under any circumstances, unless the
person to whom it is done brings it on himself.” In the English case on
which these remarks are based (Filburn _v._ People’s Palace Company), it
was held that an elephant “did not belong to a class which, according to
the experience of mankind, is not dangerous to man, and therefore the
owner kept such an animal at his own risk, and his liability for damage
done by it was not affected by his ignorance of its dangerous
character.” Mew’s Digest of English Case Law, p. 199.

I understand the remarks of my learned predecessor in Maung Gyi _v._ Po
To above cited to go no further than to suggest that a man should be
liable for injury caused by his animal, whether tame or wild, if it is
proved that the injury was due to the owner’s negligence. In that view,
it would not be necessary to draw a distinction between wild and
domestic animals. The point for decision would be whether the owner was
guilty of negligence or whether he used such care as in the
circumstances of the case was reasonable and ordinarily sufficient. The
amount of care required would vary according to the class of the animal
and according to its known disposition. It could not, I think, be laid
down in this country that a man is liable for any damage done by his
elephant without any proof of negligence or that he knew it to be of a
vicious disposition. In view of the manner in, and extent to, which
elephants are employed in this country such a proposition would be
manifestly unjust.

In the present case, therefore, I think it was for the plaintiff to
prove that the damage done to his elephant was caused, or rendered
possible, by the defendant’s negligence. In considering the question of
negligence, the defendant’s knowledge or want of knowledge that her
elephant was of a vicious disposition would be an important point. In a
suit of this kind, where an animal like an elephant is concerned, I
think the burden of proving negligence is in the first place on the
plaintiff who avers it. It might be otherwise if injury by a tiger or
bear were concerned.

I agree with the Lower Courts in thinking that it is not proved that the
defendant knew that the elephant “Kya Gyi” was of a vicious disposition.
It was therefore not incumbent on her to take more than ordinary
precautions with him. It does not seem to be shown that ordinary
precautions were neglected. It is alleged that “Kya Gyi” twice gored the
deceased elephant “Do,” and the mahout called by the plaintiff declares
that he had neither bell nor fetters. On the other hand, as pointed out
in the judgment of the Court of First Instance, the plaintiff himself
admitted that “Kya Gyi” had a bell and fetters on the second occasion.
It is admitted that all the other elephants of the defendant had bells
and fetters. There is direct evidence, at least as good as that for the
plaintiff, that “Kya Gyi” was properly provided with them. In my opinion
it has not been proved that there was any negligence on the part of the
defendant, and any _prima facie_ case made out by the plaintiff has been
rebutted. I therefore hold that the Lower Courts have rightly decided
that the defendants are not liable; and I dismiss this appeal with
costs.[266]

BOSTOCK-FERARI AMUSEMENT COMPANY _v._ BROCKSMITH
APPELLATE COURT, INDIANA, FEBRUARY 14, 1895.
_Reported in 34 Indiana Appellate Court Reports, 566._

Action by Otto Brocksmith against Bostock-Ferari Amusement Company. From
a judgment for plaintiff, defendant appeals.

COMSTOCK, C. J. The complaint alleges that the plaintiff, while driving
in his buggy, was injured in consequence of his horse taking fright from
the sight of a bear walking along a public street in the city of
Vincennes. The action was begun in the Circuit Court of Knox County,
and, upon change of venue, tried in the Circuit Court of Sullivan
County. The court rendered judgment upon the verdict of the jury in
favor of appellee for $750. The complaint was in three paragraphs. The
first was dismissed, and the cause was tried upon the amended second and
third paragraphs, to which general denial was filed.

The errors relied upon are the action of the court in overruling
demurrers to said second and third paragraphs, respectively, of the
complaint, and overruling appellant’s motion for a new trial. Some of
the reasons set out in the motion for a new trial are that the verdict
was contrary to the law, and was not sustained by sufficient evidence.

The question of the sufficiency of the second paragraph of the complaint
is not entirely free from doubt, but we conclude that each of said
paragraphs is sufficient to withstand a demurrer.

It is sought to maintain an action for damages resulting from the fright
of a horse at the sight of a bear, which his keeper and owner was
leading along a public street, for the purpose of transporting him from
a railroad train, by which he had been carried to Vincennes, to the
point in Vincennes at which the bear was to be an exhibit as a part of
appellant’s show. It is not claimed, either by allegation or proof, that
the show was in itself unlawful; and there is no pretence that the
transporting of the bear from one place to another for the purpose of
exhibition was unlawful, or in itself negligence. The case is therefore
one of the fright of a horse merely at the appearance of the bear while
he was being led along the street, was making no noise or other
demonstration, and was in the control of his keeper. It appears without
contradiction from the evidence that when the horse took fright the bear
was doing nothing except going with his keeper. He was muzzled. He had a
ring in his nose to which a chain was attached. Said chain was strong
enough to hold and control him. He had around his neck a collar about
two inches wide and one-half inch thick, to which also was attached a
chain. The keeper had both chains in his hand when the accident
occurred. The chain connected with the ring in his nose was small. The
one connected with his collar was large. It was for the purpose of
chaining him at night when he was alone. The chains were strong enough
to control the bear. The animal was characterized by the witnesses who
knew him as “gentle,” “kind,” “docile.” His keeper testified that he had
never known him to be mean or to growl. He testified also that he never
knew of a bear scaring a horse; that shortly before the accident the
keeper met two ladies in a buggy, and their horse did not scare. He was
described as of pretty good size and brown. One witness said he was a
“large, ugly-looking, brown bear.”

When a person is injured by an attack by an animal _ferae naturae_, the
negligence of the owner is presumed, because the dangerous propensity of
such an animal is known, and the law recognizes that safety lies only in
keeping it secure. 2 Am. and Eng. Ency. Law (2d ed.), p. 351. In the
case before us the injury did not result from any vicious propensity of
the bear. He did nothing but walk in the charge of his owner and keeper,
Peter Degeleih. He was being moved quietly upon a public thoroughfare
for a lawful purpose.

We have given the facts that are not controverted. There is also
evidence leading strongly to support the claim made by appellant that
appellee was guilty of negligence, proximately contributing to his
injury. Appellant also earnestly argues—supporting its argument with
references to recognized authorities—that the owner and keeper of the
bear was an independent contractor. But the disposition which we think
should be made of the appeal makes it unnecessary to consider these
questions. The liability of the appellant must rest on the doctrine of
negligence. The gist of the action as claimed by appellee is the
transportation of the bear, with knowledge that he was likely to
frighten horses, without taking precaution to guard against fright.

1. An animal _ferae naturae_, reduced to captivity, is the property of
its captor, 2 Blackstone’s Comm., *391, *403; 4 Blackstone’s Comm.,
*235, *236.

2. The owner of the bear had the right to transport him from one place
to another for a lawful purpose, and it was not negligence per se for
the owner or keeper to lead him along a public street for such purpose.
Scribner _v._ Kelley, (1862) 38 Barb. 14; Macomber _v._ Nichols, (1876)
34 Mich. 212, 22 Am. Rep. 522; Ingham, Law of Animals, p. 230.

3. The conducting of shows for the exhibition of wild or strange animals
is a lawful business. The mere fact that the appearance of a chattel,
whether an animal or an inanimate object, is calculated to frighten a
horse of ordinary gentleness, does not deprive the owner of such chattel
of his lawful right to transport his property along a public highway.
Macomber _v._ Nichols, _supra_; Holland _v._ Bartch, (1889) 120 Ind. 46,
16 Am. St. 307; Wabash, etc., R. Co. _v._ Farver, (1887) 111 Ind. 195,
60 Am. Rep. 696; Gilbert _v._ Flint, etc., R. Co., (1883) 51 Mich. 488,
16 N. W. 868, 47 Am. Rep. 592; Piolette _v._ Simers, (1894) 106 Pa. St.
95, 51 Am. Rep. 496. One must use his own so as not unnecessarily to
injure another, but the measure of care to be employed in respect to
animals and other property is the same. It is such care as an ordinarily
prudent person would employ under similar circumstances. This is not
inconsistent with the proposition that if an animal _ferae naturae_
attacks and injures a person, the negligence of the owner or keeper is
presumed. The evidence is that the horse was of ordinary gentleness, but
this fact would not deprive the appellant of the right to make proper
use of the street. If the bear had been carelessly managed, or permitted
to make any unnecessary noise or demonstration, it would have been an
act of negligence.

It is not uncommon for horses of ordinary gentleness to become
frightened at unaccustomed sights on the public highway. The automobile,
the bicycle, the traction-engine, the steam roller may each be frightful
to some horses, but still they may be lawfully used on the public
streets. King David said, “An horse is a vain thing for safety.” Modern
observation has fully justified the statement. A large dog, a great
bull, a baby wagon may each frighten some horses, but their owners are
not barred from using them upon the streets on that account. Nor under
the decisions would the courts be warranted in holding that the owner of
a bear, subjugated, gentle, docile, chained, would not, under the facts
shown in the case at the bar, be permitted to conduct the homely brute
along the public streets because of his previous condition of freedom.

In Scribner _v._ Kelley, _supra_, the court said: “It does not appear
that the elephant was at large, but on the contrary that he was in the
care, and apparently under the control, of a man who was riding beside
him on a horse; and the occurrence happened before the passage of the
act of April 2, 1862, regulating the use of public highways. There is
nothing in the evidence to show that the plaintiff’s horse was terrified
because the object he saw was an elephant, but only that he was
frightened because he suddenly saw moving upon a highway, crossing that
upon which he was travelling, and fully one hundred feet from him, a
large animate object to which he was unaccustomed—_non constat_ that any
other moving object of equal size and differing in appearance from such
as he was accustomed to see might not have inspired him with similar
terror. The injury which resulted from his fright is more fairly
attributed to a lack of ordinary courage and discipline in himself, than
to the fact that the object which he saw was an elephant.”

4. It is alleged in the complaint that the bear was an object likely to
frighten a horse of ordinary gentleness, which fact the appellant well
knew. There is no evidence that the bear was an object likely to
frighten horses of ordinary gentleness, nor that the appellant knew that
the bear was an object likely to frighten horses of ordinary gentleness.
The evidence shows, so far as the observation of the keeper and the
appellant gave information, that the bear had not frightened horses.

* * * * *

The facts upon the question of negligence are undisputed, and that
question is therefore to be determined by the court as a matter of law.

Judgment is reversed, with instruction to sustain appellant’s motion for
a new trial.[267]

MARLOR _v._ BALL
IN THE COURT OF APPEAL, MARCH 1, 1900.
_Reported in 16 Times Law Reports, 239._

This was an application by the defendant for judgment or a new trial in
an action tried before Mr. Justice Phillimore and a special jury at
Manchester. The action was brought to recover damages for personal
injuries sustained by the plaintiff through being bitten by a zebra
belonging to the defendant. The plaintiff was a working man. The
defendant was the proprietor of the Chadderton-hall pleasuregrounds, at
Oldham, where he kept an exhibition of wild animals. The plaintiff went
with his wife and his brother-in-law to see the exhibition, and, having
paid for admission, entered the gardens. While they were walking along
they found the door of a stable standing open, and went in. There were
four zebras inside the stable, each in a separate stall and properly
tied up by a halter to the manger. The plaintiff went up to one of the
zebras and stroked it. The animal kicked out, and the plaintiff being
then standing against the partition, the animal pressed him through the
partition, and he fell into the next stall, where another zebra bit his
hand, which had to be amputated. At the trial the jury returned a
verdict for the plaintiff for £175.

_Mr. Montague Lush_, for the defendant, in support of the application
for judgment or a new trial, contended that there was no evidence on
which the defendant could be held liable. The common law obligation of a
person who kept animals _ferae naturae_ was to keep them secure, or, in
other words, to prevent them from getting loose. He was liable to an
action, if, in consequence of a failure on his part to comply with that
obligation, any other person was injured. In such a case it was not
necessary for the plaintiff to allege negligence. But in this case there
had been no failure to comply with that common law obligation. Here the
animals were kept secure, they were not loose. The plaintiff, therefore,
had to allege negligence, and the alleged negligence appeared to be
this, that the defendant did not provide a keeper, or some physical
barrier to prevent people from meddling with the animals. But this
allegation did not show a cause of action at all. There was no authority
for saying that an action lay for not preventing the plaintiff from
bringing an injury on himself. It was not sufficient for the plaintiff
here to show that the door was open. The door being open might be an
invitation to go in, but it was not an invitation to meddle by stroking
the zebras. The plaintiff failed to show any negligence on the part of
the defendant, and he had no remedy. Counsel referred to Filburn _v._
The People’s Palace and Aquarium Company (Limited), 25 Q. B. D. 258; and
Memberz _v._ The Great Western Railway Company, 14 App. Cas. 179.

_Mr. S. T. Evans_, for the plaintiff, said the foundation of the action
was that zebras were dangerous animals, and it was the duty of persons
who kept dangerous animals to prevent them from doing injury. The
leaving the door of the stable unlocked was a default on the part of the
defendant. The plaintiff was not in any way warned that these zebras
were wild animals. The evidence taken altogether showed that these
zebras were kept in much the same way as horses would ordinarily be
kept. He referred to May _v._ Burdett, 9 Q. B. 101.

The Court allowed the application and ordered judgment to be entered for
the defendant.

LORD JUSTICE A. L. SMITH said it was conceded that a zebra was a
dangerous animal, and that by law a man who kept a dangerous animal must
do so at his peril, and that if any damage resulted, then, apart from
any question of negligence, he was liable for the damage. But that was
subject to this, that the person who complained of damage must not have
brought the injury on himself. Where the plaintiff did something which
he had no business to do,—_e. g._ by meddling, as the plaintiff in this
case had done,—then the defendant was not liable. That was common law,
and it was also common sense. In Filburn _v._ The People’s Palace
(Limited), Lord Esher expressly dealt with this point. He there said:
“It cannot possibly be said that an elephant comes within the class of
animals known to be harmless by nature, or within that shown by
experience to be harmless in this country, and consequently it falls
within the class of animals that a man keeps at his peril, and which he
must prevent from doing injury under any circumstances, unless the
person to whom the injury is done brings it on himself.” The action,
therefore, could not be maintained on the common law liability. The
plaintiff then set up a claim for negligence, viz., that the door was
not kept locked, and that there was no keeper at hand. The evidence
showed that the door had been shut, but had got opened. If the plaintiff
had been kicked while walking along the stable, an action might have
lain, but the plaintiff went into the stall and meddled with the animal.
Even if the fact of the door being open was an invitation to go into the
stable, it was not an invitation to stroke the animals. In his opinion
there was no evidence to go to the jury, and judgment must be entered
for the defendant.

LORD JUSTICE COLLINS said the plaintiff’s case was put on the footing of
these zebras being wild animals. The duty of a person who owned a wild
animal, as laid down in May _v._ Burdett, was to keep it secure at his
peril. The evidence in this case all went to show that these animals
were kept secure within the meaning of that case. In his opinion there
was no evidence of any invitation to go and tamper with the animals.

LORD JUSTICE ROMER concurred.[268]

MASON _v._ KEELING
IN THE KING’S BENCH, MICHAELMAS TERM, 1699.
_Reported in 12 Modern Reports, 332._

Action on the case, in which the plaintiff declared that on the
twentieth of June, in the eleventh of the king, the defendant _quendam
canem molossum valde ferocem_ did keep, and let him go loose unmuzzled
_per publica compita_, so that _pro defectu curæ_ of the defendant the
plaintiff was bit and worried by the said dog, as he was peaceably going
about his business in such a street. There was another count, in which
it was laid that the defendant knew the dog _ad mordend. assuet_. To the
first count there was a demurrer, and to the second not guilty.[269]

GOULD, J. No doubt but in the case of sheep there ought to be a
_sciens_, because that is an accidental quality, and not in the nature
of a dog. And as to property of a dog, the Books distinguish; for a man
has a property in a dog that is a mastiff or spaniel, for the one is for
the guard of his house, the other for his pleasure; but this here is a
mongrel, and laid to be _valde ferocem_, and that must be an innate
fierceness, and not accidental; and if a dog be _assuet_. to bite cows,
and the master know it, that will not be sufficient knowledge to make
him liable for his biting sheep. Besides, this case is distinguishable
in respect of the place, for the law takes notice of highway, and is a
security for passengers; and it would be dangerous to keep such dogs
near the highway, where all sorts of people pass at all hours; and to
maintain this issue, they must give a natural fierceness in evidence.

HOLT, C. J. If it had been said that the defendant knew the dog to be
_ferox_, I should think it enough. The difference is between things in
which the party has a valuable property, for he shall answer for all
damages done by them; but of things in which he has no valuable
property, if they are such as are naturally mischievous in their kind,
he shall answer for hurt done by them without any notice; but if they
are of a tame nature, there must be notice of the ill quality; and the
law takes notice that a dog is not of a fierce nature, but rather the
contrary; and the presumption is against the plaintiff; for can it be
imagined a man would keep a fierce dog in his family wittingly? If any
beast in which I have a valuable property do damage in another’s soil,
in treading his grass, trespass will lie for it; but if my dog go into
another man’s soil, no action will lie. See the case of Millan _v._
Hawtree, 1 Jones, 131, Poph. 161, Latch, 13, 119, that _scienter_ is the
_gît_ of the action; and so is 1 Cro., where it was doubted whether the
_scienter_ should go to the keeping or quality; nor does it appear here
but it was an accidental fierceness, or suppose it were an innate one to
this dog particularly; and it had been given to the owner but an hour
before, shall he take notice of all the qualities of his dog at his
peril, or shall he have his action against the giver for bestowing him a
naughty dog? In case a dog bites pigs, which almost all dogs will do, a
_scienter_ is necessary. 1 Cro. 255. And I do not doubt but if it be
generally laid that a dog was used to bite _animalia_, and the defendant
knew of it, it will be enough to charge him for biting of sheep, &c.;
and by _animalia_ shall not be intended frogs or mice, but such in which
the plaintiff has property.

And judgment was given for the defendant by HOLT, Chief-Justice, and
TURTON, Justice; GOULD, J., _mutante opinionem suam_.[270]

DE GRAY _v._ MURRAY
SUPREME COURT, NEW JERSEY, JUNE 8, 1903.
_Reported in 69 New Jersey Law Reports, 458._

GUMMERE, C. J. This was an action to recover for injuries resulting to
the plaintiff in error (the plaintiff below) from the bite of a dog,
owned by the defendant in error, which attacked her while she was
walking on the public street. At the close of the testimony the trial
judge directed a verdict for the defendant, and the plaintiff seeks to
review the judgment entered upon that verdict.

It is the settled law that the owner of a dog will not be held
responsible for injuries resulting to another person from its bite
unless it be shown that the dog had previously bitten some one else, or
was vicious, to the knowledge of the owner. Smith _v._ Donohue, 20
Vroom, 548, and cases cited.

[After discussing the evidence, and holding that there was an utter
failure to prove _scienter_.]

But even if the evidence submitted would support the conclusion that the
dog had a propensity to bite, and that what the defendant heard about
its attack on the boy charged him with knowledge of that propensity, the
direction of a verdict in his favor was not erroneous. In England, and
in some of our sister states, it is held that the owner of an animal
which has a propensity to attack and bite mankind, who keeps it with the
knowledge that it has such a propensity, does so at his peril, and that
his liability for injuries inflicted by it is absolute. A leading case
is that of May _v._ Burdett, 9 Q. B. (N. S.) 112, in which it is stated
that “the conclusion to be drawn from all the authorities appears to be
this: that a person keeping a mischievous animal, with knowledge of its
propensity, is bound to keep it secure at his peril, and that if it does
mischief, negligence is presumed without express averment. The
negligence is in keeping such an animal after notice.” Subsequently, the
Court of Exchequer Chamber, adopting as accurate the principle
underlying the decision of May _v._ Burdett, and referring to the
opinion in that case, among others, as an authority for its conclusion,
declared, in the case of Fletcher _v._ Rylands, L. R. 1 Exch. 265, that
“one who, for his own purposes, brings upon his land, and keeps there,
anything likely to do mischief if it escapes, is _prima facie_
answerable for all the damage which is the natural consequence of its
escape.” The application of this principle led the court to fix
liability upon the owner of land, who had stored water in a reservoir
built thereon, for injury done to adjoining property by water escaping
from the reservoir, notwithstanding that such escape was not due to any
negligence on the part of the owner. Ten years after the decision of
Fletcher _v._ Rylands, the rule laid down in that case was applied in
this state, at circuit, in the case of Marshall _v._ Welwood, 9 Vroom,
339, and the owner of a steam boiler, which blew up and wrecked adjacent
property, was held liable for the damage done, notwithstanding the fact
that the bursting of the boiler was not due to any negligence on his
part. The case was subsequently reviewed here, on rule to show cause,
and this court, in a masterly opinion by the late Chief Justice Beasley,
expressly disapproved of the doctrine laid down in Fletcher _v._ Rylands
(which, as I have already stated, is rested, among other decisions, on
May _v._ Burdett), and declared that no man is, in law, an insurer that
the acts which he does, such acts being lawful and done with care, shall
not injuriously affect others; and that an injury which results from a
lawful act, done in a lawful manner, and without negligence on the part
of the person doing the act, will not support an action. Applying that
principle to the case in hand, this court then held that the owner of a
steam boiler, which he has in use on his own property, is not
responsible, in the absence of negligence, for the damages done by its
bursting. The principle laid down in Marshall _v._ Welwood was
reiterated by this court in the case of Hill _v._ Ulshowski, 32 Id. 375.

The right of a man to keep a vicious dog for the protection of his home
and property is conceded in the case of Roehers _v._ Remhoff, 26 Vroom,
475. He is, of course, bound to exercise a degree of care, commensurate
with the danger to others which will follow the dog’s escape from his
control, to so secure it that it will not injure any one who does not
unlawfully provoke or intermeddle with it. Worthen _v._ Love, 60 Vt.
285. But if the owner does use such care, and the dog nevertheless
escapes and inflicts injury, he is not liable.

In the case now under consideration the undisputed evidence makes it
clear that the defendant fully discharged the duty of using due care to
prevent the escape of his dog from his premises, and that the
plaintiff’s injury was not due to any neglect in that regard upon his
part. She was bitten in the early morning, between half-past six and
seven o’clock. On the preceding evening the defendant shut the dog in
his carpenter shop (which adjoined his dwelling) and locked him in.
During the night the dog gnawed away the woodwork from around the lock
of the door to such an extent that the lock became detached, thus
permitting the door to open and the dog to escape. That a reasonably
prudent man would not have anticipated any such occurrence must be
admitted.

_The judgment under review should be affirmed._[271]

CROWLEY _v._ GROONELL
SUPREME COURT, VERMONT, FEBRUARY 9, 1901.
_Reported in 73 Vermont Reports, 45._

Case for an injury to the plaintiff by the defendant’s dog. Plea, the
general issue. Trial by jury, Rutland County, March Term, 1900, Rowell,
J., presiding. Verdict and judgment for the plaintiff. The defendant
excepted.

It appeared that the plaintiff, an old man, was a neighbor of the
defendant and went one morning to the defendant’s barn, where the latter
was, to buy some potatoes of him; that when the plaintiff got near the
barn, the defendant’s dog, which was large, and was lying near the barn
door, assaulted the plaintiff by jumping up and putting his feet upon
him and throwing him down, breaking his hip. The testimony was
conflicting as to whether this assault was vicious or playful and as to
the propensities of the dog known to the plaintiff.

WATSON, J. The only exception upon which the defendant relies is the one
to that part of the charge where the court said that a cross and savage
disposition on the part of the dog was not necessary in order to impose
liability; that a mischievous propensity to commit the kind of assault
complained of was enough if the plaintiff’s case was otherwise made out;
and that in respect to imposing liability, it made no difference whether
such assault proceeded from good nature or ill nature, from ugliness or
playfulness.

The defendant contends that the duty of restraint attaches only when the
owner or keeper has reason to apprehend that the dog may do damage by
reason of its viciousness or ferocity, and that the acts of the dog,
proceeding from good nature or playfulness, cannot render the defendant
liable. If a man have a beast that is _ferae naturae_ as a lion, a bear,
a wolf, if he get loose and do harm to any person, the owner is liable
to an action for damages, though he have no particular notice that he
had done any such thing before. The same principle applies to damages
done by domestic animals, except that as to them, the owner must have
seen or heard enough to convince a man of ordinary prudence of the
animal’s inclination to commit the class of injuries complained of. With
notice to the owner of such propensity in the animal, he is liable for
whatever damages may be suffered by person or property therefrom. It
makes no difference whether the animal was of cross and savage
disposition and committed the injury by reason of its viciousness and
ferocity, or whether such injury resulted from good nature and
playfulness—the intent of the animal is not material. The owner or
keeper having knowledge of its disposition to commit such injuries must
restrain it at his peril, and it is no answer to say that the animal was
not cross or savage and was in good nature and playfulness.

* * * * *

In State _v._ McDermott, 6 Atl. Rep. 653 [49 N. J. Law, 163], at the
close of the plaintiff’s evidence, the defendant moved for a nonsuit on
the ground that it did not appear that the dog had bitten McDermott
maliciously, and also on the ground that there was no evidence that the
dog had bitten other persons except in play, or that the defendant had
knowledge of the propensity of the dog to bite. The motion was
overruled. It was contended that although several persons had been
bitten by the dog, of which the defendant had notice, yet it appeared
that in every instance the biting occurred while the dog was in a
playful mood; that damages could not be recovered where it was shown
that the dog had a propensity to bite only in play; and that to justify
a recovery, it must appear that the dog was in the habit of biting
mankind while in an angry mood, actuated by a ferocious spirit. It was
held that this was not the law,—that an action could be maintained
against the owner by a party injured upon evidence that a dog, with the
knowledge of the owner, had a mischievous propensity to bite mankind,
whether in anger or not; for in either case, the person bitten would
suffer injury, and that mischievous propensity, within the meaning of
the law, was a propensity from which injury is the natural result.

* * * * *

_There was no error in the charge, and judgment is affirmed._[272]

ERLE, C. J., IN COX _v._ BURBIDGE
(1863) _13 Common Bench, New Series, 435–437._

I am of opinion that this rule must be made absolute, on the ground that
there was a total absence of evidence to support the cause of action
alleged. The facts I take to be these: The plaintiff, a child of tender
age, was lawfully upon the highway, and a horse, the property of the
defendant, was straying on the highway. As between the owner of the
horse and the owner of the soil of the highway or of the herbage growing
thereon, we may assume that the horse was trespassing; and, if the horse
had done any damage to the soil, the owner of the soil might have had a
right of action against his owner. So, it may be assumed, that if the
place in question were a public highway, the owner of the horse might
have been liable to be proceeded against under the Highway Act. But, in
considering the claim of the plaintiff against the defendant for the
injury sustained from the kick, the question whether the horse was a
trespasser as against the owner of the soil, or whether his owner was
amenable under the Highway Act, has nothing to do with the case of the
plaintiff. I am also of opinion that so much of the argument which has
been addressed to us on the part of the plaintiff as assumes the action
to be founded upon the negligence of the owner of the horse in allowing
it to be upon the road unattended, is not tenable. To entitle the
plaintiff to maintain the action, it is necessary to show a breach of
some legal duty due from the defendant to the plaintiff; and it is
enough to say that there is no evidence to support the affirmative of
the issue that there was negligence on the part of the defendant for
which an action would lie by the plaintiff. The simple fact found is,
that the horse was on the highway. He may have been there without any
negligence of the owner: he might have been put there by a stranger, or
might have escaped from some enclosed place without the owner’s
knowledge. To entitle the plaintiff to recover, there must be some
affirmative proof of negligence in the defendant in respect of a duty
owing to the plaintiff. But, even if there was any negligence on the
part of the owner of the horse, I do not see how that is at all
connected with the damage of which the plaintiff complains. It appears
that the horse was on the highway, and that, without anything to account
for it, he struck out and injured the plaintiff. I take the well-known
distinction to apply here, that the owner of an animal is answerable for
any damage done by it, provided it be of such a nature as is likely to
arise from such an animal, and the owner knows it. Thus, in the case of
a dog, if he bites a man or worries sheep, and his owner knows that he
is accustomed to bite men or to worry sheep, the owner is responsible;
but the party injured has no remedy unless the _scienter_ can be proved.
This is very familiar doctrine; and it seems to me that there is much
stronger reason for applying that rule in respect of the damage done
here. The owner of a horse must be taken to know that the animal will
stray if not properly secured, and may find its way into his neighbor’s
corn or pasture. For a trespass of that kind, the owner is of course
responsible. But if the horse does something which is quite contrary to
his ordinary nature,—something which his owner has no reason to expect
he will do, he has the same sort of protection that the owner of a dog
has; and everybody knows that it is not at all the ordinary habit of a
horse to kick a child on a highway. I think the ground upon which the
plaintiff’s counsel rests his case fails. It reduces itself to the
question whether the owner of a horse is liable for a sudden act of a
fierce and violent nature which is altogether contrary to the usual
habits of the horse, without more.[273]

DICKSON _v._ MCCOY
COURT OF APPEALS, NEW YORK, JUNE TERM, 1868.
_Reported in 39 New York Reports, 400._

This was an action for injury to the plaintiff by the horse of the
defendant. The plaintiff, a child of ten years, was passing the stable
of the defendant, upon the sidewalk of a populous street in the city of
Troy, when the defendant’s horse came out of the stable, going loose and
unattended, and, in passing, kicked the plaintiff in the face. The
complaint alleged that the horse was “of a malicious and mischievous
disposition, and accustomed to attack and injure mankind;” also, that
the defendant “wrongfully and negligently suffered the said horse to go
at large in and upon the public streets,” etc. The proof as to the
disposition of the horse was only to the effect that he was young and
playful, and, when loose in the street, was accustomed to run and kick
in the air, but had never been seen to kick at any person. The defendant
moved for a nonsuit, on the ground that there was no proof that the
horse was vicious, which was refused. The defendant also requested the
court to charge that there was no proof that the horse was possessed of
any vicious propensity, or mischievous habit, which required the
defendant to exercise special care over him; which the court declined to
charge. The court did charge, that “it was for the jury to find, under
the evidence, whether the defendant was or was not guilty of negligence
in permitting the animal, which did the injury complained of, to run at
large, as detailed by the witnesses on the part of the plaintiff,” etc.

The jury found a verdict for the plaintiff for $500, which was affirmed,
on appeal, at the General Term, and the defendant appeals to this court.

DWIGHT, J. I agree with the counsel for the defendant that there is no
proof in the case to sustain the allegation in the complaint, that this
horse was vicious and accustomed to attack and injure mankind. The fact
that a horse is young and playful, that he kicks in the air, and runs
and gambols when loose in the street, is no proof of a malicious or
vicious disposition. But I regard the allegation as unnecessary, and the
absence of proof on the point as not affecting the right to recover. The
finding of the jury, under the charge of the court, was clearly to the
effect that the defendant was guilty of negligence in suffering his
horse to go at large upon the sidewalk, as shown in the case. And there
was a sufficient allegation to that effect in the complaint. It is not
necessary that a horse should be vicious to make the owner responsible
for injury done by him through the owner’s negligence. The vice of the
animal is an essential fact only when, but for it, the conduct of the
owner would be free from fault. If the most gentle horse be driven so
negligently as to do injury to persons or property, the owner or driver
will be responsible. Certainly, not less so if the horse be negligently
turned loose in the street without restraint or control. The motion for
a nonsuit was properly denied. The only question in the case was that
propounded by the court to the jury, “was the defendant guilty of
negligence in permitting the horse to go at large in the street?” The
court, I think, might very properly have charged as requested by the
defendant, that there was no proof to justify the jury in finding that
the horse was possessed of any vicious propensity or mischievous habit.
And, yet, it is, in one sense, a mischievous habit for a horse to run
and play in the public streets. Though it is no proof of a mischievous
disposition, it is liable to produce mischievous results. There was,
therefore, no error in the refusal to charge as requested. The
instructions of the court to the jury were correct, and the verdict is
conclusive upon all the questions in the case.

_The judgment must be affirmed._

[The opinion of GROVER, J., is omitted.][274]

DECKER _v._ GAMMON
SUPREME JUDICIAL COURT, MAINE, 1857.
_Reported in 44 Maine Reports, 322._

This is an action on the case[275] to recover the value of a horse
alleged to have been injured by the defendant’s horse, and comes forward
on exceptions to the rulings of Goodenow, J.

The plaintiff introduced evidence tending to prove that at night, on the
13th of September, 1855, he put his horse into his field well and
uninjured. The next morning, September 14, his horse and the defendant’s
were together in his, the plaintiff’s close, the defendant’s horse,
having, during the night, escaped from the defendant’s enclosure, or
from the highway, into the close of the plaintiff, and that the
plaintiff’s horse was severely injured by the defendant’s horse, by
kicking, biting, or striking with his fore feet, or in some other way,
so that he died in a few days after.

The defendant requested the presiding judge to instruct the jury that to
entitle the plaintiff to recover against the defendant he must prove, in
addition to other necessary facts, that the defendant’s horse was
vicious, and that the defendant had knowledge of such viciousness prior
to the time of the alleged injury. The presiding judge declined giving
these instructions, and directed the jury that if they should find that
the defendant owned the horse alleged to have done the injury to the
plaintiff’s horse, and if, at the time of the injury, he had escaped
into the plaintiff’s close, and was wrongfully there, and while there
occasioned the injury, and that the horse died in consequence, that the
plaintiff would be entitled to recover the value of the horse so
injured. That it was not necessary for the plaintiff to prove that the
horse was vicious, or accustomed to acts of violence towards other
animals or horses, or that the owner had notice of such viciousness or
habits.

The jury returned a verdict for the plaintiff.[276]

DAVIS, J. There are three classes of cases in which the owners of
animals are liable for injuries done by them to the persons or the
property of others. And in suits of such injuries the allegations and
proofs must be varied in each case, as the facts bring it within one or
another of these classes.

1. The owner of wild beasts, or beasts that are in their nature vicious,
is, under all circumstances, liable for injuries done by them. It is not
necessary, in actions for injuries by such beasts, to allege or prove
that the owner knew them to be mischievous, for he is conclusively
presumed to have such knowledge; or that he was guilty of negligence in
permitting them to be at large, for he is bound to keep them in at his
peril.

“Though the owner have no particular notice that he did any such thing
before, yet if he be a beast that is _ferae naturae_ if he get loose and
do harm to any person, the owner is liable to an action for the damage.”
1 Hale, P. C. 430.

“If they are such as are naturally mischievous in their kind, in which
the owner has no valuable property, he shall answer for hurt done by
them, without any notice; but if they are of a tame nature, there must
be notice of the ill quality.” Holt, C. J. Mason _v._ Keeling, 12 Mod.
R. 332.

“The owner of beasts that are _ferae naturae_ must always keep them up,
at his peril; and an action lies without notice of the quality of the
beasts.” Rex _v._ Huggins, 2 Lord Raym. 1583.

2. If domestic animals, such as oxen and horses, injure any one, in
person or property, if they are rightfully in the place where they do
the mischief, the owner of such animals is not liable for such injury
unless he knew that they were accustomed to do mischief. And in suits
for such injuries, such knowledge must be alleged, and proved. For
unless the owner knew that the beast was vicious he is not liable. If
the owner had such knowledge he is liable.

“The gist of the action is the keeping of the animal after knowledge of
its vicious propensities.” May _v._ Burdett, 58 Eng. C. L. 101.

“If the owner have knowledge of the quality of his beast, and it doth
anybody hurt, he is chargeable in an action for it.” 1 Hale P. C. 430.

“An action lies not unless the owner knows of this quality.” Buxendin
_v._ Sharp, 2 Salk. 662.

“If the owner puts a horse or an ox to grass in his field, and the horse
or ox breaks the hedge and runs into the highway, and gores or kicks
some passenger, an action will not lie against the owner unless he had
notice that they had done such a thing before.” Mason _v._ Keeling, 12
Modern R. 332.

“If damage be done by any domestic animal, kept for use or convenience,
the owner is not liable to an action on the ground of negligence,
without proof that he knew that the animal was accustomed to do
mischief.” Vrooman _v._ Sawyer, 13 Johns. R. 339.

3. The owner of domestic animals, if they are wrongfully in the place
where they do any mischief, is liable for it, though he had no notice
that they had been accustomed to do so before. In cases of this kind the
ground of the action is that the animals were wrongfully in the place
where the injury was done. And it is not necessary to allege or prove
any knowledge on the part of the owner that they had previously been
vicious.

“If a bull break into an enclosure of a neighbor, and there gore a horse
so that he die, his owner is liable in an action of trespass _quare
clausum fregit_, in which the value of the horse would be the just
measure of damages.” Dolph _v._ Ferris, 7 Watts & Serg. R. 367.

“If the owner of a horse suffers it to go at large in the streets of a
populous city he is answerable in an action on the case for a personal
injury done by it to an individual without proof that he knew that the
horse was vicious. The owner had no right to turn the horse loose in the
streets.” Goodman _v._ Gay, 3 Harris R. 188. In this case the writ
contained the allegation of knowledge on the part of the defendant; but
the court held that it was not material and need not be proved.

The case before us is clearly within this class of cases last described.
It is alleged in the writ that “the plaintiff had a valuable horse which
was peaceably and of right depasturing in his own close, and the
defendant was possessed of another horse, vicious and unruly, which was
running at large where of right he ought not to be; and being so
unlawfully at large, broke into the plaintiff’s close, and injured the
plaintiff’s horse, &c.” It is also alleged that “the vicious habits of
the horse were well known to the defendant;” but this allegation was not
necessary, and may well be treated as surplusage. If the defendant had
had a right to turn his horse upon the plaintiff’s close it would have
been otherwise. But if the horse was wrongfully there the defendant was
liable for any injury done by him, though he had no knowledge that the
horse was vicious. The gravamen of the charge was that the horse was
wrongfully upon the plaintiff’s close; and this was what was put in
issue by the plea of not guilty.

Nor are these principles in conflict with the decision in the case of
Van Leuven _v._ Lyke, 1 Comstock, 515. In that case the action was not
sustained because the declaration was not for trespass _quare clausum_
with the other injuries alleged by way of aggravation. But in that case
there was no allegation that the animal was wrongfully upon the
plaintiff’s close; or that the injury was committed upon the plaintiff’s
close. 4 Denio R. 127. And in the Court of Appeals it was expressly held
that “if the plaintiff had stated in his declaration that the swine
broke and entered his close, and there committed the injury complained
of, and sustained his declaration by evidence, he would been entitled to
recover all the damages thus sustained.” 1 Coms. 515, 518.

In the case before us, though the declaration is not technically for
trespass _quare clausum_, it is distinctly alleged that the defendant’s
horse, “being so unlawfully at large, broke and entered the plaintiff’s
close, and injured the plaintiff’s horse,” which was there peaceably and
of right depasturing. This was sufficient; and the instruction given to
the jury, “that if the defendant’s horse, at the time of the injury, had
escaped into the close, and was wrongfully there, and while there
occasioned the injury, then the plaintiff would be entitled to recover,”
was correct. And this being so, the instruction requested “that the
plaintiff must prove, in addition to other necessary facts, that the
defendant’s horse was vicious, and that the defendant had knowledge of
such viciousness prior to the time of the injury,” was properly refused.

CUTTING, J., did not concur.

_Exceptions overruled._[277]

DOYLE _v._ VANCE
SUPREME COURT, VICTORIA, APRIL 16, 1880.
_Reported in 6 Victorian Law Reports, Cases at Law, 87._

STAWELL, C. J.[278] A dog belonging to the defendant got on land
belonging to the plaintiff, how, does not appear, and barked at a horse
of the plaintiff which was then grazing quietly in an inclosed field;
the horse ran away, tried to leap over the fence, fell and broke its
neck. The plaint was in the ordinary form, alleging a _scienter_ in the
defendant. At the trial, an application was made to add a count for
trespass by the dog on the plaintiff’s land. The application was
granted, and though the amendment was not formally written on the
plaint, it may now be considered as having been made. A verdict was
given for the plaintiff, with £10 damages.

The defendant has appealed, and the question we have to consider is
whether, as a matter of law, he is liable for the trespass committed by
his dog. It would have been competent for the judge at the trial to have
found that the dog was on the land, by the leave and license of the
plaintiff; all the circumstances point to the probability of that being
the case. But he has found that the dog was there as a trespasser. There
are a number of cases in which judges have expressed _obiter dicta_, as
to the non-liability of an owner for injuries done by his dog, and
curious and singular reasons—that a dog was the companion of man (and
the like)—have been assigned for those _dicta_; reasons which courts
have treated as entitled to high respect, and which have not been
dissented from. There is, however, a comparatively recent case, Read
_v._ Edwards, _supra_,[279] in which an action was brought against the
owner of a dog for having chased and destroyed game, the declaration
alleging _scienter_ by the defendant. All the _dicta_ of the learned
judges to which I have referred were cited in the argument, were
commented on and received attention. The case was decided on another
point, but Mr. Justice Willes, who delivered the judgment of the Court,
said:—

“The question was much argued whether the owner of the dog is answerable
in trespass for every unauthorized entry of the animal into the land of
another, as in the case of an ox, and reasons were offered, which we
need not now estimate, for a distinction in this respect between oxen,
and dogs or cats, on account, first, of the difficulty or impossibility
of keeping the latter under restraint; secondly, the slightness of the
damage which their wandering ordinarily causes; thirdly, the common
usage of mankind to allow them a wider liberty; and lastly, their not
being considered in law so absolutely the chattels of the owner as to be
the subject of larceny. It is not, however, necessary in the principal
case to answer that question.”

The legitimate inference from these observations is that the question,
whether the _dicta_ I have referred to are law, has not yet been
decided, and that the subject is open for consideration. There may be
very cogent reasons, socially, for exempting the owner from liability.
But there is no reason which a court of law can recognize. Serious
injury might be inflicted by a dog revelling in a highly-cultivated
_parterre_, and can it with propriety be said that the owner of the
garden can obtain no compensation? It has been decided that a dog can be
distrained for _damage feasant_: Bunch _v._ Kennington, 1 Q. B. 679.
There can be no question, if an ox were substituted for a dog, as having
done the mischief complained of in the present case, the owner would be
liable. Cox _v._ Burbidge, _supra_,[280] which was cited, does not
apply. There, the defendant’s horse, being on the highway, kicked the
plaintiff, a child who was playing there. The defendant was held not
guilty of actionable negligence; but that was on the ground that the
horse had a right to be on the highway, as well as the child, and was
therefore not a trespasser.

In Lee _v._ Riley, _supra_,[281] through defect of fences which it was
the defendant’s duty to repair, the defendant’s mare strayed in the
night time from his close into an adjoining field, and so into a field
of the plaintiff’s, in which was a horse. From some unexplained cause
the animals quarrelled, and the result was that the plaintiff’s horse
received a kick from the defendant’s mare, which broke its leg, and it
was necessarily killed. It was held that the defendant was answerable
for the mare’s trespass, and the damage was not too remote. The decision
was based on the fact that the defendant’s mare trespassed on the
plaintiff’s land, and that it was the duty of the owner of an animal to
keep it from trespassing. In Ellis _v._ The Loftus Iron Co.,
_supra_,[282] the defendant’s horse having injured the plaintiff’s mare
by biting and kicking her through the fence separating the plaintiff’s
land from the defendants’, it was held that there was a trespass by the
act of the defendants’ horse, for which the defendants were liable,
apart from any question of negligence on their part.

The owner of an animal is therefore responsible for any damage fairly
resulting from a trespass by that animal. The damage here has resulted
from the trespass, and the verdict will therefore stand.

The argument based upon “The Dog Act 1864” (No. 229), sec. 15, enacting
that the owner of a dog shall be liable for injury done to sheep,
without proof of _scienter_, should be noticed; it was urged that the
necessity for passing such an enactment implied that there was
previously no liability. But that argument goes too far. One part of the
enactment is declaratory, and the other is new.

BARRY, J. I am of the same opinion. It is remarkable that this question
should not have been settled until now, and, apparently from a desire to
avoid overruling old cases which had been decided on the most subtle
reasons, the judges have abstained from considering the question in a
broad aspect. The old reports abound with expressions of peculiar regard
for dogs and cats; and Lord Tenterden does not think it beneath his
dignity to quote, in his book on shipping, “if mice eat the cargo, and
thereby occasion no small injury to the merchant, the master must make
good the loss, because he is guilty of a fault; yet if he had cats on
board his ship, he shall be excused.” One reason given for the exemption
of liability, so far as the dog is concerned, is on account of his
familiarity with man. But we cannot regard these every day questions in
the same subtle way as they were regarded three hundred years ago. The
doctrine of trespass is considered on much more reasonable grounds in
these days. Where sheep, oxen, or horses, commit a trespass, it has
always been held that the owner is liable; and that liability has been
extended to poultry, and poultry are as much domesticated as a dog or a
cat. In Brown _v._ Giles, 1 C. & P. 118, Mr. Justice Park is reported to
have said that he was decidedly of opinion that a dog jumping into a
field without the consent of its master, not only was not a trespass,
but was no trespass at all on which an action could be maintained. But
that remark was merely _obiter_; the case was decided for the plaintiff
on another point. The learned judge has found that there was a trespass.
The dog was left to roam at its discretion, uncontrolled by its master.

STEPHEN, J. I also concur. It seems to have been considered, in old
times, that there was a marked distinction between trespass by a dog,
and trespass by an ox. Now, as a general rule, no such distinction is
made. I cannot see why there should be any. This case illustrates how
far the law ought to be altered, so as to preserve its accordance with
change of time and place. Of course, the Court cannot alter the
clearly-expressed language of an act of Parliament, though the reason
for it may have ceased. And so also as to actual decisions of the
Courts. If there is reason to alter the law, the legislature must do it.
But on this question, there have been no more than _obiter dicta_ based
upon reasons which have no longer any existence. At one time a dog could
not be the subject of a theft. The Court is at liberty, within
reasonable limits, to meet the changed circumstances of the present day.
I can see no sound reason why there should be a difference between the
case of trespass by a dog, and one by an ox.

_Appeal dismissed._[283]

TROTH _v._ WILLS
SUPERIOR COURT, PENNSYLVANIA, JULY 29, 1898.
_Reported in 8 Pennsylvania Superior Court Reports, 1._

Trespass for personal injuries. Before Brégy, J.

It appears from the evidence that the plaintiff, a lady about fifty-five
years of age, was temporarily living with her son, in a small country
place, and the cow of the defendant strayed into the garden belonging to
the son. The plaintiff, seeing the cow in the garden, came out of her
son’s house and attempted to drive the cow out of the garden back into
the pasture field, from where she entered into the garden. The plaintiff
alleges that while so driving the cow out of the garden back into the
field, the cow deliberately went towards the field, and that she
followed closely behind the cow, when the cow suddenly turned her head
and butted the plaintiff in the abdomen, and hence her injuries.[284]

Defendant requested (Request No. 5) a ruling, that, under all the
evidence, the verdict should be for the defendant. The court declined so
to rule. Verdict and judgment for plaintiff. Defendant appealed.

SMITH, J. It is not necessary, in disposing of this case, to determine
the liability of the owner of a domestic animal for all its acts while
trespassing upon another’s land. In such cases, the primary trespass is
the entry of the animal upon the land; the attendant damage for which
the owner may be held liable is matter of aggravation. The minimum
liability of the owner is for acts arising from the natural propensities
of the species, and from special characteristics and acquired habits of
the individual of which the owner has notice. When the primary trespass
is the wilful act of the owner, he may be held to a larger measure of
responsibility; thus if he take a dog into a field where he is himself a
trespasser, and the dog there kills or injures sheep, this, though its
first offence, may be laid as an aggravation of the trespass: Beckwith
_v._ Shordike, Burr. 2092; Michael _v._ Alestree, 2 Lev. 172, cited in
Dolph _v._ Ferris, 7 W. & S. 367. Beyond this, the authorities appear
unsettled, and principle and analogy form the only guide. Doubtless
there may be mischief so far independent of the primary trespass, and
unrelated to the propensity or habit leading to this, that it cannot be
deemed matter of aggravation. In my view, however, the mischievous act,
when incident to the primary trespass, in any of its aspects, or so
closely associated with it as to form a substantive part or an immediate
result of it, is a legitimate matter of aggravation, for which the owner
should be held liable. In such case, the propensity or habit leading to
the primary trespass may be regarded as the proximate cause of the
resulting injury. If, for example, trespassing cattle, in order to reach
the vegetation in a hotbed, break its glass covering, the owner must be
held liable for this injury, though cattle are not by nature prone to
break glass. Such breaking is incident to the primary trespass, and
grows out of the propensity leading to this. If an animal injure a
person lawfully trying to prevent it from trespassing, the owner should
be held liable, though the injury be one which the animal is not prone
to commit. In such case the mischievous act is closely associated with
the primary trespass, and in fact grows directly out of it. The same
principle must govern if a person be injured in trying to prevent the
continuance of a trespass, or of acts forming an aggravation of it.

* * * * *

In this view of the principles which should govern the determination of
this case, the injury to the plaintiff must be deemed an aggravation of
the trespass committed by the animal in entering the garden. This
injury, indeed, is not such as a cow is ordinarily prone to commit; and
there is no evidence that the defendant’s cow had contracted the habit
of making such assaults. But the act of the animal was one to which a
creature of that kind is naturally disposed on being disturbed while
feeding; and it was so directly associated with the primary trespass
that, unless the plaintiff’s right to prevent a continuance of this be
denied, there can be no ground for questioning the liability of the
owner. This right cannot be controverted, for under the circumstances
the act of the plaintiff is to be regarded as that of the tenant of the
premises. The act of the animal by which the plaintiff was injured, so
far from being independent of the primary trespass, or unrelated to it,
grew directly out of the propensity in which this originated, coupled
with the plaintiff’s attempt to prevent its continuance. The defendant’s
fifth point was therefore properly refused. The case was submitted to
the jury with suitable instructions, and their finding on the questions
involved was concurred in by the trial court.

_The judgment is affirmed._

WICKHAM, J. (dissenting.) ... We are called on to determine whether the
rule, so far as our authority goes, shall be established in
Pennsylvania, that the owner of a useful, gentle, and domestic animal,
belonging to a class recognized from the earliest times as harmless to
man, watched, driven to and from the pasture fields, fed and milked by
women and children the world over, shall be responsible for the conduct
of the animal, foreign to its well-known nature and habits, if it happen
that through any negligence of such owner, or his servant, it is
permitted to trespass on the land of another, and there injures a third
party.

The authorities on this subject are numerous and impossible to
reconcile. Some of them rest on statutes or ordinances, not always
adverted to in the text-books or digests, in which they are hastily
cited. Others are based on the theory, that the right to recover exists
because of the trespass to realty, and that any unusual and not to be
expected injury caused by the animal to the person of the owner of the
land, or his other property, must be alleged and proved by way of
aggravation of damages. Another class of cases holds that all injuries
committed by an animal, in a place where it has no right to be, must be
compensated for by the owner. It is on the latter theory of the law that
the plaintiff must recover, if she can sustain her action, as we do not
deem it worth while to notice the few erratic and sporadic cases,
seemingly decided on no discoverable reason, except an assumed natural
equity, that any one injured by anything, animate or inanimate,
belonging to another, should be compensated by the owner.

* * * * *

As has already been observed, the plaintiff was not the owner of the
land trespassed upon, and it may be remarked that she is aided by no
statute.

* * * * *

It is argued that the appellant’s cow was vicious. There is no evidence
even suggesting such a tendency, and the learned trial judge so
instructed the jury. Conceding that the animal was breachy, as alleged
by the plaintiff, this indicated no ferocity or proneness to attack
people. Any one, acquainted with the nature and habits of horses and
cows, knows that usually the most intelligent and gentle animals of
these species are the most cunning and successful in finding their way
into forbidden inclosures and the readiest to run away when discovered.
As was said in Keshan _v._ Gates, 2 Thomp. & C. (N. Y. Sup. Ct.) 288:
“The vicious habits or propensities which the owner of an animal must,
when known to him, guard against, are such as are directly dangerous,
such as kicking and biting in horses, and hooking in horned animals, and
biting in dogs. These habits or propensities may be indulged in at any
moment and are inevitably dangerous.”

The adoption of the rule, sanctioned by the decisions of many
respectable tribunals in other states, that the owner of every
trespassing domestic animal is liable merely because it is a trespasser
for all injuries it may commit, however contrary to its usual nature and
disposition, and regardless of his knowledge of its special viciousness,
might often lead to strange and unthought-of consequences. For instance,
suppose that a pet lamb, always regarded as a harmless playmate of
children, is permitted to wander from its owner’s premises into those of
a neighbor (this as well as the next illustration is not a
supposititious case), and there, in play or anger, butts a child from a
high veranda, or a trespassing hatching hen, discovered on its nest by
the little son of the owner of the premises, pecks out the eye of the
boy as he is lawfully trying to drive it away, the unfortunate owner
would be liable in each instance for all the resulting damages. In vain
would he urge that the animal causing the injury belonged to a class
ordinarily docile in its nature and harmless to man; that he had no
reason to anticipate that it would do such unusual mischief; and that he
was only responsible for the things hens, lambs, and milch cows usually
do and may be expected to do when trespassing, that is, for the natural
and probable consequences of their trespasses. The answer, under the
rule we are considering, would be: “You were guilty of negligence in
permitting your animal to trespass, and therefore you are liable for all
its freaks, for the consequences of the wrong, near and remote, probable
and improbable, for the things you had reason to anticipate, and those
which no one would be likely to think could happen, save as a remote
possibility.” The results which might follow the application of such a
rule demand its rejection, where it has not already been fully adopted.

The only negligence of the defendant revealed by the evidence was his
failure to keep his cow out of the garden of the plaintiff’s son. To the
latter, the defendant would certainly be liable for the harm done to the
realty, but as he had no notice or knowledge of any vicious or ferocious
propensity on the part of the animal, we do not think that he should be
mulcted in damages for the unfortunate injury suffered by the plaintiff,
nor, for that matter, even to the owner of the land, had such owner been
injured in like manner. The appellant’s fifth point, asking the court to
direct a verdict in his favor, should have been affirmed.

* * * * *

PORTER, J., concurred in the dissenting opinion of WICKHAM, J.[285]

SECTION III
DANGEROUS USE OF LAND

FLETCHER _v._ RYLANDS
IN THE EXCHEQUER, MAY 5, 1865.
_Reported in 3 Hurlstone & Coltman, 774._

FLETCHER _v._ RYLANDS
IN THE EXCHEQUER CHAMBER, MAY 14, 1866.
_Reported in Law Reports, 1 Exchequer, 265._

RYLANDS _v._ FLETCHER
IN THE HOUSE OF LORDS, JULY 17, 1868.
_Reported in Law Reports, 3 House of Lords, 330._

In November, 1861, Fletcher brought an action against Rylands and
Horrocks to recover damages for an injury caused to his mines by water
flowing into them from a reservoir which defendants had constructed. The
declaration (set out in L. R. 1 Exch. 265, 266) contained three counts,
each count alleging negligence on the part of the defendants. The case
came on for trial at the Liverpool Summer Assizes, 1862, when a verdict
was entered for the plaintiff, subject to an award to be thereafter made
by an arbitrator. Subsequently the arbitrator was directed, instead of
making an award, to state a special case for the consideration of the
Court of Exchequer.[286]

The material facts in the special case stated by the arbitrator were as
follows:—

Fletcher, under a lease from Lord Wilton, and under arrangements with
other landowners, was working coal mines under certain lands. He had
worked the mines up to a spot where he came upon old horizontal passages
of disused mines, and also upon vertical shafts which seemed filled with
marl and rubbish.

Rylands and Horrocks owned a mill standing on land near that under which
Fletcher’s mines were worked. With permission of Lord Wilton, they
constructed on Lord Wilton’s land a reservoir to supply water to their
mill. They employed a competent engineer and competent contractors to
construct the reservoir. It was not known to Rylands and Horrocks, nor
to any of the persons employed by them, that any coal had ever been
worked under or near the site of the reservoir; but in point of fact the
coal under the site of the reservoir had been partially worked at some
time or other beyond living memory, and there were old coal workings
under the site of the reservoir communicating by means of other and
intervening old underground workings with the recent workings of
Fletcher.

In the course of constructing and excavating for the bed of the said
reservoir, five old shafts, running vertically downwards, were met with
in the portion of land selected for the site of the said reservoir. At
the time they were so met with the sides or walls of at least three of
them were constructed of timber, and were still in existence, but the
shafts themselves were filled up with marl, or soil of the same kind as
the marl or soil which immediately surrounded them, and it was not known
to, or suspected by, the defendants, or any of the persons employed by
them in or about the planning or constructing of the said reservoir,
that they were (as they afterwards proved to be) shafts which had been
made for the purpose of getting the coal under the land in which the
said reservoir was made, or that they led down to coal workings under
the site of the said reservoir.

For the selection of the site of the said reservoir, and for the
planning and constructing thereof, it was necessary that the defendants
should employ an engineer and contractors, and they did employ for those
purposes a competent engineer and competent contractors, by and under
whom the said site was selected and the said reservoir was planned and
constructed, and on the part of the defendants themselves there was no
personal negligence or default whatever in or about or in relation to
the selection of the said site, or in or about the planning or
construction of the said reservoir; but in point of fact reasonable and
proper care and skill were not exercised by or on the part of the
persons so employed by them, with reference to the shafts so met with as
aforesaid, to provide for the sufficiency of the said reservoir to bear
the pressure of water which, when filled to the height proposed, it
would have to bear.

The said reservoir was completed about the beginning of December, 1860,
when the defendants caused the same to be partially filled with water,
and on the morning of the 11th December in the same year, whilst the
reservoir was so partially filled, one of the shafts which had been so
met with as aforesaid gave way and burst downwards; in consequence of
which the water of the reservoir flowed into the old workings
underneath, and by means of the underground communications so then
existing between those old coal workings and the plaintiff’s coal
workings in the plaintiff’s colliery, as above described, large
quantities of the water so flowing from the said reservoir as aforesaid
found their way into the said coal workings in the plaintiff’s colliery,
and by reason thereof the said colliery became and was flooded, and the
working thereof was obliged to be and was for a time necessarily
suspended.

The question for the opinion of the Court was whether the plaintiff was
entitled to recover damages from the defendants by reason of the matters
thus stated by the arbitrator.

The Court of Exchequer (POLLOCK, C. B., and MARTIN, B., concurring;
BRAMWELL, B., dissenting) gave judgment for defendants.

* * * * *

Plaintiff brought error in the Exchequer Chamber.

* * * * *

May 14, 1866. The judgment of the Court (WILLES, BLACKBURN, KEATING,
MELLOR, MONTAGUE SMITH, and LUSH, JJ.) was delivered by

BLACKBURN, J. This was a special case stated by an arbitrator, under an
order of _nisi prius_, in which the question for the Court is stated to
be, whether the plaintiff is entitled to recover any and, if any, what
damages from the defendants by reason of the matters thereinbefore
stated.

In the Court of Exchequer, the Chief Baron and Martin, B., were of
opinion that the plaintiff was not entitled to recover at all, Bramwell,
B., being of a different opinion. The judgment in the Exchequer was
consequently given for the defendants, in conformity with the opinion of
the majority of the Court. The only question argued before us was
whether this judgment was right, nothing being said about the measure of
damages in case the plaintiff should be held entitled to recover. We
have come to the conclusion that the opinion of Bramwell, B., was right,
and that the answer to the question should be that the plaintiff was
entitled to recover damages from the defendants by reason of the matters
stated in the case, and consequently that the judgment below should be
reversed, but we cannot at present say to what damages the plaintiff is
entitled.

It appears from the statement in the case that the plaintiff was damaged
by his property being flooded by water which, without any fault on his
part, broke out of a reservoir constructed on the defendants’ land by
the defendants’ orders, and maintained by the defendants.

It appears from the statement in the case [see pp. 267–268], that the
coal under the defendants’ land had, at some remote period, been worked
out; but this was unknown at the time when the defendants gave
directions to erect the reservoir, and the water in the reservoir would
not have escaped from the defendants’ land, and no mischief would have
been done to the plaintiff, but for this latent defect in the
defendants’ subsoil. And it further appears [see pp. 268–269] that the
defendants selected competent engineers and contractors to make their
reservoir, and themselves personally continued in total ignorance of
what we have called the latent defect in the subsoil; but that these
persons employed by them in the course of the work became aware of the
existence of the ancient shafts filled up with soil, though they did not
know or suspect that they were shafts communicating with old workings.

It is found that the defendants, personally, were free from all blame,
but that in fact proper care and skill was not used by the persons
employed by them to provide for the sufficiency of the reservoir with
reference to these shafts. The consequence was that the reservoir when
filled with water burst into the shafts, the water flowed down through
them into the old workings, and thence into the plaintiff’s mine, and
there did the mischief.

The plaintiff, though free from all blame on his part, must bear the
loss, unless he can establish that it was the consequence of some
default for which the defendants are responsible. The question of law
therefore arises, what is the obligation which the law casts on a person
who, like the defendants, lawfully brings on his land something which,
though harmless whilst it remains there, will naturally do mischief if
it escape out of his land. It is agreed on all hands that he must take
care to keep in that which he has brought on the land and keeps there,
in order that it may not escape and damage his neighbors; but the
question arises whether the duty which the law casts upon him, under
such circumstances, is an absolute duty to keep it in at his peril, or
is, as the majority of the Court of Exchequer have thought, merely a
duty to take all reasonable and prudent precautions in order to keep it
in, but no more. If the first be the law, the person who has brought on
his land and kept there something dangerous, and failed to keep it in,
is responsible for all the natural consequences of its escape. If the
second be the limit of his duty, he would not be answerable except on
proof of negligence, and consequently would not be answerable for escape
arising from any latent defect which ordinary prudence and skill could
not detect.

Supposing the second to be the correct view of the law, a further
question arises subsidiary to the first, viz., whether the defendants
are not so far identified with the contractors whom they employed as to
be responsible for the consequences of their want of care and skill in
making the reservoir in fact insufficient with reference to the old
shafts, of the existence of which they were aware, though they had not
ascertained where the shafts went to.

We think that the true rule of law is that the person who for his own
purposes brings on his lands and collects and keeps there anything
likely to do mischief if it escapes, must keep it in at his peril, and
if he does not do so, is _prima facie_ answerable for all the damage
which is the natural consequence of its escape. He can excuse himself by
showing that the escape was owing to the plaintiff’s default; or perhaps
that the escape was the consequence of _vis major_, or the act of God;
but as nothing of this sort exists here, it is unnecessary to inquire
what excuse would be sufficient. The general rule, as above stated,
seems on principle just. The person whose grass or corn is eaten down by
the escaping cattle of his neighbor, or whose mine is flooded by the
water from his neighbor’s reservoir, or whose cellar is invaded by the
filth of his neighbor’s privy, or whose habitation is made unhealthy by
the fumes and noisome vapors of his neighbor’s alkali works, is
damnified without any fault of his own; and it seems but reasonable and
just that the neighbor, who has brought something on his own property
which was not naturally there, harmless to others so long as it is
confined to his own property, but which he knows to be mischievous if it
gets on his neighbor’s, should be obliged to make good the damage which
ensues if he does not succeed in confining it to his own property. But
for his act in bringing it there no mischief could have accrued, and it
seems but just that he should at his peril keep it there, so that no
mischief may accrue, or answer for the natural and anticipated
consequences. And upon authority, this we think is established to be the
law, whether the things so brought be beasts, or water, or filth, or
stenches.

The case that has most commonly occurred and which is most frequently to
be found in the books is as to the obligation of the owner of cattle
which he has brought on his land to prevent their escaping and doing
mischief. The law as to them seems to be perfectly settled from early
times; the owner must keep them in at his peril, or he will be
answerable for the natural consequences of their escape; that is, with
regard to tame beasts, for the grass they eat and trample upon, though
not for any injury to the person of others, for our ancestors have
settled that it is not the general nature of horses to kick, or bulls to
gore; but if the owner knows that the beast has a vicious propensity to
attack man, he will be answerable for that too.

As early as the Year Book, 20 Ed. 4, 11, placitum 10, Brian, C. J., lays
down the doctrine in terms very much resembling those used by Lord Holt
in Tenant _v._ Goldwin, 2 Ld. Raym. 1089, 1 Salk. 360, which will be
referred to afterwards. It was trespass with cattle. Plea, that the
defendant’s land adjoined a place where defendant had common, that the
cattle strayed from the common, and defendant drove them back as soon as
he could. It was held a bad plea. Brian, C. J., says: “It behoves him to
use his common so that he shall do no hurt to another man, and if the
land in which he has common be not enclosed, it behoves him to keep the
beasts in the common and out of the land of any other.” He adds, when it
was proposed to amend by pleading that they were driven out of the
common by dogs, that although that might give a right of action against
the master of the dogs, it was no defence to the action of trespass by
the person on whose land the cattle went. In the recent case of Cox _v._
Burbidge, 13 C. B. N. S. 438, 32 L. J. C. P. 89, Williams, J., says: “I
apprehend the general rule of law to be perfectly plain. If I am the
owner of an animal in which by law the right of property can exist, I am
bound to take care that it does not stray into the land of my neighbor,
and I am liable for any trespass it may commit, and for the ordinary
consequences of that trespass. Whether or not the escape of the animal
is due to my negligence is altogether immaterial.” So in May _v._
Burdett, 9 Q. B. 112, the Court, after an elaborate examination of the
old precedents and authorities, came to the conclusion that “a person
keeping a mischievous animal, with knowledge of its propensities, is
bound to keep it secure at his peril.” And in 1 Hale’s Pleas of the
Crown, 430, Lord Hale states that where one keeps a beast, knowing its
nature or habits are such that the natural consequence of his being
loose is that he will harm men, the owner “must at his peril keep him up
safe from doing hurt; for though he use his diligence to keep him up, if
he escape and do harm, the owner is liable to answer damages;” though,
as he proceeds to show, he will not be liable criminally without proof
of want of care. In these latter authorities the point under
consideration was damage to the person, and what was decided was, that
where it was known that hurt to the person was the natural consequence
of the animal being loose, the owner should be responsible in damages
for such hurt, though where it was not known to be so, the owner was not
responsible for such damages; but where the damage is, like eating grass
or other ordinary ingredients in damage feasant, the natural consequence
of the escape, the rule as to keeping in the animal is the same. In Com.
Dig. _Droit._ (M. 2), it is said that “if the owner of 200 acres in a
common moor enfeoffs B. of 50 acres, B. ought to enclose at his peril,
to prevent damage by his cattle to the other 150 acres. For if his
cattle escape thither they may be distrained damage feasant. So the
owner of the 150 acres ought to prevent his cattle from doing damage to
the 50 acres at his peril.” The authority cited is Dyer, 372 _b_., where
the decision was that the cattle might be distrained; the inference from
that decision, that the owner was bound to keep in his cattle at his
peril, is, we think, legitimate, and we have the high authority of
Comyns for saying that such is the law. In the note to Fitzherbert, Nat.
Brevium, 128, which is attributed to Lord Hale, it is said, “If A. and
B. have lands adjoining, where there is no enclosure, the one shall have
trespass against the other on an escape of their beasts respectively:
Dyer, 372, Rastal Ent. 621, 20 Ed. 4, 10; although wild dogs, &c., drive
the cattle of the one into the lands of the other.” No case is known to
us on which in replevin it has ever been attempted to plead in bar to an
avowry for distress damage feasant, that the cattle had escaped without
any negligence on the part of the plaintiff, and surely if that could
have been a good plea in bar, the facts must often have been such as
would have supported it. These authorities, and the absence of any
authority to the contrary, justify Williams, J., in saying, as he does
in Cox _v._ Burbidge, _supra_, that the law is clear that in actions for
damage occasioned by animals that have not been kept in by their owners,
it is quite immaterial whether the escape is by negligence or not.

As has been already said, there does not appear to be any difference in
principle between the extent of the duty cast on him who brings cattle
on his land to keep them in, and the extent of the duty imposed on him
who brings on his land water, filth, or stenches, or any other thing
which will, if it escape, naturally do damage, to prevent their escaping
and injuring his neighbor; and the case of Tenant _v._ Goldwin, _supra_,
is an express authority that the duty is the same, and is, to keep them
in at his peril.

As Martin, B., in his judgment below, appears not to have understood
that case in the same manner as we do, it is proper to examine it in
some detail. It was a motion in arrest of judgment after judgment by
default, and therefore all that was well pleaded in the declaration was
admitted to be true. The declaration is set out at full length in the
report in 6 Mod. p. 311. It alleged that the plaintiff had a cellar
which lay contiguous to a messuage of the defendant, “and used
(_solebat_) to be separated and fenced from a privy house of office,
parcel of the said messuage of defendant, by a thick and close wall,
which belongs to the said messuage of the defendant, and by the
defendant of right ought to have been repaired (_jure debuit
reparari_).” Yet he did not repair it, and for want of repair filth
flowed into plaintiff’s cellar. The case is reported by Salkeld, who
argued it, in 6 Mod., and by Lord Raymond, whose report is the fullest.
The objection taken was that there was nothing to show that the
defendant was under any obligation to repair the wall, that, it was
said, being a charge not of common right, and the allegation that the
wall _de jure debuit reparari_ by the defendant being an inference of
law which did not arise from the facts alleged. Salkeld argued that this
general mode of stating the right was sufficient in a declaration, and
also that the duty alleged did of common right result from the facts
stated. It is not now material to inquire whether he was or was not
right on the pleading point. All three reports concur in saying that
Lord Holt, during the argument, intimated an opinion against him on
that, but that after consideration the Court gave judgment for him on
the second ground. In the report of 6 Mod. 314, it is stated: “And at
another day _per totam curiam_. The declaration is good; for there is a
sufficient cause of action appearing in it; but not upon the word
‘_solebat_.’ If the defendant has a house of office enclosed with a wall
which is his, he is of common right bound to use it so as not to annoy
another.... The reason here is, that one must use his own so as thereby
not to hurt another, and as of common right one is bound to keep his
cattle from trespassing on his neighbor, so he is bound to use anything
that is his so as not to hurt another by such use.... Suppose one sells
a piece of pasture lying open to another piece of pasture which the
vendor has, the vendee is bound to keep his cattle from running into the
vendor’s piece; so of dung or anything else.” There is here an evident
allusion to the same case in Dyer, see _ante_, p. 334, as is referred to
in Com. Dig. _Droit._ (M. 2). Lord Raymond in his report, 2 Ld. Raym. at
p. 1092, says: “The last day of term, Holt, C. J., delivered the opinion
of the Court that the declaration was sufficient. He said that upon the
face of this declaration there appeared a sufficient cause of action to
entitle the plaintiff to have his judgment; that they did not go upon
the _solebat_, or the _jure debuit reparari_, as if it were enough to
say that the plaintiff had a house and the defendant had a wall, and he
ought to repair the wall; but if the defendant has a house of office,
and the wall which separates the house of office from the plaintiff’s
house is all the defendant’s, he is of common right bound to repair
it.... The reason of this case is upon this account, that every one must
so use his own as not to do damage to another; and as every man is bound
so to look to his cattle as to keep them out of his neighbor’s ground,
that so he may receive no damage; so he must keep in the filth of his
house of office that it may not flow in upon and damnify his
neighbor.... So if a man has two pieces of pasture which lie open to one
another, and sells one piece, the vendee must keep in his cattle so as
they shall not trespass upon the vendor. So a man shall not lay his dung
so high as to damage his neighbor, and the reason of these cases is
because every man must so use his own as not to damnify another.”
Salkeld, who had been counsel in the case, reports the judgment much
more concisely (1 Salk. 361), but to the same effect; he says: “The
reason he gave for his judgment was because it was the defendant’s wall
and the defendant’s filth, and he was bound of common right to keep his
wall so as his filth might not damnify his neighbor, and that it was a
trespass on his neighbor, as if his beasts should escape, or one should
make a great heap on the border of his ground, and it should tumble and
roll down upon his neighbor’s, ... he must repair the wall of his house
of office, for he whose dirt it is must keep it that it may not
trespass.” It is worth noticing how completely the reason of Lord Holt
corresponds with that of Brian, C. J., in the cases already cited in 20
Ed. 4. Martin, B., in the Court below says that he thinks this was a
case without difficulty, because the defendant had, by letting judgment
go by default, admitted his liability to repair the wall, and that he
cannot see how it is an authority for any case in which no such
liability is admitted. But a perusal of the report will show that it was
because Lord Holt and his colleagues thought (no matter for this purpose
whether rightly or wrongly) that the liability was not admitted, that
they took so much trouble to consider what liability the law would raise
from the admitted facts, and it does therefore seem to us to be a very
weighty authority in support of the position that he who brings and
keeps anything, no matter whether beasts, or filth, or clean water, or a
heap of earth or dung on his premises, must at his peril prevent it from
getting on his neighbor’s, or make good all the damage which is the
natural consequence of its doing so. No case has been found in which the
question as to the liability for noxious vapors escaping from a man’s
works by inevitable accident has been discussed, but the following case
will illustrate it. Some years ago several actions were brought against
the occupiers of some alkali works at Liverpool for the damage alleged
to be caused by the chlorine fumes of their works. The defendants proved
that they at great expense erected contrivances by which the fumes of
chlorine were condensed and sold as muriatic acid, and they called a
great body of scientific evidence to prove that this apparatus was so
perfect that no fumes possibly could escape from the defendants’
chimneys. On this evidence it was pressed upon the jury that the
plaintiff’s damage must have been due to some of the numerous other
chimneys in the neighborhood; the jury, however, being satisfied that
the mischief was occasioned by chlorine, drew the conclusion that it had
escaped from the defendants’ works somehow, and in each case found for
the plaintiff. No attempt was made to disturb these verdicts on the
ground that the defendants had taken every precaution which prudence or
skill could suggest to keep those fumes in, and that they could not be
responsible unless negligence were shown; yet, if the law be as laid
down by the majority of the Court of Exchequer, it would have been a
very obvious defence. If it had been raised the answer would probably
have been that the uniform course of pleading in actions on such
nuisances is to say that the defendant caused the noisome vapors to
arise on his premises, and suffered them to come on the plaintiff’s,
without stating that there was any want of care or skill in the
defendant, and that the case of Tenant _v._ Goldwin, _supra_, showed
that this was founded on the general rule of law, that he whose stuff it
is must keep it that it may not trespass. There is no difference in this
respect between chlorine and water; both will, if they escape, do
damage, the one by scorching and the other by drowning, and he who
brings them there must at his peril see that they do not escape and do
that mischief. What is said by Gibbs, C. J., in Sutton _v._ Clarke, 6
Taunt. 44, though not necessary for the decision of the case, shows that
that very learned judge took the same view of the law that was taken by
Lord Holt. But it was further said by Martin, B., that when damage is
done to personal property, or even to the person, by collision, either
upon land or at sea, there must be negligence in the party doing the
damage to render him legally responsible; and this is no doubt true, and
as was pointed out by Mr. Mellish during his argument before us, this is
not confined to cases of collision, for there are many cases in which
proof of negligence is essential, as, for instance, where an unruly
horse gets on the footpath of a public street and kills a passenger,
Hammack _v._ White, 11 C. B. N. S. 588; 31 L. J. (C. P.) 129; or where a
person in a dock is struck by the falling of a bale of cotton which the
defendant’s servants are lowering: Scott _v._ London Dock Company, 3 H.
& C. 596; 35 L. J. (Ex.) 17, 220; and many other similar cases may be
found. But we think these cases distinguishable from the present.
Traffic on the highways, whether by land or sea, cannot be conducted
without exposing those whose persons or property are near it to some
inevitable risk; and that being so, those who go on the highway, or have
their property adjacent to it, may well be held to do so subject to
their taking upon themselves the risk of injury from that inevitable
danger; and persons who by the license of the owner pass near to
warehouses where goods are being raised or lowered, certainly do so
subject to the inevitable risk of accident. In neither case, therefore,
can they recover without proof of want of care or skill occasioning the
accident; and it is believed that all the cases in which inevitable
accident has been held an excuse for what _prima facie_ was a trespass,
can be explained on the same principle, viz., that the circumstances
were such as to show that the plaintiff had taken that risk upon
himself. But there is no ground for saying that the plaintiff here took
upon himself any risk arising from the uses to which the defendants
should choose to apply their land. He neither knew what these might be,
nor could he in any way control the defendants, or hinder their building
what reservoirs they liked, and storing up in them what water they
pleased, so long as the defendants succeeded in preventing the water
which they there brought from interfering with the plaintiff’s property.

The view which we take of the first point renders it unnecessary to
consider whether the defendants would or would not be responsible for
the want of care and skill in the persons employed by them, under the
circumstances stated in the case [pp. 268–269].

We are of opinion that the plaintiff is entitled to recover, but as we
have not heard any argument as to the amount, we are not able to give
judgment for what damages. The parties probably will empower their
counsel to agree on the amount of damages; should they differ on the
principle the case may be mentioned again.

_Judgment for the plaintiff._

Rylands and Horrocks brought error in the House of Lords against the
judgment of the Exchequer Chamber, which had reversed the judgment of
the Court of Exchequer.

[Arguments omitted.]

THE LORD CHANCELLOR (Lord Cairns). My Lords, in this case the plaintiff
(I may use the description of the parties in the action) is the occupier
of a mine and works under a close of land. The defendants are the owners
of a mill in his neighborhood, and they proposed to make a reservoir for
the purpose of keeping and storing water to be used about their mill
upon another close of land, which, for the purposes of this case, may be
taken as being adjoining to the close of the plaintiff, although in
point of fact some intervening land lay between the two. Underneath the
close of land of the defendants on which they proposed to construct
their reservoir there were certain old and disused mining passages and
works. There were five vertical shafts and some horizontal shafts
communicating with them. The vertical shafts had been filled up with
soil and rubbish, and it does not appear that any person was aware of
the existence either of the vertical shafts or of the horizontal works
communicating with them. In the course of the working by the plaintiff
of his mine he had gradually worked through the seams of coal underneath
the close, and had come into contact with the old and disused works
underneath the close of the defendants.

In that state of things the reservoir of the defendants was constructed.
It was constructed by them through the agency and inspection of an
engineer and contractor. Personally, the defendants appear to have taken
no part in the works, or to have been aware of any want of security
connected with them. As regards the engineer and the contractor, we must
take it from the case that they did not exercise, as far as they were
concerned, that reasonable care and caution which they might have
exercised, taking notice, as they appear to have taken notice, of the
vertical shafts filled up in the manner which I have mentioned. However,
my Lords, when the reservoir was constructed and filled, or partly
filled, with water, the weight of the water bearing upon the disused and
imperfectly filled-up vertical shafts, broke through those shafts. The
water passed down them and into the horizontal workings, and from the
horizontal workings under the close of the defendants it passed on into
the workings under the close of the plaintiff, and flooded his mine,
causing considerable damage, for which this action was brought.

The Court of Exchequer, when the special case stating the facts to which
I have referred was argued, was of opinion that the plaintiff had
established no cause of action. The Court of Exchequer Chamber, before
which an appeal from this judgment was argued, was of a contrary
opinion, and the judges there unanimously arrived at the conclusion that
there was a cause of action, and that the plaintiff was entitled to
damages.

My Lords, the principles on which this case must be determined appear to
me to be extremely simple. The defendants, treating them as the owners
or occupiers of the close on which the reservoir was constructed, might
lawfully have used that close for any purpose for which it might in the
ordinary course of the enjoyment of land be used; and if, in what I may
term the natural user of that land, there had been any accumulation of
water, either on the surface or under ground, and if, by the operation
of the laws of nature, that accumulation of water had passed off into
the close occupied by the plaintiff, the plaintiff could not have
complained that that result had taken place. If he had desired to guard
himself against it, it would have lain upon him to have done so by
leaving, or by interposing, some barrier between his close and the close
of the defendants in order to have prevented that operation of the laws
of nature.

As an illustration of that principle, I may refer to a case which was
cited in the argument before your Lordships, the case of Smith _v._
Kenrick, in the Court of Common Pleas, 7 C. B. 515.

On the other hand, if the defendants, not stopping at the natural use of
their close, had desired to use it for any purpose which I may term a
non-natural use,[287] for the purpose of introducing into the close that
which in its natural condition was not in or upon it, for the purpose of
introducing water either above or below ground in quantities and in a
manner not the result of any work or operation on or under the land; and
if in consequence of their doing so, or in consequence of any
imperfection in the mode of their doing so, the water came to escape and
to pass off into the close of the plaintiff, then it appears to me that
that which the defendants were doing they were doing at their own peril;
and if in the course of their doing it the evil arose to which I have
referred, the evil, namely, of the escape of the water and its passing
away to the close of the plaintiff and injuring the plaintiff, then for
the consequence of that, in my opinion, the defendants would be liable.
As the case of Smith _v._ Kenrick is an illustration of the first
principle to which I have referred, so also the second principle to
which I have referred is well illustrated by another case in the same
Court, the case of Baird _v._ Williamson, 15 C. B. N. S. 317, which was
also cited in the argument at the Bar.

My Lords, these simple principles, if they are well founded, as it
appears to me they are, really dispose of this case.

The same result is arrived at on the principles referred to by Mr.
Justice Blackburn in his judgment in the Court of Exchequer Chamber,
where he states the opinion of that Court as to the law in these words:
“We think that the true rule of law is that the person who, for his own
purposes, brings on his land and collects and keeps there anything
likely to do mischief if it escapes, must keep it in at his peril; and
if he does not do so, is _prima facie_ answerable for all the damage
which is the natural consequence of its escape. He can excuse himself by
showing that the escape was owing to the plaintiff’s default; or,
perhaps, that the escape was the consequence of _vis major_, or the act
of God; but as nothing of this sort exists here, it is unnecessary to
inquire what excuse would be sufficient. The general rule, as above
stated, seems on principle just. The person whose grass or corn is eaten
down by the escaping cattle of his neighbor, or whose mine is flooded by
the water from his neighbor’s reservoir, or whose cellar is invaded by
the filth of his neighbor’s privy, or whose habitation is made unhealthy
by the fumes and noisome vapors of his neighbor’s alkali works, is
damnified without any fault of his own; and it seems but reasonable and
just that the neighbor who has brought something on his own property
(which was not naturally there), harmless to others so long as it is
confined to his own property, but which he knows will be mischievous if
it gets on his neighbor’s, should be obliged to make good the damage
which ensues if he does not succeed in confining it to his own property.
But for his act in bringing it there no mischief could have accrued, and
it seems but just that he should at his peril keep it there, so that no
mischief may accrue, or answer for the natural and anticipated
consequence. And upon authority this we think is established to be the
law, whether the things so brought be beasts, or water, or filth, or
stenches.”

My Lords, in that opinion I must say I entirely concur. Therefore, I
have to move your Lordships that the judgment of the Court of Exchequer
Chamber be affirmed, and that the present appeal be dismissed with
costs.

LORD CRANWORTH. My Lords, I concur with my noble and learned friend in
thinking that the rule of law was correctly stated by Mr. Justice
Blackburn in delivering the opinion of the Exchequer Chamber. If a
person brings, or accumulates, on his land anything which, if it should
escape, may cause damage to his neighbor, he does so at his peril. If it
does escape and cause damage, he is responsible, however careful he may
have been, and whatever precautions he may have taken to prevent the
damage.

In considering whether a defendant is liable to a plaintiff for damage
which the plaintiff may have sustained, the question in general is not
whether the defendant has acted with due care and caution, but whether
his acts have occasioned the damage. This is all well explained in the
old case of Lambert _v._ Bessey, reported by Sir Thomas Raymond (Sir T.
Raym. 421). And the doctrine is founded on good sense. For when one
person, in managing his own affairs, causes, however innocently, damage
to another, it is obviously only just that he should be the party to
suffer. He is bound _sic uti suo ut non lædat alienum_. This is the
principle of law applicable to cases like the present, and I do not
discover in the authorities which were cited anything conflicting with
it.

The doctrine appears to me to be well illustrated by the two modern
cases in the Court of Common Pleas referred to by my noble and learned
friend. I allude to the two cases of Smith _v._ Kenrick, _supra_, and
Baird _v._ Williamson, _supra_. In the former the owner of a coal mine
on the higher level worked out the whole of his coal, leaving no barrier
between his mine and the mine on the lower level, so that the water
percolating through the upper mine flowed into the lower mine, and
obstructed the owner of it in getting his coal. It was held that the
owner of the lower mine had no ground of complaint. The defendant, the
owner of the upper mine, had a right to remove all his coal. The damage
sustained by the plaintiff was occasioned by the natural flow or
percolation of water from the upper strata. There was no obligation on
the defendant to protect the plaintiff against this. It was his business
to erect or leave a sufficient barrier to keep out the water, or to
adopt proper means for so conducting the water as that it should not
impede him in his workings. The water in that case was only left by the
defendant to flow in its natural course.

But in the later case of Baird _v._ Williamson, the defendant, the owner
of the upper mine, did not merely suffer the water to flow through his
mine without leaving a barrier between it and the mine below, but in
order to work in his own mine beneficially he pumped up quantities of
water which passed into the plaintiff’s mine in addition to that which
would have naturally reached it, and so occasioned him damage. Though
this was done without negligence and in the due working of his own mine,
yet he was held to be responsible for the damage so occasioned. It was
in consequence of his act, whether skilfully or unskilfully performed,
that the plaintiff had been damaged, and he was therefore held liable
for the consequences. The damage in the former case may be treated as
having arisen from the act of God; in the latter, from the act of the
defendant.

Applying the principle of these decisions to the case now before the
House, I come without hesitation to the conclusion that the judgment of
the Exchequer Chamber was right. The plaintiff had a right to work his
coal through the lands of Mr. Whitehead and up to the old workings. If
water naturally rising in the defendants’ land (we may treat the land as
the land of the defendants for the purpose of this case) had by
percolation found its way down to the plaintiff’s mine through the old
workings, and so had impeded his operations, that would not have
afforded him any ground of complaint. Even if all the old workings had
been made by the plaintiff, he would have done no more than he was
entitled to do; for, according to the principle acted on in Smith _v._
Kenrick, the person working the mine under the close in which the
reservoir was made had a right to win and carry away all the coal
without leaving any wall or barrier against Whitehead’s land. But that
is not the real state of the case. The defendants, in order to effect an
object of their own, brought on to their land, or on to land which for
this purpose may be treated as being theirs, a large accumulated mass of
water, and stored it up in a reservoir. The consequence of this was
damage to the plaintiff, and for that damage, however skilfully and
carefully the accumulation was made, the defendants, according to the
principles and authorities to which I have adverted, were certainly
responsible.

I concur, therefore, with my noble and learned friend in thinking that
the judgment below must be affirmed, and that there must be judgment for
the defendant in error.

_Judgment of the Court of Exchequer Chamber affirmed._[288]

NICHOLS _v._ MARSLAND
IN THE EXCHEQUER, JUNE 12, 1875.
_Reported in Law Reports, 10 Exchequer, 255._

NICHOLS _v._ MARSLAND
IN THE COURT OF APPEAL, DECEMBER 1, 1876.
_Reported in Law Reports, 2 Exchequer Division, 1._

The plaintiff sued as the surveyor for the County of Chester of bridges
repairable at the expense of the county.

The first count of the declaration alleged that the defendant was
possessed of lands and of artificial pools constructed thereon for
receiving and holding, and wherein were kept, large quantities of water,
yet the defendant took so little and such bad care of the pools and the
water therein that large quantities of water escaped from the pools and
destroyed four county bridges, whereby the inhabitants of the county
incurred expense in repairing and rebuilding them.

The second count alleged that the defendant was possessed of large
quantities of water collected and contained in three artificial pools of
the defendant near to four county bridges, and stated the breach as in
the first count.

Plea, not guilty, and issue thereon.

At the trial before COCKBURN, C. J., at the Chester Summer Assizes,
1874, the plaintiff’s witnesses gave evidence to the following effect:
The defendant occupied a mansion-house and grounds at Henbury, in the
County of Chester. A natural stream called Bagbrook, which rose in
higher lands, ran through the defendant’s grounds, and after leaving
them flowed under the four county bridges in question. After entering
the defendant’s grounds the stream was diverted and dammed up by an
artificial embankment into a pool of three acres in area called “the
upper pool,” from which it escaped over a weir in the embankment, and
was again similarly dammed up by an artificial embankment into the
“middle pool,” which was between one and two acres in area. Escaping
over a weir in the embankment, it was again dammed up into “the lower
pool,” which was between eight and nine acres in area, and from which
the stream escaped into its natural and original course.

About five o’clock P. M. on the 18th of June, 1872, occurred a terrible
thunder storm, accompanied by heavy rain, which continued till about
three o’clock A. M. on the 19th. The rainfall was greater and more
violent than any within the memory of the witnesses, and swelled the
stream both above and in the defendant’s grounds. On the morning of the
19th it was found that during the night the violence and volume of the
water had carried away the artificial embankments of the three pools,
the accumulated water in which, being thus suddenly let loose, had
swelled the stream below the pools so that it carried away and destroyed
the county bridges mentioned in the declaration. At the pools were
paddles for letting off the water, but for several years they had been
out of working order.

Some engineers and other witnesses gave evidence that in their opinion
the weir in the upper pool was far too small for a pool of that size,
and that the mischief happened through the insufficiency of the means
for carrying off the water. It was not proved when these ornamental
pools were constructed, but it appeared that they had existed before the
defendant began to occupy the property, and that no similar accident had
ever occurred within the knowledge of the witnesses.

After hearing the address of the defendant’s counsel, the jury said they
did not wish to hear his witnesses, and that in their opinion the
accident was caused by _vis major_. In answer to Cockburn, C. J., they
found that there was no negligence in the construction or maintenance of
the works, and that the rain was most excessive. Cockburn, C. J., being
of opinion that the rainfall, though extraordinary and unprecedented,
did not amount to _vis major_ or excuse the defendant from liability,
entered the verdict for the plaintiff for 4092_l._, the agreed amount,
reserving leave to the defendant to move to enter it for her if the
Court (who were to draw inferences of fact) should be of opinion that
the rainfall amounted to _vis major_, and so distinguished the case from
Rylands _v._ Fletcher, L. R. 3 H. L. 330.

A rule _nisi_ having been accordingly obtained to enter the verdict for
the defendant on the ground that there was no proof of liability, the
plaintiff on showing cause to be at liberty to contend that a new trial
should be granted on the ground that the finding of the jury was against
the weight of evidence—

May 27. _McIntyre_, Q. C., and _Coxon_, for the plaintiff, showed cause.
The defendant, having for her own purposes and advantage stored a
dangerous element on her premises, is liable if that element escapes and
injures the property of another, even though the escape be caused by an
earthquake or any form of _vis major_.

[CLEASBY, B. Was not the flood brought on to the defendant’s land by
_vis major_?]

The pools were made by those through whom the defendant claims, and if
there had been no pools the water of the natural stream would have
escaped without doing injury. The case falls within the rule laid down
by the judgment in Fletcher _v._ Rylands, L. R. 1 Ex. 265, 279,
delivered by Blackburn, J.: “We think that the true rule of law is, that
the person who for his own purposes brings on his lands, and collects
and keeps there anything likely to do mischief if it escapes, must keep
it in at his peril, and if he does not do so is _prima facie_ answerable
for all the damage which is the natural consequence of its escape. He
can excuse himself by showing that the escape was owing to the
plaintiff’s default, or perhaps that the escape was the consequence of
_vis major_, or the act of God.” This passage was cited with approval by
Lord Cairns, C., and Lord Cranworth on appeal. L. R. 3 H. L. 330, 339,
340.

[CLEASBY, B. There the defendant brought the water on to his own land.
Not so here.]

The intimation that _vis major_ would perhaps be an excuse is not
confirmed by any decision or any other _dictum_. But the facts here do
not amount to _vis major_. If the weirs had been larger, or the banks
stronger, the mischief would not have happened. _Vis major_ means
something which cannot be foreseen or resisted, as an earthquake or an
act of the Queen’s enemies.

_Hughes_ and _Dunn_ (_Sir J. Holker_, S. G., with them), in support of
the rule, cited Broom’s Legal Maxims, 5th ed. p. 230: “The act of God
signifies in legal phraseology any inevitable accident occurring without
the intervention of man, and may indeed be considered to mean something
in opposition to the act of man, as storms, tempests, and lightning:
_per_ Mansfield, C. J., in Forward _v._ Pittard, 1 T. R. 33; Trent
Navigation _v._ Wood, 3 Esp. 131; Rex _v._ Somerset, 8 T. R. 312.” Also
Amies _v._ Stevens, 1 Str. 127; Smith _v._ Fletcher, L. R. 9 Ex. 64; May
_v._ Burdett, 9 Q. B. 101; and Jackson _v._ Smithson, 15 M. & W. 563.

[The question of the verdict being against the evidence was then
argued.]

_Cur. adv. vult._

June 12. The judgment of the Court (KELLY, C. B., BRAMWELL, and CLEASBY,
BB.) was read by

BRAMWELL, B. In this case I understand the jury to have found that all
reasonable care had been taken by the defendant, that the banks were fit
for all events to be anticipated, and the weirs broad enough; that the
storm was of such violence as to be properly called the act of God, or
_vis major_. No doubt, as was said by Mr. McIntyre, a shower is the act
of God as much as a storm; so is an earthquake in this country: yet
every one understands that a storm, supernatural in one sense, may
properly, like an earthquake in this country, be called the act of God,
or _vis major_. No doubt not the act of God or a _vis major_ in the
sense that it was physically impossible to resist it, but in the sense
that it was practically impossible to do so. Had the banks been twice as
strong, or if that would not do, ten times, and ten times as high, and
the weir ten times as wide, the mischief might not have happened. But
those are not practical conditions, they are such that to enforce them
would prevent the reasonable use of property in the way most beneficial
to the community.

So understanding the finding of the jury, I am of opinion the defendant
is not liable. What has the defendant done wrong? What right of the
plaintiff has she infringed? She has done nothing wrong, she has
infringed no right. It is not the defendant who let loose the water and
sent it to destroy the bridges. She did indeed store it, and store it in
such quantities that, if it was let loose, it would do, as it did,
mischief. But suppose a stranger let it loose, would the defendant be
liable? If so, then if a mischievous boy bored a hole in a cistern in
any London house, and the water did mischief to a neighbor, the occupier
of the house would be liable. That cannot be. Then why is the defendant
liable if some agent over which she has no control lets the water out?
Mr. McIntyre contended that she would be in all cases of the water being
let out, whether by a stranger or the Queen’s enemies, or by natural
causes, as lightning or an earthquake. Why? What is the difference
between a reservoir and a stack of chimneys for such a question as this?
Here the defendant stored a lot of water for her own purposes; in the
case of the chimneys some one has put a ton of bricks fifty feet high
for his own purposes; both equally harmless if they stay where placed,
and equally mischievous if they do not. The water is no more a wild or
savage animal than the bricks while at rest, nor more so when in motion:
both have the same property of obeying the law of gravitation. Could it
be said that no one could have a stack of chimneys except on the terms
of being liable for any damage done by their being overthrown by a
hurricane or an earthquake? If so, it would be dangerous to have a tree,
for a wind might come so strong as to blow it out of the ground into a
neighbor’s land and cause it to do damage; or a field of ripe wheat,
which might be fired by lightning and do mischief.

I admit that it is not a question of negligence. A man may use all care
to keep the water in, or the stack of chimneys standing, but would be
liable if through any defect, though latent, the water escaped or the
bricks fell. But here the act is that of an agent he cannot control.

This case differs wholly from Fletcher _v._ Rylands, L. R. 1 Ex. 265,
279. There the defendant poured the water into the plaintiff’s mine. He
did not know he was doing so; but he did it as much as though he had
poured it into an open channel which led to the mine without his knowing
it. Here the defendant merely brought it to a place whence another agent
let it loose. I am by no means sure that the likeness of a wild animal
is exact. I am by no means sure that if a man kept a tiger, and
lightning broke his chain, and he got loose and did mischief, that the
man who kept him would not be liable. But this case and the case I put
of the chimneys, are not cases of keeping a dangerous beast for
amusement, but of a reasonable use of property in a way beneficial to
the community. I think this analogy has made some of the difficulty in
this case. Water stored in a reservoir may be the only practical mode of
supplying a district and so adapting it for habitation. I refer to my
judgment [3 H. & C. 788; 34 L. J. (Ex.) 181] in Fletcher _v._ Rylands,
and I repeat that here the plaintiff had no right that has been
infringed, and the defendant has done no wrong. The plaintiff’s right is
to say to the defendant, _Sic utere tuo ut alienum non lædas_, and that
the defendant has done, and no more.

The CHIEF BARON and my brother CLEASBY agree in this judgment. As to the
plaintiff’s application for a new trial on the ground that the finding
of the jury is against evidence, we have spoken to Cockburn, C. J.; he
is not dissatisfied therewith, and we cannot see it is wrong.
Consequently the rule will be absolute to enter a verdict for the
defendant.

_Rule absolute._

In Court of Appeal.

_Cotton_, Q. C. (_McIntyre_, Q. C., and _Coxon_ with him), for the
plaintiff, appellant.[289]

Assuming the jury to be right in finding that the defendant was not
guilty of negligence, and that the rainfall amounted to _vis major_, or
the act of God, still the defendant is liable because she has, without
necessity and voluntarily for her own pleasure, stored on her premises
an element which was liable to be let loose, and which, if let loose,
would be dangerous to her neighbors. Even if she be considered innocent
of wrong-doing, why should the plaintiff suffer for the defendant’s
voluntary act of turning an otherwise harmless stream into a source of
danger? But for the defendant’s embankments, the excessive rainfall
would have escaped without doing injury.

_Gorst_, Q. C., and _Hughes_ (_Dunn_ with them), for defendant, cited
Carstairs _v._ Taylor, L. R. 6 Ex. 217; McCoy _v._ Danbey, 20 Penn.
State, 85; Tennent _v._ Earl of Glasgow, 1 Court of Session Cases, 3d
series, 133.

The judgment of the Court (COCKBURN, C. J., JAMES, and MELLISH, L.JJ.,
and BAGGALLAY, J. A.) was read by

MELLISH, L. J. This was an action brought by the county surveyor [under
43 Geo. 3, c. 59, s. 4] of the County of Chester against the defendant
to recover damages on account of the destruction of four county bridges
which had been carried away by the bursting of some reservoirs. At the
trial before Cockburn, C. J., it appeared that the defendant was the
owner of a series of artificial ornamental lakes, which had existed for
a great number of years, and had never, previous to the 18th day of
June, 1872, caused any damage. On that day, however, after a most
unusual fall of rain, the lakes overflowed, the dams at their end gave
way, and the water out of the lakes carried away the county bridges
lower down the stream. The jury found that there was no negligence
either in the construction or the maintenance of the reservoirs, but
that if the flood could have been anticipated, the effect might have
been prevented.[290] Upon this finding the Lord Chief Justice, acting on
the decision in Rylands _v._ Fletcher, L. R. 3 H. L. 330, as the nearest
authority applicable to the case, directed a verdict for the plaintiff,
but gave leave to move to enter a verdict for the defendant. The Court
of Exchequer have ordered the verdict to be entered for the defendant,
and from their decision an appeal has been brought before us.

The appellant relied upon the decision in the case of Rylands _v._
Fletcher, _supra_. In that case the rule of law on which the case was
decided was thus laid down by Mr. Justice Blackburn in the Exchequer
Chamber [L. R. 1 Ex. 279]: “We think the true rule of law is that the
person who for his own purposes brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must keep it
in at his peril, and if he does not do so, is _prima facie_ answerable
for all the damage which is the natural consequence of its escape. He
can excuse himself by showing that the escape was owing to the
plaintiff’s default; or perhaps that the escape was the consequence of
_vis major_, or the act of God; but as nothing of the sort exists here
it is unnecessary to inquire what excuse would be sufficient.” It
appears to us that we have two questions to consider: First, the
question of law, which was left undecided in Rylands _v._ Fletcher,
_supra_,—Can the defendant excuse herself by showing that the escape of
the water was owing to _vis major_, or, as it is termed in the law
books, the “act of God?” And, secondly, if she can, did she in fact make
out that the escape was so occasioned?

Now, with respect to the first question, the ordinary rule of law is
that when the law creates a duty and the party is disabled from
performing it without any default of his own, by the act of God, or the
King’s enemies, the law will excuse him; but when a party by his own
contract creates a duty, he is bound to make it good notwithstanding any
accident by inevitable necessity. We can see no good reason why that
rule should not be applied to the case before us. The duty of keeping
the water in and preventing its escape is a duty imposed by the law, and
not one created by contract. If, indeed, the making a reservoir was a
wrongful act in itself, it might be right to hold that a person could
not escape from the consequences of his own wrongful act. But it seems
to us absurd to hold that the making or the keeping a reservoir is a
wrongful act in itself. The wrongful act is not the making or keeping
the reservoir, but the allowing or causing the water to escape. If,
indeed, the damages were occasioned by the act of the party without
more—as where a man accumulates water on his own land, but, owing to the
peculiar nature or condition of the soil, the water escapes and does
damage to his neighbor—the case of Rylands _v._ Fletcher, _supra_,
establishes that he must be held liable. The accumulation of water in a
reservoir is not in itself wrongful; but the making it and suffering the
water to escape, if damage ensue, constitute a wrong. But the present
case is distinguished from that of Rylands _v._ Fletcher, _supra_, in
this, that it is not the act of the defendant in keeping this reservoir,
an act in itself lawful, which alone leads to the escape of the water,
and so renders wrongful that which but for such escape would have been
lawful. It is the supervening _vis major_ of the water caused by the
flood, which, superadded to the water in the reservoir (which of itself
would have been innocuous), causes the disaster. A defendant cannot, in
our opinion, be properly said to have caused or allowed the water to
escape, if the act of God or the Queen’s enemies was the real cause of
its escaping without any fault on the part of the defendant. If a
reservoir was destroyed by an earthquake, or the Queen’s enemies
destroyed it in conducting some warlike operation, it would be contrary
to all reason and justice to hold the owner of the reservoir liable for
any damage that might be done by the escape of the water. We are of
opinion, therefore, that the defendant was entitled to excuse herself by
proving that the water escaped through the act of God.

The remaining question is, did the defendant make out that the escape of
the water was owing to the act of God? Now the jury have distinctly
found, not only that there was no negligence in the construction or the
maintenance of the reservoirs, but that the flood was so great that it
could not reasonably have been anticipated, although, if it had been
anticipated, the effect might have been prevented; and this seems to us
in substance a finding that the escape of the water was owing to the act
of God. However great the flood had been, if it had not been greater
than floods that had happened before and might be expected to occur
again, the defendant might not have made out that she was free from
fault; but we think she ought not to be held liable because she did not
prevent the effect of an extraordinary act of nature, which she could
not anticipate. In the late case of Nugent _v._ Smith, 1 C. P. D. 423,
we held that a carrier might be protected from liability for a loss
occasioned by the act of God, if the loss by no reasonable precaution
could be prevented, although it was not absolutely impossible to prevent
it.

It was indeed ingeniously argued for the appellant that at any rate the
escape of the water was not owing solely to the act of God, because the
weight of the water originally in the reservoirs must have contributed
to break down the dams, as well as the extraordinary water brought in by
the flood. We think, however, that the extraordinary quantity of water
brought in by the flood is in point of law the sole proximate cause of
the escape of the water. It is the last drop which makes the cup
overflow.

On the whole we are of opinion that the judgment of the Court of
Exchequer ought to be affirmed.

_Judgment affirmed._[291]

BOX _v._ JUBB
IN THE EXCHEQUER DIVISION, FEBRUARY 25, 1879.
_Reported in Law Reports, 4 Exchequer Division, 76._

Case stated in an action brought in the County Court of Yorkshire,
holden at Bradford, to recover damages by reason of the overflowing of a
reservoir of the defendants.

1. The defendants are the owners and occupiers of a woollen clothmill
situate at Batley, in the county of York, and for the necessary supply
of water to the mill is a reservoir, also belonging to the defendants.
Such mill and reservoir have been built, and constructed, and used, as
at the time of the overflowing of the reservoir hereinafter mentioned,
for many years.

2. The plaintiff is the tenant of premises adjoining the reservoir.

3. The reservoir is supplied with water from a main drain or
watercourse. The surplus water from the reservoir passes through an
outlet into the main drain or watercourse. The inlet and outlet are
furnished with proper doors or sluices, so as (when required) to close
the communications between the reservoir and the main drain or
watercourse.

4. The whole of the premises are within the borough of Batley, and the
defendants have the right to use the main drain or watercourse by
obtaining a supply of water therefrom and discharging their surplus
water thereinto, as hereinbefore stated, but have otherwise no control
over the drain or watercourse, which does not belong to them.

5. In the month of December, 1877, the plaintiff’s premises were flooded
by reason of the overflowing of the defendants’ reservoir.

6. Such overflowing was caused by the emptying of a large quantity of
water from a reservoir, the property of a third party, into the main
drain or watercourse at a point considerably above the defendants’
premises, and by an obstruction in the main drain or watercourse below
the outlet of the defendants’ reservoir, whereby the water from such
main drain or watercourse was forced through the doors or sluices (which
were closed at the time) into the defendants’ reservoir.

7. Such obstruction was caused by circumstances over which the
defendants had no control, and without their knowledge; and had it not
been for such obstruction the overflowing of the reservoir would not
have happened.

8. The defendants’ reservoir, and the communications between it and the
main drain or watercourse, and the doors or sluices, are constructed and
maintained in a proper manner, so as to prevent the overflowing of the
reservoir under all ordinary circumstances.

9. No negligence or wrongful act is attributable to either party.

Under the circumstances the judge of the County Court was of opinion
that the defendants were liable for the damage sustained by the
plaintiff, and accordingly gave judgment for the plaintiff.

The question for the opinion of the Court, having regard to the facts
set out in the case, was whether the defendants were liable for the
damage sustained by the plaintiff by reason of the flooding of his
premises, such flooding being caused by water from a reservoir belonging
to a third party, over which the defendants had no control, and without
any knowledge or negligence on defendants’ part, the overflowing of the
defendants’ reservoir being occasioned by the act of a third party, over
whom the defendants had no control, and no wrongful act or negligence
being attributable to the defendants, and the direct cause of the damage
being the obstruction in the main drain or watercourse, which was caused
by circumstances over which the defendants had no control and without
their knowledge.[292]

KELLY, C. B. I think this judgment must be reversed. The case states
that for many years the defendants have been possessed of a reservoir to
which there are gates or sluices. There has been an overflow from the
reservoir which has caused damage to the plaintiff. The question is,
what was the cause of this overflow? Was it anything for which the
defendants are responsible—did it proceed from their act or default, or
from that of a stranger over which they had no control? The case is
abundantly clear on this, proving beyond a doubt that the defendants had
no control over the causes of the overflow, and no knowledge of the
existence of the obstruction. The matters complained of took place
through no default or breach of duty of the defendants, but were caused
by a stranger over whom and at a spot where they had no control. It
seems to me to be immaterial whether this is called _vis major_ or the
unlawful act of a stranger; it is sufficient to say that the defendants
had no means of preventing the occurrence. I think the defendants could
not possibly have been expected to anticipate that which happened here,
and the law does not require them to construct their reservoir and the
sluices and gates leading to it to meet any amount of pressure which the
wrongful act of a third person may impose. The judgment must be entered
for the defendants.

POLLOCK, B. I also think the defendants are entitled to judgment.
Looking at the facts stated, that the defendants had no control over the
main drain, and no knowledge of or control over the obstruction, apart
from the cases, what wrong have the defendants done for which they
should be held liable? The case of Rylands _v._ Fletcher, L. R. 3 H. L.
330, is quite distinguishable. The case of Nichols _v._ Marsland, L. R.
10 Ex. 255, 14 Eng. R. 538, is more in point. The illustrations put in
that case clearly go to show that if the person who has collected the
water has done all that skill and judgment can do he is not liable for
damage by acts over which he has no control. In the judgment of the
Court of Appeals, 2 Ex. D. 1, at p. 5, Mellish, L. J., adopts the
principle laid down by this Court. He says: “If indeed the damages were
occasioned by the act of the party without more—as where a man
accumulates water on his own land, but owing to the peculiar nature or
condition of the soil the water escapes and does damage to his
neighbor—the case of Rylands _v._ Fletcher, _supra_, establishes that he
must be held liable.” Here this water has not been accumulated by the
defendants, but has come from elsewhere and added to that which was
properly and safely there. For this the defendants, in my opinion, both
on principle and authority, cannot be held liable.

_Judgment for the defendants._[293]

MARSHALL _v._ WELWOOD
SUPREME COURT OF NEW JERSEY, JUNE TERM, 1876.
_Reported in 38 New Jersey Law Reports, 339._

Suit for damages done to the property of the plaintiff by the bursting
of the boiler of a steam-engine on the adjoining property of the
defendant Welwood. Garside, the other defendant, had sold this boiler to
Welwood, and was experimenting with it at the time of the explosion.

The case came before the Court on a motion for a new trial, the verdict
having gone for the plaintiff against both defendants.

Argued at February Term, 1876, before BEASLEY, C. J., and WOODHULL, VAN
SYCKEL, and SCUDDER, JJ.

The opinion of the Court was delivered by

BEASLEY, C. J. The judge, at the trial of this cause, charged, among
other matters, that as the evidence incontestably showed that one of the
defendants, Welwood, was the owner of the boiler which caused the
damage, he was liable in the action, unless it appeared that the same
was not being run by him, or his agent, at the time of the explosion.
The proposition propounded was, that a person is responsible for the
immediate consequences of the bursting of a steam boiler, in use by him,
irrespective of any question as to negligence or want of skill on his
part.

This view of the law is in accordance with the principles maintained,
with great learning and force of reasoning, in some of the late English
decisions. In this class the leading case was that of Fletcher _v._
Rylands, L. R. 1 Exch. 265, which was a suit on account of damage done
by water escaping on to the premises of the plaintiff from a reservoir
which the defendant had constructed, with due care and skill, on his own
land. The judgment was put on a general ground, for the Court said: “We
think the true rule of law is, that the person who, for his own
purposes, brings on his lands and collects and keeps there anything
likely to do mischief, if it escapes, must keep it in at his peril, and
if he does not do so, is _prima facie_ answerable for all the damage
which is the natural consequence of its escape.” This result was deemed
just, and was sought to be vindicated on the theory that it is but
reasonable that a person who has brought something on his own property,
which was not naturally there, harmless to others, so long as it is
confined to his own property, but which he knows to be mischievous, if
it gets on his neighbor’s, should be obliged to make good the damage
which ensues, if he does not succeed in confining it to his own
property. This principle would evidently apply to, and rule, the present
case: for water is no more likely to escape from a reservoir and do
damage, than steam is from a boiler; and, therefore, if he who collects
the former force upon his property, and seeks, with care and skill, to
keep it there, is answerable for his want of success, so is he who,
under similar conditions, endeavors to deal with the latter. There is
nothing unlawful in introducing water into a properly constructed
reservoir on a person’s own land, nor raising steam in a boiler of
proper quality; neither act, when performed, is a nuisance _per se_; and
the inquiry consequently is, whether in the doing of such lawful act the
party who does it is an insurer against all flaws in the apparatus
employed, no matter how secret, or unascertainable by the use of every
reasonable test, such flaws may be. This English adjudication takes the
affirmative side of the question, conceding, however, that the subject
is not controlled by any express decision, and that it is to be
investigated with reference to the general grounds of jurisprudence. I
have said the doctrine involved has been learnedly treated, and the
decision is of great weight, and yet its reasoning has failed to
convince me of the correctness of the result to which it leads, and such
result is clearly opposed to the course which judicial opinion has taken
in this country. The fallacy in the process of argument by which
judgment is reached in this case of Fletcher _v._ Rylands, appears to me
to consist in this: that the rule mainly applicable to a class of cases
which, I think, should be regarded as, in a great degree, exceptional,
is amplified and extended into a general, if not universal, principle.
The principal instance upon which reliance is placed is the well-known
obligation of the owner of cattle, to prevent them from escaping from
his land and doing mischief. The law as to this point is perfectly
settled, and has been settled from the earliest times, and is to the
effect that the owner must take charge of his cattle at his peril, and
if they evade his custody he is, in some measure, responsible for the
consequences. This is the doctrine of the Year Books, but I do not find
that it is grounded in any theoretical principle, making a man
answerable for his acts or omissions, without regard to his culpability.
That in this particular case of escaping cattle so stringent an
obligation upon the owner should grow up, was not unnatural. That the
beasts of the landowner should be successfully restrained, was a
condition of considerable importance to the unmolested enjoyment of
property, and the right to plead that the escape had occurred by
inevitable accident would have seriously impaired, if it did not
entirely frustrate, the process of distress damage feasant. Custom has
had much to do in giving shape to the law, and what is highly convenient
readily runs into usage, and is accepted as a rule. It would but rarely
occur that cattle would escape from a vigilant owner, and in this
instance such rare exceptions seem to have passed unnoticed, for there
appears to be no example of the point having been presented for judicial
consideration; for the conclusion of the liability of the unnegligent
owner rests in _dicta_, and not in express decision. But waiving this,
there is a consideration which seems to me to show that this obligation
which is put upon the owner of errant cattle should not be taken to be a
principle applicable, in a general way, to the use or ownership of
property, which is this: that the owner of such cattle is, after all,
liable only _sub modo_ for the injury done by them, that is, he is
responsible, with regard to tame beasts who have no exceptionally
vicious disposition so far as is known, for the grass they eat, and such
like injuries, but not for the hurt they may inflict upon the person of
others,—a restriction on liability which is hardly consistent with the
notion that this class of cases proceeds from a principle so wide as to
embrace all persons whose lawful acts produce, without fault in them,
and in an indirect manner, ill results which disastrously affect
innocent persons. If the principle ruling these cases was so broad as
this, conformity to it would require that the person being the cause of
the mischief should stand as an indemnifier against the whole of the
damage. It appears to me, therefore, that this rule, which applies to
damage done by straying cattle, was carried beyond its true bounds, when
it was appealed to [in] proof that a person in law is answerable for the
natural consequences of his acts, such acts being lawful in themselves,
and having been done with proper care and skill.

The only other cases which were referred to in support of the judgment
under consideration were those of one who was sued for not keeping the
wall of his privy in repair, to the detriment of his neighbor, being the
case of Tenant _v._ Goulding, 1 Salk. 21, and several actions which it
is said had been brought against the owners of some alkali works for
damages alleged to have been caused by the chlorine fumes escaping from
their works [which], the case showed, had been erected upon the best
scientific principles. But I am compelled to think that these cases are
but a slender basis for the large structure put upon it. The case of
Tenant _v._ Goulding presented merely the question whether a landowner
is bound in favor of his neighbor to keep the wall of his privy in
repair, and the Court held that he was, and that he was responsible if,
for want of such reparation, the filth escaped on the adjoining land. No
question was mooted as to his liability in case the privy had been
constructed with care and skill with a view to prevent the escape of its
contents, and had been kept in a state of repair. Not to repair a
receptacle of this kind when it was in want of repairs was, in itself, a
_prima facie_ case of negligence, and it seems to me that all the Court
decided was to hold so.

But this consideration is also to be noticed, both with respect to this
last case, and that of the injurious fumes from the alkali works, that
in truth they stand somewhat by themselves, and having this peculiarity:
that the things in their nature partake largely of the character of
nuisances. Take the alkali works as an example. Placed in a town, under
ordinary circumstances, they would be a nuisance. When the attempt is
made by scientific methods to prevent the escape of the fumes, it is an
attempt to legalize that which is illegal, and the consequence is, it
may well be held that, failing in the attempt, the nuisance remains.

I cannot agree that, from these indications, the broad doctrine is to be
drawn that a man in law is an insurer that the acts which he does, such
acts being lawful and done with care, shall not injuriously affect
others. The decisions cited are not so much examples of legal maxims as
of exceptions to such maxims; for they stand opposed, and in contrast to
principles, which it seems to me must be considered much more general in
their operation and elementary in their nature.

The common rule, quite institutional in its character, is that, in order
to sustain an action for a tort, the damage complained of must have come
from a wrongful act. Mr. Addison, in his work on Torts, Vol. I, p. 3,
very correctly states this rule. He says: “A man may, however, sustain
grievous damage at the hands of another, and yet, if it be the result of
inevitable accident, or a lawful act, done in a lawful manner, without
any carelessness or negligence, there is no legal injury, and no tort
giving rise to an action of damages.” Among other examples, he refers to
an act of force, done in necessary self-defence, causing injury to an
innocent bystander, which he characterizes as _damnum sine
injuria_,—“for no man does wrong or contracts guilt in defending himself
against an aggressor.” Other instances of a like kind are noted, such as
the lawful obstruction of the view from the windows of dwelling-houses;
or the turning aside, to the detriment of another, the current of the
sea or river, by means of walls or dikes. Many illustrations, of the
same bearing, are to be found scattered through the books of reports.
Thus, Dyer, 25 b, says: “That if a man have a dog which has killed
sheep, the master of the dog being ignorant of such quality and property
of the dog, the master shall not be punished for that killing.” This
case belongs to a numerous, well-known class, where animals which are
usually harmless do damage, the decisions being that, under such
conditions, the owners of the animals are not responsible. Akin to these
in principle are cases of injuries done to innocent persons by horses in
the charge of their owners, becoming ungovernable by reason of
unexpected causes; or where a person in a dock was struck by the falling
of a bale of cotton which the defendants’ servants were lowering, Scott
_v._ London Dock Co., 3 H. & C. 596; or in cases of collision, either on
land or sea. Hammack _v._ White, 11 C. B. n. s. 588.

It is true that these cases of injury done to personal property, or to
persons, are, in the case of Fletcher _v._ Rylands, sought to be
distinguished from other damages, on the ground that they are done in
the course of traffic on the highways, whether by land or sea, which
cannot be conducted without exposing those whose persons or property are
near it to some inevitable risk. But this explanation is not
sufficiently comprehensive, for, if a frightened horse should, in his
flight, break into an inclosure, no matter how far removed from the
highway, the owner would not be answerable for the damage done. Nor is
the reason upon which it rests satisfactory, for, if traffic cannot be
carried on without some risk, why can it not be said with the same
truth, that the other affairs of life, though they be transacted away
from the highways, cannot be carried on without some risk; and if such
risk is, in the one case, to be borne by innocent persons, why not in
the other? Business done upon private property may be a part of traffic
as well as that done by the means of the highway, and no reason is
perceived why the same favor is not to be extended to it in both
situations. But, besides this, the reason thus assigned for the immunity
of him who is the unwilling producer of the damage has not been the
ground on which the decisions illustrative of the rule have been put;
that ground has been that the person sought to be charged had not done
any unlawful act. Everywhere, in all the branches of the law, the
general principle that blame must be imputable as a ground of
responsibility for damage proceeding from a lawful act, is apparent. A
passenger is injured by the breaking of an axle of a public conveyance;
the carrier is not liable, unless negligence can be shown. A man’s guest
is hurt by the falling of a chandelier; a suit will not lie against the
host, without proof that he knew, or ought to have known of the
existence of the danger. If the steam-engine which did the mischief in
the present case had been in use in driving a train of cars on a
railroad, and had, in that situation, exploded, and had inflicted
injuries on travellers or by-standers, it could not have been pretended
that such damage was actionable, in the absence of the element of
negligence or unskilfulness. By changing the place of the accident to
private property, I cannot agree that a different rule obtains.

It seems to me, therefore, that in this case it was necessary to submit
the matter, as a question of fact for the jury, whether the occurrence
doing the damage complained of, was the product of pure accident, or the
result of want of care or skill on the part of the defendant or his
agents.

This view of the subject is taken in the American decisions. A case, in
all respects in point, is that of Losee _v._ Buchanan, 51 N. Y. 476; S.
C. 10 Am. Rep. 623. The facts were essentially the same with those of
the principal case. It was an action growing out of the explosion of a
steam boiler upon private property, and the ruling was that such action
could not be sustained without proof of fault or negligence. In that
report the line of cases is so fully set out that it is unnecessary here
to repeat them.

_The rule should be made absolute._[294]

BROWN _v._ COLLINS
SUPREME COURT, NEW HAMPSHIRE, JUNE, 1873.
_Reported in 53 New Hampshire Reports, 442._

Trespass, by Albert H. Brown against Lester Collins, to recover the
value of a stone post on which was a street lamp, situated in front of
his place of business in the village of Tilton. The post stood upon the
plaintiff’s land, but near the southerly line of the main highway
leading through the village and within four feet of said line. There was
nothing to indicate the line of the highway, nor any fence or other
obstruction between the highway, as travelled, and the post. The highway
crosses the railroad near the place of accident, and the stone post
stood about fifty feet from the railroad track at the crossing. The
defendant was in the highway, at or near the railroad crossing, with a
pair of horses loaded with grain, going to the grist-mill in Tilton
village. The horses became frightened by an engine on the railroad near
the crossing, and by reason thereof became unmanageable, and ran,
striking the post with the end of the pole and breaking it off near the
ground, destroying the lamp with the post. No other injury was done by
the accident. The shock produced by the collision with the post threw
the defendant from his seat in the wagon, and he struck on the ground
between the horses, but suffered no injury except a slight concussion.
The defendant was in the use of ordinary care and skill in managing his
team, until they became frightened as aforesaid.

The foregoing facts were agreed upon for the purpose of raising the
question of the right of the plaintiff to recover in this action.

DOE, J. It is agreed that the defendant was in the use of ordinary care
and skill in managing his horses, until they were frightened; and that
they then became unmanageable, and ran against and broke a post on the
plaintiff’s land. It is not explicitly stated that the defendant was
without actual fault,—that he was not guilty of any malice, or
unreasonable unskilfulness or negligence; but it is to be inferred that
the fact was so; and we decide the case on that ground. We take the case
as one where, without actual fault in the defendant, his horses broke
from his control, ran away with him, went upon the plaintiff’s land, and
did damage there, against the will, intent, and desire of the defendant.

Sir Thomas Raymond’s report of Lambert & Olliot _v._ Bessey, T. Raym.
421, and Bessey _v._ Olliot & Lambert, T. Raym. 467, is, “The question
was this: A gaoler takes from the bailiff a prisoner arrested by him out
of the bailiff’s jurisdiction, Whether the gaoler be liable to an action
of false imprisonment? and the judges of the common pleas did all hold
that he was; and of that opinion I am, for these reasons.

“1. In all civil acts, the law doth not so much regard the intent of the
actor, as the loss and damage of the party suffering; and therefore
Mich. 6 E. 4, 7 _a. pl._ 18. _Trespass quare vi & armis clausum fregit &
herbam suam pedibus conculcando consumpsit_ in six acres. The defendant
pleads that he hath an acre lying next the said six acres, and upon it a
hedge of thorns, and he cut the thorns, and they, _ipso invito_, fell
upon the plaintiff’s land, and the defendant took them off as soon as he
could, which is the same trespass; and the plaintiff demurred; and
adjudged for the plaintiff; for though a man doth a lawful thing, yet if
any damage do thereby befall another, he shall answer for it if he could
have avoided it. As if a man lop a tree, and the boughs fall upon
another, _ipso invito_, yet an action lies. If a man shoot at butts, and
hurt another unawares, an action lies. I have land through which a river
runs to your mill, and I lop the fallows growing upon the river side,
which accidentally stop the water, so as your mill is hindered, an
action lies. If I am building my own house, and a piece of timber falls
on my neighbor’s house, and breaks part of it, an action lies. If a man
assault me, and I lift up my staff to defend myself, and, in lifting it
up, hit another, an action lies by that person, and yet I did a lawful
thing. And the reason of all these cases is, because he that is damaged
ought to be recompensed. But otherwise it is in criminal cases, for
there _actus non facit reum nisi mens sit rea_.

“Mich. 23. Car. 1. B. R.—Stile 72, Guilbert _versus_ Stone. Trespass for
entering his close, and taking away his horse. The defendant pleads,
that he, for fear of his life, by threats of twelve men, went into the
plaintiff’s house, and took the horse. The plaintiff demurred; and
adjudged for the plaintiff, because threats could not excuse the
defendant, and make satisfaction to the plaintiff.

“Hob. 134, Weaver _versus_ Ward. Trespass of assault and battery. The
defendant pleads, that he was a trained soldier in London, and he and
the plaintiff were skirmishing with their company, and the defendant,
with his musket, _casualiter & per infortunium & contra voluntatem suam_
in discharging of his gun hurt the plaintiff; and resolved no good plea.
So here, though the defendant knew not of the wrongful taking of the
plaintiff, yet that will not make any recompense for the wrong the
plaintiff hath sustained.... But the three other judges resolved, that
the defendant, the gaoler, could not be charged, because he could not
have notice whether the prisoner was legally arrested or not.”

In Fletcher _v._ Rylands,[295] L. R. 3 H. L. 330, Lord Cranworth said:
“In considering whether a defendant is liable to a plaintiff for damage
which the plaintiff may have sustained, the question in general is not
whether the defendant has acted with due care and caution, but whether
his acts have occasioned the damage. This is all well explained in the
old case of Lambert _v._ Bessey, reported by Sir Thomas Raymond (Sir T.
Raym. 421). And the doctrine is founded on good sense. For when one
person, in managing his own affairs, causes, however innocently, damage
to another, it is obviously only just that he should be the party to
suffer.”

The head-note of Weaver _v._ Ward. Hob. 134, is: “If one trained soldier
wound another, in skirmishing for exercise, an action of trespass will
lie, unless it shall appear from the defendant’s plea that he was guilty
of no negligence, and that the injury was inevitable.” The reason of the
decision, as reported, was this: “For though it were agreed, that if men
tilt or tourney in the presence of the king, or if two masters of
defence playing their prizes kill one another, that this shall be no
felony; or if a lunatic kill a man, or the like; because felony must be
done _animo felonico_; yet in trespass, which tends only to give damages
according to hurt or loss, it is not so; and therefore if a lunatic hurt
a man, he shall be answerable in trespass; and therefore no man shall be
excused of a trespass (for this is the nature of an excuse, and not of a
justification, _prout ei bene licuit_), except it may be judged utterly
without his fault; as if a man by force take my hand and strike you; or
if here the defendant had said that the plaintiff ran across his piece
when it was discharging; or had set forth the case with the
circumstances, so as it had appeared to the Court that it had been
inevitable, and that the defendant had committed no negligence to give
occasion to the hurt.”

There may be some ground to argue that “utterly without his fault,”
“inevitable,” and “no negligence,” in the sense intended, in that case,
mean no more than the modern phrase “ordinary and reasonable care and
prudence;” and that, in such a case, at the present time, to hold a plea
good that alleges the exercise of reasonable care, without setting forth
all “the circumstances” or evidence sustaining the plea, would be
substantially in compliance with the law of that case, due allowance
being made for the difference of legal language used at different
periods, and the difference in the forms of pleading. But the drift of
the ancient English authorities on the law of torts seems to differ
materially from the view now prevailing in this country. Formerly, in
England, there seems to have been no well-defined test of an actionable
tort. Defendants were often held liable “because,” as Raymond says, “he
that is damaged ought to be recompensed;” and not because, upon some
clearly stated principle of law founded on actual culpability, public
policy, or natural justice, he was entitled to compensation from the
defendant. The law was supposed to regard “the loss and damage of the
party suffering,” more than the negligence and blameworthiness of the
defendant: but how much more it regarded the former than the latter, was
a question not settled, and very little investigated. “The loss and
damage of the party suffering,” if without relief, would be a hardship
to him; relief compulsorily furnished by the other party would often be
a hardship to him; when and why the “loss and damage” should, and when
and why they should not, be transferred from one to the other, by
process of law, were problems not solved in a philosophical manner.
There were precedents, established upon superficial, crude, and
undigested notions; but no application of the general system of legal
reason to this subject.

Mr. Holmes says: “It may safely be stated that all the more ancient
examples are traceable to conceptions of a much ruder sort (than actual
fault), and in modern times to more or less definitely thought-out views
of public policy. The old writs in trespass did not allege, nor was it
necessary to show, anything savoring of culpability. It was enough that
a certain event had happened, and it was not even necessary that the act
should be done intentionally, though innocently. An accidental blow was
as good a cause of action as an intentional one. On the other hand,
when, as in Rylands _v._ Fletcher, modern courts hold a man liable for
the escape of water from a reservoir which he has built upon his land,
or for the escape of cattle, although he is not alleged to have been
negligent, they do not proceed upon the ground that there is an element
of culpability in making such a reservoir, or in keeping cattle,
sufficient to charge the defendant as soon as a _damnum_ occurs, but on
the principle that it is politic to make those who go into
extra-hazardous employments take the risk on their own shoulders.” He
alludes to the fact that “there is no certainty what will be thought
extra-hazardous in a certain jurisdiction at a certain time,” but
suggests that many particular instances point to the general principle
of liability for the consequences of extra-hazardous undertakings as the
tacitly assumed ground of decision 7 Am. Law Rev. 652, 653, 662; 2 Kent
Com. (12th ed.) 561, _n._ 1; 4 _id._ 110, n. 1. If the hazardous nature
of things or of acts is adopted as the test, or one of the tests, and
the English authorities are taken as the standard of what is to be
regarded as hazardous, “it will be necessary to go the length of saying
that an owner of real property is liable for all damage resulting to his
neighbor’s property from anything done upon his own land” (Mellish’s
argument in Fletcher _v._ Rylands, L. R. 1 Ex. 272), and that an
individual is answerable “who, for his own benefit, makes an improvement
on his own land, according to his best skill and diligence, and not
foreseeing it will produce any injury to his neighbor, if he thereby
unwittingly injure his neighbor”—Gibbs, C. J., in Sutton _v._ Clarke, 6
Taunt. 44, approved by Blackburn, J., in Fletcher _v._ Rylands, L. R. 1
Ex. 286. If danger is adopted as a test, and the English authorities are
abandoned, the fact of danger, controverted in each case, will present a
question for the jury, and expand the issue of tort or no tort into a
question of reasonableness, in a form much broader than has been
generally used; or courts will be left to devise tests of peril, under
varying influences of time and place that may not immediately produce a
uniform, consistent, and permanent rule.

It would seem that some of the early English decisions were based on a
view as narrow as that which regards nothing but the hardship “of the
party suffering;” disregards the question whether, by transferring the
hardship to the other party, anything more will be done than substitute
one suffering party for another; and does not consider what legal reason
can be given for relieving the party who has suffered, by making another
suffer the expense of his relief. For some of those decisions, better
reasons may now be given than were thought of when the decisions were
announced: but whether a satisfactory test of an actionable tort can be
extracted from the ancient authorities, and whether the few modern cases
that carry out the doctrine of those authorities as far as it is carried
in Fletcher _v._ Rylands (3 H. & C. 774; L. R. 1 Ex. 265; L. R. 3 H. L.
330) can be sustained, is very doubtful. The current of American
authority is very strongly against some of the leading English cases.

One of the strongest presentations of the extreme English view is by
Blackburn, J., who says, in Fletcher _v._ Rylands, L. R. 1 Ex. 279, 280,
281, 282: “We think that the true rule of law is, that the person who
for his own purposes brings on his lands, and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his
peril, and if he does not do so, is _prima facie_ answerable for all the
damage which is the natural consequence of its escape. He can excuse
himself by showing that the escape was owing to the plaintiff’s default;
or perhaps that the escape was the consequence of _vis major_, or the
act of God; but as nothing of this sort exists here, it is unnecessary
to inquire what excuse would be sufficient. The general rule, as above
stated, seems, on principle, just. The person whose grass or corn is
eaten down by the escaping cattle of his neighbor, or whose mine is
flooded by the water from his neighbor’s reservoir, or whose cellar is
invaded by the filth of his neighbor’s privy, or whose habitation is
made unhealthy by the fumes and noisome vapors of his neighbor’s alkali
works, is damnified without any fault of his own; and it seems but
reasonable and just that the neighbor, who has brought something on his
own property which was not naturally there, harmless to others so long
as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbor’s, should be obliged to make good
the damage which ensues if he does not succeed in confining it to his
own property. But for his act in bringing it there no mischief could
have accrued, and it seems but just that he should, at his peril, keep
it there so that no mischief may accrue, or answer for the natural and
anticipated consequences. And upon authority, this we think is
established to be the law, whether the things so brought be beasts, or
water, or filth, or stenches. The case that has most commonly occurred,
and which is most frequently to be found in the books, is as to the
obligation of the owner of cattle which he has brought on his land, to
prevent their escaping and doing mischief. The law, as to them, seems to
be perfectly settled from early times: the owner must keep them in at
his peril, or he will be answerable for the natural consequences of
their escape,—that is, with regard to tame beasts, for the grass they
eat and trample upon, though not for any injury to the person of others,
for our ancestors have settled that it is not the general nature of
horses to kick, or bulls to gore [or he might have added, dogs to
bite],—but if the owner knows that the beast has a vicious propensity to
attack man, he will be answerable for that too.... In these latter
authorities [relating to animals called mischievous or ferocious], the
point under consideration was damage to the person; and what was decided
was, that where it was known that hurt to the person was the natural
consequence of the animal being loose, the owner should be responsible
in damages for such hurt though where it was not known to be so, the
owner was not responsible for such damages; but where the damage is,
like eating grass or other ordinary ingredients in damage feasant, the
natural consequence of the escape, the rule as to keeping in the animal
is the same.... There does not appear to be any difference, in
principle, between the extent of the duty cast on him who brings cattle
on his land to keep them in, and the extent of the duty imposed on him
who brings on his land water, filth, or stenches, or any other thing,
which will, if it escape, naturally do damage, to prevent their escaping
and injuring his neighbor.”

This seems to be substantially an adoption of the early authorities, and
an extension of the ancient practice of holding the defendant liable, in
some cases, on the partial view that regarded the misfortune of the
plaintiff upon whom a damage had fallen, and required no legal reason
for transferring the damage to the defendant. The ancient rule was, that
a person in whose house, or on whose land, a fire accidentally
originated, which spread to his neighbor’s property and destroyed it,
must make good the loss. Filliter _v._ Phippard, 11 A. & E. N. S. 347,
354; Tubervil _v._ Stamp, 1 Comyns, 32; S. C. 1 Salk. 13; Com. Dig.,
Action upon the case for Negligence (A 6); 1 Arch. N. P. 539; Fletcher
_v._ Rylands, 3 H. & C. 790, 793; Russell _v._ Fabyan, 34 N. H. 218,
225. No inquiry was made into the reason of putting upon him his
neighbor’s loss as well as his own. The rule of such cases is applied,
by Blackburn, to everything which a man brings on his land, which will,
if it escape, naturally do damage. One result of such a doctrine is,
that every one building a fire on his own hearth, for necessary
purposes, with the utmost care, does so at the peril, not only of losing
his own house, but of being irretrievably ruined if a spark from his
chimney starts a conflagration which lays waste the neighborhood. “In
conflict with the rule, as laid down in the English cases, is a class of
cases in reference to damage from fire communicated from the adjoining
premises. Fire, like water or steam, is likely to produce mischief if it
escapes and goes beyond control; and yet it has never been held in this
country that one building a fire upon his own premises can be made
liable if it escapes upon his neighbor’s premises, and does him damage
without proof of negligence.” Losee _v._ Buchanan, 51 N. Y. 476, 487.

Everything that a man can bring on his land is capable of
escaping,—against his will, and without his fault, with or without
assistance, in some form, solid, liquid, or gaseous, changed or
unchanged by the transforming processes of nature or art,—and of doing
damage after its escape. Moreover, if there is a legal principle that
makes a man liable for the natural consequences of the escape of things
which he brings on his land, the application of such a principle cannot
be limited to those things; it must be applied to all his acts that
disturb the original order of creation; or, at least, to all things
which he undertakes to possess or control anywhere, and which were not
used and enjoyed in what is called the natural or primitive condition of
mankind, whatever that may have been. This is going back a long way for
a standard of legal rights, and adopting an arbitrary test of
responsibility that confounds all degrees of danger, pays no heed to the
essential elements of actual fault, puts a clog upon natural and
reasonably necessary uses of matter, and tends to embarrass and obstruct
much of the work which it seems to be man’s duty carefully to do. The
distinction made by Lord Cairns, Rylands _v._ Fletcher, L. R. 3 H. L.
330, between a natural and a non-natural use of land, if he meant
anything more than the difference between a reasonable use and an
unreasonable one, is not established in the law. Even if the arbitrary
test were applied only to things which a man brings on his land, it
would still recognize the peculiar rights of savage life in a
wilderness, ignore the rights growing out of a civilized state of
society, and make a distinction not warranted by the enlightened spirit
of the common law: it would impose a penalty upon efforts, made in a
reasonable, skilful, and careful manner, to rise above a condition of
barbarism. It is impossible that legal principle can throw so serious an
obstacle in the way of progress and improvement. Natural rights are, in
general, legal rights; and the rights of civilization are, in a legal
sense, as natural as any others. “Most of the rights of property, as
well as of person, in the social state, are not absolute but relative,”
Losee _v._ Buchanan, 51 N. Y. 485; and, if men ever were in any other
than the social state, it is neither necessary nor expedient that they
should now govern themselves on the theory that they ought to live in
some other state. The common law does not usually establish tests of
responsibility on any other basis than the propriety of their living in
the social state, and the relative and qualified character of the rights
incident to that state.

In Fletcher _v._ Rylands, L. R. 1 Ex. 286, 287, Mr. Justice Blackburn,
commenting upon the remark of Mr. Baron Martin, “that, when damage is
done to personal property, or even to the person, by collision, either
upon land or at sea, there must be negligence in the party doing the
damage to render him legally responsible,” says,—“This is no doubt true;
and, as was pointed out by Mr. Mellish during his argument before us,
this is not confined to cases of collision, for there are many cases in
which proof of negligence is essential, as, for instance, where an
unruly horse gets on the footpath of a public street and kills a
passenger, Hammack _v._ White, 11 C. B. N. S. 588, 31 L. J. (C. P.) 129;
or where a person in a dock is struck by the falling of a bale of cotton
which the defendant’s servants are lowering, Scott _v._ London Docks
Company, 3 H. & C. 596, 35 L. J. (Ex.) 17, 220; and many other similar
cases may be found. But we think these cases distinguishable from the
present. Traffic on the highways, whether by land or sea, cannot be
conducted without exposing those whose persons or property are near it
to some inevitable risk; and that being so, those who go on the highway,
or have their property adjacent to it, may well be held to do so subject
to their taking upon themselves the risk of injury from that inevitable
danger; and persons who, by the license of the owner, pass near to
warehouses where goods are being raised or lowered, certainly do so
subject to the inevitable risk of accident. In neither case, therefore,
can they recover without proof of want of care or skill occasioning the
accident; and it is believed that all the cases in which inevitable
accident has been held an excuse for what, _prima facie_, was a
trespass, can be explained on the same principle, viz., that the
circumstances were such as to show that the plaintiff had taken that
risk upon himself.” This would be authority for holding, in the present
case, that the plaintiff, by having his post near the street, took upon
himself the risk of its being broken by an inevitable accident carrying
a traveller off the street. But such a doctrine would open more
questions, and more difficult ones, than it would settle. At what
distance from a highway would an object be near it? What part of London
is not near a street? And then, as the defendant had as good a right to
be at home with his horses as to be in the highway, why might not his
neighbor, by electing to live in an inhabited country, as well be held
to take upon himself the risk of an inevitable accident happening by
reason of the country being inhabited, as to assume a highway risk by
living near a road? If neighborhood is the test, who are a man’s
neighbors but the whole human race? If a person, by remaining in
England, is held to take upon himself one class of the inevitable
dangers of that country because he could avoid that class by migrating
to a region of solitude, why should he not, for a like reason, also be
held to expose himself voluntarily to other classes of the inevitable
dangers of that country? And where does this reasoning end?

It is not improbable that the rules of liability for damage done by
brutes or by fire, found in the early English cases, were introduced by
sacerdotal influence, from what was supposed to be the Roman or the
Hebrew law. 7 Am. L. Rev. 652, note; 1 Domat Civil Law (Strahan’s
translation, 2d ed.), 304, 305, 306, 312, 313; Exodus xxi 28–32, 36;
xxii. 5, 6, 9. It would not be singular if these rules should be
spontaneously produced at a certain period in the life of any community.
Where they first appeared is of little consequence in the present
inquiry. They were certainly introduced in England at an immature stage
of English jurisprudence, and an undeveloped state of agriculture,
manufactures, and commerce, when the nation had not settled down to
those modern, progressive, industrial pursuits which the spirit of the
common law, adapted to all conditions of society, encourages and
defends. They were introduced when the development of many of the
rational rules now universally recognized as principles of the common
law had not been demanded by the growth of intelligence, trade, and
productive enterprise,—when the common law had not been set forth in the
precedents, as a coherent and logical system on many subjects other than
the tenures of real estate. At all events, whatever may be said of the
origin of those rules, to extend them, as they were extended in Rylands
_v._ Fletcher, seems to us contrary to the analogies and the general
principles of the common law, as now established. To extend them to the
present case would be contrary to American authority as well as to our
understanding of legal principles.

The difficulty under which the plaintiff might labor in proving the
culpability of the defendant,—which is sometimes given as a reason for
imposing an absolute liability without evidence of negligence,—Rixford
_v._ Smith, 52 N. H. 355, 359, or changing the burden of proof, Lisbon
_v._ Lyman, 49 N. H. 553, 568, 569, 574, 575, seems not to have been
given in the English cases relating to damage done by brutes or fire.
And, however large or small the class of cases in which such a
difficulty may be the foundation of a rule of law, since the difficulty
has been so much reduced by the abolition of witness disabilities, the
present case is not one of that class.

There are many cases where a man is held liable for taking, converting
(C. R. Co. _v._ Foster, 51 N. H. 490) or destroying property, or doing
something else, or causing it to be done, intentionally, under a claim
of right, and without any actual fault. “Probably one half of the cases
in which trespass _de bonis asportatis_ is maintained, arise from a mere
misapprehension of legal rights.” Metcalf, J., in Stanley _v._ Gaylord,
1 Cush. 536, 551. When a defendant erroneously supposed, without any
fault of either party, that he had a right to do what he did, and his
act, done in the assertion of his supposed right, turns out to have been
an interference with the plaintiff’s property, he is generally held to
have assumed the risk of maintaining the right which he asserted, and
the responsibility of the natural consequences of his voluntary act. But
when there was no fault on his part, and the damage was not caused by
his voluntary and intended act; or by an act of which he knew, or ought
to have known, the damage would be a necessary, probable, or natural
consequence; or by an act which he knew or ought to have known, to be
unlawful,—we understand the general rule to be, that he is not liable.
Vincent _v._ Stinehour, 7 Vt. 62; Aaron _v._ State, 31 Ga. 167; Morris
_v._ Platt, 32 Conn. 75; and Judge Redfield’s note to that case in 4 Am.
L. Reg. N. S. 532; Townshend on Slander, secs. 67, 88, p. 128, n. 1 (2d
ed.). In Brown _v._ Kendall, 6 Cush. 292, the defendant, having
interfered to part his dog and the plaintiff’s which were fighting, in
raising a stick for that purpose accidentally struck the plaintiff, and
injured him. It was held, that parting the dogs was a lawful and proper
act which the defendant might do by the use of proper and safe means;
and that if the plaintiff’s injury was caused by such an act done with
due care and all proper precautions, the defendant was not liable. In
the decision, there is the important suggestion that some of the
apparent confusion in the authorities has arisen from discussions of the
question whether a party’s remedy is in trespass or case, and from the
statement that when the injury comes from a direct act, trespass lies,
and when the damage is consequential, case is the proper form of
action,—the remark concerning the immediate effect of an act being made
with reference to damage for which it is admitted there is a remedy of
some kind, and on the question of the proper remedy, not on the general
question of liability. Judge Shaw, delivering the opinion of the court,
said: “We think, as the result of all the authorities, the rule is
correctly stated by Mr. Greenleaf, that the plaintiff must come prepared
with evidence to show either that the _intention_ was unlawful, or that
the defendant was _in fault_; for if the injury was unavoidable, and the
conduct of the defendant was free from blame, he will not be liable. 2
Greenl. Ev., secs. 85 to 92; Wakeman _v._ Robinson, 1 Bing. 213. If, in
the prosecution of a lawful act, a casualty purely accidental arises, no
action can be supported for an injury arising therefrom. Davis _v._
Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day’s ed.) and notes;
Vincent _v._ Stinehour, 7 Vt. 62;” James _v._ Campbell, 5 C. & P. 372;
Alderson _v._ Waistell, 1 C. & K. 358.

Whatever may be the rule or the exception, or the reason of it, in case
of insanity, Weaver _v._ Ward, Hob. 134; Com. Dig. Battery, A. note _d_,
Hammond’s ed.; Dormay _v._ Borradaile, 5 M. G. & S. 380; Sedgwick on
Damages, 455, 456, 2d ed.; Morse _v._ Crawford, 17 Vt. 499; Dickinson
_v._ Barber, 9 Mass. 225; Krom _v._ Schoonmaker, 3 Barb. 647; Horner
_v._ Marshall, 5 Munf. 466; Yeates _v._ Reed, 4 Blackf. 463, and
whatever may be the full legal definitions of necessity, inevitable
danger, and unavoidable accident, the occurrence complained of in this
case was one for which the defendant is not liable, unless every one is
liable for all damage done by superior force overpowering him, and using
him or his property as an instrument of violence. The defendant, being
without fault, was as innocent as if the pole of his wagon had been
hurled on the plaintiff’s land by a whirlwind, or he himself, by a
stronger man, had been thrown through the plaintiff’s window. Upon the
facts stated, taken in the sense in which we understand them, the
defendant is entitled to judgment. 1 Hilliard on Torts, ch. 3, 3d ed.;
Losee _v._ Buchanan, 51 N. Y. 476; Parrot _v._ Wells, 15 Wall. 524, 537;
Roche _v._ M. G. L. Co., 5 Wis. 55; Eastman _v._ Co., 44 N. H. 143, 156.

_Case discharged._

McCORD RUBBER CO. _v._ St. JOSEPH WATER CO.
SUPREME COURT, MISSOURI, MAY 25, 1904.
_Reported in 181 Missouri Reports, 678._

Appeal from Buchanan Circuit Court.

Action for damages for the flooding of plaintiff’s cellar with water
caused by defendant’s negligence, whereby a large quantity of its goods
stored in the cellar were damaged. Answer, a general denial.[296]

Defendant company supplied water distributed through pipes and mains
from reservoirs. A service pipe from a main carried water to a building
occupied by one August. There was a bursting in a “fish trap” used in
connection with the service pipe. Water escaped on to the premises of
August, and from thence to the adjoining premises of the plaintiff
company. The jury found a verdict for the defendant. In view of the
instructions given, this verdict must be regarded as negativing the
allegations of negligence contained in the plaintiff’s pleading.

Judgment having been rendered for defendant, the plaintiff appealed.

[Arguments and part of opinion omitted.]

VALLIANT, J.... III. The plaintiff contends, however, that the
defendants are liable regardless of whether they were guilty of any
negligence directly causing the accident. This contention rests in the
theory that one who brings into his premises anything that is liable to
escape, and liable to inflict injury on his neighbors if it should
escape, brings it there at his peril, and is responsible for any injury
that it may cause.

That contention rests for its authority on the decision in Rylands _v._
Fletcher, L. R. 3 H. L. 330. In the briefs of the learned counsel for
respondents, reference is made to a large number of authorities going to
show that the doctrine of Rylands _v._ Fletcher has not been approved
generally in America, and that it has been modified in England. Among
the authorities so referred to are Griffith _v._ Lewis, 17 Mo. App. 605;
Murphy _v._ Gillum, 73 Mo. App. 487; Cooley on Torts, 570; Losee _v._
Buchanan, 51 N. Y. 476; Brown _v._ Collins, 53 N. H. 442.

But in the facts, the case at bar is distinguished from Rylands _v._
Fletcher.

[After stating the facts of Rylands _v._ Fletcher, and quoting from the
opinion of Lord Chancellor CAIRNS.] There is a wide difference between a
great volume of water collected in a reservoir in dangerous proximity to
the premises of another and water brought into a house through pipes in
the manner usual in all cities, for the ordinary use of the occupants of
the house. Whilst water so brought into a house cannot literally be said
to have come in in the course of what might be called in the language
above quoted of the Lord Chancellor “natural user” of the premises, yet
it is brought in by the method universally in use in cities and is not
to be treated as an unnatural gathering of a dangerous agent. The law
applicable to the caging of ferocious animals is not applicable to water
brought into a house by pipes in the usual manner.

The learned counsel for the plaintiff tried their case on the theory
that the defendants were negligent, and that is the only theory on which
they could have tried it.

* * * * *

_Judgment affirmed._[297]

GILES _v._ WALKER
IN THE QUEEN’S BENCH DIVISION, MARCH 27, 1890.
_Reported in Law Reports, 24 Queen’s Bench Division, 656._

Appeal from the Leicester County Court.

The defendant, a farmer, occupied land which had originally been forest
land, but which had some years prior to 1883, when the defendant’s
occupation of it commenced, been brought into cultivation by the then
occupier. The forest land prior to cultivation did not bear thistles;
but immediately upon its being cultivated thistles sprang up all over
it. The defendant neglected to mow the thistles periodically so as to
prevent them from seeding, and in the years 1887 and 1888 there were
thousands of thistles on his land in full seed. The consequence was that
the thistle seeds were blown by the wind in large quantities on to the
adjoining land of the plaintiff, where they took root and did damage.
The plaintiff sued the defendant for such damage in the county court.
The judge left to the jury the question whether the defendant in not
cutting the thistles had been guilty of negligence. The jury found that
he was negligent, and judgment was accordingly entered for the
plaintiff. The defendant appealed.

_Toller_, for the defendant. The facts of this case do not establish any
cause of action. The judge was wrong in leaving the question of
negligence to the jury. Before a person can be charged with negligence,
it must be shown that there is a duty on him to take care. But here
there is no such duty. The defendant did not bring the thistles on to
his land; they grew there naturally. [He was stopped by the court.]

_R. Bray_, for the plaintiff. If the defendant’s predecessor had left
the land in its original condition as forest land the thistles would
never have grown. By bringing it into cultivation, and so disturbing the
natural condition of things, he caused the thistles to grow, thereby
creating a nuisance on the land just as much as if he had intentionally
grown them. The defendant, by entering into occupation of the land with
the nuisance on it, was under a duty to prevent damage from thereby
accruing to his neighbor. The case resembles that of Crowhurst _v._
Amersham Burial Board, 4 Ex. D. 5, where the defendants were held
responsible for allowing the branches of their yew trees to grow over
their boundary, whereby a horse of the plaintiff, being placed at
pasture in the adjoining field, ate some of the yew twigs and died.

LORD COLERIDGE, C. J. I never heard of such an action as this. There can
be no duty as between adjoining occupiers to cut the thistles, which are
the natural growth of the soil. The appeal must be allowed.

LORD ESHER, M. R. I am of the same opinion.

_Appeal allowed._[298]

GALVESTON, H. & S. A. R. CO. _v._ SPINKS
COURT OF CIVIL APPEALS, TEXAS, MAY 28, 1896.
_Reported in 13 Texas Civil Appeals, 542._

WILLIAMS, Associate Justice. This case is submitted upon the facts found
by the court below, upon an assignment which questions the correctness
of the conclusion of law based upon them. In brief, those facts are,
that appellant owns in fee a strip of land upon which its railroad is
laid, and on each side of which lie cultivated lands owned by appellee.
Upon the land owned by appellant there stands a natural growth of tall
trees which shade and injure the crops upon appellee’s adjacent land,
and also saps such land of its fertility. For this injury to crops and
land the judgment appealed from was rendered. No act of defendant is
shown beyond the construction and maintenance of its road and its
omission to cut down its trees, it having removed only such portion of
them as was necessary to permit the repair of its road and the operation
of its trains. We know of no principle of law which authorizes the
judgment. The land and the trees are the property of appellant, and it
has the same right to them that appellee has to his land and crops. The
exercise of one right is not an invasion of the other. If the presence
of the trees impairs the productiveness of appellee’s land, or if the
cultivation of the latter would injure the trees, these results would
constitute no wrong by one owner to the other, but would only be the
incidents of their ownership. No breach of any duty owed by appellant to
appellee is shown. It is not stated that the roots or the branches of
the trees penetrate or overhang appellee’s land. If they did, appellee
had the right to remove such roots or branches as entered or overhung
his land, or if damage was caused by them, it may be true that he could
maintain an action for such damage. Wood on Nuisances, 112, 113, 306.

But no such case is made here either in the statement of the cause of
action or in the facts found by the court. It is not shown that appellee
has not kept its right of way in proper condition for the safe and
proper operation of its trains, but the contrary is inferable from the
findings. Had it failed to do so, this might be a breach of the duty
which it owed to those interested in the manner in which it conducted
its road, but not of one due to appellee to protect his land and crops
from such damage as that of which he complains. It is urged that as
there is no statement of facts, we should presume that enough was shown
to sustain the judgment. But the conclusions of the trial judge show
affirmatively the facts upon which the judgment is rendered, and the
conclusion of law based upon those facts was excepted to by appellant in
the court below and is erroneous. It is not a case where there is an
omission to find some fact, but one in which a ruling erroneous in law
is grounded upon facts found.

_Reversed and rendered._

BACHELDER _v._ HEAGAN
SUPREME JUDICIAL COURT, MAINE, JULY TERM, 1840.
_Reported in 18 Maine Reports, 32._

The action was trespass on the case, to recover damages, alleged to have
been done to the plaintiffs’ land, and to the fences and growth thereon,
by the negligence of the defendant in setting a fire on his own land,
near to the land of the plaintiffs, and in not carefully keeping the
same.

At the trial before Emery, J., evidence was introduced by both parties.
The counsel for the plaintiffs requested the judge to instruct the jury,
that the plaintiffs were entitled to a verdict, if they were satisfied
from the evidence, that the damage was occasioned by the defendant’s
fire, unless he satisfied them that it was not through negligence or
mismanagement on his part. The judge instructed the jury, that the
burthen of proof was upon the plaintiffs to satisfy them, beyond a
reasonable doubt, that the damage was occasioned by the defendant’s
fire, and through the carelessness and negligence of the defendant in
keeping the same; such carelessness and negligence being alleged in the
plaintiffs’ declaration, and it not being contended by the plaintiffs
that the fire was wilfully and maliciously set by the defendant. On the
return of a verdict for the defendant, the plaintiffs filed exceptions
to the ruling of the judge.[299]

The opinion of the Court was by

WESTON, C. J. By the ancient common law, or custom of the realm, if a
house took fire, the owner was held answerable for any injury thereby
occasioned to others. This was probably founded upon some presumed
negligence or carelessness, not susceptible of proof. The hardship of
this rule was corrected by the statute of 6 Ann. c. 31, which exempted
the owner from liability, where the fire was occasioned by accident. The
rule does not appear to have been applied to the owner of a field, where
a fire may have been kindled. It may frequently be necessary to burn
stubble or other matter which encumbers the ground. It is a lawful act,
unless kindled at an improper time or carelessly managed. Baron Comyns
states, that an action of the case lies, at common law, against the
owner of a house which takes fire, by which another is injured, and
adds, “so if a fire be kindled in a yard or close, to burn stubble, and
by negligence it burns corn in an adjoining close.” Com. Dig. Action of
the Case for Negligence, A. 6.

In Clark _v._ Foot, 8 Johns. R. 421, it was held, that if A. sets fire
to his own fallow ground, as he may lawfully do, which communicates to
and fires the woodland of B., his neighbor, no action lies against A.,
unless there was some negligence or misconduct in him or his servants.
And this is a fair illustration of the common law, upon which the action
depends. Negligence or misconduct is the gist of the action. And this
must be proved. In certain cases, as in actions against innkeepers and
common carriers, it is presumed, by the policy of the law, where
property is lost which is confided to their care. But in ordinary cases,
of which the one before us is not an exception, where the action depends
on negligence, the burthen of proof is upon the plaintiff. This is
common learning, and applies to all affirmative averments necessary to
maintain an action. The defendant’s fire was lawfully kindled on his own
land. It is an element appropriated to many valuable and useful
purposes; but which may become destructive from causes not subject to
human control. Hence the fact, that an injury has been done to others,
is not in itself evidence of negligence. The party who avers the fact is
bound to satisfy the jury upon this point, before he can be entitled to
a verdict. In our opinion, the direction of the presiding judge was
correct as to the burthen of the proof.

_Judgment on the verdict._[300]

HEEG _v._ LICHT
COURT OF APPEALS, NEW YORK, APRIL 6, 1880.
_Reported in 80 New York Reports, 579._

Appeal from judgment of the General Term of the Supreme Court in the
Second Judicial Department, affirming a judgment in favor of defendant,
entered upon a verdict. (Reported below, 16 Hun, 257.)

This action was brought to recover damages for injuries to plaintiff’s
buildings, alleged to have been caused by the explosion of a powder
magazine on the premises of defendant; also to restrain the defendant
from manufacturing and storing upon his premises fire-works or other
explosive substances.

The facts are sufficiently stated in the opinion.

MILLER, J. This action is sought to be maintained upon the ground that
the manufacturing and storing of fire-works, and the use and keeping of
materials of a dangerous and explosive character for that purpose,
constituted a private nuisance for which the defendant was liable to
respond in damages, without regard to the question whether he was
chargeable with carelessness or negligence. The defendant had
constructed a powder magazine upon his premises, with the usual
safeguards, in which he kept stored a quantity of powder which, without
any apparent cause, exploded and caused the injury complained of. The
judge upon the trial charged the jury that they must find for the
defendant, unless they found that the defendant carelessly and
negligently kept the gunpowder upon his premises. The judge refused to
charge that the powder magazine was dangerous in itself to plaintiff and
his property, and was a private nuisance, and the defendant was liable
to the plaintiff whether it was carelessly kept or not; and the
plaintiff duly excepted to the charge and the refusal to charge.

We think that the charge made was erroneous and not warranted by the
facts presented upon the trial. The defendant had erected a building and
stored materials therein, which from their character were liable to and
actually did explode, causing injury to the plaintiff. The fact that the
explosion took place tends to establish that the magazine was dangerous
and liable to cause damage to the property of persons residing in the
vicinity. The locality [legality?] of works of this description must
depend upon the neighborhood in which they are situated. In a city, with
buildings immediately contiguous and persons constantly passing, there
could be no question that such an erection would be unlawful and
unauthorized. An explosion under such circumstances, independent of any
municipal regulations, would render the owner amenable for all damages
arising therefrom. That the defendant’s establishment was outside of the
territorial limits of a city does not relieve the owner from
responsibility or alter the case, if the dangerous erection was in close
contiguity with dwelling-houses or buildings which might be injured or
destroyed in case of an explosion. The fact that the magazine was liable
to such a contingency, which could not be guarded against or averted by
the greatest degree of care and vigilance, evinces its dangerous
character, and might in some localities render it a private nuisance. In
such a case the rule which exonerates a party engaged in a lawful
business, when free from negligence, has no application. The keeping or
manufacturing of gunpowder or of fire-works does not necessarily
constitute a nuisance _per se_. That depends upon the locality, the
quantity, and the surrounding circumstances, and not entirely upon the
degree of care used. In the case at bar it should have been left for the
jury to determine whether from the dangerous character of the
defendant’s business, the proximity to other buildings, and all the
facts proved upon the trial, the defendant was chargeable with
maintaining a private nuisance and answerable for the damages arising
from the explosion.

A private nuisance is defined to be anything done to the hurt or
annoyance of the lands, tenements, or hereditaments of another. 3 Bl.
Com. 216. Any unwarrantable, unreasonable, or unlawful use by a person
of his own property, real or personal, to the injury of another, comes
within the definition stated, and renders the owner or possessor liable
for all damages arising from such use. Wood’s Law of Nuis., § 1, and
authorities cited. The cases which are regarded as private nuisances are
numerous, and the books are full of decisions holding the parties
answerable for the injuries which result from their being maintained.
The rule is of universal application that while a man may prosecute such
business as he chooses on his own premises, he has no right to erect and
maintain a nuisance to the injury of an adjoining proprietor or of his
neighbors, even in the pursuit of a lawful trade. Aldred’s Case, 9 Coke,
58; Brady _v._ Weeks, 3 Barb. 159; Dubois _v._ Budlong, 15 Abb. 445;
Wier’s Appeal, 74 Penn. St. 230.

While a class of the reported cases relates to the prosecution of a
legitimate business, which of itself produces inconvenience and injury
to others, another class refers to acts done on the premises of the
owner which are of themselves dangerous to the property and the persons
of others who may reside in the vicinity, or who may by chance be
passing along or in the neighborhood of the same. Of the former class
are cases of slaughter-houses, fat and offal boiling establishments,
hog-styes or tallow manufactories, in or near a city, which are
offensive to the senses and render the enjoyment of life and property
uncomfortable. Catlin _v._ Valentine, 9 Pai. 575; Brady _v._ Weeks, 3
Barb. 157; Dubois _v._ Budlong, 15 Abb. 445; Rex _v._ White, 1 Burr.
337; 2 Bl. Com. 215; Farrand _v._ Marshall, 21 Barb. 421. It is not
necessary in these cases that the noxious trade or business should
endanger the health of the neighborhood. So also the use of premises in
a manner which causes a noise so continuous and excessive as to produce
serious annoyance, or vapors or noxious smells; Tipping _v._ St. Helen’s
Smelting Co., 4 B. & S. (Q. B.) 608; Brill _v._ Flagler, 23 Wend. 354;
Pickard _v._ Collins, 23 Barb. 444; Wood’s Law of Nuis., § 5; or the
burning of a brick kiln, from which gases escape which injure the trees
of persons in the neighborhood. Campbell _v._ Seaman, 63 N. Y. 568; S.
C., 20 Am. Rep. 567. Of the latter class also are those where the owner
blasts rocks with gunpowder, and the fragments are liable to be thrown
on the premises and injure the adjoining dwelling-houses, or the owner
or persons there being, or where persons travelling may be injured by
such use. Hay _v._ Cohoes Co., 3 Barb. 42; S. C., 2 N. Y. 159; Tremain
_v._ Cohoes Co., 2 N. Y. 163; Pixley _v._ Clark, 35 id. 523.

Most of the cases cited rest upon the maxim _sic utere tuo_, etc., and
where the right to the undisturbed possession and enjoyment of property
comes in conflict with the rights of others, that it is better, as a
matter of public policy, that a single individual should surrender the
use of his land for especial purposes injurious to his neighbor or to
others, than that the latter should be deprived of the use of their
property altogether, or be subjected to great danger, loss, and injury,
which might result if the rights of the former were without any
restriction or restraint.

The keeping of gunpowder or other materials in a place, or under
circumstances, where it would be liable, in case of explosion, to injure
the dwelling-houses or the persons of those residing in close proximity,
we think, rests upon the same principle, and is governed by the same
general rules. An individual has no more right to keep a magazine of
powder upon his premises, which is dangerous, to the detriment of his
neighbor, than he is authorized to engage in any other business which
may occasion serious consequences.

The counsel for the defendant relies upon the case of People _v._ Sands,
1 Johns. 78; 3 Am. Dec. 296, to sustain the position that the
defendant’s business was neither a public nor a private nuisance. That
was an indictment for keeping a quantity of gunpowder near
dwelling-houses and near a public street; and it was held (Spencer, J.,
dissenting), that the fact as charged did not amount to a nuisance, and
that it should have been alleged to have been negligently and
improvidently kept. It will be seen that the case was disposed of upon
the form of the indictment, and while it may well be that an allegation
of negligence is necessary where an indictment is for a public nuisance,
it by no means follows that negligence is essential in a private action
to recover damages for an alleged nuisance. In Myers _v._ Malcolm, 6
Hill, 292, it was held that the act of keeping a large quantity of
gunpowder insufficiently secured near other buildings, thereby
endangering the lives of persons residing in the vicinity, amounted to a
public nuisance, and an action would lie for damages where an explosion
occurred causing injury. Nelson, C. J., citing People _v._ Sands,
_supra_, says: “Upon the principle that nothing will be intended or
inferred to support an indictment, the Court said, for aught they could
see, the house may have been one built and secured for the purpose of
keeping powder in such a way as not to expose the neighborhood;” and he
cites several authorities which uphold the doctrine that where gunpowder
is kept in such a place as is dangerous to the inhabitants or
passengers, it will be regarded as a nuisance. The case of People _v._
Sands is not therefore controlling upon the question of negligence.

Fillo _v._ Jones, 2 Abb. Ct. Ap. Dec. 121, is also relied upon, but does
not sustain the doctrine contended for; and it is there held that an
action for damages caused by the explosion of fire-works may be
maintained upon the theory that the defendant was guilty of a wrongful
and unlawful act, or of default, in keeping them at the place they were
kept, because they were liable to spontaneous combustion and explosion,
and thus endangered the lives of persons in their vicinity, and that the
injury was occasioned by such spontaneous combustion and explosion.

It is apparent that negligence alone in the keeping of gunpowder is not
controlling, and that the danger arising from the locality where the
fire-works or gunpowder are kept, is to be taken into consideration in
maintaining an action of this character. We think that the request to
charge was too broad, and properly refused. The charge however should
have been in conformity with the rule herein laid down, and for the
error of the judge in the charge, the judgment should be reversed and a
new trial granted, with costs to abide the event.

All concur.

_Judgment reversed._[301]

DILWORTH’S APPEAL
SUPREME COURT, PENNSYLVANIA, OCTOBER 9, 1879.
_Reported in 91 Pennsylvania State Reports, 247._

Appeal from Court of Common Pleas, No. 2, of Allegheny County.

Bill in equity by Robinson and forty-seven others against Dilworth, to
restrain Dilworth from erecting a powder magazine upon his lot in Penn
Township, Allegheny County. The case was referred to a master, who
recommended that an injunction should be refused and the bill dismissed.
The facts are set forth in the opinion of this court. The court below
thought that the public interest would be subserved by refusing the
injunction; but in deference to the authority of Wier’s Appeal, 24 P. F.
Smith, 230, a majority of the court entered a _pro forma_ decree for an
injunction. Appeal was taken to the Supreme Court.[302]

TRUNKEY, J. [After stating general principles and quoting from the
statement of the facts in Wier’s Appeal.]

After a careful revision of the master’s report by the court below, the
facts found in this case, and which are well sustained by proof, are as
follows: This magazine has been located so as to endanger as few persons
and as little property as possible, and yet be reasonably accessible as
a point of supply and distribution; it is more remote from population
than the magazines generally in use throughout the United States, and it
is doubtful if a better location could be made in Allegheny County. It
is situated about two miles from East Liberty, the nearest closely
built-up district, and is separated therefrom by intervening hills and
ravines. It is in a sparsely settled locality, for the vicinity of a
city, and land near it has not been, nor is it likely to be for some
years, in demand for building purposes. That portion of Lincoln Avenue
which terminates at a point five hundred feet from the magazine is very
little travelled, very few people travel it within considerable distance
of its terminus, having no occasion to do so; it was the wildest of the
many absurd enterprises undertaken in Pittsburgh to carry city
improvements into wild rural regions, expecting population to rapidly
follow. The other public road, passing within twenty-two feet of the
magazine, has for some time been almost abandoned by the people in the
vicinity, and is used by about three farmers. The magazine is so
situated that the force of an explosion would be down the ravine and
away from the road. The greater distance of this magazine from a
borough, or closely built-up district, the absence of demand of land for
building purposes, and the unlikelihood of such demand in the vicinity,
the little travel on the public road which passes near it, and the
ravine opening from the road, are the chief points wherein this case
differs from Wier’s Appeal. The dwellings and families near the magazine
number about the same in one as the other. None will deny that the law
protects the small and cheap home as it does the large and costly
mansion, and the rights of a tenant are as sacred as those of his
landlord. But it is equally undeniable that if a tenant hold by lease at
will, or by month, and his landlord grants that a lawful and necessary,
yet offensive or dangerous factory or magazine may be erected, the
tenant has not a right of action for its prevention. If such structure
were placed near tenant houses occupied by miners, where the mines are
likely to be worked for considerable time, it would be a material fact
to be weighed with others—almost of like weight as if the houses were
owned by the occupants. Here the mine is nearly exhausted, a fact to be
considered in reference to the probable increase of population in the
neighborhood.

It was urged that the location being only two hundred and fifty-five
feet from the boundary line of Pittsburgh, and five hundred feet from
the end of Lincoln Avenue, is dangerous to life and property in the
city. The facts, as we have seen, are that that end of the avenue is
very little travelled, and is remote from the population of the city;
and, without question, “the region of country in which the magazine is
located is wild and broken as to its general surface, it is traversed by
numerous ravines and hills, and altogether possesses a romantic and
secluded aspect.” It is the real character of the location, with its
surroundings, which determines its fitness, and not a city line two
miles from city life, nor the unused and useless part of a graded and
paved street extended beyond the visible city.

Confessedly, the demand for and consumption of powder in Pittsburgh and
vicinity are very great, and it is indispensable in carrying on
important branches of industry, and it would be inimical to the business
interests of the community to trammel the sale of it with unnecessary
restrictions and burdens. Besides the magazine at the United States
Arsenal there are no others in Allegheny County, except those of a
single company, and the Dilworth. In view of the whole case the master,
and one of the judges of the Common Pleas, thought the injunction should
be refused. The majority of the court, in a considerate opinion,
concluded that the public interest would be subserved by refusing the
injunction, and that the complainants were not entitled to an
injunction, but for the ruling in Wier’s Appeal, on the authority of
which they felt constrained to grant it. A decree was entered, with
direction that it would not be enforced until the defendant could be
heard on appeal. We fully agree with the court below, except that we do
not think the principles in Wier’s Appeal, applied to the facts in this
case, require an injunction to be granted.

_Decree reversed. Bill dismissed._

SECTION IV
VIOLATION OF STATUTORY DUTY

KNUPFLE _v._ KNICKERBOCKER ICE CO.
COURT OF APPEALS, NEW YORK, MARCH 15, 1881.
_Reported in 84 New York Reports, 488._

Per Curiam.[303] One of the principal questions litigated upon the trial
of this action related to the alleged negligence of the driver of the
defendant’s team in leaving the horses untied in the street, which, it
was claimed, was the cause of the death of the intestate. Among other
evidence to establish such negligence, the plaintiff offered and
introduced in evidence, against the objection of the defendant, an
ordinance of the city of Brooklyn, prohibiting the leaving of any horse
or horses attached to a vehicle standing in any street without a person
in charge, or without being secured to a tying post. We think there is
no question as to the admissibility of such testimony under the
decisions of this court, and the exception taken to the ruling in this
respect cannot be upheld.

A more serious question arises as to the effect to be given to the
evidence referred to. At the close of the charge the plaintiff’s counsel
requested the judge to charge the jury that a violation of an ordinance
of the city is necessarily negligence; and the judge replied: “it is; I
have so told the jury; it is negligence;” and the defendant’s counsel
excepted. We think there was error in the charge thus made, and that the
judge went too far in holding that a violation of the ordinance was
negligence of itself.

The question presented has been the subject of consideration in this
court, as will be seen by reference to the reported cases. In Brown _v._
B. & State Line R. R. Co., 22 N. Y. 191, the court charged the jury that
if the injury occurred while defendant’s train was running in violation
of a city ordinance and at a rate of speed forbidden by it, and was
occasioned by or would not have occurred except for such violation, the
defendant was liable, and this direction was held to be error. This
doctrine is, however, repudiated in Jetter _v._ N. Y. & H. R. R. Co., 2
Abb. Ct. App. Dec. 458, as well as in subsequent cases. In the last case
cited it was held that a party in doing a lawful act, where there is no
present danger, or appearance of danger, has a right to assume that
others will conform their conduct to the express requirements of the law
and not bring injury upon him by its violation. It is also strongly
intimated that a violator of such an ordinance is a wrong-doer and
necessarily negligent, and a person injured thereby is entitled to a
civil remedy. The distinct point now raised was not, however, fairly
presented by the charge to which exception was taken, which was not
otherwise erroneous. In Beisegel _v._ N. Y. C. R. R. Co., 14 Abb. Pr.
[N. S.] 29, it was held that it was some evidence of negligence to show
that an ordinance was violated, and the charge of the judge upon the
trial to that effect was upheld. In McGrath _v._ N. Y. C. & H. R. R. R.
Co., 63 N. Y. 522, it was laid down that the violation or disregard of
an ordinance, while not conclusive evidence of negligence, is some
evidence for the consideration of the jury. In Massoth _v._ D. & H.
Canal Co., 64 N. Y. 524, the cases are reviewed, and it was said to be
an open question in this court whether the violation of a municipal
ordinance was negligence _per se_; and it was held that the city
ordinance being submitted to the jury with the other evidence as bearing
upon the question, but not as conclusive, there was no error in the
parts of the charge excepted to. The result of the decisions, therefore,
is, that the violation of the ordinance is some evidence of negligence,
but not necessarily negligence. The judge not only assented
unqualifiedly to the request made, but he also said that it was
negligence; and thus went further than to hold, within the cases cited,
that it was evidence of negligence.

The counsel for the plaintiff urges that even if erroneous, the charge
worked defendant no injury. This position is based upon the theory that
as the question was submitted to the jury as one of fact, whether the
team was left loose and unattended, and as the judge had charged that
the ordinance adds very little to what would have been the rule without
it, and that it was negligence to leave a horse untied or not in charge
of some one, in a public street, whether there is an ordinance or not,
they must have found that they were so left, and, therefore, the
plaintiff was entitled to a verdict. The difficulty about this position
is, that the question, whether leaving the horses untied was negligence,
was one of fact depending upon the circumstances attending the case, and
while the jury may have found in favor of the defendant as to this,
their verdict may have resulted from the charge made as to the effect of
the ordinance. It cannot, therefore, be said that by the portion of the
charge which has been considered the defendant was not prejudiced.

For the error in the charge, without considering the other questions
raised, the judgment should be reversed and a new trial granted, costs
to abide event.

All concur, except MILLER and DANFORTH, JJ., dissenting, and RAPALLO,
J., absent.

_Judgment reversed._[304]

HOLMAN _v._ CHICAGO, ROCK ISLAND & PACIFIC R. CO.
SUPREME COURT, MISSOURI, MAY TERM, 1876.
_Reported in 62 Missouri Reports, 562._

HOUGH, J.[305] This was an action to recover damages for the killing of
a cow, belonging to the plaintiff, by a train on defendant’s railroad in
a street of the town of Cameron.

The evidence given at the trial is stated in the bill of exceptions in
the following language: “The plaintiff, to maintain the issues on his
part, introduced evidence tending to show, that the bell was not rung,
nor the whistle sounded on the train mentioned in his statement, as it
approached and ran over the cow in controversy; that the cow was killed
on defendant’s railroad on a public travelled street of the town of
Cameron, in Shoal township, by a train on said railroad, and that said
cow was worth thirty-five dollars. The defendant introduced one Kiley,
who testified that he was the conductor on said train, and that the bell
was rung and the whistle sounded. This was all the evidence offered.”

It will not be necessary to notice the instructions given and refused.
There was a verdict and judgment for the plaintiff, and the defendant
has brought the case here by appeal.

The statute in relation to railroad corporations, which requires the
bell on the locomotive to be rung, or the steam whistle to be sounded,
before reaching and while crossing any travelled public road or street,
provides a penalty for the neglect of such requirement, and further
declares that the corporation shall be liable for all damages which
shall be sustained by any person by reason of such neglect. Conceding
that the servants of the defendant neglected to ring the bell or sound
the whistle, the question is whether there is any evidence tending to
show that the cow was killed by reason of such neglect.

In the case of Stoneman _v._ Atl. & Pac. R. R. Co., 58 Mo. 503, it was
said, on the point in judgment, that “the court had no right to declare
as a matter of law, that the jury had nothing to find but the killing of
the animal at the crossing of a public highway, and the failure of the
company to have the bell rung or the whistle sounded. There may have
been no connection, whatever, between the negligent omission and the
damage; and the very terms of the statute, under which the suit is
brought, clearly indicate that the damage must be the result of the
negligence.”

The foregoing extract clearly asserts, that there is no necessary
connection between the failure to ring the bell or sound the whistle,
and the killing; that both may concur in point of time, and the latter
not be the result of the former. How, then, must the connection be
shown? By evidence, undoubtedly. Who must produce such evidence? The
party who asserts that such connection exists. The damage must be shown
to be the result of the negligence; that is, the negligence must first
be shown, and this fact must be supplemented by testimony tending to
show that the negligence occasioned the damage. This testimony should
consist of all the facts and circumstances attending the killing, so
that the jury could fairly and rationally conclude whether it resulted
from the failure to ring the bell or sound the whistle, or from other
causes. In the case at bar no such testimony was offered; but two facts
were shown to fix the defendants liability, the failure to give the
required signal at the crossing, and the killing. No fact was shown
tending to connect the two. If the plaintiff can recover on the evidence
embodied in the bill of exceptions, it must be, because it is only
necessary for the jury to find the killing of the animal on the highway,
and the failure to ring the bell or sound the whistle, for there is no
testimony from which they can find more. But this, we have seen, is not
sufficient. Upon the case made, it was the duty of the court to declare
as a matter of law that the plaintiff was not entitled to recover.

This conclusion has been reached after a careful consideration of the
case of Owens _v._ Hann. & St. Jo. R. R., 58 Mo. 386; and Howenstein
_v._ Pac. R. R., 55 Mo. 33.

The judgment must be reversed and the cause remanded. All the judges
concur, except Judge Vories, who is absent.[306]

BRATTLEBORO _v._ WAIT
SUPREME COURT, VERMONT, FEBRUARY TERM, 1872.
_Reported in 44 Vermont Reports, 459._

Action on the case, to recover damages sustained by reason of the
defendant’s neglect and refusal to comply with the requirements of § 39,
ch. 83 of the General Statutes, and § 1 of No. 6 of the acts of the
legislature of 1865. Demurrer to the declaration by the defendant.

The court, September term, 1870, BARRETT, J., presiding, sustained the
demurrer, and rendered judgment for the defendant. Exceptions by the
plaintiff.

The opinion of the court was delivered by.—

ROSS, J. The question in this case is whether the defendant as cashier
of the Windham County Bank for the years commencing April 1, 1864, and
April 1, 1865, and of the First National Bank of Brattleboro for the
years commencing April 1, 1866, and April 1, 1867, is liable for any
loss that may have resulted to the town, by his neglect to return to the
town clerk of the plaintiff, for the first two years named, the names of
the stockholders in the Windham County Bank, agreeably to the
requirements of § 39, ch. 83 of the General Statutes, and for the last
two years the names of the stockholders of the First National Bank of
Brattleboro, agreeably to the requirements of § 1, of No. 6 of the acts
of 1865; or whether the penalties imposed by § 47 of ch. 83, and by § 5
of the act of 1865, are the only remedies given for the neglect of the
defendant to perform the duties imposed by the two sections first above
named.

These duties are created solely by the statutes named, and by them are
superimposed upon the defendant in addition to those duties which were
incumbent on him by reason of his acceptance of the office of cashier.
The principle, that the law will furnish a remedy to a party injured by
the neglect or non-performance of a duty imposed on an individual by
statute, where the statute itself furnishes no remedy, is too familiar
and well established to need the support of authorities. If the statute
which imposes a new duty also provides a particular remedy, that remedy
is usually the only remedy the injured party has. In Regina _v._ Wigg, 2
Salk. 460, the court says: “Where a new penalty is applied for a matter
which at common law was an indictable offence, either remedy may be
pursued; but where the statute makes the offence, that remedy must be
taken which the statute gives.” Lord MANSFIELD, in Rex _v._ Robinson, 2
Bur. 799, stating the doctrine more fully, says: “The true rule of
distinction seems to be, that where the offence intended to be guarded
against was punishable before the making of such statute, prescribing a
particular method of punishing it, there such particular remedy is
cumulative, and does not take away the former remedy; but where the
statute only enacts ‘that the doing any act not punishable before, shall
for the future be punishable in such and such a particular manner
there,’ it is necessary that such particular method, by such act
prescribed, must be specifically pursued, and not the common law method
of an indictment.” The doctrine stated in these early leading cases is
as applicable to civil as to criminal prosecutions. The question then
is, was the penalty or forfeiture of $100 provided for by § 47, ch. 83
of the General Statutes, and of $500 provided for in § 5 of the act of
1865, intended for the remedies to the plaintiff for the non-performance
by the defendant of the duties imposed by § 39, and by § 1. We think
they were. The penalties under these statutes are given to the town, as
the party injured or aggrieved by the failure of the defendant to
perform the duties imposed, as has been held in Newman, Treasurer of
Brattleboro, _v._ this defendant, 43 Vt. 587, in which the plaintiff
through its treasurer sought to recover the penalty imposed by § 5 of
the act of 1865, for the defendant’s failure to comply with § 1 of that
act during the years 1866 and 1867. It is unnecessary to repeat what has
been said in that case. It would be inconsistent with the principle we
have already stated, to hold that the plaintiff can recover the penalty
as the party aggrieved, and also all damages it has sustained by the
defendant’s failure to perform a duty wholly imposed upon him by the
statute. Such holding would give the plaintiff a double remedy for the
same failure by the defendant to perform a duty imposed by statute, and
due to the plaintiff only by the force of the statute; the penalty
prescribed, and an amercement in damages for all the plaintiff can show
he has suffered from such failure. The penalty cannot be held to be a
cumulative remedy; for before the passage of the act no duty was due
from the defendant as cashier to the plaintiff, and, therefore, there
could be no remedy, and nothing for the penalty to be cumulative to.
Such holding would interpret one and the same act as giving a double
remedy, which is contrary to all rules of interpretation, and only
allowable when it is given in express terms by the statute.

_The judgment of the county court is affirmed._[307]

OSBORNE _v._ McMASTERS
SUPREME COURT, MINNESOTA, JANUARY 30, 1889.
_Reported in 40 Minnesota Reports, 103._

Appeal by defendant from a judgment of the District Court for Ramsey
County, where the action was tried before Kelly, J., and a jury, and a
verdict rendered for plaintiff.

MITCHELL, J. Upon the record in this case it must be taken as the facts
that defendant’s clerk in his drug-store, in the course of his
employment as such, sold to plaintiff’s intestate a deadly poison
without labelling it “Poison,” as required by statute; that she, in
ignorance of its deadly qualities, partook of the poison, which caused
her death. Except for the ability of counsel and the earnestness with
which they have argued the case, we would not have supposed that there
could be any serious doubt of defendant’s liability on this state of
facts. It is immaterial for present purposes whether section 329 of the
Penal Code or section 14, c. 147, Laws 1885, or both, are still in
force, and constitute the law governing this case.[308] The requirements
of both statutes are substantially the same, and the sole object of both
is to protect the public against the dangerous qualities of poison. It
is now well settled, certainly in this state, that where a statute or
municipal ordinance imposes upon any person a specific duty for the
protection or benefit of others, if he neglects to perform that duty he
is liable to those for whose protection or benefit it was imposed for
any injuries of the character which the statute or ordinance was
designed to prevent, and which were proximately produced by such
neglect. In support of this we need only cite our own decision in Bott
_v._ Pratt, 33 Minn. 323 (23 N. W. Rep. 237).

Defendant contends that this is only true where a right of action for
the alleged negligent act existed at common law; that no liability
existed at common law for selling poison without labelling it, and
therefore none exists under this statute, no right of civil action being
given by it. Without stopping to consider the correctness of the
assumption that selling poison without labelling it might not be
actionable negligence at common law, it is sufficient to say that, in
our opinion, defendant’s contention proceeds upon an entire
misapprehension of the nature and gist of a cause of action of this
kind. The common law gives a right of action to every one sustaining
injuries caused proximately by the negligence of another. The present is
a common-law action, the gist of which is defendant’s negligence,
resulting in the death of plaintiff’s intestate. Negligence is the
breach of legal duty. It is immaterial whether the duty is one imposed
by the rule of common law requiring the exercise of ordinary care not to
injure another, or is imposed by a statute designed for the protection
of others. In either case the failure to perform the duty constitutes
negligence, and renders the party liable for injuries resulting from it.
The only difference is that in the one case the measure of legal duty is
to be determined upon common-law principles, while in the other the
statute fixes it, so that the violation of the statute constitutes
conclusive evidence of negligence, or, in other words, negligence _per
se_. The action in the latter case is not a statutory one, nor does the
statute give the right of action in any other sense except that it makes
an act negligent which otherwise might not be such, or at least only
evidence of negligence. All that the statute does is to establish a
fixed standard by which the fact of negligence may be determined. The
gist of the action is still negligence, or the non-performance of a
legal duty to the person injured.

What has been already said suggests the answer to the further contention
that if any civil liability exists it is only against the clerk who sold
the poison, and who alone is criminally liable. Whether the act
constituting the actionable negligence was such on common-law
principles, or is made such by statute, the doctrine of agency applies,
to wit, that the master is civilly liable for the negligence of his
servant committed in the course of his employment, and resulting in
injuries to third persons.

_Judgment affirmed._[309]

WILLY _v._ MULLEDY
COURT OF APPEALS, NEW YORK, SEPTEMBER 30, 1879.
_Reported in 78 New York Reports, 310._

EARL, J.[310] This is an action to recover damages for the death of
plaintiff’s wife, alleged to have been caused by the fault of the
defendant. Prior to the 1st day of November, 1877, the plaintiff hired
of the defendant certain apartments in the rear of the third story of a
tenement house in the city of Brooklyn, and with his wife and infant
child moved into them on that day. On the fifth day in the same month,
in the daytime, a fire took place, originating in the lower story of the
house, and plaintiff’s wife and child were smothered to death.

It is claimed that the defendant was in fault because he had not
constructed for the house a fire-escape, and because he had not placed
in the house a ladder for access to the scuttle.

Section 36 of title 13 of chapter 863 of the Laws of 1873 provides that
every building in the city of Brooklyn shall have a scuttle or place of
egress in the roof thereof of proper size, and “shall have ladders or
stairways leading to the same; and all such scuttles and stairways or
ladders leading to the roof shall be kept in readiness for use at all
times.” It also provides that houses like that occupied by the plaintiff
“shall be provided with such fire-escapes and doors as shall be directed
and approved by the commissioners (of the department of fire and
buildings); and the owner or owners of any building upon which any
fire-escapes may now or hereafter be erected, shall keep the same in
good repair and well painted, and no person shall at any time place any
incumbrance of any kind whatsoever upon said fire-escapes now erected or
that may hereafter be erected in the city. Any person, after being
notified by said commissioners, who shall neglect to place upon any such
building the fire-escape herein provided for, shall forfeit the sum of
$500, and shall be deemed guilty of a misdemeanor.”

Under this statute the defendant was bound to provide this house with a
fire-escape. He was not permitted to wait until he should be directed to
provide one by the commissioners. He was bound to do it in such way as
they should direct and approve, and it was for him to procure their
direction and approval. No penalty is imposed for the simple omission to
provide one. The penalty can be incurred only for the neglect to provide
one after notification by the commissioners.

Here was, then, an absolute duty imposed upon the defendant by statute
to provide a fire-escape, and the duty was imposed for the sole benefit
of the tenants of the house, so that they would have a mode of escape in
the case of a fire. For a breach of this duty causing damage, it cannot
be doubted that the tenants have a remedy. It is a general rule, that
whenever one owes another a duty, whether such duty be imposed by
voluntary contract or by statute, a breach of such duty causing damage
gives a cause of action. Duty and right are correlative; and where a
duty is imposed, there must be a right to have it performed. When a
statute imposes a duty upon a public officer, it is well settled that
any person having a special interest in the performance thereof may sue
for a breach thereof causing him damage, and the same is true of a duty
imposed by statute upon any citizen: (Cooley on Torts, 654; Hover _v._
Barkhoff, 44 N. Y. 113; Jetter _v._ N. Y. C. and H. R. R. R. Co., 2 Abb.
Ct. of App. Dec. 458; Heeney _v._ Sprague, 11 R. I. 456; Couch _v._
Steele, 3 Ell. & Bl. 402). In Comyn’s Digest, Action upon Statute (F.),
it is laid down as the rule that “in every case where a statute enacts
or prohibits a thing for the benefit of a person, he shall have a remedy
upon the same statute for the thing enacted for his advantage, or for
the recompense of a wrong done to him contrary to the said law.”

[Remainder of opinion omitted.]

_Judgment for plaintiff affirmed._[311]

GORRIS _v._ SCOTT
IN THE EXCHEQUER, APRIL 22, 1874.
_Reported in Law Reports, 9 Exchequer, 125._

Declaration, first count: that after the passing of the Contagious
Diseases (Animals) Act, 1869, the Privy Council, in exercise of the
powers and authorities vested in them by the Act (s. 75), made an order
(called the Animals Order of 1871) with reference to animals brought by
sea to ports in Great Britain, and to the places used and occupied by
such animals on board any vessel in which the same should be so brought
to such ports; and thereby, amongst other things, ordered (1) that every
such place should be divided into pens by substantial divisions; (2)
that each such pen should not exceed nine feet in breadth and fifteen
feet in length; that afterwards and whilst the order was in force the
plaintiffs delivered on board a vessel called the Hastings, to the
defendant as owner of the vessel, certain sheep of the plaintiffs, to be
carried by the defendant for reward on board the said vessel from
Hamburg to Newcastle, and there delivered to the plaintiffs; and the
defendant, as such owner, received and started on the said voyage with
the sheep for the purposes and on the terms aforesaid; that all
conditions were fulfilled, &c., yet the place in and on board the said
vessel which was used and occupied by the sheep during the voyage was
not, during the said voyage or any part thereof, divided into pens by
substantial or other divisions, by reason whereof divers of the sheep
were washed and swept away by the sea from off the said ship, and were
drowned and wholly lost to the plaintiffs.

Second count, similar to the first, but setting out a third regulation:
“that the floor of each such pen should have proper battens or other
foot-hold thereon,” and alleging the loss of the sheep as aforesaid to
have been caused by the want of such battens.

Demurrer and joinder.

[The preamble of the Contagious Diseases (Animals) Act of 1869, 32 & 33
Vict. chapter 70, recited in a note to the report, is as follows:

“Whereas it is expedient to confer on Her Majesty’s most honourable
Privy Council powers to take such measures as may appear from time to
time necessary to prevent the introduction into Great Britain of
contagious or infectious diseases among cattle, sheep, and other
animals, by prohibiting or regulating the importation of foreign
animals; and it is further expedient to provide against the spreading of
such diseases in Great Britain, and to consolidate and make perpetual
the Acts relating thereto, and to make such other provisions as are
contained in this Act.”

Sect. 75 of said Act: “The Privy Council may from time to time make such
orders as they think expedient for all or any of the following
purposes:—

“For insuring for animals brought by sea to ports in Great Britain a
proper supply of food and water during the passage and on landing;

“For protecting such animals from unnecessary suffering during the
passage and on landing;

(Then follow certain inland purposes.)

“And generally any orders whatsoever which they think it expedient to
make for the better execution of this Act, or for the purpose of in any
manner preventing the introduction or spreading of contagious or
infectious disease among animals in Great Britain.”][312]

KELLY, C. B. This is an action to recover damages for the loss of a
number of sheep which the defendant, a shipowner, had contracted to
carry, and which were washed overboard and lost by reason (as we must
take it to be truly alleged) of the neglect to comply with a certain
order made by the Privy Council, in pursuance of the Contagious Diseases
(Animals) Act, 1869. The Act was passed merely for sanitary purposes, in
order to prevent animals in a state of infectious disease from
communicating it to other animals with which they might come in contact.
Under the authority of that Act certain orders were made; amongst
others, an order by which any ship bringing sheep or cattle from any
foreign port to ports in Great Britain is to have the place occupied by
such animals divided into pens of certain dimensions, and the floor of
such pens furnished with battens or foot-holds. The object of this order
is to prevent animals from being overcrowded, and so brought into a
condition in which the disease guarded against would be likely to be
developed. This regulation has been neglected, and the question is,
whether the loss, which we must assume to have been caused by that
neglect, entitles the plaintiffs to maintain an action.

The argument of the defendant is, that the Act has imposed penalties to
secure the observance of its provisions, and that, according to the
general rule, the remedy prescribed by the statute must be pursued; that
although, when penalties are imposed for the violation of a statutory
duty, a person aggrieved by its violation may sometimes maintain an
action for the damage so caused, that must be in cases where the object
of the statute is to confer a benefit on individuals, and to protect
them against the evil consequences which the statute was designed to
prevent, and which have in fact ensued; but that if the object is not to
protect individuals against the consequences which have in fact ensued,
it is otherwise; that if, therefore, by reason of the precautions in
question not having been taken, the plaintiffs had sustained that damage
against which it was intended to secure them, an action would lie, but
that when the damage is of such a nature as was not contemplated at all
by the statute, and as to which it was not intended to confer any
benefit on the plaintiffs, they cannot maintain an action founded on the
neglect. The principle may be well illustrated by the case put in
argument of a breach by a railway company of its duty to erect a gate on
a level crossing, and to keep the gate closed except when the crossing
is being actually and properly used. The object of the precaution is to
prevent injury from being sustained through animals or vehicles being
upon the line at unseasonable times; and if by reason of such a breach
of duty, either in not erecting the gate, or in not keeping it closed, a
person attempts to cross with a carriage at an improper time, and injury
ensues to a passenger, no doubt an action would lie against the railway
company, because the intention of the legislature was that, by the
erection of the gates and by their being kept closed individuals should
be protected against accidents of this description. And if we could see
that it was the object, or among the objects of this Act, that the
owners of sheep and cattle coming from a foreign port should be
protected by the means described against the danger of their property
being washed overboard, or lost by the perils of the sea, the present
action would be within the principle.

But, looking at the Act, it is perfectly clear that its provisions were
all enacted with a totally different view; there was no purpose, direct
or indirect, to protect against such damage; but, as is recited in the
preamble, the Act is directed against the possibility of sheep or cattle
being exposed to disease on their way to this country. The preamble
recites that “it is expedient to confer on Her Majesty’s most honourable
Privy Council power to take such measures as may appear from time to
time necessary to prevent the introduction into Great Britain of
contagious or infectious diseases among cattle, sheep, or other animals,
by prohibiting or regulating the importation of foreign animals,” and
also to provide against the “spreading” of such diseases in Great
Britain. Then follow numerous sections directed entirely to this object.
Then comes sect. 75 which enacts that “the Privy Council may from time
to time make such orders as they think expedient for all or any of the
following purposes.” What, then, are these purposes? They are “for
securing for animals brought by sea to ports in Great Britain a proper
supply of food and water during the passage and on landing,” “for
protecting such animals from unnecessary suffering during the passage
and on landing,” and so forth; all the purposes enumerated being
calculated and directed to the prevention of disease, and none of them
having any relation whatever to the danger of loss by the perils of the
sea. That being so, if by reason of the default in question the
plaintiffs’ sheep had been overcrowded, or had been caused unnecessary
suffering, and so had arrived in this country in a state of disease, I
do not say that they might not have maintained this action. But the
damage complained of here is something totally apart from the object of
the Act of Parliament, and it is in accordance with all the authorities
to say that the action is not maintainable.

PIGOTT, B. For the reasons which have been so exhaustively stated by the
Lord Chief Baron, I am of opinion that the declaration shows no cause of
action. It is necessary to see what was the object of the legislature in
this enactment, and it is set forth clearly in the preamble as being “to
prevent the introduction into Great Britain of contagious or infectious
diseases among cattle, sheep, or other animals,” and the “spread of such
diseases in Great Britain.” The purposes enumerated in sect. 75 are in
harmony with this preamble, and it is in furtherance of that section
that the order in question was made. The object, then, of the
regulations which have been broken was, not to prevent cattle from being
washed overboard, but to protect them against contagious disease. The
legislature never contemplated altering the relations between the owners
and carriers of cattle, except for the purposes pointed out in the Act;
and if the Privy Council had gone out of their way and made provisions
to prevent cattle from being washed overboard, their act would have been
_ultra vires_. If, indeed, by reason of the neglect complained of, the
cattle had contracted a contagious disease, the case would have been
different. But as the case stands on this declaration, the answer to the
action is this: Admit there has been a breach of duty; admit there has
been a consequent injury; still the legislature was not legislating to
protect against such an injury, but for an altogether different purpose;
its object was not to regulate the duty of the carrier for all purposes,
but only for one particular purpose.

[POLLOCK, B., delivered a concurring opinion. AMPHLETT, B., concurred.]

_Judgment for the defendant._[313]

PART II
INTERFERENCE WITH GENERAL SUBSTANCE OR INTERESTS IN INTANGIBLE THINGS

CHAPTER IV
DECEIT

PASLEY _v._ FREEMAN
IN THE KING’S BENCH, HILARY TERM, 1789.
_Reported in 3 Term Reports (Durnford & East), 51._

This was an action in the nature of a writ of deceit, to which the
defendant pleaded the general issue. And after a verdict for the
plaintiffs on the third count, a motion was made in arrest of judgment.

The third count was as follows: “And whereas, also, the said Joseph
Freeman afterwards, to wit, on the twenty-first day of February, in the
year of our Lord 1787, at London aforesaid, in the parish and ward
aforesaid, further intending to deceive and defraud the said John Pasley
and Edward, did wrongfully and deceitfully encourage and persuade the
said John Pasley and Edward to sell and deliver to the said John
Christopher Falch divers other goods, wares, and merchandises, to wit,
sixteen other bags of cochineal of great value, to wit, of the value of
£2,634 16_s._ 1_d._ upon trust and credit; and did for that purpose then
and there falsely, deceitfully, and fraudulently assert and affirm to
the said John Pasley and Edward that the said John Christopher then and
there was a person safely to be trusted and given credit to in that
respect, and did thereby falsely, fraudulently, and deceitfully cause
and procure the said John Pasley and Edward to sell and deliver the said
last-mentioned goods, wares, and merchandises upon trust and credit to
the said John Christopher; and, in fact, they the said John Pasley and
Edward, confiding in, and giving credit to, the said last-mentioned
assertion and affirmation of the said Joseph, and believing the same to
be true, and not knowing the contrary thereof, did afterwards, to wit,
on the twenty-eighth day of February, in the year of our Lord 1787, at
London aforesaid, in the parish and ward aforesaid, sell and deliver the
said last-mentioned goods, wares, and merchandises upon trust and credit
to the said John Christopher; whereas in truth and fact, at the time of
the said Joseph’s making his said last-mentioned assertion and
affirmation, the said John Christopher was not then and there a person
safely to be trusted and given credit to in that respect, and the said
Joseph well knew the same, to wit, at London aforesaid, in the parish
and ward aforesaid. And the said John Pasley and Edward further say,
that the said John Christopher hath not, nor hath any other person on
his behalf, paid to the said John Pasley and Edward, or either of them,
the said sum of £2,634 16_s._ 1_d._ last mentioned, or any part thereof,
for the said last-mentioned goods, wares, and merchandises; but, on the
contrary, the said John Christopher then was and still is wholly unable
to pay the said sum of money last mentioned, or any part thereof, to the
said John and Edward, to wit, at London aforesaid, in the parish and
ward aforesaid; and the said John Pasley and Edward aver that the said
Joseph falsely and fraudulently deceived them in this, that at the time
of his making his said last-mentioned assertion and affirmation the said
John Christopher was not a person safely to be trusted or given credit
to in that respect, as aforesaid, and the said Joseph then well knew the
same, to wit, at London aforesaid, in the parish and ward aforesaid; by
reason of which said last-mentioned false, fraudulent, and deceitful
assertion and affirmation of the said Joseph, the said John Pasley and
Edward have been deceived and imposed upon, and have wholly lost the
said last-mentioned goods, wares, and merchandises, and the value
thereof, to wit, at London aforesaid, in the parish and ward aforesaid,
to the damage,” &c.

Application was first made for a new trial, which after argument was
refused, and then this motion in arrest of judgment. _Wood_ argued for
the plaintiffs, and _Russell_ for the defendant, in the last term; but
as the Court went so fully into this subject in giving their opinions,
it is unnecessary to give the arguments at the bar.

The Court took time to consider of this matter, and now delivered their
opinions _seriatim_.

GROSE, J. Upon the face of this count in the declaration no privity of
contract is stated between the parties. No consideration arises to the
defendant; and he is in no situation in which the law considers him in
any trust, or in which it demands from him any account of the credit of
Falch. He appears not to be interested in any transaction between the
plaintiffs and Falch, nor to have colluded with them; but he knowingly
asserted a falsehood, by saying that Falch might be safely intrusted
with the goods, and given credit to, for the purpose of inducing the
plaintiffs to trust him with them, by which the plaintiffs lost the
value of the goods. Then this is an action against the defendant for
making a false affirmation, or telling a lie, respecting the credit of a
third person, with intent to deceive, by which the third person was
damnified; and for the damages suffered, the plaintiffs contend that the
defendant is answerable in an action upon the case. It is admitted that
the action is new in point of precedent; but it is insisted that the law
recognizes principles on which it may be supported. The principle upon
which it is contended to lie is that, wherever deceit or falsehood is
practised to the detriment of another, the law will give redress. This
proposition I controvert, and shall endeavor to show that, in every case
where deceit or falsehood is practised to the detriment of another, the
law will not give redress; and I say that by the law, as it now stands,
no action lies against any person standing in the predicament of this
defendant for the false affirmation stated in the declaration. If the
action can be supported, it must be upon the ground that there exists in
this case what the law deems _damnum cum injuria_. If it does, I admit
that the action lies; and I admit that upon the verdict found the
plaintiffs appear to have been damnified. But whether there has been
_injuria_, a wrong, a tort, for which an action lies, is a matter of
law. The tort complained of is the false affirmation made with intent to
deceive; and it is said to be an action upon the case analogous to the
old writ of deceit. When this was first argued at the bar, on the motion
for a new trial, I confess I thought it reasonable that the action
should lie; but, on looking into the old books for cases in which the
old action of deceit has been maintained upon the false affirmation of
the defendant, I have changed my opinion. The cases on this head are
brought together in Bro. tit. Deceit, pl. 29, and in Fitz. Abr. I have
likewise looked into Danvers, Kitchins, and Comyns, and I have not met
with any case of an action upon a false affirmation, except against a
party to a contract, and where there is a promise, either express or
implied, that the fact is true, which is misrepresented; and no other
case has been cited at the bar. Then if no such case has ever existed,
it furnishes a strong objection against the action, which is brought for
the first time for a supposed injury, which has been daily committed for
centuries past. For I believe there has been no time when men have not
been constantly damnified by the fraudulent misrepresentations of
others; and if such an action would have lain, there certainly has been,
and will be, a plentiful source of litigation, of which the public are
not hitherto aware. A variety of cases may be put. Suppose a man
recommends an estate to another, as knowing it to be of greater value
than it is; when the purchaser has bought it he discovers the defect,
and sells the estate for less than he gave; why may not an action be
brought for the loss upon any principle that will support this action?
And yet such an action has never been attempted. Or suppose a person
present at the sale of a horse asserts that he was his horse, and that
he knows him to be sound and sure-footed, when in fact the horse is
neither the one nor the other; according to the principle contended for
by the plaintiffs, an action lies against the person present as well as
the seller, and the purchaser has two securities. And even in this very
case, if the action lies, the plaintiffs will stand in a peculiarly
fortunate predicament, for they will then have the responsibility both
of Falch and the defendant. And they will be in a better situation than
they would have been if, in the conversation that passed between them
and the defendant, instead of asserting that Falch might safely be
trusted, the defendant had said, “If he do not pay for the goods, I
will;” for then undoubtedly an action would not have lain against the
defendant. Other and stronger cases may be put of actions that must
necessarily spring out of any principle upon which this can be
supported, and yet which were never thought of till the present action
was brought. Upon what principle is this act said to be an injury? The
plaintiffs say, on the ground that, when the question was asked, the
defendant was bound to tell the truth. There are cases, I admit, where a
man is bound not to misrepresent, but to tell the truth; but no such
case has been cited, except in the case of contracts; and all the cases
of deceit for misinformation may, it seems to me, be turned into actions
of assumpsit. And so far from a person being bound in a case like the
present to tell the truth, the books supply me with a variety of cases,
in which even the contracting party is not liable for a
misrepresentation. There are cases of two sorts in which, though a man
is deceived, he can maintain no action. The first class of cases (though
not analogous to the present) is where the affirmation is that the thing
sold has not a defect which is a visible one; there the imposition, the
fraudulent intent, is admitted, but it is no tort. The second head of
cases is where the affirmation is (what is called in some of the books)
a nude assertion, such as the party deceived may exercise his own
judgment upon; as where it is matter of opinion, where he may make
inquiries into the truth of the assertion, and it becomes his own fault
from laches that he is deceived. 1 Roll. Abr. 101; Yelv. 20; 1 Sid. 146;
Cro. Jac. 386; Bayly _v._ Merrel. In Harvey _v._ Young, Yelv. 20, J. S.,
who had a term for years, affirmed to J. D. that the term was worth £150
to be sold, upon which J. D. gave £150, and afterwards could not get
more than £100 for it, and then brought his action; and it was alleged
that this matter did not prove any fraud, for it was only a naked
assertion that the term was worth so much, and it was the plaintiff’s
folly to give credit to such assertion. But if the defendant had
warranted the term to be of such a value to be sold, and upon that the
plaintiff had bought it, it would have been otherwise; for the warranty
given by the defendant is a matter to induce confidence and trust in the
plaintiff. This case, and the passage in 1 Roll. Abr. 101, are
recognized in 1 Sid. 146. How, then, are the cases? None exist in which
such an action as the present has been brought; none, in which any
principle applicable to the present case has been laid down to prove
that it will lie; not even a _dictum_. But from the cases cited some
principles may be extracted to show that it cannot be sustained: 1st.
That what is fraud, which will support an action, is matter of law. 2d.
That in every case of a fraudulent misrepresentation, attended with
damage, an action will not lie even between contracting parties. 3d.
That if the assertion be a nude assertion, it is that sort of
misrepresentation the truth of which does not lie merely in the
knowledge of the defendant, but may be inquired into, and the plaintiff
is bound so to do; and he cannot recover a damage which he has suffered
by his laches. Then let us consider how far the facts of the case come
within the last of these principles. The misrepresentation stated in the
declaration is respecting the credit of Falch; the defendant asserted
that the plaintiffs might safely give him credit; but credit to which a
man is entitled is matter of judgment and opinion, on which different
men might form different opinions, and upon which the plaintiffs might
form their own, to mislead which no fact to prove the good credit of
Falch is falsely asserted. It seems to me, therefore, that any assertion
relative to credit, especially where the party making it has no
interest, nor is in any collusion with the person respecting whose
credit the assertion is made, is like the case in Yelverton respecting
the value of the term. But at any rate, it is not an assertion of a fact
peculiarly in the knowledge of the defendant. Whether Falch deserved
credit depended on the opinion of many; for credit exists on the good
opinion of many. Respecting this the plaintiffs might have inquired of
others who knew as much as the defendant; it was their fault that they
did not, and they have suffered damage by their own laches. It was owing
to their own gross negligence that they gave credence to the assertion
of the defendant, without taking pains to satisfy themselves that that
assertion was founded in fact, as in the case of Bayly _v._ Merrel. I
am, therefore, of opinion that this action is as novel in principle as
it is in precedent, that it is against the principles to be collected
from analogous cases, and consequently that it cannot be maintained.

BULLER, J. The foundation of this action is fraud and deceit in the
defendant, and damage to the plaintiffs. And a question is, whether an
action thus founded can be sustained in a court of law. Fraud without
damage, or damage without fraud, gives no cause of action; but where
these two concur, an action lies. Per Croke, J., 3 Bulst. 95. But it is
contended that this was a bare, naked lie; that, as no collusion with
Falch is charged, it does not amount to a fraud; and, if there were any
fraud, the nature of it is not stated. And it was supposed by the
counsel, who originally made the motion, that no action could be
maintained unless the defendant, who made this false assertion, had an
interest in so doing. I agree that an action cannot be supported for
telling a bare, naked lie; but that I define to be, saying a thing which
is false, knowing or not knowing it to be so, and without any design to
injure, cheat, or deceive another person. Every deceit comprehends a
lie; but a deceit is more than a lie, on account of the view with which
it is practised, its being coupled with some dealing, and the injury
which it is calculated to occasion, and does occasion, to another
person. Deceit is a very extensive head in the law; and it will be
proper to take a short view of some of the cases which have existed on
the subject, to see how far the Courts have gone, and what are the
principles upon which they have decided. I lay out of the question the
case in 2 Cro. 196, and all other cases which relate to freehold
interests in lands; for they go on the special reason that the seller
cannot have them without title, and the buyer is at his peril to see it.
But the cases cited on the part of the defendant deserving notice are
Yelv. 20, Carth. 90, Salk. 210. The first of these has been fully stated
by my brother Grose; but it is to be observed that the book does not
affect to give the reasons on which the Court delivered their judgment;
but it is a case quoted by counsel at the bar, who mentions what was
alleged by counsel in the other case. If the Court went on a distinction
between the words “warranty” and “affirmation,” the case is not law; for
it was rightly held by Holt, C. J., in the subsequent cases, and has
been uniformly adopted ever since, that an affirmation at the time of a
sale is a warranty, provided it appear on evidence to have been so
intended. But the true ground of that determination was that the
assertion was of mere matter of judgment and opinion; of a matter of
which the defendant had no particular knowledge, but of which many men
will be of many minds, and which is often governed by whim and caprice.
Judgment, or opinion, in such case implies no knowledge. And here this
case differs materially from that in Yelverton; my brother Grose
considers this assertion as mere matter of opinion only, but I differ
from him in that respect. For it is stated on this record that the
defendant knew that the fact was false. The case in Yelverton admits
that, if there had been fraud, it would have been otherwise. The case of
Crosse _v._ Gardner, Carth. 90, was upon an affirmation that oxen which
the defendant had in his possession and sold to the plaintiff were his,
when in truth they belonged to another person. The objection against the
action was that the declaration neither stated that the defendant
deceitfully sold them, or that he knew them to be the property of
another person; and a man may be mistaken in his property and right to a
thing without any fraud or ill intent. _Ex concessis_ therefore if there
were fraud or deceit, the action would lie; and knowledge of the
falsehood of the thing asserted is fraud and deceit. But,
notwithstanding these objections, the Court held that the action lay,
because the plaintiff had no means of knowing to whom the property
belonged but only by the possession. And in Cro. Jac. 474, it was held
that affirming them to be his, knowing them to be a stranger’s, is the
offence and cause of action. The case of Medina _v._ Stoughton, Salk.
210, in the point of decision, is the same as Crosse _v._ Gardner; but
there is an _obiter dictum_ of Holt, C. J., that where the seller of a
personal thing is out of possession, it is otherwise; for there may be
room to question the seller’s title, and _caveat emptor_ in such case to
have an express warranty or a good title. This distinction by Holt is
not mentioned by Lord Raym. 593, who reports the same case; and if an
affirmation at the time of sale be a warranty, I cannot feel a
distinction between the vendor’s being in or out of possession. The
thing is bought of him, and in consequence of his assertion; and if
there be any difference, it seems to me that the case is strongest
against the vendor when he is out of possession, because then the vendee
has nothing but the warranty to rely on. These cases, then, are so far
from being authorities against the present action, that they show that
if there be fraud or deceit, the action will lie; and that knowledge of
the falsehood of the thing asserted is fraud and deceit. Collusion,
then, is not necessary to constitute fraud. In the case of a conspiracy,
there must be a collusion between two or more to support an indictment;
but if one man alone be guilty of an offence which, if practised by two,
would be the subject of an indictment for a conspiracy, he is civilly
liable in an action for reparation of damages at the suit of the person
injured. That knowledge of the falsehood of the thing asserted
constitutes fraud, though there be no collusion, is further proved by
the case of Risney _v._ Selby, Salk. 211, where, upon a treaty for the
purchase of a house, the defendant fraudulently affirmed that the rent
was £30 per annum, when it was only £20 per annum, and the plaintiff had
his judgment; for the value of the rent is a matter which lies in the
private knowledge of the landlord and tenant; and if they affirm the
rent to be more than it is, the purchaser is cheated, and ought to have
a remedy for it. No collusion was there stated; nor does it appear that
the tenant was ever asked a question about the rent, and yet the
purchaser might have applied to him for information; but the judgment
proceeded wholly upon the ground that the defendant knew that what he
asserted was false. And, by the words of the book, it seems that if the
tenant had said the same thing he also would have been liable to an
action. If so, that would be an answer to the objection that the
defendant in this case had no interest in the assertion which he made.
But I shall not leave this point on the _dictum_ or inference which may
be collected from that case. If A., by fraud and deceit, cheat B. out of
£1,000, it makes no difference to B. whether A. or any other person
pockets that £1,000. He has lost his money; and if he can fix fraud upon
A., reason seems to say that he has a right to seek satisfaction against
him. Authorities are not wanting on this point. 1 Roll. Abr. 91, pl. 7.
If the vendor affirm that the goods are the goods of a stranger, his
friend, and that he had authority from him to sell them, and upon that
B. buys them, when in truth they are the goods of another, yet, if he
sell them fraudulently and falsely on this pretence of authority, though
he do not warrant them, and though it be not averred that he sold them
knowing them to be the goods of the stranger, yet B. shall have an
action for this deceit. It is not clear from this case whether the fraud
consisted in having no authority from his friend, or in knowing that the
goods belonged to another person; what is said at the end of the case
only proves that “falsely” and “fraudulently” are equivalent to
“knowingly.” If the first were the fact in the case, namely, that he had
no authority, the case does not apply to this point; but if he had an
authority from his friend, whatever the goods were sold for his friend
was entitled to, and he had no interest in them. But, however that might
be, the next case admits of no doubt. For in 1 Roll. Abr. 100, pl. 1, it
was held that if a man acknowledge a fine in my name, or acknowledge a
judgment in an action in my name of my land, this shall bind me forever;
and therefore I may have a writ of deceit against him who acknowledged
it. So if a man acknowledge a recognizance, statute-merchant or staple,
there is no foundation for supposing that in that case the person
acknowledging the fine or judgment was the same person to whom it was so
acknowledged. If that had been necessary it would have been so stated;
but if it were not so, he who acknowledged the fine had no interest in
it. Again, in 1 Roll. Abr. 95, l. 25, it is said, “If my servant lease
my land to another for years, reserving a rent for me, and, to persuade
the lessee to accept it, he promise that he shall enjoy the land without
incumbrances, if the land be incumbered, &c., the lessee may have an
action on the case against my servant, because he made an express
warranty.” Here, then, is a case in which the party had no interest
whatever. The same case is reported in Cro. Jac. 425; but no notice is
taken of this point, probably because the reporter thought it immaterial
whether the warranty be by the master or servant. And if the warranty be
made at the time of the sale, or before the sale, and the sale is upon
the faith of the warranty, I can see no distinction between the cases.
The gist of the action is fraud and deceit; and if that fraud and deceit
can be fixed by evidence on one who had no interest in his iniquity, it
proves his malice to be the greater. But it was objected to this
declaration that if there were any fraud, the nature of it is not
stated. To this the declaration itself is so direct an answer that the
case admits of no other. The fraud is that the defendant procured the
plaintiffs to sell goods on credit to one whom they would not otherwise
have trusted, by asserting that which he knew to be false. Here, then,
is the fraud and the means by which it was committed; and it was done
with a view to enrich Falch by impoverishing the plaintiffs, or, in
other words, by cheating the plaintiffs out of their goods. The cases
which I have stated, and Sid. 146, and 1 Keb. 522, prove that the
declaration states more than is necessary; for _fraudulenter_ without
sciens, or sciens without _fraudulenter_, would be sufficient to support
the action. But, as Mr. J. Twisden said in that case, the fraud must be
proved. The assertion alone will not maintain the action; but the
plaintiff must go on to prove that it was false, and that the defendant
knew it to be so; by what means that proof is to be made out in evidence
need not be stated in the declaration. Some general arguments were urged
at the bar to show that mischiefs and inconveniences would arise if this
action were sustained; for if a man who is asked a question respecting
another’s responsibility hesitate or is silent, he blasts the character
of the tradesman; and if he say that he is insolvent, he may not be able
to prove it. But let us see what is contended for: it is nothing less
than that a man may assert that which he knows to be false, and thereby
do an everlasting injury to his neighbor, and yet not be answerable for
it. This is as repugnant to law as it is to morality. Then it is said
that the plaintiffs had no right to ask the question of the defendant.
But I do not agree in that; for the plaintiffs had an interest in
knowing what the credit of Falch was. It was not the inquiry of idle
curiosity, but it was to govern a very extensive concern. The defendant
undoubtedly had his option to give an answer to the question or not; but
if he gave none, or said he did not know, it is impossible for any court
of justice to adopt the possible inferences of a suspicious mind as a
ground for grave judgment. All that is required of a person in the
defendant’s situation is that he shall give no answer, or that, if he
do, he shall answer according to the truth as far as he knows. The
reasoning in the case of Coggs _v._ Barnard, which was cited by the
plaintiff’s counsel, is, I think, very applicable to this part of the
case. If the answer import insolvency, it is not necessary that the
defendant should be able to prove that insolvency to a jury; for the law
protects a man in giving that answer, if he does it in confidence and
without malice. No action can be maintained against him for giving such
an answer, unless express malice can be proved. From the circumstance of
the law giving that protection, it seems to follow, as a necessary
consequence, that the law not only gives sanction to the question, but
requires that, if it be answered at all, it shall be answered honestly.
There is a case in the books which, though not much to be relied on, yet
serves to show that this kind of conduct has never been thought innocent
in Westminster Hall. In R. _v._ Gunston, 1 Str. 589, the defendant was
indicted for pretending that a person of no reputation was Sir J.
Thornycraft, whereby the prosecutor was induced to trust him; and the
Court refused to grant a _certiorari_, unless a special ground were laid
for it. If the assertion in that case had been wholly innocent the Court
would not have hesitated a moment. How, indeed, an indictment could be
maintained for that I do not well understand; nor have I learnt what
became of it. The objection to the indictment is that it was merely a
private injury: but that is no answer to an action. And if a man will
wickedly assert that which he knows to be false, and thereby draws his
neighbor into a heavy loss, even though it be under the specious
pretence of serving his friend, I say _ausis talibus istis non jura
subserviunt_.

ASHHURST, J. The objection in this case, which is to the third count in
the declaration, is that it contains only a bare assertion, and does not
state that the defendant had any interest, or that he colluded with the
other party who had. But I am of opinion that the action lies
notwithstanding this objection. It seems to me that the rule laid down
by Croke, J., in Bayly _v._ Merrel, 3 Bulstr. 95, is a sound and solid
principle, namely, that fraud without damage, or damage without fraud,
will not found an action; but where both concur an action will lie. The
principle is not denied by the other judges, but only the application of
it, because the party injured there, who was the carrier, had the means
of attaining certain knowledge in his own power, namely, by weighing the
goods; and therefore it was a foolish credulity, against which the law
will not relieve. But that is not the case here, for it is expressly
charged that the defendant knew the falsity of the allegation, and which
the jury have found to be true; but _non constat_ that the plaintiffs
knew it, or had any means of knowing it, but trusted to the veracity of
the defendant. And many reasons may occur why the defendant might know
that fact better than the plaintiffs; as if there had before this event
subsisted a partnership between him and Falch which had been dissolved;
but at any rate it is stated as a fact that he knew it. It is admitted
that a fraudulent affirmation, when the party making it has an interest,
is a ground of action, as in Risney _v._ Selby, which was a false
affirmation made to a purchaser as to the rent of a farm which the
defendant was in treaty to sell to him. But it was argued that the
action lies not unless where the party making it has an interest, or
colludes with one who has. I do not recollect that any case was cited
which proves such a position; but if there were any such to be found, I
should not hesitate to say that it could not be law, for I have so great
a veneration for the law as to suppose that nothing can be law which is
not founded in common sense or common honesty. For the gist of the
action is the injury done to the plaintiff, and not whether the
defendant meant to be a gainer by it; what is it to the plaintiff
whether the defendant was or was not to gain by it? the injury to him is
the same. And it should seem that it ought more emphatically to lie
against him, as the malice is more diabolical if he had not the
temptation of gain. For the same reason, it cannot be necessary that the
defendant should collude with one who has an interest. But if collusion
were necessary, there seems all the reason in the world to suppose both
interest and collusion from the nature of the act; for it is to be hoped
that there is not to be found a disposition so diabolical as to prompt
any man to injure another without benefiting himself. But it is said
that if this be determined to be law, any man may have an action brought
against him for telling a lie, by the crediting of which another happens
eventually to be injured. But this consequence by no means follows; for
in order to make it actionable it must be accompanied with the
circumstances averred in this count, namely, that the defendant,
“intending to deceive and defraud the plaintiffs, did deceitfully
encourage and persuade them to do the act, and for that purpose made the
false affirmation, in consequence of which they did the act.” Any lie
accompanied with those circumstances I should clearly hold to be the
subject of an action; but not a mere lie thrown out at random without
any intention of hurting anybody, but which some person was foolish
enough to act upon; for the _quo animo_ is a great part of the gist of
the action. Another argument which has been made use of is, that this is
a new case, and that there is no precedent of such an action. Where
cases are new in their principle, there I admit that it is necessary to
have recourse to legislative interposition in order to remedy the
grievance; but where the case is only new in the instance, and the only
question is upon the application of a principle recognized in the law to
such new case, it will be just as competent to courts of justice to
apply the principle to any case which may arise two centuries hence, as
it was two centuries ago; if it were not, we ought to blot out of our
law-books one fourth part of the cases that are to be found in them. The
same objection might, in my opinion, have been made with much greater
reason in the case of Coggs _v._ Barnard; for there the defendant, so
far from meaning an injury, meant a kindness, though he was not so
careful as he should have been in the execution of what he undertook.
And indeed the principle of the case does not, in my opinion, seem so
clear as that of the case now before us, and yet that case has always
been received as law. Indeed, one great reason, perhaps, why this action
has never occurred may be that it is not likely that such a species of
fraud should be practised unless the party is in some way interested.
Therefore I think the rule for arresting the judgment ought to be
discharged.

LORD KENYON, C. J. I am not desirous of entering very fully into the
discussion of this subject, as the argument comes to me quite exhausted
by what has been said by my brothers. But still I will say a few words
as to the grounds upon which my opinion is formed. All laws stand on the
best and broadest basis which go to enforce moral and social duties.
Though, indeed, it is not every moral and social duty the neglect of
which is the ground of an action. For there are, which are called in the
civil law, duties of imperfect obligation, for the enforcing of which no
action lies. There are many cases where the pure effusion of a good mind
may induce the performance of particular duties, which yet cannot be
enforced by municipal laws. But there are certain duties, the
non-performance of which the jurisprudence of this country has made the
subject of a civil action. And I find it laid down by the Lord Ch. B.
Comyns (Com. Dig. tit. Action upon the Case for a Deceit, A. 1), that
“an action upon the case for a deceit lies when a man does any deceit to
the damage of another.” He has not, indeed, cited any authority for his
opinion; but his opinion alone is of great authority, since he was
considered by his contemporaries as the most able lawyer in Westminster
Hall. Let us, however, consider whether that proposition is not
supported by the invariable principle in all the cases on this subject.
In 3 Bulstr. 95, it was held by Croke, J., that “fraud without damage,
or damage without fraud, gives no cause of action; but where these two
do concur, there an action lieth.” It is true, as has been already
observed, that the judges were of opinion in that case that the action
did not lie on other grounds. But consider what those grounds were.
Dodderidge, J., said: “If we shall give way to this, then every carrier
would have an action upon the case; but he shall not have any action for
this, because it is merely his own default that he did not weigh it.”
Undoubtedly, where the common prudence and caution of man are sufficient
to guard him, the law will not protect him in his negligence. And in
that case, as reported in Cro. Jac. 386, the negligence of the plaintiff
himself was the cause for which the Court held that the action was not
maintainable. Then, how does the principle of that case apply to the
present? There are many situations in life, and particularly in the
commercial world, where a man cannot by any diligence inform himself of
the degree of credit which ought to be given to the persons with whom he
deals; in which cases he must apply to those whose sources of
intelligence enable them to give that information. The law of prudence
leads him to apply to them; and the law of morality ought to induce them
to give the information required. In the case of Bulstrode, the carrier
might have weighed the goods himself; but in this case the plaintiffs
had no means of knowing the state of Falch’s credit but by an
application to his neighbors. The same observation may be made to the
cases cited by the defendant’s counsel respecting titles to real
property. For a person does not have recourse to common conversation to
know the title of an estate which he is about to purchase; but he may
inspect the title-deeds; and he does not use common prudence if he rely
on any other security. In the case of Bulstrode, the Court seemed to
consider that _damnum_ and _injuria_ are the grounds of this action; and
they all admitted that, if they had existed in that case, the action
would have lain there; for the rest of the judges did not controvert the
opinion of Croke, J., but denied the application of it to that
particular case. Then it was contended here that the action cannot be
maintained for telling a naked lie; but that proposition is to be taken
_sub modo_. If, indeed, no injury is occasioned by the lie it is not
actionable; but if it be attended with a damage, it then becomes the
subject of an action. As calling a woman a whore, if she sustain no
damage by it, is not actionable; but if she lose her marriage by it,
then she may recover satisfaction in damages. But in this case the two
grounds of the action concur; here are both the _damnum et injuria_. The
plaintiffs applied to the defendant, telling him that they were going to
deal with Falch, and desiring to be informed of his credit, when the
defendant fraudulently, and knowing it to be otherwise, and with a
design to deceive the plaintiffs, made the false assertion which is
stated on the record, by which they sustained a considerable damage.
Then, can a doubt be entertained for a moment but that this is injurious
to the plaintiffs? If this be not an injury, I do not know how to define
the word. Then, as to the loss; this is stated in the declaration, and
found by the verdict. Several of the words stated in this declaration,
and particularly _fraudulenter_, did not occur in several of the cases
cited. It is admitted that the defendant’s conduct was highly immoral
and detrimental to society. And I am of opinion that the action is
maintainable on the grounds of deceit in the defendant, and injury and
loss to the plaintiffs.

_Rule for arresting the judgment discharged._[314]

WORK _v._ CAMPBELL
SUPREME COURT, CALIFORNIA, DECEMBER 13, 1912.
_Reported in 164 California Reports, 343._

ANGELLOTTI, J.[315] The action is one to recover of defendant fifteen
thousand dollars’ damages alleged to have been caused plaintiff by
reason of the fact that she has become finally separated from her
husband, L. B. Work, and has thereby suffered and will continue to
suffer great distress of mind and mental anguish, and has lost and
will continue to lose forever his society, comfort, love, and
affection, as well as the support and maintenance which he would give
her. On or about February 15, 1910, the husband “separated from
plaintiff, and from their said children, and departed from the said
county of Kings, and has gone to parts unknown to plaintiff with
intent to desert and abandon plaintiff.” It is not alleged that
defendant, who is the husband of an aunt of plaintiff, ever said or
did anything to influence the husband to leave plaintiff, or to cause
any change of feeling on his part toward her. It is frankly alleged
that his departure was caused solely by the fact that she became very
angry with him, refused to see him, refused to speak or talk with him,
sent him a letter in which she told him that she would hold no further
communication with him, but would sue him for a divorce and that she
hoped she might never see or speak to him again. Her complaint
characterizes her conduct toward her husband, alleged to be the sole
inducement for his departure, as “harsh and cruel treatment” of him.
The claim of any liability on the part of defendant to her on account
of the separation is based on allegations to the effect that her
attitude and conduct toward her husband, which caused the separation,
were wholly induced by certain false statements knowingly made to her
by defendant concerning her husband, which, owing to her confidence
and trust in defendant, she fully believed and relied upon, and
certain advice and counsel given to her by defendant in the matter,
all of which statements and advice were wilfully made and given by
defendant with the intent and design on his part to cause a separation
between plaintiff and her husband. The complaint alleges in detail the
alleged statements and advice of defendant in this behalf, and also
the object sought to be obtained by him in causing a separation of the
husband and wife, but no useful purpose can be subserved by stating
these things here. It further alleges that when she discovered the
falsity of the representations and the intent and purpose of defendant
in making them, she at once instituted diligent search for her
husband, but has been unable to ascertain his whereabouts. It is
further alleged “that by reason of the premises hereinabove stated,
defendant has unlawfully, fraudulently and wrongfully abducted and
enticed from the plaintiff her said husband, and that by reason of the
said abduction, this plaintiff has suffered,” &c., to her great damage
in the sum of fifteen thousand dollars.

Under our statutes, a wife may maintain an action for damages suffered
by her by reason of the abduction or enticement from her of her
husband, as may a husband for the damages suffered by him for the
abduction or enticement from him of his wife, and in such an action by
the wife her husband is not a necessary party plaintiff. (See Civ.
Code, sec. 49, subds. 1 and 2; Humphrey _v._ Pope, 122 Cal. 253 [54
Pac. 847].) It may be assumed, purely for the purposes of this
decision, that no cause of action for the abduction or enticement of
her husband from her is stated by the wife in her complaint....

We can see no reason why, regardless of the question we have just
referred to, the matters alleged in the complaint do not show a cause
of action in behalf of plaintiff against defendant. According to the
complaint, the sole cause of the conduct of plaintiff causing the
separation of the husband and wife, with the same injurious
consequences to her that would have followed the abduction or
enticement of her husband from her, was the action of defendant in
making to her the wilfully false representations concerning her
husband, for the very purpose and with the design on his part to so
influence her as to bring about such a separation. His deception in
the matter was the sole cause of such conduct on her part, and such
conduct on her part was tantamount to a refusal by her to continue the
relation between her husband and herself of husband and wife. It is
declared in section 1708 of the Civil Code that “every person is
bound, without contract, to abstain from injuring the person or
property of another, or infringing upon any of his rights,” and in
section 1709, “one who wilfully deceives another with intent to induce
him to alter his position to his injury or risk, is liable for any
damage which he thereby suffers.” These are but statements of the well
settled law independent of statute. It is substantially said in 20
Cyc. at page 10, and the statement is well supported by the
authorities, that as a general rule, an action for damages for deceit
will lie wherever a party has made a false representation of a
material fact susceptible of knowledge knowing it to be false or not
having sufficient knowledge on the subject to warrant the
representation, with the intent to induce the person to whom it is
made, in reliance upon it, to do or refrain from doing something to
his pecuniary hurt, when such person, acting with reasonable prudence,
is thereby deceived and induced to so do or refrain, to his damage. No
reason is apparent to us why the alleged facts set forth in the
complaint should not be held to bring the case within the operation of
this rule.

It is no answer to such an action that the action or conduct of the
plaintiff is the direct cause of the result occasioning damages. Such
is the situation wherever such an action is allowed. The whole basis
of the action is that such act or conduct is fraudulently induced by
the defendant. A is wilfully deceived by B into selling goods to C
upon credit, by false representations as to C’s solvency wilfully and
knowingly made by B to A for the very purpose of inducing him to so do
and thereby suffers a pecuniary injury. The direct and immediate cause
of the injury is, of course, the sale by A to C on credit. But B is
held liable to A for the damage thereby suffered because by fraud he
induced A to make such sale on credit.

It may be urged that a person fraudulently misled cannot found his
claim on conduct violative of sound morals or public policy, or of a
criminal statute. Here the conduct and attitude of the wife causing
the separation was her harsh and cruel conduct toward her husband, her
refusal to live with him or to see him, her refusal to further
continue the relationship of husband and wife, &c. Of course, all her
conduct would have been fully justified if the representations made to
her by defendant had been true in point of fact, as the complaint
sufficiently alleges that plaintiff believed to be the situation. It
has been held that where the fraudulent representation is intended to
create and actually does create in the mind of the party a belief that
under the circumstances represented the act which he is induced to do
is neither illegal nor immoral, he may recover the damages he has
sustained even though a statute makes the act a criminal offence. (See
20 Cyc. 80; Burrows _v._ Rhodes, [1899] 1 Q. B. 816; Prescott _v._
Norris, 32 N. H. 101; Morrill _v._ Palmer, 68 Vt. 1 [33 L. R. A. 411,
33 Atl. 829].) We are not called upon to go as far as this in this
case. The complaint indicates no criminal offence on plaintiff’s part.
Certainly, however, under the circumstances stated, it cannot fairly
be said that plaintiff did not believe her conduct toward her husband
to be in full accord with good morals and public policy, or was not
justified in so believing. It is not claimed that the complaint does
not sufficiently show that plaintiff acted with reasonable prudence in
accepting as true and relying on defendant’s statements. In view of
the circumstances alleged as to her relationship to defendant, and her
confidence and trust in him, we think the complaint is not fatally
defective in this regard, although it must be conceded to be somewhat
remarkable that a wife having any affection for or confidence in her
husband should be willing to accept as true such statements as are
here alleged to have been made to her, without making some further
inquiry.

We have not found any case in which the remedy of action for damages
for deceit has been invoked under such circumstances as appear here.
The fact that the case presented is unique in its circumstances is
not, however, any warrant for a refusal to apply a rule that appears,
on principle, to be applicable. We think the facts confessed by the
demurrer show a liability on the part of defendant to plaintiff for
any damage caused her by the loss of her husband.[316]

STATE _v._ GORDON
SUPREME COURT, KANSAS, JULY TERM, 1895.
_Reported in 56 Kansas Reports, 64._

Gordon was convicted and sentenced in the District Court upon a charge
of obtaining money from Trenier on false pretences. He appealed from the
judgment.

The facts alleged and proved were, in brief, as follows:—

Gordon represented to Trenier that Gordon and a certain Indian owned and
possessed a gold brick of the value of $10,000; that they were about to
take the brick to the United States Mint at Philadelphia to be coined
into money; that the Indian would not allow the brick to be taken to the
mint unless he received a certain sum of money on his interest in the
brick. Gordon told Trenier that, if Trenier would give Gordon money to
pay the Indian on his share in the brick, he (Gordon) would deliver said
brick to Trenier to be by Trenier taken to the mint, and that Trenier
should have a third interest in the money coined from the brick. Relying
on these statements, Trenier gave Gordon money to pay the Indian.

It appeared that Gordon and the Indian did not own or possess a gold
brick; that the representations were all known by Gordon to be false;
and that they were made for the purpose of defrauding Trenier.[317]

JOHNSTON, J.... The substantial features of the charge were
representations and assurances of present existing facts, viz., that
Gordon and the Indian were then the owners and possessors of a valuable
gold brick, which they then had in Shawnee County, and that they were
then on their road to take the gold brick to the United States Mint at
Philadelphia to be coined. It is alleged that on the faith of these
representations and the assurance of those facts the money was obtained
from Trenier. The mere fact that a false pretence of an existing or past
fact is accompanied by a future promise will not relieve the defendant
or take the case out of the operation of the statute. Besides,

“It is not necessary, to constitute the offence of obtaining goods by
false pretences, that the owner has been induced to part with his
property solely and entirely by pretences which are false; nor need the
pretences be the paramount cause of the delivery to the prisoner. It is
sufficient if they are a part of the moving cause, and without them the
defrauded party would not have parted with the property.” (In re Snyder,
17 Kan. 542.)

[Remainder of opinion omitted.]

_Judgment affirmed._[318]

EDGINGTON _v._ FITZMAURICE
IN THE COURT OF APPEAL, MARCH 7, 1885.
_Reported in Law Reports, 29 Chancery Division, 459._

Action against Fitzmaurice _et als._, directors of the Army and Navy
Provision Market (Limited), and against Hunt, the secretary, and Hanley,
the manager, asking for the repayment by them of a sum of £1500 advanced
by the plaintiff on debentures of the company, on the ground that he was
induced to advance the money by the fraudulent misrepresentations of the
defendants.

Plaintiff, who was a shareholder in the company, received a prospectus
issued by order of the directors, inviting subscription for debenture
bonds. This prospectus contained the following statement as to the
objects for which the issue of debentures was made:—

“1. To enable the society to complete the present alterations and
additions to the buildings, and to purchase their own horses and vans,
whereby a large saving will be effected in the cost of transport.

“2. To further develop the arrangements at present existing for the
direct supply of cheap fish from the coast, which are still in their
infancy.”

Plaintiff took debenture bonds to the amount of £1500; and testified
that he relied, as one inducement, on the fact that the company wanted
the money for the objects stated in the prospectus.

At the hearing before Denman, J., the plaintiff contended and offered
evidence tending to show that the real object of the directors in
issuing the debentures was to pay off pressing liabilities of the
company, and not to complete the buildings or to purchase horses and
vans, or to develop the business of the company.[319]

_Davey_, Q. C., _W. W. Karslake_, Q. C., and _J. Kaye_, for Fitzmaurice.

There was no misrepresentation of any fact, and the directors merely
stated their intention as to the money, which of course they might
alter. There is every difference between the two: Maddison _v._
Alderson, 8 App. Cases, 467. Unless it amounts to a contract, a mere
statement that you will do something is of no effect: Jordan _v._ Money,
5 H. L. C. 185; and if it was a contract then it was with the company,
and the directors cannot be sued: Ferguson _v._ Wilson, L. R. 2 Chan.
77.

_Sir F. Herschell_, in reply. An allegation of intention may be
fraudulent: Ex parte Whittaker, L. R. 10 Chan. 446.

[Denman, J., delivered an elaborate opinion, substantially sustaining
the plaintiff’s contention. He gave judgment against the directors.]

From this judgment, Fitzmaurice and the four other directors appealed.

BOWEN, L. J. [After stating the requisites of an action for deceit, and
commenting upon other alleged misrepresentations.] But when we come to
the third alleged misstatement I feel that the plaintiff’s case is made
out. I mean the statement of the objects for which the money was to be
raised. These were stated to be to complete the alterations and
additions to the buildings, to purchase horses and vans, and to develop
the supply of fish. A mere suggestion of possible purposes to which a
portion of the money might be applied would not have formed a basis for
an action of deceit. There must be a misstatement of an existing fact;
but the state of a man’s mind is as much a fact as the state of his
digestion. It is true that it is very difficult to prove what the state
of a man’s mind at a particular time is, but if it can be ascertained it
is as much a fact as anything else. A misrepresentation as to the state
of a man’s mind is, therefore, a misstatement of fact. Having applied as
careful consideration to the evidence as I could, I have reluctantly
come to the conclusion that the true objects of the defendants in
raising the money were not those stated in the circular. I will not go
through the evidence, but looking only to the cross-examination of the
defendants, I am satisfied that the objects for which the loan was
wanted were misstated by the defendants, I will not say knowingly, but
so recklessly as to be fraudulent in the eye of the law.

Then the question remains: Did this misstatement contribute to induce
the plaintiff to advance his money. Mr. Davey’s argument has not
convinced me that they did not. He contended that the plaintiff admits
that he would not have taken the debentures unless he had thought they
would give him a charge on the property, and therefore he was induced to
take them by his own mistake, and the misstatement in the circular was
not material. But such misstatement was material if it was actively
present to his mind when he decided to advance his money. The real
question is, what was the state of the plaintiff’s mind, and if his mind
was disturbed by the misstatement of the defendants, and such
disturbance was in part the cause of what he did, the mere fact of his
also making a mistake himself could make no difference. It resolves
itself into a mere question of fact. I have felt some difficulty about
the pleadings, because in the statement of claim this point is not
clearly put forward, and I had some doubt whether this contention as to
the third misstatement was not an afterthought. But the balance of my
judgment is weighed down by the probability of the case. What is the
first question which a man asks when he advances money? It is, what is
it wanted for? Therefore I think that the statement is material, and
that the plaintiff would be unlike the rest of his race if he was not
influenced by the statement of the objects for which the loan was
required. The learned judge in the Court below came to the conclusion
that the misstatement did influence him, and I think he came to a right
conclusion.

_Appeal dismissed._[320]

GALLAGHER _v._ BRUNEL
SUPREME COURT, NEW YORK, AUGUST, 1826.
_Reported in 6 Cowen, 347._

On demurrer to the declaration. The first count stated, that on the 9th
of April, 1823, Castro & Henriques proposed to purchase of the
plaintiffs a quantity of cotton, at a certain price; part to be paid in
cash, and part to be secured by the promissory note of the purchasers
endorsed by the defendant, at four months; that C. & H. were then unable
to pay for the cotton; and the plaintiffs therefore unwilling to sell
all, or any part, on their sole credit; and the defendant knew this.
Yet, contriving and intending to injure and defraud the plaintiffs; and
to induce them to sell and deliver the cotton to C. & H.; and thereby
subject the plaintiffs to the loss of the balance due after the cash
payment, the defendant falsely and deceitfully represented and held out
to the plaintiffs, that he, the defendant, was willing to endorse the
proposed note; and with the like intent, &c., falsely, fraudulently, and
deceitfully encouraged and induced the plaintiffs to sell and deliver
the cotton. That they did sell and deliver it, in confidence of such
false, fraudulent and deceitful representation, &c., when, in truth, the
defendant was then not willing, and did not mean or intend to endorse
the note, or make himself responsible; nor did he then, nor had he at
any time since endorsed, or made himself legally responsible. By means
whereof the plaintiffs lost the cotton and the price.

The second count averred, that C. & H. were in bad credit and unfit to
be trusted, at the time of the sale. But the defendant, well knowing
this; and contriving and intending to defraud and injure the plaintiffs,
and wrongfully and deceitfully to enable C. & H. to obtain the
possession of the cotton, and convert it to their own use, without
paying the plaintiffs for it; falsely, fraudulently and deceitfully
represented to the plaintiffs, and gave them to understand and believe,
that, in case they would sell the cotton to C. & H., the defendant would
become answerable to the plaintiffs, for so much as should be unpaid, by
endorsing the note or notes of C. & H., &c.; that without such
representation, they would not have sold the cotton, &c. (_In other
respects, this count was substantially the same as the first._)

General demurrer and joinder.[321]

WOODWORTH, J.... The attempt here is, to sustain the action, not on a
contract, which, if in writing, might perhaps be obligatory; but on a
deceitful representation. If the promise was in writing, I perceive no
objection to its validity, inasmuch as a good consideration is stated,
viz., that if the plaintiffs would sell and deliver, the defendant would
endorse. If, then, there is a binding contract existing between the
parties, and on which the defendant is liable, I apprehend it is not
competent for the plaintiffs to say they have an election to turn this
into an action for deceit, and recover in that form, unless the case is
such as to render the party liable, not only on the contract; but in
addition, contains facts sufficient to sustain an action for deceit. For
example, suppose A represents B to be solvent, knowing it to be false,
whereby B obtains credit; but notwithstanding this representation, the
seller takes from A his written stipulation to guaranty the payment. In
this case, I perceive no objection to a creditor’s election of the
remedy. The fraudulent representation of solvency would sustain the
action for deceit. The written guaranty would support an action on the
contract. It seems, therefore, immaterial here, whether the plaintiffs
have or have not a demand which may be enforced in a different form. The
question is, will the facts stated sustain an action for deceit?

After attentive consideration, I am inclined to think the plaintiffs are
not entitled to recover. However reprehensible the conduct of the
defendant may appear in a moral point of view, we cannot deny to him the
protection of the common law; which does not reach cases of imperfect
obligation. If this be an attempt on the part of the plaintiffs to get
rid of the statute of frauds, I can only say, the occasion justified the
experiment, and calls for a patient and critical examination.

If this case is stripped of the general allegations in the declaration,
of fraud and deceit, it appears to me that the gravamen is nothing more
than that the defendant encouraged the plaintiffs to sell to Castro and
Henriques; and, as surety, promised to endorse their notes. The
intention of the party not to fulfil, has not, I believe, ever been
considered among the fraudulent acts, which, in judgment of law, render
a party liable. The maker of a promissory note may not, at the time,
intend to make payment. On this note, the plaintiff may declare that the
defendant intended to deceive and defraud; but it is mere matter of
form, sanctioned by precedent in pleading. The maker may go farther, and
on the strength of assurances to pay punctually, never intended to be
performed, induce the lender to part with his money, and accept the
borrower’s note. All this is immoral. Still the remedy is on the
contract. The law has not recognized it as the substantive ground of
fraud. That no cases are to be met with in the books going the length
contended for, is good evidence that the doctrine is novel, and has
never been acted upon.

* * * * *

It is evident what must be the species of fraud, for which the law gives
redress; falsehood as to an existing fact. If, as Buller, J., observes,
every deceit includes a lie, it follows, that the representation, and
promise of the defendant are not comprised within the legal acceptation
of that term. The test of a lie is, that the fact asserted is not true
at the time; which cannot be predicated of the facts in this case; for,
although the defendant promised with the intent not to perform, it was
not then false, nor could it be. It referred to an act to be done _in
futuro_. Until the defendant had refused to endorse, it could not be
said he had violated his promise.

* * * * *

_Judgment for defendant._[322]

SWIFT _v._ ROUNDS
SUPREME COURT, RHODE ISLAND, JULY 6, 1896.
_Reported in 19 Rhode Island Reports, 527._

Trespass on the Case for deceit. Certified from the Common Pleas
Division on demurrer to the declaration.

TILLINGHAST, J. This is trespass on the case for deceit. The first count
in the declaration alleges that the defendant, intending to deceive and
defraud the plaintiffs, did buy of them on credit certain goods and
chattels of the value of $400, the said defendant not then and there
intending to pay for the same, but intending wickedly and fraudulently
to cheat the plaintiffs out of the value of said goods and chattels,
which said sum of $400 the defendant refuses to pay, to the plaintiffs’
damage, &c. The second count, after setting out the fraudulent conduct
aforesaid, alleges that the defendant thereby then and there represented
that he intended to pay for said goods, but that he did not then and
there intend to pay for the same, but wickedly and fraudulently intended
to cheat the plaintiffs out of the value of said goods and chattels, &c.

To this declaration the defendant has demurred, and for grounds of
demurrer to the first count thereof, he says, (1) that the plaintiffs do
not allege any false representation by the defendant; (2) that the
plaintiffs do not allege that they have acted upon any false
representation of the defendant; and (3) that the plaintiffs do not
allege any damage suffered by them in acting upon any false
representation of the defendant.

The grounds of demurrer to the second count are, (1) that the plaintiffs
do not allege any false representation by the defendant as to any fact
present or past, but only as to something that would happen in the
future, which, if in the future it proved not to be true, would not be
the subject matter of a false representation, but simply a promise
broken, and therefore not a ground of an action of deceit; (2) that the
plaintiffs do not allege that they acted upon any false representation
made by the defendant; and (3) that the plaintiffs do not allege that
they suffered any damage by acting upon any false representation made by
the defendant to the plaintiffs.

We are inclined to the opinion, after some hesitation, that the
declaration states a case of deceit. Any fraudulent misrepresentation or
device whereby one person deceives another, who has no means of
detecting the fraud, to his injury and damage, is a sufficient ground
for an action of deceit. Deceit is a species of fraud, and consists of
any false representation or contrivance whereby one person overreaches
and misleads another, to his hurt. And, while the fraudulent
misrepresentation relied upon usually consists of statements made as to
material facts, either verbally or in writing, yet it may be made by
conduct as well. Grinnell on Law of Deceit, p. 35. A man may not only
deceive another, to his hurt, by deliberately asserting a falsehood, as,
for instance, by stating that A. is an honest man when he knows him to
be a rogue, or that a horse is sound and kind when he knows him to be
unsound and vicious, but also by any act or demeanor which would
naturally impress the mind of a careful man with a mistaken belief, and
form the basis of some change of position by him. 1 Story, Eq. Jur. §
192. In Ex parte Whittaker, In re Shackleton, L. R. 10 Ch. 449, Mellish,
L. J., says: “It is true, indeed, that a party must not make any
misrepresentation, express or _implied_, and as at present advised I
think Shackleton when he went for the goods must be taken to have made
an implied representation that he intended to pay for them, and if it
were clearly made out that at that time he did not intend to pay for
them, I should consider that a case of fraudulent misrepresentation was
shown.” See also Lobdell _v._ Baker, 1 Met. 201; 1 Benjamin on Sales,
ed. of 1888, § 524.

In the case at bar, the declaration alleges that the defendant bought
the goods in question upon credit, fraudulently intending not to pay for
them but to cheat the plaintiffs out of the value thereof. By the act of
buying the goods of the plaintiffs the defendant impliedly promised to
pay for the same, which promise was equally as strong and binding as
though it had been made in words, or even in writing. The plaintiffs had
the right to rely on this promise, and to presume that it was made in
good faith. It turns out, however, according to the allegations
aforesaid, that it was not made in good faith, but, on the contrary, was
made for the purpose of deceiving the plaintiffs into the act of parting
with their goods, the defendant intending by the transaction to cheat
them out of the value thereof. The fraud, then, consisted in the making
of the promise, in the manner aforesaid, with intent not to perform it.
By the act of purchasing the goods on credit, the defendant impliedly
represented that he intended to pay for them. The plaintiffs relied on
this representation, which was material and fraudulent, and were damaged
thereby. All the necessary elements of fraud or deceit therefore were
present in the transaction. See Upton _v._ Vail, 6 Johns. 181;
Bartholomew _v._ Bentley, 15 Ohio, 666; Bishop, Non-Contract Law, §§
314–318; Burrill _v._ Stevens, 73 Me. 400; Barney _v._ Dewey, 13 Johns.
226; Hubbel _v._ Meigs, 50 N. Y. 491. The general doctrine which
controls this action is fully reviewed by Mr. Wallace in a note to
Pasley _v._ Freeman, 2 Smith’s Lead. Cas. 101. As said by Bigelow on
Fraud, page 484, “to profess an intent to do or not to do when a party
intends the contrary, is as clear a case of misrepresentation and of
fraud as could be made.” See also p. 466 as to what constitutes a
representation. In Goodwin _v._ Horne, 60 N. H. 486, the court say:
“Ordinarily false promises are not fraudulent, nor evidence of fraud,
and only false representations of past or existing facts are actionable
or can be made the ground of defence.... But when a promise is made with
no intention of performance, and for the very purpose of accomplishing a
fraud, it is a most apt and effectual means to that end, and the victim
has a remedy by action or defence. Such are cases of concealed
insolvency and purchases of goods with no intention to pay for them.” In
Byrd _v._ Hall, 1 Abb. A. D. 286, it was held that, although a purchase
of goods on credit by one who knows himself to be insolvent is not
fraudulent, yet where it is made with a preconceived design not to pay,
it is fraudulent. See also Milliken _v._ Miller, 12 R. I. 296; Thompson
_v._ Rose, 16 Conn. 81; Hennequin _v._ Naylor, 24 N. Y. 129; Devoe _v._
Brandt, 53 N. Y. 465; Story on Sales, 2d ed. § 176, and cases in note 2;
Douthitt _v._ Applegate, 33 Kans. 395; Morrill _v._ Blackman, 42 Conn.
324; Skinner _v._ Flint, 105 Mass. 528; Earl of Bristol _v._ Wilsmore, 2
Dow. & Ry. 760; Lobdell _v._ Baker, 1 Met. 193; Cooley on Torts, 2d ed.
559; Load _v._ Green, 15 M. & W. 215. In short, the making of one state
of things to appear, to those with whom you deal, to be the true state
of things, while you are acting on the knowledge of a different state of
things—among the oldest definitions of fraud in contracts—is exemplified
in this case. See Lee _v._ Jones, 17 C. B. N. S. 494. The defendant made
it to appear, by the act of buying on credit, that he intended to pay
for the goods in question, while in fact he intended to cheat the
plaintiffs out of them. And to hold that such a transaction does not
amount to fraud, would be to make it easy for cheats and swindlers to
escape the just consequence of their unrighteous acts.

We have hesitated somewhat in arriving at the conclusion that an action
of deceit will lie, upon the facts set out in the declaration, for the
reason that, amongst the numerous cases of fraud and deceit to be found
in the books, we have not been referred to any, nor have we been able to
find any, where the action of deceit was based simply on the act of
buying goods on credit, intending not to pay for them. In Lyons _v._
Briggs, 14 R. I. 224, which was an action of deceit, Durfee, C. J.,
intimates, however, that deceit would lie in a case like the one before
us, by the use of the following language: “It is not alleged that the
buyer did not intend to pay when he bought, but only that he falsely and
fraudulently asserted that he could be safely trusted.” But the
authorities are overwhelming to the effect that it is fraud to purchase
goods intending not to pay for them, and that the vendor, upon
discovering the fraud, may repudiate the sale and reclaim the property,
or may sue in trover, or in some other action of tort, for the damages
sustained by the fraud. And this being so, we fail to see why an action
of deceit, which is an action of tort, based on fraud, may not lie as
well. For to obtain goods on credit, intending not to pay for them, is
as much a trick or device as it would be falsely to represent in words
any material fact whereby the vendor should be induced to part
therewith.

But defendant’s counsel contends that the alleged representation was not
as to any fact present or past, but merely as to what the defendant
would do in the future with reference to paying for the goods, and that
to say what one intends to do is identical to saying what one will do in
the future, which amounts simply to a promise; and, furthermore, that a
representation of what will happen in the future, even if not realized,
is not such a representation as will support this action. We do not
assent to this method of reasoning. The state of a man’s mind at a given
time is as much a fact as is the state of his digestion. Intention is a
fact; Clift _v._ White, 12 N. Y. 538; hence a witness may be asked with
what intent he did a given act. Seymour _v._ Wilson, 14 N. Y. 567. A man
who buys and obtains possession of goods on credit, intending not to pay
for them, is then and there guilty of fraud. The wrong is fully
completed and no longer exists in intention merely, and a cause of
action instantly accrues thereon in favor of the vendor to recover for
the wrong and injury sustained. It is true the purchaser may afterwards
repent of the wrong and pay for the goods, and the vendor may never know
of the wrongful intent. But this does not alter the case at all as to
the original wrong and the liability incurred thereby. Of course a mere
intention to commit a crime or to do a wrong is no offence. But when the
intention is coupled with the doing or accomplishment of the act
intended, that moment the wrong is perpetrated and the corresponding
liability incurred. See Oswego Starch Factory _v._ Lendrum, 57 Iowa,
573.

In Stewart _v._ Emerson, 52 N. H. 301, where it was alleged, in reply to
the defendant’s plea of discharge in bankruptcy, that the debt in
question was created by the fraud of the defendant, Doe, J., in the
course of a long and vigorous opinion, used the following language,
which is so apt and pertinent that we quote it. He said: “When the
intent not to pay is concealed, the intent to defraud is acted out. The
mere omission of A. to disclose his insolvency might not be satisfactory
proof of a fraudulent intent in all cases. He might expect to become
solvent. He might intend to pay all his creditors. He might intend to
pay B. though unable to pay others. His fixed purpose _never_ to pay B.
is a very different thing from his present inability to pay all or any
of his creditors. A man may buy goods, with time for trying to pay for
them, on the strength of his known or inferred disposition to pay his
debts, his habits, character, business capacity, and financial
prospects, without his present solvency being thought of, and even when
his present insolvency is known to the vendor. But who could obtain
goods on credit, with an unconcealed determination that they should
never be paid for? The concealment of such a determination is conduct
which reasonably involves a false representation of an existing fact, is
not less material than a misrepresentation of ability to pay (Bradley
_v._ Obear, 10 N. H. 477), and is an actual artifice, intended and
fitted to deceive.”

“An application for or acceptance of credit, by a purchaser, is a
representation of the existence of an intent to pay at a future time,
and a representation of the non-existence of an intent not to pay. What
principle of law requires a false and fraudulent representation to be
express, or forbids it to be fairly inferred from the act of purchase? A
representation of a material fact, implied from the act of purchase, and
inducing the owner of goods to sell them, is as effective for the
vendee’s purpose as if it had been previously and expressly made. If it
is false, and known to the pretended purchaser to be false, and is
intended and used by him as a means of converting another’s goods to his
own use without compensation, under the false pretence of a purchase,
why does it not render such a purchase fraudulent? When the intent is to
pay, it is necessarily understood by both parties, and need not be
expressly represented as existing. When the intent is not to pay, it is
of course concealed. Whether the deceit is called a false and fraudulent
representation of the existence of an intent to pay, or a fraudulent
concealment of the existence of an intent not to pay, the fraud
described is, in fact, one and the same fraud.”

Demurrer overruled, and case remitted to the Common Pleas Division for
further proceedings.[323]

PETERS, J., IN BURRILL _v._ STEVENS
(1882) _73 Maine, 395, 398–400._

The instructions to the jury upon that point present the question,
whether getting property by a purchase upon credit, with an intention
of the purchaser never to pay for the same, constitutes such a fraud
as will entitle the seller to avoid the sale, although there are no
fraudulent misrepresentations or false pretences.

The question has never been fairly before this Court before this time,
so as to require a deliberate decision. The plaintiff contends that
the question was settled in the negative in the case of Long _v._
Woodman, 58 Maine, 49. But that case falls short of meeting the
question presented in the present case. The gist of the charge against
the purchaser in that case seems to have been that he fraudulently
refused to do after the contract what he agreed to do at the time of
the contract, the alleged fraud being an intention formed after the
contract rather than contemporaneously with it; and that was an action
of deceit based upon a broken promise to convey real estate. Of late
years, _nisi prius_ rulings in our own Courts have frequently been in
accordance with the law as delivered to the jury by the presiding
judge in the case at bar, and we think the doctrine may safely be
accepted and approved, both upon authority and principle.

It is the admitted doctrine of the English cases, and is sustained by
most of the courts in the United States. In Benj. on Sales (2d Amer.
ed.), § 440, note e, very numerous cases are cited to the proposition.
Stewart _v._ Emerson, 52 N. H. 301, discusses the question at length,
and reviews many authorities.

The plaintiff relies upon the objection that it is not an indictable
fraud, an argument which seems to have inclined the Pennsylvania Court
against admitting the principle into the jurisprudence of that State.
Smith _v._ Smith, 21 Pa. St. 367; Backentoss _v._ Speicher, 31 Pa. St.
324. It has been held by some Courts to be an indictable cheat, the
false pretence being in the vendee’s pretendingly making a purchase,
while his only purpose is to cheat the vendor out of his goods. It is
more often considered, however, as not a matter for indictment. Bish.
Crim. Law, § 419. But the objection taken by the plaintiff has
generally been considered as insufficient to override the rule.

But the doctrine governing the case before us should not be
misunderstood. To constitute the fraud, there must be a preconceived
design never to pay for the goods. A mere intent not to pay for the
goods when the debt becomes due, is not enough; that falls short of
the idea. A design not to pay according to the contract is not
equivalent to an intention never to pay for the goods, and does not
amount to an intention to defraud the seller outright, although it may
be evidence of such a contemplated fraud.

Nor is it enough to constitute the fraud that the buyer is insolvent,
and knows himself to be so, at the time of the purchase, and conceals
the fact from the seller, and has not reasonable expectations that he
can ever pay the debt.[324] Some Courts have gone so far as to
denominate that a fraud which will avoid the sale. And it may have
been so held in bankruptcy Courts, in some instances, as between a
vendor and the assignee of the vendee. But it would not, generally, be
enough to prove the fraud. The inquiry is not whether the vendee had
reasonable grounds to believe he could pay the debt at some time and
in some way, but whether he intended in point of fact not to pay it.

Nor is it enough that after the purchase the vendee conceives a design
and forms a purpose not to pay for the goods, and successfully avoids
paying for them. The only intent that renders the sale fraudulent is a
positive and predetermined intention, entertained and acted upon at
the time of going through the forms of an apparent sale, never to pay
for the goods. Cross _v._ Peters, 1 Greenl. 378; Biggs _v._ Barry, 2
Curtis, (C. C. R.) 259; Parker _v._ Byrnes, 1 Low. 539; Rowley _v._
Bigelow, 12 Pick. 306.

RIDDICK, J., IN BUGG _v._ WERTHEIMER-SCHWARTZ SHOE COMPANY
(1897) _64 Arkansas, 12, 17, 18._

Nor can we sustain the contention of appellant that to entitle the
vendor to avoid a sale after delivery it must in all cases be shown
that the vendee did not intend to pay for the goods. That is, as above
stated, one ground on which the sale may be avoided, but not the only
one. If the vendee knowingly makes false representations concerning
material facts, and thus induces the seller to part with his goods,
the seller may elect to avoid the sale, and this without regard to
whether the buyer intended to pay for the goods or not. The fraud in
such a case consists in inducing the vendor to part with his goods by
false statements of the buyer, known to be false when made, or made by
him when he has no reasonable ground to believe that they are true. If
a vendor parts with his goods on the faith of such false statements
made by the buyer, it would be strange if the law permitted the buyer
to reap the fruits of such conduct, and retain the goods against the
will of the vendor. To illustrate, let us suppose a case. A man with
no property, but with great faith in his ability as a merchant, goes
to a city and calls on a wholesale merchant for the purpose of buying
a stock of goods. He believes that if he can obtain a stock of goods,
his experience and ability will soon enable him to pay off the
purchase price, but, fearing that the merchant may refuse to sell if
he learns that he has no property, he thereupon, for the purpose of
obtaining the goods, states to the merchant that he has money in the
bank, and owns a large amount of both real and personal property. The
merchant, ignorant of the facts, and relying on the truth of these
statements, parts with his goods. He afterwards discovers the fraud,
and brings an action to recover the goods. In such a case would it be
a valid defence for the buyer to say that, although he had secured the
goods by misrepresentation, yet he did honestly intend to pay for
them? Clearly it would not. The courts would answer such a question
substantially as it was answered by the Supreme Court of Connecticut
when it said that the intent of the buyer to pay “may have lessened
the moral turpitude of his act, but it will not suffice to antidote
and neutralize an intentionally false statement which had accomplished
its object of benefiting himself and of misleading the plaintiffs to
their injury.” Judd _v._ Weber, 55 Conn. 267; Reid _v._ Cowduroy, 79
Iowa, 169; S. C. 18 Am. St. Rep. 359, and note; Strayhorn _v._ Giles,
22 Ark. 517.

McCOMB _v._ BREWER LUMBER COMPANY
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 21, 1903.
_Reported in 184 Massachusetts Reports, 276._

The third count in the declaration is tort for deceit in the sale of
certain stock by the defendant to the plaintiff.

The allegations, so far as material here, are in substance as follows:—

Plaintiff says that the defendant, by its agent, with intent to deceive
and defraud the plaintiff, falsely and fraudulently represented to him
[here specifying certain representations], and that, if the plaintiff
would purchase a certain number of shares of stock in the defendant
corporation and pay therefor the sum of $9000, ... the $9000 paid by the
plaintiff should be put in the treasury of said corporation to be used
as a working capital. And plaintiff says that, relying upon the
representations, he bought the shares and paid therefor $9000; and
plaintiff says that said representations were false and untrue to the
knowledge of the defendant in this: [specifying certain particulars],
and the $9000 paid by plaintiff was not put in its treasury and used as
working capital, but was, with the approval of the defendant, its
directors and manager, used for other purposes than the business of the
defendant.

Verdict for plaintiff for $1.00 damages. Plaintiff alleged exceptions as
to the ruling at the trial in reference to this count.[325]

HAMMOND, J.... The exceptions relate only to the third count, and since
the verdict was for the plaintiff on this, they are material only so far
as they respect the question of damages. The principal difference
between the instructions given by the judge and those requested by the
plaintiff is that the judge declined to permit the jury to consider the
allegation with reference to the promised use of the $9000 paid by the
plaintiff for the stock. As to this it is contended by the plaintiff
that at the time the defendant promised to use the money as working
capital it did not intend to keep the promise, and that a representation
of a present intention is a representation of an existing fact and
therefore may be false and fraudulent. But, without implying that the
plaintiff’s contention would be true under any circumstances, the
difficulty with his case is that the question is not raised upon the
record. The ruling that the jury should not consider the allegation with
reference to the promised use of the money appears to have been made
with reference to the third count, and, as applied to that, it was
correct. An examination of the count will show that it does not contain
any allegation that at the time the defendant said that the money should
be used for working capital it had not the intention to perform that
promise. It first sets out the representations which induced the
plaintiff to purchase the stock, then proceeds to state in what respects
they were false and fraudulent and the defendant’s knowledge of the
falsity, and then follows the only allegation respecting the
representation as to the promised use of the money: “And the nine
thousand dollars paid by the plaintiff to the defendant was not put in
its treasury and used as working capital, but was, with the approval of
the defendant, its directors and manager, used for other purposes than
the business of the defendant.” This is an allegation that the defendant
failed to carry out its promise, and falls far short of an allegation
that the defendant at the time it was made did not intend to carry it
out. There is no allegation whatever as to the intent of the defendant
at the time the promise was made. Indeed it is difficult to read that
count, either by itself or in connection with the other counts, without
feeling that the pleader studiously avoided alleging anything as to that
intent. While the evidence as to the promised use and the actual use of
this money may have been admissible upon the second count, the object of
which was to recover damages for breach of the promise, it was not
material upon the third count, even upon the question of damages, for
the reasons above stated.

* * * * *

_Exceptions overruled._[326]

DORR _v._ CORY
SUPREME COURT, IOWA, APRIL 5, 1899.
_Reported in 108 Iowa Reports, 725._

Appeal from Polk District Court.

Action at law on contracts in writing for the purchase of interests in
real estate. Answer alleges (_inter alia_) that the contracts were
obtained by fraud.

Verdict for plaintiff, and judgment.

ROBINSON, C. J.[327] ... The only statement purporting to be of fact
which is shown to have been false is that relating to the cost of the
land. Would that statement have authorized the jury to find for the
defendant? It was said in Hemmer _v._ Cooper, 8 Allen, 334, that “the
representations of a vendor of real estate, to the vendee, as to the
price he paid for it, are to be regarded in the same light as
representations respecting its value. A purchaser ought not to rely upon
them; for it is settled that even when they are false, and uttered with
a view to deceive, they furnish no ground of action.” That rule was
followed in Cooper _v._ Lovering, 106 Mass. 77, and it is the rule of
Tuck _v._ Downing, 76 Ill. 71, and Banta _v._ Palmer, 47 Ill. 99. In
Holbrook _v._ Connor, 60 Me. 578, it was said: “The statement of the
vendor that he paid a certain price for the land, if true, can be no
more than an indication of his opinion of its value; and when we
consider the various motives which may, and often do, actuate men in
making their purchases, and especially when it is done for speculation,
it is but the slightest proof of such opinion.” As a general rule, a
vendee has no right to rely upon the statements of the vendor respecting
the value of the property sold, but must act upon his own judgment, or
seek information for himself. But to that rule there are exceptions. It
was said in Simar _v._ Canaday, 53 N. Y. 306, that where statements as
to the value are mere matter of opinion and belief, no liability is
created by uttering them, but that such statements “may be, under
certain circumstances, affirmations of fact. When known to the utterer
to be untrue, if made with the intention of misleading the vendee, if he
does rely upon them, and is misled to his injury, they void the
contract.” The fraud which vitiates a contract must be material,
affecting the very essence of the contract; but ordinarily, “if the
fraud be such that, had it not been practiced, the contract would not
have been made, then it is material to it.” 2 Parsons, Contract, 770.
See, also, 2 Pomeroy Equity Jurisprudence, section 878, and notes. That
rule was applied in Smith _v._ Countryman, 30 N. Y. 656, which was an
action upon a contract for the sale of hops. It was held that a false
representation made by the vendee as to the price at which he had
purchased hops of another person, which was relied upon by the vendor,
and induced him to enter into the contract of sale, was material, and
constituted a defence to an action on the contract. This rule appears to
us to be in harmony with reason and the principles of justice. The price
at which property actually sells in the open market is very satisfactory
evidence of its value at the time of the sale. We cannot assent to the
proposition that the statement of a vendor that he paid a specified
price for the property he sells is a mere expression of opinion, upon
which the purchaser has no right to rely. On the contrary, we think it
is a statement of fact; and if the purchaser, without knowing or having
reason to know what price was paid, relies upon the false statement, to
his injury, he is entitled to relief. The cases of Teachout _v._ Van
Hoesen, 76 Iowa, 113; Iler _v._ Griswold, 83 Iowa, 442, and Coles _v._
Kennedy, 81 Iowa, 360, although not precisely in point, tend to sustain
our conclusion. See French _v._ Ryan, 104 Mich. 625 (62 N. W. Rep.
1016); Moon _v._ McKinstry, 107 Mich. 668 (65 N. W. Rep. 546), and
Woolen Co. _v._ Smalley, 111 Mich. 321 (69 N. W. Rep. 722).

* * * * *

_Judgment reversed._[328]

DEMING _v._ DARLING
SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 27, 1889.
_Reported in 148 Massachusetts Reports, 504._

HOLMES, J. This is an action for fraudulent representations alleged to
have been made to one Dr. Jordan, the plaintiff’s agent, for the purpose
of inducing the plaintiff to purchase a railroad bond from the
defendant....[329]

Among the representations relied on, one was that the railroad
mortgaged, which was situated in Ohio, was good security for the bonds;
and another was that the bond was of the very best and safest, and was
an A No. 1 bond. With regard to these and the like, the defendant asked
the Court to instruct the jury “that no representations which the
defendant might have made or did make to Dr. Jordan in relation to the
value of the bond in question, or of the railroad, its terminals, and
other property which were mortgaged to secure it, with other bonds, even
though false, were representations upon which Dr. Jordan ought to have
relied, and are not sufficient to furnish any grounds for this action;”
and also, “that each of the expressions ‘and that the same’ (meaning
said railroad and all the property covered by the mortgage) ‘was good
security for said bonds,’ ‘that said bond was of the very best and
safest, and was an A No. 1 bond,’ are expressions of opinion of value,
and even though false, are not such representations as Dr. Jordan had a
right to rely upon, and are not enough to furnish any grounds for this
action.”

The Court declined to give these instructions, and instead instructed
the jury that “an expression of opinion, judgment, or estimate, or a
statement of a promissory nature relating to what would be in the
future, so far as they were expressions of opinion, if made in good
faith, however strong as expressions of belief, would not support an
action of deceit.”

It will be seen that the fundamental difference between the instructions
given and those asked is that the former require good faith. The
language of some cases certainly seems to suggest that bad faith might
make a seller liable for what are known as seller’s statements, apart
from any other conduct by which the buyer is fraudulently induced to
forbear inquiries. Pike _v._ Fay, 101 Mass. 134. But this is a mistake.
It is settled that the law does not exact good faith from a seller in
those vague commendations of his wares which manifestly are open to
difference of opinion, which do not imply untrue assertions concerning
matters of direct observation (Teague _v._ Irwin, 127 Mass. 217), and as
to which it always has been “understood, the world over, that such
statements are to be distrusted.” Brown _v._ Castles, 11 Cush. 348, 350;
Gordon _v._ Parmelee, 2 Allen, 212; Parker _v._ Moulton, 114 Mass. 99;
Poland _v._ Brownell, 131 Mass. 138, 142; Burns _v._ Lane, 138 Mass.
350, 356. Parker _v._ Moulton also shows that the rule is not changed by
the mere fact that the property is at a distance, and is not seen by the
buyer. Moreover, in this case, market prices at least were easily
accessible to the plaintiff.

The defendant was known by the plaintiff’s agent to stand in the
position of a seller. If he went no further than to say that the bond
was an A No. 1 bond, which we understand to mean simply that it was a
first rate bond, or that the railroad was good security for the bonds,
we are constrained to hold that he is not liable under the circumstances
of this case, even if he made the statement in bad faith. See, further,
Veasey _v._ Doton, 3 Allen, 380; Belcher _v._ Costello, 122 Mass. 189.
The rule of law is hardly to be regretted, when it is considered how
easily and insensibly words of hope or expectation are converted by an
interested memory into statements of quality and value when the
expectation has been disappointed.

* * * * *

_Exceptions sustained._[330]

ANDREWS _v._ JACKSON
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 18, 1897.
_Reported in 168 Massachusetts Reports, 266._

Tort for deceit. The declaration alleged that the plaintiff sold and
conveyed to the defendant certain real estate situate in Medford “for
the sum of nineteen hundred dollars, and received in payment thereof
fourteen hundred dollars in cash and four certain promissory notes all
signed by one H. Joseph, amounting together to the sum of six hundred
and fourteen hundredths dollars; that the defendant, to induce the
plaintiff to convey said real estate to him, falsely represented to the
plaintiff that the maker of said notes was a man of property, and that
said notes were as ‘good as gold’; that your plaintiff, believing said
representations to be true, was thereby induced to convey said real
estate to the defendant; that said representations were false and were
known to the defendant to be false, and by reason thereof the plaintiff
suffered great damage.”

Trial in the Superior Court, without a jury, before Hammond, J., who
found for the plaintiff; and the defendant alleged exceptions, the
nature of which appears in the opinion.

The case was submitted on briefs to all the justices.

KNOWLTON, J. The principal question in this case is whether there was
any evidence to warrant a finding that the false representations made by
the defendant in regard to the notes were actionable. This finding is in
these words: “I find that the defendant represented these notes to be as
good as gold, and that that representation was intended by him and
understood by the plaintiff, not to be an expression of opinion, but a
statement of a fact of his own knowledge. I find that the notes were
worthless.” It is contended by the defendant that such a representation
is necessarily, and as a matter of law, a mere expression of opinion,
for which, however wilfully false, and however damaging in the reliance
placed upon it, no action can be maintained.

It is true that such a representation may be, and often is, a mere
expression of opinion. But we think that it may be made under such
circumstances and in such a way as properly to be understood as a
statement of fact upon which one may well rely.

In Stubbs _v._ Johnson, 127 Mass. 219, one of the representations in
regard to a note was that it was “as good as gold,” and the jury were
instructed that, if this was intended as a representation of the
financial ability of the maker of the note, it was a statement of a
material fact, for which the defendant was liable. This instruction was
held erroneous “because a representation as to a man’s financial ability
to pay a debt may be made either as a matter of opinion, or as a matter
of fact; the subject of the statement does not necessarily determine
which it is.... It is often impossible,” says Mr. Justice Colt further
in the opinion, “to determine, as matter of law, whether a statement is
a representation of a fact, which the defendant intended should be
understood as true of his own knowledge, or an expression of opinion.
That will depend upon the nature of the representation, the meaning of
the language used, as applied to the subject matter, and as interpreted
by the surrounding circumstances, in each case. The question is
generally to be submitted to the jury.” The opinion plainly implies
that, if the jury had been left to determine whether there was a
representation of the maker’s financial ability to pay made as matter of
fact and not as mere matter of opinion, they might have found against
the defendant on his false representation that the note was “as good as
gold.” In Belcher _v._ Costello, 122 Mass. 189, there is also a strong
intimation that the rule is as above stated. In Safford _v._ Grout, 120
Mass. 20, the representation set out in the declaration was that the
maker of the note “was a person of ample means and ability to pay said
note, and that the note was good.” The plaintiff was allowed to recover.
The court says of the representations, “We must presume that they were
legally sufficient to support the action; that is to say, that they were
statements of facts susceptible of knowledge, as distinguished from
matters of mere opinion or belief.” See also Morse _v._ Shaw, 124 Mass.
59; Teague _v._ Irwin, 127 Mass. 217.

In two recent cases, Way _v._ Ryther, 165 Mass. 226, and Kilgore _v._
Bruce, 166 Mass. 136, 138, this court has expressed a disinclination to
extend the rule which permits dealers to indulge with impunity in false
representations of opinion.

In the case now before us the notes were turned over to the plaintiff in
part payment of the agreed price for land sold to the defendant. He
professed to know, and probably did know, all about the financial
standing of the maker of them, who lived in Boston. The plaintiff lived
in a suburban town and knew nothing of the maker. She was obliged to
take the defendant’s representations or to decline to deal with him
until she could go to Boston and make an investigation for herself.[331]
He told her that he had lent money to the maker, and said, “Do you
suppose I would lend my money to any one that was not good?”

A representation that a note is as good as gold may be founded on
absolute personal knowledge of the validity of the note, and upon an
equally certain knowledge of the maker’s financial ability. The known
facts upon which financial ability depends may be so clear and cogent as
to make the consequent conclusion, which ordinarily would be a mere
matter of opinion, a matter of moral certainty which can properly be
called knowledge. We cannot say, as matter of law, that this
representation was not intended to be, and properly understood to be, a
representation of facts within the defendant’s knowledge.

The case of Deming _v._ Darling, 148 Mass. 504, differs materially from
this at bar. The property to which the representation related was one of
many mortgage bonds issued by a railroad company, of which, in the
language of the opinion, the “market prices at least were easily
accessible to the plaintiff.” The representations which were held to be
insufficient on which to found an action were “in relation to the value
of the bond in question, or of the railroad, its terminals, and other
property which were mortgaged to secure it.” The value of articles sold
in market, and especially of railroad property and of railroad bonds
payable in the distant future, is ordinarily only a matter of opinion. A
statement of the value of such property is very different from a
statement that a promissory note which is almost due is known to be
valid, and that the maker of it is a person of such known integrity and
financial ability that his promise to pay is as good as that of the
state or nation. A statement that a note is as good as gold may be
intended to represent facts of this kind.

* * * * *

_Exceptions overruled._[332]

WILLIAMS _v._ STATE
SUPREME COURT, OHIO, FEBRUARY 11, 1908.
_Reported in 77 Ohio State Reports, 468._

Error to the Circuit Court of Montgomery County.

The plaintiff in error was indicted for obtaining money and property
by certain false pretences, to wit: that certain real estate situate
in Benton township, Pike County, being one hundred and ten acres in
quantity, was then and there of the value of $11,000, and that one
Martha M. Williams, then and there believing said representation of
value to be true, and relying and acting upon that belief, was induced
to and did purchase from the plaintiff in error, the said real estate,
and accepted his deed therefor, and gave to him and one Neal
Overholser in payment therefor, money and property to the amount and
value of $7700, whereas, in fact, the said real estate was not then
and there of the value of $11,000, and was of the value not to exceed
three dollars per acre, that is, $330 in all; and that the plaintiff
in error then and there knew that the value of said real estate did
not exceed the sum of $330, and knew at the time he so falsely
represented the value of said real estate that the same was false. To
this indictment the plaintiff in error filed a motion to quash and
also a demurrer, which were both overruled; and the case coming on for
trial, at the close of the evidence introduced by the state, a motion
was made by the defendant to instruct the jury to return a verdict of
acquittal, which was overruled; and the court thereupon charged the
jury, among other things, as follows: “But where the buyer relies
entirely upon the representations of the seller and the seller knows
that the property he is describing is of such small value as to be
practically worthless, and nevertheless represents it to be worth a
specified sum of great amount, and the discrepancy between the real
and the represented value is so enormous as to shock the conscience;
when the representation is so grossly untrue that it could not be made
upon any possible foundation of belief; and when it appears that the
seller was plainly seeking by means of such statement to obtain the
property of the buyer and practically return no equivalent therefor,
the court takes the responsibility of saying to you that you have the
right, if your judgment of evidence so convinces you, to regard such
representations as one of fact rather than mere opinion.” The jury
found the defendant guilty and judgment was rendered accordingly,
which judgment was affirmed by the Circuit Court, and this proceeding
in error is to reverse that judgment.[333]

DAVIS, J. A statement of value may be given either as an opinion or as
a statement of fact. All the authorities agree that if a statement of
value is given as an opinion merely it cannot be regarded as a
foundation for an indictment. But if the statement is made as an
existing fact, when the accused knows it to be false and intends it to
be an inducement to the other party, and it is so understood and
relied upon by the other party, then it becomes a false representation
of a material fact for which the party making the representation is
indictable. Whether the representation of value is intended as an
expression of opinion, or whether it was made as a statement of an
existing fact which the speaker intends to be an inducement to the
other party, is therefore a material question of fact to be determined
by the jury.

There is no novelty in this view of the law. In Reg. _v._ Evans, 8
Cox, C. C. 257, it was said by Pollock, C. B.: “As my brother,
Crowder, J., has suggested, if the prisoner had represented the note
to be of the value of £5 when she knew it was not of that value, she
might have been guilty of false pretences.” In People _v._ Peckens,
153 N. Y. 576, 591, the court say: “It is insisted that many of the
representations to the complainant and her husband, which induced the
making and delivery of her deed, were expressions of opinion, and
although false and known to be so, no liability resulted. As a general
rule, the mere expression of an opinion, which is understood to be
only an opinion, does not render a person expressing it liable for
fraud. But where the statements are as to value or quality, and are
made by a person knowing them to be untrue, with an intent to deceive
and mislead the one to whom they are made, and he is thus induced to
forbear making inquiries which he otherwise would, that may amount to
an affirmation of fact rendering him liable therefor. In such a case,
whether a representation is an expression of an opinion or an
affirmation of a fact is a question for the jury. The rule that no one
is liable for an expression of an opinion is applicable only when the
opinion stands by itself as a distinct thing. If it is given in bad
faith, with knowledge of its untruthfulness, to defraud others, the
person making it is liable, especially when it is as to a fact
affecting quality or value and is peculiarly within the knowledge of
the person making it. Watson _v._ People, 87 N. Y. 561; Simar _v._
Canaday, 53 N. Y. 298; Hickey _v._ Morrell, 102 N. Y. 454, 463;
Schumacher _v._ Mather, 133 N. Y. 590, 595.” The same view of the
question is presented in Holton _v._ State, 109 Ga. 127, 130; and also
in People _v._ Jordan, 66 Cal. 10, 13, 14.

Simar _v._ Canaday, 53 N. Y. 298, was a civil action for damages for
an alleged fraud in inducing the plaintiffs to convey certain
premises. The court, at page 306, said: “The defendant contends that
the representations alleged to have been made by the defendant were
not such as to afford a ground for an action. It is first insisted
that the statements as to the value of the lands and of the mortgages
thereon were mere matter of opinion and belief, and that no action
could be maintained upon them if false. If they were such, no
liability is created by the utterance of them; but all statements as
to the value of property sold are not such. They may be, under certain
circumstances, affirmation of fact. When known to the utterer to be
untrue, if made with the intention of misleading the vendee, if he
does rely upon them and is misled to his injury, they avoid the
contract. Stebbins _v._ Eddy, 4 Mason, 414–423. And where they are
fraudulently made of particulars in relation to the estate which the
vendee has not equal means of knowing, and where he is induced to
forbear inquiries which he would otherwise have made, and damage
ensues, the party guilty of the fraud should be liable for the damage
sustained. Medbury _v._ Watson, 6 Metc. 246, per Hubbard, J.; and see
McClellan _v._ Scott, 24 Wis. 81.” More recently the cases of Coulter
_v._ Minion, 139 Mich. 200, and Scott _v._ Burnight, 131 Ia. 507, are
to the same effect.

These considerations determine every question raised upon the record
and therefore the judgment of the Circuit Court is

_Affirmed_.

PRICE, CREW, SUMMERS and SPEAR, JJ., concur.

BOWEN, L. J., IN SMITH _v._ LAND CORPORATION
(1884) _Law Reports, 28 Chancery Division, 15–16._

In considering whether there was a misrepresentation, I will first deal
with the argument that the particulars only contain a statement of
opinion about the tenant. It is material to observe that it is often
fallaciously assumed that a statement of opinion cannot involve the
statement of a fact. In a case where the facts are equally well known to
both parties, what one of them says to the other is frequently nothing
but an expression of opinion. The statement of such opinion is in a
sense a statement of a fact, about the condition of the man’s own mind,
but only of an irrelevant fact, for it is of no consequence what the
opinion is. But if the facts are not equally known to both sides, then a
statement of opinion by the one who knows the facts best involves very
often a statement of a material fact, for he impliedly states that he
knows facts which justify his opinion. Now a landlord knows the
relations between himself and his tenant; other persons either do not
know them at all or do not know them equally well, and if the landlord
says that he considers that the relations between himself and his tenant
are satisfactory, he really avers that the facts peculiarly within his
knowledge are such as to render that opinion reasonable. Now are the
statements here statements which involve such a representation of
material facts? They are statements on a subject as to which _prima
facie_ the vendors know everything and the purchasers nothing. The
vendors state that the property is let to a most desirable tenant; what
does that mean? I agree that it is not a guarantee that the tenant will
go on paying his rent, but it is to my mind a guarantee of a different
sort, and amounts at least to an assertion that nothing has occurred in
the relations between the landlords and the tenant which can be
considered to make the tenant an unsatisfactory one. This is an
assertion of a specific fact. Was it a true assertion? Having regard to
what took place between Lady Day and Midsummer, I think that it was not.
On the 25th of March, a quarter’s rent became due. On the 1st of May, it
was wholly unpaid and a distress was threatened. The tenant wrote to ask
for time. The plaintiffs replied that the rent could not be allowed to
remain over Whitsuntide. The tenant paid on the 6th of May £30, on the
13th of June £40, and the remaining £30 shortly before the auction. Now
could it, at the time of the auction, be said that nothing had occurred
to make Fleck an undesirable tenant? In my opinion a tenant who had paid
his last quarter’s rent by driblets under pressure must be regarded as
an undesirable tenant.[334]

KIDNEY _v._ STODDARD
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER TERM, 1843.
_Reported in 7 Metcalf, 252._

Trespass upon the case for an alleged fraudulent representation by the
defendant as to the credit of his son, Alden D. Stoddard, Jr., in the
following letter to F. Delano of New York: “Fairhaven, 9 mo. 27, 1841.
Franklin Delano, Esq. My dear Sir: The bearer, my son, A. D. Stoddard,
Jr., wishes to purchase a bill of goods in your city. Any assistance you
can render him, by a recommendation or otherwise, will be gratefully
received by him, and much oblige your obedient servant, who will take
the liberty to say that A. D. S. Jr.’s contracts, of whatever nature,
will unquestionably be punctually attended to. Very respectfully your
friend, A. D. Stoddard.”

At the trial before Wilde, J., one Ammidon testified that he was agent
of the plaintiffs; that Stoddard, Jr., called on him in New York, about
the 1st of October, 1841, to purchase some goods, and referred him to
Delano; that the witness called on Delano, who showed said letter to
him, and made statements concerning Stoddard, Senior. The witness sold
the son goods which he would not have sold him, if it had not been for
the letter and the statements of Delano. No part of the debt was ever
paid. After the sale the plaintiff discovered that the son was a minor
at the time the letter was written.

The judge instructed the jury that when a party intentionally conceals a
material fact, in giving a letter of recommendation, it amounts to a
false representation; that the defendant, giving a letter in this case
to an unlimited amount, was bound to communicate every material fact;
that if he concealed the fact that the son was a minor, with the view to
give him a credit, knowing or believing that he would not get a credit
if that fact was known, it was a fraud, and the plaintiff was entitled
to recover; that it was immaterial whether there was any moral fraud;
and that every man was presumed to know the consequences of his own
acts.

The defendant’s counsel requested the judge to instruct the jury, that
if the defendant gave his opinion merely, he was not bound to
communicate any facts; and that if he gave an honest opinion, he was not
liable. But the judge refused so to instruct the jury. It was also
contended by the defendant’s counsel that the plaintiffs should have
made an effort to recover the debt of the son.

The jury found a verdict for the plaintiffs for the amount of the goods
sold, and the defendant moved for a new trial, on the ground that the
jury were misdirected in matter of law.[335]

HUBBARD, J.

* * * * *

It is very certain, as has been maintained by the defendant’s counsel,
that a mistaken opinion, honestly given, can never be taken as a
fraudulent representation. This is true in principle, and supported
abundantly by authorities. But the misfortune of the defendant’s case
is, that the verdict of the jury rests not on the honest mistake of the
defendant, but upon the ground of material concealment of a fact
especially within his knowledge; a fact important to be known, as it
regarded the credit of the son; a fact designedly concealed, and with
the view of obtaining that credit for the son, which he, the father,
knew or believed he could not obtain if that fact were known.

It needs no lengthened argument to establish the materiality of the
fact. The result of this case is a sufficient witness of it. The
plaintiffs were induced by the letter, from which this fact was
carefully excluded, to give a credit to the son, which they would not
otherwise have given; and as the direct consequence of it, they have
sustained the loss set out in the declaration. Here then are proved
fraud and deceit on the part of the defendant, and damage to the
plaintiffs; and these facts have long been held to constitute a
substantial cause of action. From the time of the judgment in the great
case of Pasley _v._ Freeman, 3 T. R. 51, to the present day, through the
long line of decisions both in England and America, the principle of
that case, though with some statute modifications, remains unshaken and
unimpaired.

[Remainder of opinion omitted.]

_Judgment on the verdict._[336]

DERRY _v._ PEEK
IN THE HOUSE OF LORDS, JULY 1, 1889.
_Reported in Law Reports, 14 Appeal Cases, 337._

The action in this case was brought by Sir H. Peek against Mr. W. Derry,
the chairman, and Messrs. J. C. Wakefield, M. M. Moore, J. Pethick, and
S. J. Wilde, four of the directors of the Plymouth, Devonport, and
District Tramways Company, claiming damages for the fraudulent
misrepresentations of the defendants whereby the plaintiff was induced
to take shares in the company.[337]

The company was incorporated in the year 1882 for making and maintaining
tramways in Plymouth, Devonport, and Stonehouse. The nominal capital was
£125,000 in shares of £10 each.

The Plymouth, Devonport, and District Tramways Act, 1882 (45 & 46 Vict.
c. clix.), by which the company was incorporated, contained the
following clause (sect. 35):—

“The carriages used on the tramways may, subject to the provisions of
this Act, be moved by animal power, and, with the consent of the Board
of Trade, during a period of seven years after the opening of the same
for public traffic, and with the like consent during such further
periods not exceeding seven years as the said board may from time to
time specify in any order to be signed by a secretary or an assistant
secretary of the said board, by steam-power or any mechanical power:
Provided always, that the exercise of the powers hereby conferred with
respect to the use of steam or any mechanical power shall be subject to
the regulations set forth in the Schedule A. to this Act annexed, and to
any regulations which may be added thereto or substituted therefor by
any order which the Board of Trade may and which they are hereby
empowered to make from time to time, as and when they may think fit, for
securing to the public all reasonable protection against danger in the
exercise of the powers by this Act conferred with respect to the use of
steam or any mechanical power on the tramways: Provided also, that the
company shall not use steam-power or any mechanical power on the said
tramways unless and until they shall have obtained the previous consent
in writing of the corporations [Plymouth and Devonport] therefor, and
then for such terms only and subject to such conditions and regulations
as the corporations may from time to time prescribe.”

By sect. 64 it was provided that the company should not open any of the
tramways for public traffic without the consent of the corporations.

In October, 1882, the directors issued a prospectus which contained the
following paragraph: “As by sect. 35 of the Plymouth and Devonport
District Tramways Act, 1882, power is given to use either animal, steam,
or mechanical means of locomotion, the directors will adopt that motive
power which experience may demonstrate to be at once the most economical
and effective.” It did not appear that the plaintiff ever received a
copy of this prospectus.

On the 1st of February, 1883, the directors of the company issued a
second prospectus, which contained a heading in large type as follows:
“Incorporated by special Act of Parliament 45 & 46 Vict. authorizing the
use of steam or other mechanical motive power.” The prospectus contained
the following paragraphs:—

“One great feature of this undertaking, to which considerable importance
should be attached, is, that by the special Act of Parliament obtained,
the company has the right to use steam or mechanical motive power
instead of horses, and it is fully expected that by means of this a
considerable saving will result in the working expenses of the line, as
compared with other tramways worked by horses.”

“Looking to the exceptional advantages offered by this undertaking from
the dense population of the towns it traverses, the unusually favorable
conditions as to motive power open to the company, and the annual
dividends earned by other companies which do not enjoy such special
privileges, the directors have reason to believe that the enterprise
will prove highly remunerative, and the shares now for subscription
offer a very favorable opportunity for a sound and progressive
investment.”

The defendants at the same time issued a circular letter, which was sent
with the prospectus, in which it was stated that “the company by its Act
enjoys the special privilege of the right to use steam-power instead of
horse-power, from which it is expected considerable savings will result
in the working expenses.”

The plaintiff received copies of this prospectus and circular, and
believing, as he alleged, that the company had an absolute right to use
steam and other mechanical power, and relying upon the representations
and statements in the prospectus and circular, applied on the 7th of
February for 400 shares, for which he paid £4000.

About £40,000 only of the capital was subscribed; but the directors
completed part of their tramway in Plymouth. The corporation of
Devonport refused their consent to the company opening the completed
part until the remaining portion was ready, and on the 14th of November,
1884, obtained an injunction restraining the company from so doing. When
the Board of Trade were applied to, they refused to sanction the use of
steam-power except over a small portion of the tramways.

The result was that the company was unable to carry out its proposed
undertaking, and a petition for winding-up was presented, which was
followed by a winding-up order on the 2d of May, 1885.

The writ in this action was issued on the 4th of February, 1885, a few
days after the petition for winding-up, by Sir H. Peek, against the
chairman and directors named above, claiming in the first instance a
rescission of the contract for shares and repayment of the money paid by
him, and damages; but the writ was afterwards amended, and claimed only
damages for the misrepresentations in the prospectus and circular.

The defence pleaded by the defendants was that they did not represent,
or intend to represent, in the prospectus and circular, that the company
had an absolute right to use steam or other mechanical power; that the
plaintiff knew that the use of steam-power was never, or seldom, given
unconditionally to a tramway company, and that he was acquainted, or
might have made himself acquainted, with the provisions of the company’s
special Act, which was referred to in the prospectus, and might be seen
at the company’s office; and they denied that the plaintiff was induced
to take the shares by the representations complained of. They also
pleaded that if the statements complained of were untrue, they were made
by the defendants in good faith, and that they had reasonable grounds
for believing them to be true: that in fact the consent of the
corporation of Plymouth to the use of steam was given in June, 1883, and
the consent of the Board of Trade to its being used in a portion of the
tramways had also been given.

The action came on for hearing before Mr. Justice STIRLING. At this
hearing the parties testified.

STIRLING, J., came to the conclusion that the directors all believed
that the company had the right stated in the prospectus; and that their
belief was not unreasonable, and their proceedings so reckless or
careless, that they ought to be fixed with the consequences of deceit.
He ordered the action to be dismissed.[338]

On appeal by plaintiff to the Court of Appeal, the judgment of STIRLING,
J., was reversed by COTTON, HANNEN, and LOPES, L.JJ. They held the
directors liable in this action for deceit, on the ground that they made
the statement without any reasonable ground for believing it to be true.
L. R. 37 Ch. Div. 541.

The defendants, Derry, _et al._, appealed from the decision of the Court
of Appeal to the House of Lords.

The House of Lords unanimously reversed the judgment of the Court of
Appeal, and restored the order of STIRLING, J. Opinions were delivered
by LORDS HALSBURY, WATSON, BRAMWELL, FITZGERALD, and HERSCHEL.

Portions of the opinion of LORD HERSCHELL are as follows:—

LORD HERSCHELL. My Lords, in the statement of claim in this action the
respondent, who is the plaintiff, alleges that the appellants made in a
prospectus issued by them certain statements which were untrue, that
they well knew that the facts were not as stated in the prospectus, and
made the representations fraudulently, and with the view to induce the
plaintiff to take shares in the company.

“This action is one which is commonly called an action of deceit, a mere
common-law action.” This is the description of it given by Cotton, L.
J., in delivering judgment. I think it important that it should be borne
in mind that such an action differs essentially from one brought to
obtain rescission of a contract on the ground of misrepresentation of a
material fact. The principles which govern the two actions differ
widely. Where rescission is claimed it is only necessary to prove that
there was misrepresentation; then, however honestly it may have been
made, however free from blame the person who made it, the contract,
having been obtained by misrepresentation, cannot stand. In an action of
deceit, on the contrary, it is not enough to establish misrepresentation
alone; it is conceded on all hands that something more must be proved to
cast liability upon the defendant, though it has been a matter of
controversy what additional elements are requisite. I lay stress upon
this because observations made by learned judges in actions for
rescission have been cited and much relied upon at the bar by counsel
for the respondent. Care must obviously be observed in applying the
language used in relation to such actions to an action of deceit. Even
if the scope of the language used extend beyond the particular action
which was being dealt with, it must be remembered that the learned
judges were not engaged in determining what is necessary to support an
action of deceit, or in discriminating with nicety the elements which
enter into it.

There is another class of actions which I must refer to also for the
purpose of putting it aside. I mean those cases where a person within
whose special province it lay to know a particular fact, has given an
erroneous answer to an inquiry made with regard to it by a person
desirous of ascertaining the fact for the purpose of determining his
course accordingly, and has been held bound to make good the assurance
he has given. Burrowes _v._ Lock, 10 Ves. 470, may be cited as an
example, where a trustee had been asked by an intended lender, upon the
security of a trust fund, whether notice of any prior incumbrance upon
the fund had been given to him. In cases like this it has been said that
the circumstance that the answer was honestly made in the belief that it
was true affords no defence to the action. Lord Selborne pointed out in
Brownlie _v._ Campbell, 5 App. Cas. p. 935, that these cases were in an
altogether different category from actions to recover damages for false
representation, such as we are now dealing with.

One other observation I have to make before proceeding to consider the
law which has been laid down by the learned judges in the Court of
Appeal in the case before your Lordships. “An action of deceit is a
common-law action, and must be decided on the same principles, whether
it be brought in the Chancery Division or any of the Common Law
Divisions, there being, in my opinion, no such thing as an equitable
action for deceit.” This was the language of Cotton, L. J., in Arkwright
_v._ Newbould, 17 Ch. D. 320. It was adopted by Lord Blackburn in Smith
_v._ Chadwick, 9 App. Cas. 193, and is not, I think, open to dispute.

In the Court below Cotton, L. J., said: “What in my opinion is a correct
statement of the law is this, that where a man makes a statement to be
acted upon by others which is false, and which is known by him to be
false, or is made by him recklessly, or without care whether it is true
or false, that is, without any reasonable ground for believing it to be
true, he is liable in an action of deceit at the suit of any one to whom
it was addressed, or any one of the class to whom it was addressed, and
who was materially induced by the misstatement to do an act to his
prejudice.” About much that is here stated there cannot, I think, be two
opinions. But when the learned Lord Justice speaks of a statement made
recklessly or without care whether it is true or false, that is, without
any reasonable ground for believing it to be true, I find myself, with
all respect, unable to agree that these are convertible expressions. To
make a statement, careless whether it be true or false, and therefore
without any real belief in its truth, appears to me to be an essentially
different thing from making, through want of care, a false statement,
which is nevertheless honestly believed to be true. And it is surely
conceivable that a man may believe that what he states is the fact,
though he has been so wanting in care that the Court may think that
there were no sufficient grounds to warrant his belief. I shall have to
consider hereafter whether the want of reasonable ground for believing
the statement made is sufficient to support an action of deceit. I am
only concerned for the moment to point out that it does not follow that
it is so, because there is authority for saying that a statement made
recklessly, without caring whether it be true or false, affords
sufficient foundation for such an action.

* * * * *

It will thus be seen that all the learned judges [in the Court of
Appeal] concurred in thinking that it was sufficient to prove that the
representations made were not in accordance with fact, and that the
person making them had no reasonable ground for believing them. They did
not treat the absence of such reasonable ground as evidence merely that
the statements were made recklessly, careless whether they were true or
false, and without belief that they were true, but they adopted as the
test of liability, not the existence of belief in the truth of the
assertions made, but whether the belief in them was founded upon any
reasonable grounds. It will be seen, further, that the Court did not
purport to be establishing any new doctrine. They deemed that they were
only following the cases already decided, and that the proposition which
they concurred in laying down was established by prior authorities.
Indeed, Lopes, L. J., expressly states the law in this respect to be
well settled. This renders a close and critical examination of the
earlier authorities necessary.

* * * * *

Having now drawn attention, I believe, to all the cases having a
material bearing upon the question under consideration, I proceed to
state briefly the conclusions to which I have been led. I think the
authorities establish the following propositions: First, in order to
sustain an action of deceit there must be proof of fraud, and nothing
short of that will suffice. Secondly, fraud is proved when it is shown
that a false representation has been made (1) knowingly, or (2) without
belief in its truth, or (3) recklessly, careless whether it be true or
false. Although I have treated the second and third as distinct cases, I
think the third is but an instance of the second, for one who makes a
statement under such circumstances can have no real belief in the truth
of what he states. To prevent a false statement being fraudulent there
must, I think, always be an honest belief in its truth. And this
probably covers the whole ground, for one who knowingly alleges that
which is false has obviously no such honest belief.[339] Thirdly, if
fraud be proved, the motive of the person guilty of it is immaterial. It
matters not that there was no intention to cheat or injure the person to
whom the statement was made.

I think these propositions embrace all that can be supported by decided
cases from the time of Pasley _v._ Freeman, 2 Smith’s L. C. 74, down to
Western Bank of Scotland _v._ Addie, Law Rep. 1 H. L. Sc. 145, in 1867,
when the first suggestion is to be found that belief in the truth of
what he has stated will not suffice to absolve the defendant if his
belief be based on no reasonable grounds. I have shown that this view
was at once dissented from by Lord Cranworth, so that there was at the
outset as much authority against it as for it. And I have met with no
further assertion of Lord Chelmsford’s view until the case of Weir _v._
Bell, 3 Ex. D. 238, where it seems to be involved in Lord Justice
Cotton’s enunciation of the law of deceit. But no reason is there given
in support of the view, it is treated as established law. The _dictum_
of the late Master of the Rolls, that a false statement made through
carelessness, which the person making it ought to have known to be
untrue, would sustain an action of deceit, carried the matter still
further. But that such an action could be maintained notwithstanding an
honest belief that the statement made was true, if there were no
reasonable grounds for the belief, was, I think, for the first time
decided in the case now under appeal.

In my opinion making a false statement through want of care falls far
short of, and is a very different thing from, fraud, and the same may be
said of a false representation honestly believed though on insufficient
grounds. Indeed Cotton, L. J., himself indicated, in the words I have
already quoted, that he should not call it fraud. But the whole current
of authorities, with which I have so long detained your Lordships, shows
to my mind conclusively that fraud is essential to found an action of
deceit, and that it cannot be maintained where the acts proved cannot
properly be so termed. And the case of Taylor _v._ Ashton, 11 M. & W.
401, appears to me to be in direct conflict with the _dictum_ of Sir
George Jessel, and inconsistent with the view taken by the learned
judges in the Court below. I observe that Sir Frederick Pollock, in his
able work on Torts (p. 243, note), referring, I presume, to the _dicta_
of Cotton, L. J., and Sir George Jessel, M. R., says that the actual
decision in Taylor _v._ Ashton, 11 M. & W. 401, is not consistent with
the modern cases on the duty of directors of companies. I think he is
right. But for the reasons I have given I am unable to hold that
anything less than fraud will render directors or any other persons
liable to an action of deceit.

At the same time I desire to say distinctly that when a false statement
has been made the questions whether there were reasonable grounds for
believing it, and what were the means of knowledge in the possession of
the person making it, are most weighty matters for consideration. The
ground upon which an alleged belief was founded is a most important test
of its reality. I can conceive many cases where the fact that an alleged
belief was destitute of all reasonable foundation would suffice of
itself to convince the Court that it was not really entertained, and
that the representation was a fraudulent one. So, too, although means of
knowledge are, as was pointed out by Lord Blackburn in Brownlie _v._
Campbell, 5 App. Cas. p. 952, a very different thing from knowledge, if
I thought that a person making a false statement had shut his eyes to
the facts, or purposely abstained from inquiring into them I should hold
that honest belief was absent, and that he was just as fraudulent as if
he had knowingly stated that which was false.

I have arrived with some reluctance at the conclusion to which I have
felt myself compelled, for I think those who put before the public a
prospectus to induce them to embark their money in a commercial
enterprise ought to be vigilant to see that it contains such
representations only as are in strict accordance with fact, and I should
be very unwilling to give any countenance to the contrary idea. I think
there is much to be said for the view that this moral duty ought to some
extent to be converted into a legal obligation, and that the want of
reasonable care to see that statements made under such circumstances are
true should be made an actionable wrong. But this is not a matter fit
for discussion on the present occasion. If it is to be done the
legislature must intervene and expressly give a right of action in
respect of such a departure from duty. It ought not, I think, to be done
by straining the law, and holding that to be fraudulent which the
tribunal feels cannot properly be so described. I think mischief is
likely to result from blurring the distinction between carelessness and
fraud, and equally holding a man fraudulent whether his acts can or
cannot be justly so designated.

It now remains for me to apply what I believe to be the law to the facts
of the present case. [After reviewing the evidence of each defendant.] I
cannot hold it proved as to any one of them that he knowingly made a
false statement, or one which he did not believe to be true, or was
careless whether what he stated was true or false. In short, I think
they honestly believed that what they asserted was true,[340] and I am
of opinion that the charge of fraud made against them has not been
established. [Remainder of opinion omitted.][341]

HOLMES, J., DISSENTING IN NASH _v._ MINNESOTA TITLE & TRUST COMPANY
(1895) _163 Massachusetts 574, 586–587._

If I were making the law, I should not hold a man answerable for
representations made in the common affairs of life without bad faith
in some sense, if no consideration was given for them, although it
would be hard to reconcile even that proposition with some of our
cases. But the proposition, even if accepted, seems to me not to apply
to this case. The proper meaning of the words used by the defendant
has been settled by this court already. 159 Mass. 437. The
representation was not made in casual talk, but in a business matter,
for the very purpose of inducing others to lay out their money on the
faith of it. When a man makes such a representation, he knows that
others will understand his words according to their usual and proper
meaning, and not by the accident of what he happens to have in his
head, and it seems to me one of the first principles of social
intercourse that he is bound at his peril to know what that meaning
is. In this respect it seems to me that there is no difference between
the law of fraud and that of other torts, or of contract or estoppel.
If the language of fiction be preferred, a man is conclusively
presumed in all parts of the law to contemplate the natural
consequences of his act, as well in the conduct of others as in
mechanical results. I can see no difference in principle between an
invitation by words and an invitation by other acts, such as opening
the gates of a railroad crossing (Brow _v._ Boston & Albany Railroad,
157 Mass. 399), or an intentional gesture, having as its manifest
consequence, according to common experience, a start and a fall on the
part of the person toward whom it is directed, in either of which
cases I suppose no one would say that a defendant could get off by
proving that he did not anticipate the natural interpretation of the
sign. Of course, if the words used are technical, or have a peculiar
meaning in the place where they were used, this can be shown; if by
the context, or the subject matter, or the circumstances, the
customary meaning of the words is modified, this can be shown by proof
of the circumstances, the subject matter, and the context; but when
none of these things appears, a defendant cannot be heard to say that
for some undisclosed reason he had in his mind, and intended to
express by the words, something different from what the words appear
to mean, and were understood by the plaintiff to mean, and are
interpreted by the court to mean, whether the action be in tort or
contract.

Neither, in my opinion, are there any peculiar safeguards set up about
the action for deceit. That action was given by the common law for any
false statement of present facts of which the defendant took the risk,
and which was followed by damage. He might take the risk at different
points in different cases. A false warranty used to be laid as a
deceit in tort for a false and fraudulent representation. Clift,
Entries, 932, pl. 40. Liber Placitandi, 40, pl. 54, 55. Y. B. 11 Ed.
IV. pl. 10. So even an implied warranty. Brown _v._ Edgington, 2 Man.
& G. 279. See Y. B. 11 Ed. IV. 6 b; Keilw. 91, pl. 16. Yet it was not
necessary to lay the scienter, or if you laid it, to prove it, for the
plain reason, as Shaw, C. J., puts it, in substance, that the
defendant is answerable for the facts, however honest he may have
been. Norton _v._ Doherty, 3 Gray, 372, 373. Schuchardt _v._ Allens, 1
Wall. 359, 368. Williamson _v._ Allison, 2 East, 446. Gresham _v._
Postan, 2 C. & P. 540. Denison _v._ Ralphson, 1 Vent. 365, 366. In the
last century an alternative form in assumpsit was introduced (Stuart
_v._ Wilkins, 1 Doug. 18, 21, Lawrence, J., and Williamson _v._
Allison, 2 East, 446, 451), and it may be that now we should require
the warranty to be alleged, which has the advantage of telling the
defendant more exactly what the case is against him. Cooper _v._
Landon, 102 Mass. 58. But there is no doubt about the common law. I am
of opinion, as I have stated, that in a case like the present a man
takes the risk of the interpretation of his words as it may afterwards
be settled by the court.

HAND, J., IN SLATER TRUST COMPANY _v._ GARDINER
(1910) _183 Federal Reporter, 268, 270–271._

At the outset the character of the mistake must be observed. Gardiner
knew the facts, but he did not know the meaning of the words. Although
the great weight of authority is to the contrary (Derry _v._ Peek, 14
App. Cas. 337), I may assume for the purposes of this case that a man
may be responsible for his uttered false words, even when he believes
them to be true.

Such authorities as hold to this rule regard the uttered word as the
cause of the damage, which, of course, it is, and they hold that a
man, by speaking or writing words on which he knows others will rely,
must be held to their truth quite as much as though he made a promise
(Mr. Justice Holmes, dissentiente, Nash _v._ Minnesota Title Co., 163
Mass. 574, 40 N. E. 1039, 28 L. R. A. 753, 47 Am. St. Rep. 489;
Pollock on Torts, [6th Ed.] page 283). But these authorities, which
regard the word as the tortious act, certainly should not, in analogy
with the other law of torts, be supposed to mean that a man should be
responsible for the remote results of his words. The extent of his
responsibility, indeed, ought to be limited, as it is in other torts,
to those matters which would come within the foresight of the
hypothetical reasonable man. With remoter damage it is as unjust to
charge the words of his mouth as the movements of his legs or arms.
Although they do not in these words indicate the distinction, I think
that this is the explanation of such of the cases as make negligence
the test, and of these there are a number.

If Gardiner was responsible for the words he uttered, regardless of
_scienter_, at least he was not responsible for such consequences as
no man could avoid with the use of reasonable care. What happened in
spite of the exercise of such care was remote, within all the
analogies of the law of torts. “Causa proxima non remota spectatur.”
Nor does it make any difference that it was in respect of the meaning
of his words that he was mistaken. The utterance of a word is one
thing; its eventual interpretation by a reader is another, and is as
much the external consequence of its utterance as anything else. A
given interpretation, even a legal one, may be, from the point of view
of the original utterer, so remote a consequence that no one ought in
justice to be held accountable for it. For example, in the case at
bar, if Gardiner did all a layman could do to get the facts set down
correctly, the interpretation that J. T. Woodward put on the words
Gardiner was not bound to anticipate, not even if it was the right
one.

The authorities do not make any distinction between the discrepancy of
the statement with the facts stated and the discrepancy of the
statement with its subsequent interpretation. Thus in Derry _v._ Peek,
14 App. Cas. 337, it appeared that the directors who issued the
prospectus knew all the facts and trusted their solicitors to prepare
the statement correctly (see Lord Bramwell’s judgment, page 348);
their misstatement was in calling the franchise absolute which was in
fact conditional. This statement they successfully justified, because
they regarded the condition attached to the franchise as practically
certain of fulfilment and the statement really truthful (Lord
Herschell’s Judgment, pages 378, 379). The point is that the error was
in supposing that the facts which they knew were correctly set forth
in the statement. A similar case, where the exact point was passed on
by the Supreme Court of Massachusetts, is Nash _v._ Minnesota Title
Co., 163 Mass. 574, 40 N. E. 1039, 28 L. R. A. 753, 47 Am. St. Rep.
489, the dissent in which I have already mentioned. But that dissent
proceeds upon the theory that no scienter is ever necessary in an
action for deceit.

CARPENTER, J., IN ALDRICH _v._ SCRIBNER
(1908) _154 Michigan, 23._

Holcomb _v._ Noble, 69 Mich. 396, 37 N. W. 497, is also in point.
There defendant and plaintiff exchanged lands. In making this exchange
plaintiff relied on certain representations of fact respecting the
pine on the land transferred to him by defendant. These
representations were based—and this was understood by plaintiff—upon
the reports of a land looker, and defendant told plaintiff “that all
he knew about the land was what he learned from the land looker.”
Defendant believed these representations to be true. They were in fact
false, and plaintiff sustained damages by his reliance thereon. An
action of fraud was brought, and it was held that plaintiff could
recover. There were two opinions in the case, one written by Justice
Campbell and concurred in by Justice Champlin, one written by Justice
Morse and concurred in by Chief Justice Sherwood. In the opinion of
Justice Campbell it is said: “It is admitted that in equity an actual
design to mislead is not necessary if a party is actually misled by
another in a bargain. There was abundant evidence in this case to
authorize the jury to find that defendant, whether honestly or
dishonestly, expected plaintiff to act on his representations of the
reliableness of the reports which he produced, and that plaintiff did
rely on them. There is no reason for a difference in action, in such
cases, between courts of law and courts of equity. Where an equitable
cause of grievance exists, it in no way differs from a legal one,
unless a different remedy is needed. A court of law cannot cancel a
contract, and for such a purpose the equitable remedy must be sought.
But where the relief desired is compensation for the wrong, the
equitable remedy is much less appropriate, and an action in equity for
mere damages will generally be denied, but denied only because the
legal remedy is better. If there could be no legal remedy, there can
be no doubt that equity would act. If the fraud is such that it
creates a right of action anywhere, an action must lie on the case
where a money judgment is needed.” I now quote from the opinion of
Justice Morse, concurred in by Chief Justice Sherwood: “I was strongly
impressed, upon the argument of this case, with the theory of the
defendant, supported by abundant authority outside of our own state,
that unless the jury found that the representations relied upon by the
plaintiff as false were made by the defendant, Noble, knowing them to
be false, or he made the statements as facts within his own knowledge,
when he was ignorant of the truth or falsity of them, he could not be
held liable in this action; that if he told plaintiff that he had
never seen the lands, but that he had had the same examined by a
competent land looker, who said that there were 5,000,000 feet of pine
on the land, and made no representations as of his own knowledge, the
plaintiff could not recover. A subsequent careful examination of the
case and the authorities cited by defendant’s counsel has but
confirmed me in the correctness and justness of his claim. I am
satisfied that the law ought not to make a different contract for the
seller than he sees fit to make for himself, and hold him in effect,
for warranties that he never made. But an equally careful examination
of the cases adjudicated in this state satisfies me that the doctrine
is settled here, by a long line of cases, that if there was in fact a
misrepresentation, though made innocently, and its deceptive influence
was effective, the consequences to the plaintiff being as serious as
though it had proceeded from a vicious purpose, he would have a right
of action for the damages caused thereby either at law or in equity.
Baughman _v._ Gould, 45 Mich. 483, 8 N. W. 73; Converse _v._ Blumrich,
14 Mich. 109, 90 Am. Dec. 230; Steinbach _v._ Hill, 25 Mich. 78;
Webster _v._ Bailey, 31 Mich. 36; Starkweather _v._ Benjamin, 32 Mich.
305; Beebe _v._ Knapp, 28 Mich. 53.” I think these decisions are
indistinguishable from the case at bar, and require us to say that the
trial court erred in directing a verdict for the defendant. The Busch
Case and the Holcomb Case cannot be distinguished from the case under
consideration by saying that in them “the principal adopted the
agent’s estimate as his own.” For in this case, as heretofore stated,
defendant asserted to plaintiff “that those representations Barnard
had made were true.” It might therefore be said in this case, then,
the principal adopted the agent’s estimate as his own.

Our attention is called to Krause _v._ Cook, 144 Mich. 365, 108 N. W.
81. There defendant, acting for one Parker, sold mining stock to the
plaintiff. Certain false representations were made, and an action to
recover damages for fraud was brought. It was held that the trial
court should have given the following instruction: “If a person
received information from others, and believes it, repeats it,
explaining that he has no personal knowledge, he is not guilty of
fraud. Therefore, if you find that the defendant received information
from others, and repeated that information to plaintiff, and explained
to plaintiff the sources of his information, he is not guilty of any
fraud, if he acts honestly and in good faith.” At first blush it would
seem, that this principle is opposed to the decisions of Holcomb _v._
Noble and Busch _v._ Wilcox, _supra_. And it must be admitted, I
think, that if this principle had been applied in those cases, a
different conclusion would there have been reached. If there was no
difference in the facts, it might be said that Krause _v._ Cook,
_supra_, is opposed to the principle announced in the Busch and
Holcomb Cases. But there is a difference in the cases, and, in my
judgment, such a difference as to require a different rule of law. In
the Holcomb and Busch Cases the defendant himself obtained what
plaintiff lost by means of the false representations. In the Krause
Case the defendant was an agent, who at most received only 10 per cent
of the damages caused by the false representations. This difference,
in my judgment, places the Krause Case outside the rule of the Holcomb
and Busch Cases. That rule is peculiarly a Michigan rule. Elsewhere in
order to create liability for deceit, it must be shown that “the
person making the statement, or the person responsible for it, either
knows it to be untrue, or is culpably ignorant (that is, recklessly
and consciously ignorant) whether it be true or not.” See Webb’s
Pollock on Torts, p. 355. In Michigan we have held (see cases cited in
the opinion of Justice Morse in the Holcomb Case, _supra_) that in
order to constitute a fraud it is not necessary that the person making
the statement should either know that it is untrue or be recklessly
and consciously ignorant whether it be true or not. It is sufficient
if it be false in fact. It must be said, however, that in the cases in
which this principle has been applied the defendant obtained what the
false representations caused the plaintiff to lose. Applied in such
cases, the principle is a just and salutary one. This may be
illustrated by the Holcomb Case—which is a typical case. There,
because plaintiff Holcomb credited a certain false statement of fact,
he paid defendant Noble more for land purchased than otherwise he
would have paid. The false statement of fact was an agency whereby the
property of the plaintiff was transferred to defendant. The law would
be justly subject to reproach if it afforded no redress in such case.
In Michigan the law does give redress in such a case, and that redress
may be obtained in an action for fraud. It may seem somewhat unjust to
characterize such conduct as fraudulent, but the court was apparently
placed in the dilemma of either so characterizing it or of altogether
denying compensation, and it chose the least objectionable of these
two alternatives. This principle, which is altogether just in its
application to cases where the loss of the plaintiff has inured to the
profit of the defendant, would be most unjust if applied to cases
where the defendant has obtained no such profit. This may be
illustrated by taking a concrete case, and I take a case even plainer
in its facts than the Krause Case. Let us suppose that, with
commendable motives and in the best of faith, one friend communicates
to another with all amplitude of detail certain information he has
received respecting a mine, which it is known that neither of them has
ever visited. The object of this communication is to induce the one to
whom it is made to purchase stock, but not from the one making the
communication, but from a third person having no relation to him. The
stock is purchased accordingly, without any profit resulting to the
friend making the communication; the information proves to be false
and the stock worthless. Did the friend who communicated the
information which proved to be false commit a fraud? He did no moral
wrong. Indeed, from a moral point of view his conduct was commendable,
and, unless compelled to do so, the court should not announce a rule
of law which penalizes commendable conduct. Are we compelled to
declare that there exists a rule of law which makes such conduct
fraudulent? Manifestly not unless we are bound to declare that the
doctrine of the Holcomb and Busch Cases applies. Must we so declare?
As already pointed out, the case differs materially from the Holcomb
and Busch Cases, and this difference is such that the doctrine of
those cases has no just application. That doctrine was designed to
accomplish justice: as applied in the Holcomb and Busch Cases and in
similar cases it does accomplish justice. As applied to cases where
the loss of the plaintiff has not inured to the profit of the
defendant it accomplishes an injustice, and it therefore has no
application to such cases.

LORD HALDANE, L. C., IN NOCTON _v._ LORD ASHBURTON
(1914) _Appeal Cases, 932, 945–946, 951–954._

I have read the evidence of the appellant, and, although it is
obviously unreliable evidence, it leaves on my mind the same
impression that it left on that of the learned judge who heard it,
that the solicitor did not consciously intend to defraud his client,
but, largely owing to a confused state of mind, believed that he was
properly joining with him and guiding him in a good speculation.

I cannot, therefore, treat the case, so far as based on intention to
deceive, as made out. But where I differ from the learned judges in
the Courts below is as to their view that, if they did not regard
deceit as proved, the only alternative was to treat the action as one
of mere negligence at law unconnected with misconduct. This
alternative they thought was precluded by the way the case had been
conducted. I am not sure that, on the pleadings and on the facts
proved, they were right even in this. The question might well have
been treated as in their discretion and as properly one of costs only,
having regard to the unsatisfactory evidence of the appellant. But I
do not take the view that they were shut up within the dilemma they
supposed. There is a third form of procedure to which the statement of
claim approximated very closely, and that is the old bill in Chancery
to enforce compensation for breach of a fiduciary obligation. There
appears to have been an impression that the necessity which recent
authorities have established of proving moral fraud in order to
succeed in an action of deceit has narrowed the scope of this remedy.
For the reasons which I am about to offer to your Lordships, I do not
think that this is so....

My Lords, it is known that in cases of actual fraud the Courts of
Chancery and of Common Law exercised a concurrent jurisdiction from
the earliest times. For some of these cases the greater freedom which,
in early days, the Court of Chancery exercised in admitting the
testimony of parties to the proceedings made it a more suitable
tribunal. Moreover, its remedies were more elastic. Operating _in
personam_ as a Court of conscience it could order the defendant, not,
indeed, in those days, to pay damages as such, but to make
restitution, or to compensate the plaintiff by putting him in as good
a position pecuniarily as that in which he was before the injury.

But in addition to this concurrent jurisdiction, the Court of Chancery
exercised an exclusive jurisdiction in cases which, although
classified in that Court as cases of fraud, yet did not necessarily
import the element of _dolus malus_. The Court took upon itself to
prevent a man from acting against the dictates of conscience as
defined by the Court, and to grant injunctions in anticipation of
injury, as well as relief where injury had been done. Common instances
of this exclusive jurisdiction are cases arising out of breach of duty
by persons standing in a fiduciary relation, such as the solicitor to
the client, illustrated by Lord Hardwicke’s judgment in Chesterfield
_v._ Janssen, 2 Ves. Sen. 125. I can hardly imagine that those who
took part in the decision of Derry _v._ Peek, 14 App. Cas. 337,
imagined that they could be supposed to have cast doubt on the
principle of any cases arising under the exclusive jurisdiction of the
Court of Chancery. No such case was before the House, which was
dealing only with a case of actual fraud as to which the jurisdiction
in equity was concurrent....

So far as the equity jurisdiction in cases of what is called fraud is
concurrent only and exercised in actions for mere deceit apart from
breach of special duty, an actual intention to cheat has now to be
proved. But there are cases of other classes to which, as I have
already said, the Court of Chancery undoubtedly did apply the term
fraud, although I think unfortunately.

Fraud in such cases is, as James, L. J., said in Torrance _v._ Bolton,
L. R. 8 Ch. 118, at p. 124, “_nomen generalissimum_, and it must not
be construed so as to mislead persons into the notion that contracts
for the sale and purchase of lands are in any respect privileged, so
as to be free from the ordinary jurisdiction of the Court to deal with
them as it deals with any instrument, or any other transactions, in
which the Court is of opinion that it is unconscientious for a person
to avail himself of the legal advantage which he has obtained. Indeed,
the books are full of cases in which the Court has dealt with
contracts of that kind—contracts obtained by persons from others over
whom they have dominion, contracts obtained by persons in a fiduciary
position, contracts for the sale of shares obtained by directors
through misrepresentation contained in the prospectus, in respect of
which it was never necessary to allege or prove that the directors
were wilfully guilty of moral fraud in what they had done.” In
Chancery the term “fraud” thus came to be used to describe what fell
short of deceit, but imported breach of a duty to which equity had
attached its sanction. What was laid down by Lord Eldon in this House
in Bulkely _v._ Wilford, 2 Cl. & F. 102, at p. 177, explains the
nature of the duty.

My Lords, I have dealt thus fully with this distinction because I
think that confusion has arisen from overlooking it. It must now be
taken to be settled that nothing short of proof of a fraudulent
intention in the strict sense will suffice for an action of deceit.
This is so whether a Court of Law or a court of equity in the exercise
of concurrent jurisdiction is dealing with the claim, and in this
strict sense it was quite natural that Lord Bramwell and Lord
Herschell should say that there was no such thing as legal as
distinguished from moral fraud. But when fraud is referred to in the
wider sense in which the books are full of the expression, used in
Chancery in describing cases which were within its exclusive
jurisdiction, it is a mistake to suppose that an actual intention to
cheat must always be proved. A man may misconceive the extent of the
obligation which a Court of Equity imposes on him. His fault is that
he has violated, however innocently because of his ignorance, an
obligation which he must be taken by the Court to have known, and his
conduct has in that sense always been called fraudulent, even in such
a case as a technical fraud on a power. It was thus that the
expression “constructive fraud” came into existence. The trustee who
purchases the trust estate, the solicitor who makes a bargain with his
client that cannot stand, have all for several centuries run the risk
of the word fraudulent being applied to them. What it really means in
this connection is, not moral fraud in the ordinary sense, but breach
of the sort of obligation which is enforced by a Court that from the
beginning regarded itself as a Court of conscience.

KAY, L. J., IN LOW _v._ BOUVERIE
(1891) _3 Chancery, 82, 111–113._

The result of the authorities seems to be as follows:—

1. There has been from ancient time a jurisdiction in Courts of Equity
in certain cases to enforce a personal demand against one who made an
untrue representation upon which he knew that the person to whom it was
made intended to act, if such person did act upon the faith of it and
suffered loss by so acting.

2. This was readily done where the representation was fraudulently made,
in which case an action of deceit would lie at law.

3. Relief will also be given at Law and in Equity, even though the
representation was innocently made without fraud, in all cases where the
suit will be effective if the defendant is estopped from denying the
truth of his representation.

4. Where there is no estoppel, an innocent misrepresentation will not
support an action at law for damages occasioned thereby.

5. Estoppel is effective where an action must succeed or fail if the
defendant or plaintiff is prevented from disputing a particular fact
alleged: for example, if an assign of A. sues A.’s trustee to recover
the fund assigned, and the trustee is prevented from denying its
existence in his hands; or at law, if the assign of a debt should sue
the alleged debtor and he was prevented from denying that the debt was
due. Or, in the converse case, an estoppel may be a defence; as if a
joint stock company were to sue a shareholder for calls and they were
estopped from denying that the shares were paid up, their action would
fail.

It is obvious that this rule does not apply to an action for deceit. In
such an action the plaintiff relies, not on the truth of the statement,
but upon its falsehood; and he is bound to prove, not only that the
representation was untrue, but also that it was made fraudulently. Derry
_v._ Peek, 14 App. Cas. 337, very well illustrates the difference. It
was an action by a person who had been induced to take shares in a joint
stock company by an untrue statement in a prospectus. The action was not
against the company, but against the directors who had issued the
prospectus. The representation was not fraudulently made. Preventing the
defendants from denying the truth of their representation would not
enable the plaintiff to succeed in such an action; so that the plaintiff
could not rely on estoppel. That could only be if the defence had been
that the statement was inaccurate, and the defendants were estopped from
denying the accuracy of their own statement. The plaintiff’s case was
not that the statement must be treated as accurate: on that supposition
he could not have had any relief against the defendants. The plaintiff
sued the defendants upon the ground that the statement was false, and
false to their knowledge—that is, fraudulent; and the defence that
prevailed was that, if it was inaccurate, it was not fraudulent.

6. I am not satisfied that relief in the nature of a personal demand
against the defendant has been given in Equity in cases which did not
involve fraud or to which this doctrine of estoppel would not apply.
Slim _v._ Croucher, 1 D. F. & J. 518, is the only instance I know of;
and, as Lord Campbell said that there might be relief at law in that
case, he probably considered, either that it was a case of estoppel, or
that an action of deceit would lie—which latter view is not consistent
with Derry _v._ Peek, 14 App. Cas. 337.

FARWELL, L. J., IN FRY _v._ SMELLIE
(1912) _3 King’s Bench Division, 282, 294–295._

I can only say that certificates and a blank transfer are in everyday
use as securities for raising money, and that every man who lends money
to A. on documents which show a title in B. is of course put on inquiry.
This does not mean that he must refuse to deal with the agent at all but
must refer to the principal, but that he must make such inquiry as is
reasonable under the circumstances. If he is foolish enough to lend to
A. without inquiry, and A. has no right or authority to deal with the
documents, he loses his money, and it is perfectly immaterial whether
the security is a deposit of title deeds to real estate or certificates
of shares with a blank transfer. Such a question as arises in the
present case can only arise when the owner of the property has
authorized such a dealing with the property as is corroborated by the
possession of the indicia of title. If no authority at all has in fact
been given it is quite immaterial whether the lender inquires and is
given an untrue answer or does not inquire at all; in either case he
loses his money. But if the owner has in fact given the borrower
authority to deal with the property by way of loan or by way of sale,
and has entrusted him with the indicia of title, enabling him so to
deal, then the owner cannot be heard to say that there is any limit on
the authority so given. If the indicia of title are apparently
co-extensive with the authority claimed there is nothing to suggest any
limit. The estoppel arises out of the conduct of the owner of the
property. Estoppel is merely a rule of evidence which prevents the
person estopped from giving certain facts in evidence. If A.’s conduct
amounts to an invitation to B. to advance money to C. without limit on
the title deeds of A.’s property, he cannot be heard to say that he had
imposed on C. a limit, any more than if he had written or said to B.
that he had given C. authority to borrow money and had not mentioned any
limit. If he has simply deposited his deeds with C. such deposit
involves no such representation, and there is therefore no such
estoppel. In speaking of estoppel, I am referring to the doctrine of
estoppel by representation which Lord Macnaghten, in Whitechurch _v._
Cavanagh, [1902] A. C. 117, at p. 130, says “is a very old head of
equity.” (See Low _v._ Bouverie, [1891] 3 Ch. 82.) It is sometimes
called equitable estoppel or a rule of equity, and has been expressed in
some of the cases as the rule which compels a man to make good his
representations of fact, in reliance on which the person to whom they
have been made for the purpose of inducing him to act on them has so
acted. Indeed equitable estoppel is the only way in which this doctrine
of making good representations has survived the decision in Derry _v._
Peek, 14 App. Cas. 337. The circumstances must necessarily be such as to
show a duty to some one to disclose fully on the person making the
representation, but it is not a question of negligence in the sense that
an action for damages would lie at common law, and no bill in equity
would ever have been filed for damages.[342]

CARTER, J., IN WATSON _v._ JONES
(1899) _41 Florida, 241, 253–255._

[After citing Wheeler _v._ Baars, 33 Florida, 696.]

It is there said that the _scienter_ may be proved by showing, first,
actual knowledge of the falsity of the representation by defendant;
second, that defendant made the statement as of his own knowledge, or in
such absolute unqualified and positive terms as to imply his personal
knowledge of the fact, when in truth defendant had no knowledge whether
the statement was true or false; or, third, that the party’s special
situation or means of knowledge were such as to make it his duty to know
as to the truth or falsity of the representation. Under each phase the
proof must show that the statement was in fact false, and in addition,
under the first, that defendant had actual knowledge that it was false;
under the second, that defendant made the statement as of his own
knowledge, when in fact he had no knowledge whether it was true or
false, which seems to bear a close resemblance to the English rule,
“without belief in its truth, or recklessly careless whether it be true
or false”; and under the third, that defendant’s special situation or
means of knowledge were such as made it his duty to know as to the truth
or falsity of the representation. From this statement it is quite
evident that proof sufficient to sustain the third phase tends very
strongly to sustain the idea that the defendant had actual knowledge of
the falsity of his statement; for when it is shown that the statement
was material and false, and that the defendant’s situation or means of
knowledge were such as to make it incumbent upon him as a matter of duty
to know whether the statement was true or false, the conclusion is
almost irresistible that he did know that which his duty required him to
know. For this reason the law conclusively presumes from the existence
of these facts that defendant had actual knowledge of the falsity of his
statement, or, more properly speaking, proof of these facts is
sufficient to sustain a charge of actual knowledge, dispensing with
further proof upon that subject, and admitting no proof to rebut the
fact of actual knowledge, but only proof to rebut the existence of the
facts from which such actual knowledge is inferred. We are therefore of
opinion that proof of _scienter_ in the third phase does not give
another or different right or ground of action from that given by proof
under the first phase, but that it simply establishes the same ultimate
fact, viz., knowledge, by a different class of evidence, and
consequently that an allegation that defendant “knew” his representation
to be false is provable by evidence embraced in the third phase. In
other words, an averment that defendant’s situation or means of
knowledge were such as made it his duty to know whether his statement
was true or false, and an averment that defendant well knew his
statements to be untrue, are but different methods of stating the same
ultimate fact, viz., knowledge.[343]

CABOT _v._ CHRISTIE
SUPREME COURT, VERMONT, FEBRUARY TERM, 1869.
_Reported in 42 Vermont Reports, 121._

Case for false warranty in the sale of a farm. Plea, not guilty. Trial
by jury, May term, 1868, Barrett, J., presiding.

The plaintiff gave evidence tending to show that he bought the farm at
the time and for the price stated in the declaration, and that the
defendant made representations in respect to the number of acres, as of
his own knowledge, designedly intending to induce the plaintiff to
suppose and believe, and thereby the plaintiff was induced to and did
suppose and believe, that the farm contained at least one hundred and
thirty acres of land, and relying thereupon, the plaintiff made the
purchase; that the defendant knew that there was not one hundred and
thirty acres, or he didn’t know that there was that quantity; that in
fact there was only one hundred and seventeen acres and a few rods in
the farm; that the plaintiff had no knowledge of the quantity except
from the defendant’s representation.

The defendant gave evidence tending to show that he supposed there was
one hundred and thirty acres and a little more in the farm, derived from
what he had heard said, and from various deeds in his possession of
various grantors and of various parcels, but that he did not know, and
did not profess or represent to the plaintiff that he knew how many
acres there were in fact; that he gave the plaintiff all the information
and sources of information he had on the subject, neither making any
false representation, nor fraudulent concealment, nor any undertaking as
to the number of acres in the farm. There was no evidence or claim that
the farm was sold by the acre; but it appeared that it was sold in lump,
or as a farm entire.

The plaintiff requested the Court to charge the jury:—

_First_, That under the declaration the plaintiff is entitled to recover
if he proves a warranty of the number of acres in the farm, or if he
proves a fraudulent representation of the number of acres.

_Second_, That the fraudulent representation may be proved either by
evidence of false representations, known to the defendant to be false,
and relied upon by the plaintiff, or by proof of an absolute
representation of the number of acres, which representation was made
with intent that the plaintiff should rely upon it, and was made upon
professed knowledge, but without actual knowledge, and which was in fact
false, but was relied upon by the plaintiff as true.

The Court complied with said requests only so far as is shown by the
charge, and charged as follows:—

In order to entitle the plaintiff to recover he must satisfy the jury
that the defendant knew the farm did not contain one hundred and thirty
acres, or that he did not believe it contained one hundred and thirty
acres; and that in order to induce the plaintiff to buy the farm he
falsely represented it to contain one hundred and thirty acres; and that
the plaintiff was by such false representation induced to make the
purchase, believing it to contain that quantity.

If he honestly believed it contained one hundred and thirty acres, the
plaintiff cannot recover, though the defendant was in error about it.
Honest mistake is not fraud. Incorrect is not the same as false. You
must find that he represented the quantity different from what he knew
or believed to be true, with the fraudulent intent. Also, that the
plaintiff was thus induced to make the purchase. That is, that the
plaintiff would not have made the purchase if the defendant had not
represented it to be one hundred and thirty acres. Inquire as to these
several points. Fraud is not presumed, but must be proved.

The jury returned a verdict for the defendant. The plaintiff excepted to
the charge in the respects in which it failed to comply with, or was
against said requests. In other respects the charge was satisfactory.

The declaration counted both upon a false warranty of the defendant in
regard to the number of acres contained in the farm, and a warranty in
regard to said quantity.

The opinion of the Court was delivered by

STEELE, J. 1. The plaintiff cannot recover upon the ground of a parol
warranty of the quantity of the land. If the quantity was warranted it
should be provable by the deed. It is true that a deed of conveyance
need not contain all the stipulations of the parties. For example, the
agreements as to consideration and mode of payment need not be embraced
in the deed, for the instrument purports to be the deed of but one of
the parties. But it does purport to contain the convenants of the
grantor with respect to the property conveyed. To add a new covenant by
parol proof would be a palpable violation of the familiar rule that
written contracts are not to be varied by oral testimony. Such a parol
stipulation, it has been held, could not be proved in respect to an
ordinary bill of sale of personal property.

Nor is the plaintiff entitled to recover in this action upon the ground
of mistake. A mutual and material mistake, by which the purchaser was
misled as to the quantity of land, would be a more appropriate ground
for relief in a court of chancery than in a court of law. If, then, the
plaintiff was entitled to recover at all in this case, it was by reason
of some fraud on the part of the defendant by which the bargain was
induced.

2. The plaintiff complains of the ruling of the County Court upon the
subject of fraud. It is conceded that the quantity of land was
represented incorrectly. The Court properly told the jury that this, in
itself, would not amount to fraud. To entitle the plaintiff to a
recovery upon that ground, the defendant must have made some
representation upon the subject that he did not believe to be true. The
plaintiff claims, and his evidence tended to prove, that the defendant
did make such a representation by stating the quantity of land as a
matter within his own knowledge, when, in fact, as the defendant
concedes, it was a matter upon which he had only a belief. We think it
very clear that a party may be guilty of fraud by stating his belief as
knowledge. Upon a statement of the defendant’s mere belief, judgment, or
information, the plaintiff might have regarded it prudent to procure a
measurement of the land before completing his purchase. A statement, as
of knowledge, if believed, would make a survey or measurement seem
unnecessary. A representation of a fact, as of the party’s own
knowledge, if it prove false, is, unless explained, inferred to be
wilfully false and made with an intent to deceive, at least in respect
to the knowledge which is professed. A sufficient explanation however
sometimes arises from the nature of the subject itself, or from the
situation of the parties being such that the statement of knowledge
could only be understood as an expression of strong belief or opinion.
But the quantity of land in a farm is a matter upon which accurate or
approximately accurate knowledge is not at all impossible or unusual. If
the defendant had only a belief or opinion as to the quantity of land,
it was an imposition upon the plaintiff to pass off such belief as
knowledge. So, too, if he made an absolute representation as to the
quantity, which was understood and intended to be understood as a
statement upon knowledge, it is precisely the same as if he had
distinctly and in terms professed to have knowledge as to the fact. It
is often said that a representation is not fraudulent if the party who
makes it believes it to be true. But a party who is aware that he has
only an opinion how a fact is, and represents that opinion as knowledge,
does not believe his representation to be true. As is well said in a
note to the report of the case of Taylor _v._ Ashton, 11 Mees. & Wels.
418 (Phila. Ed.), the belief of a party to be an excuse for a false
representation must be “a belief in the representation as made. The
_scienter_ will therefore be sufficiently established by showing that
the assertion was made as of the defendant’s own knowledge, and not as
mere matter of opinion, with regard to facts of which he was aware that
he had no such knowledge.” The same principle of law has been repeatedly
recognized. Hammatt _v._ Emerson, 27 Maine, 308, 326; Bennett _v._
Judson, 21 N. Y. 238; Stone _v._ Denny, 4 Met. 151; Hazard _v._ Irwin,
18 Pick. 95.

In the case before us the plaintiff, under the charge of the Court, was
denied the benefit of this rule of law, although there was evidence
tending to show every necessary element of a fraud of the nature we have
been considering. The plaintiff’s request was refused, and the jury were
instructed that the plaintiff could only recover in case they found
“that the defendant represented the quantity of land different from what
he knew or believed to be true.” Under these instructions it would be
immaterial whether he made the representation as a matter of knowledge
or as a matter of opinion so long as he kept within his belief as to the
quantity of land. In this we think there was error. The Court properly
instructed the jury that the representation, to warrant a recovery, must
have been relied on and have been an inducement to the purchase. The
subsequent remark that the jury, to hold the defendant, must find that
the plaintiff would not have made the purchase but for the
representation, we regard as probably inadvertent.

What the plaintiff would have done but for the false representation is
often a mere speculative inquiry, and is not the test of the plaintiff’s
right. If the false representations were material and relied upon, and
were intended to operate and did operate as one of the inducements to
the trade, it is not necessary to inquire whether the plaintiff would or
would not have made the purchase without this inducement.

The judgment of the County Court is reversed and the cause is
remanded.[344]

FOSTER _v._ CHARLES
IN THE COMMON PLEAS, NOVEMBER 10, 1830.
_Reported in 7 Bingham, 105._

Case for deceit; the declaration alleging that certain false
representations were made by the defendant to the plaintiffs, merchants
in London, in order to induce them to engage one Jacque as their agent
at Manchester.[345]

Plea, the general issue.

At the trial before Tindal, C. J., London sittings after Michaelmas
term, it appeared that in November or December, 1824, the defendant, a
soap manufacturer, called on the plaintiffs, wholesale tea dealers, with
whom he was on terms of intimacy, and after asking them if they did
business at Manchester, said “he had a young friend for whom he was
anxious to procure a commission in the tea trade at Manchester; a nice
young man, who had an excellent connection there, and would be a great
acquisition to any person who wanted to do business there; the defendant
being on such terms with the plaintiffs, he had offered it to them
before he proposed it to Smith and Co.,—a respectable house in the same
line of business; that Smith and Co. would jump at the offer; that his
friend was so excellent a young man, that he would rather trust him
without security than most men with; that this young man had been doing
business at Manchester for a London tea house, who could no longer
execute his extensive orders; that he had an uncle at Manchester, a
clergyman of the Scotch Church, who would afford him great facilities in
the way of business, and knew all the Scotch travellers in the trade;
that defendant would like him to sell soap for defendant and his
partner, but feared his other connections would not allow him time.”

The plaintiffs said they had an objection to giving commissions; but the
very strong recommendation defendant had given of his friend would
induce them to think of it.

Accordingly, in the beginning of 1825, the plaintiffs employed James
Jacque, the defendant’s young friend, to do business for them on
commission at Manchester. But by the middle of 1827, after repeatedly
sending incorrect statements of the amount of his receipts on their
behalf, he contrived to be a defaulter to them to the extent of £900 and
upwards, and to involve them in bad debts to a much greater amount.

He then took the benefit of the insolvent debtors’ act.

Instead of having been employed in the Manchester commission tea trade
in the year 1824, as the defendant had stated to the plaintiffs, it
appeared that he had, at the recommendation of the defendant, been taken
into partnership without any capital by Mr. R. C. Stewart, a
warehouseman in London, in July, 1823; but great losses having been
incurred in that concern, aggravated by a robbery to some amount, Mr.
Stewart closed the concern and dissolved the partnership in October,
1824.

Jacque was then indebted to Stewart in the sum of £800, which he
undertook by deed, dated November 13, 1824, to pay by instalments, in
two, three, and four years; but nothing was ever paid.

All this was known to the defendant, who had acted throughout for
Jacque, and had negotiated the terms of the dissolution of partnership.

Letters were also put in, written by the defendant to Jacque, after the
exposure of the Manchester transactions, in which the defendant exhorted
Jacque to write various falsehoods to the plaintiffs with a view to the
exculpation of the defendant, and to conceal from the plaintiffs his
knowledge of some of the transactions at Manchester.

When the defendant was first applied to on the subject by the
plaintiffs, he expressed his regret that his house should have been the
means of introducing an unworthy agent to the plaintiffs; but that as
they had been instrumental in bringing the loss on the plaintiffs, he
would see his partner on the subject, and see what could be done towards
relieving them from it. No step of that kind having been taken, the
present action was commenced.

Tindal, C. J., told the jury to consider whether the representation
complained of by the plaintiffs had ever been made, and if made, whether
it was false within the knowledge of the defendant; for unless it were
false within his knowledge, the action did not lie.

The jury returned a verdict for the defendant, which was set aside by
the Court. [6 Bingham, 396.]

Upon a new trial, Tindal, C. J., told the jury that if the defendant
made representations concerning Jacque, the tendency of which was to
occasion loss to the plaintiff, knowing such representations to be
false, and intending thereby to benefit himself, he was guilty of fraud
in the common acceptation of the term; if he made such representations,
knowing them to be false, without proposing thereby any advantage to
himself, but proposing, perhaps, to benefit a third person, he was
guilty of fraud in the legal acceptation of the term, and responsible to
the plaintiff for any injury resulting from such representations.

The jury thereupon found for the plaintiff, damages £800; but added: “We
consider there was no actual fraud on the part of the defendant, and
that he had no fraudulent intention, although what he has done
constituted a fraud in the legal acceptation of the term.”

_Jones_, Serjt., now contended that this amounted to a verdict for the
defendant; and therefore moved that the verdict might be entered for
him, instead of the plaintiff.

He urged, at some length, nearly the same arguments as he had advanced
on a former occasion, and adverted to the same authorities (see 6 Bing.
402); contending that this action was substituted for the ancient writ
of deceit; that the gist of the action was a fraudulent intent on the
part of the defendant to injure the plaintiff by deceiving him; that a
defendant was not responsible for the consequences of a statement,
merely because he knew it to be false; he was not responsible for the
consequences of a bare lie; in order to render him responsible, it ought
to be shown that he intended to defraud the plaintiff of something by
the deceit he had practised. That if a party were responsible for the
consequences of a lie told without any intention to defraud the hearer
of something, no line could be drawn, and parties might be called on to
answer for those excusable untruths, which were sometimes told for the
purpose of avoiding a greater mischief.

TINDAL, C. J. No sufficient ground has been laid to induce us to disturb
the verdict which has been found for the plaintiff. The application
arises on a misconception of what the jury have found. They first
deliver a verdict for the plaintiff, with damages, and then add, that in
point of fact they consider the defendant had no fraudulent intention,
although he had been guilty of fraud in the legal acceptation of the
term.

Their attention had been drawn by me to two classes of motives possible
on the part of the defendant; first, a desire to benefit himself by
making a statement which he knew to be false; secondly, a desire to
benefit some third person; and I stated that, although there might be no
intention on his part to obtain an advantage for himself, it would still
be a fraud, for which he was responsible in law, if he made
representations productive of loss to another, knowing such
representations to be false.

The jury in finding that he had no intention to defraud mean only that
he was not actuated by the baser motive of obtaining an advantage for
himself, but that he was guilty of fraud in law by stating that which he
knew to be false, and which was the cause of loss to the plaintiff.

The question, therefore, is, whether, if a party makes representations
which he knows to be false, and occasions injury thereby, he is not
liable for the consequences of his falsehood.

It would be most dangerous to hold that he is not.

The confusion seems to have arisen from not distinguishing between what
is fraud in law and the motives for actual fraud. It is fraud in law if
a party makes representations which he knows to be false, and injury
ensues, although the motive from which the representations proceeded may
not have been bad; the person who makes such representations is
responsible for the consequences; and the verdict, therefore, in this
case ought not to be disturbed.

PARK, J. I am of the same opinion. In what fell from this Court in the
case of Tapp _v._ Lee, and upon the former decision of the present case,
the doctrine has been laid down most accurately. It would be unfair to
take the expressions of the jury, without connecting them with what the
Chief Justice had just presented for their consideration. It is clear
that the jury meant to draw the distinction between the sordid motive of
personal advantage and the legal fraud which might be committed by a
representation false within the knowledge of the speaker, although made
without any view to his own advantage. For such a representation the
defendant is responsible if mischief ensues, whatever may have been his
motive; and as to its being necessary to prove the motive by which he
was actuated: when the case was last before the Court, Tindal, C. J.,
said, “I am not aware of any authority for such a position, nor that it
can be material what the motive was; the law will infer an improper
motive, if what the defendant says is false within his own knowledge,
and is the occasion of damage to the plaintiff.”

Here the defendant said “That his friend was so excellent a young man,
that he would rather trust him without security than most men with;”
when he knew the contrary to be the fact, he was guilty of a fraud in
law in making such a representation; and fraud in law is sufficient to
support this action.

GASELEE, J. When this verdict is taken in connection with the direction
of the Chief Justice, there is an end to all doubt as to the meaning of
the jury, and the finding is a perfect finding. What the jury meant by
actual fraud was a sordid regard to self-interest; but the legal fraud,
which is sufficient to sustain the action, was complete when the
intention to mislead was followed by actual injury.

BOSANQUET, J. There seems to me to be no reason for disturbing this
verdict. In the course of the trial, it is probable that improper
motives had been ascribed to the defendant. The Chief Justice,
therefore, stated to the jury, and stated correctly, that motives of
that description in the defendant were not essential to the plaintiff’s
action. If a person tells a falsehood, the natural and obvious
consequence of which, if acted on, is injury to another, that is fraud
in law. Coupling that with what the Chief Justice addressed to the jury,
their verdict only means that the defendant did not propose to benefit
himself, perhaps intended to benefit another; but that what he said,
intending to benefit another, was false within his own knowledge,
injurious to the party who received the communication, and,
consequently, a fraud in the legal acceptation of the term.

_Rule refused._[346]

POLHILL _v._ WALTER
IN THE KING’S BENCH, JANUARY 20, 1832.
_Reported in 3 Barnewall & Adolphus, 114._

LORD TENTERDEN, C. J.[347] In this case, in which the defendant obtained
a verdict on the trial before me at the sittings after Hilary Term, a
rule _nisi_ was obtained to enter a verdict for the plaintiff, and cause
was shown during the last term. The declaration contained two counts:
the first stated, that a foreign bill of exchange was drawn on a person
of the name of Hancorne, and that the defendant falsely, fraudulently,
and deceitfully did represent and pretend that he was duly authorized to
accept the bill by the procuration, and on behalf of Hancorne, and did
falsely and fraudulently pretend to accept the same by the procuration
of Hancorne. It then proceeded to allege several indorsements of the
bill, and that the plaintiff, relying on the pretended acceptance, and
believing that the defendant had authority from Hancorne to accept,
received the bill from the last indorsee in discharge of a debt; that
the bill was dishonored, and that the plaintiff brought an unsuccessful
action against Hancorne. The second count contained a similar statement
of the false representation by the defendant, and that he accepted the
bill in writing under pretence of the procuration from Hancorne; and
then proceeded to describe the indorsements to the plaintiff, and the
dishonor of the bill, and alleged, that thereupon it became and was the
duty of the defendant to pay the bill as the acceptor thereof, but that
he had not done so.

On the trial it appeared, that when the bill was presented for
acceptance by a person named Armfield, who was one of the payees of the
bill, Hancorne was absent; and that the defendant, who lived in the same
house with him, was induced to write on the bill an acceptance as by the
procuration of Hancorne, Armfield assuring him that the bill was
perfectly regular, and the defendant fully believing that the acceptance
would be sanctioned, and the bill paid at maturity, by the drawee. It
was afterwards passed into the plaintiff’s hands, and being dishonored
when due an action was brought against Hancorne; the defendant was
called as a witness on the trial of that action, and he negativing any
authority from Hancorne, the plaintiff was nonsuited. I left to the jury
the question of deceit and fraud in the defendant, as a question of fact
on the evidence, and the jury having negatived all fraud, the defendant
had a verdict, liberty being reserved to the plaintiff to move to enter
a verdict, if the Court should think the action maintainable
notwithstanding that finding.

On the argument, two points were made by the plaintiff’s counsel. It was
contended, in the first place, that although the defendant was not
guilty of any fraud or deceit, he might be made liable as acceptor of
the bill; that the second count was applicable to that view of the case;
and that, after rejecting the allegations of fraud and falsehood in that
count, it contained a sufficient statement of a cause of action against
him, as acceptor. But we are clearly of opinion that the defendant
cannot be made responsible in that character. It is enough to say that
no one can be liable as acceptor but the person to whom the bill is
addressed, unless he be an acceptor for honor, which the defendant
certainly was not.

This distinguishes the present case from that of a pretended agent
making a promissory note (referred to in Mr. Roscoe’s Digest of the Law
of Bills of Exchange, note 9, p. 47), or purchasing goods in the name of
a supposed principal. And, indeed, it may well be doubted if the
defendant, by writing this acceptance, entered into any contract or
warranty at all, that he had authority to do so; and if he did, it would
be an insuperable objection to an action as on a contract by this
plaintiff, that at all events there was no contract with, or warranty to
him.

It was in the next place contended that the allegation of falsehood and
fraud in the first count was supported by the evidence; and that, in
order to maintain this species of action, it is not necessary to prove
that the false representation was made from a corrupt motive of gain to
the defendant, or a wicked motive of injury to the plaintiff; it was
said to be enough if a representation is made which the party making it
knows to be untrue, and which is intended by him, or which, from the
mode in which it is made, is calculated to induce another to act on the
faith of it, in such a way as that he may incur damage, and that damage
is actually incurred. A wilful falsehood of such a nature was contended
to be, in the legal sense of the word, a fraud; and for this position
was cited the case of Foster _v._ Charles, 6 Bing. 396; 7 Bing. 105,
which was twice under the consideration of the Court of Common Pleas,
and to which may be added the recent case of Corbet _v._ Brown, 8 Bing.
33. The principle of these cases appears to us to be well founded, and
to apply to the present.

It is true that there the representation was made immediately to the
plaintiff, and was intended by the defendant to induce the plaintiff to
do the act which caused him damage. Here, the representation is made to
all to whom the bill may be offered in the course of circulation, and
is, in fact, intended to be made to all, and the plaintiff is one of
those; and the defendant must be taken to have intended, that all such
persons should give credit to the acceptance, and thereby act upon the
faith of that representation, because that, in the ordinary course of
business, is its natural and necessary result.

If, then, the defendant, when he wrote the acceptance, and thereby, in
substance, represented that he had authority from the drawee to make it,
knew that he had no such authority (and upon the evidence there can be
no doubt that he did), the representation was untrue to his knowledge,
and we think that an action will lie against him by the plaintiff for
the damage sustained in consequence.

If the defendant had had good reason to believe his representation to be
true, as, for instance, if he had acted upon a power of attorney which
he supposed to be genuine, but which was, in fact, a forgery, he would
have incurred no liability, for he would have made no statement which he
knew to be false: a case very different from the present, in which it is
clear that he stated what he knew to be untrue, though with no corrupt
motive.

It is of the greatest importance in all transactions that the truth
should be strictly adhered to. In the present case, the defendant no
doubt believed that the acceptance would be ratified, and the bill paid
when due, and if he had done no more than to make a statement of that
belief, according to the strict truth, by a memorandum appended to the
bill, he would have been blameless. But then the bill would never have
circulated as an accepted bill, and it was only in consequence of the
false statement of the defendant that he actually had authority to
accept, that the bill gained its credit, and the plaintiff sustained a
loss. For these reasons we are of opinion that the rule should be made
absolute to enter a verdict for the plaintiff.

_Rule absolute._[348]

BUTTERFIELD _v._ BARBER
SUPREME COURT, RHODE ISLAND, MAY 15, 1897.
_Reported in 20 Rhode Island Reports, 99._

Case for deceitful representations by a debtor to his creditor, the
plaintiff having subsequently purchased the claim from the latter in the
form of a promissory note. Heard on defendant’s petition for new trial.

PER CURIAM. Assuming that the representations testified to by the
plaintiff were made by the defendant, the testimony shows that they were
made for the purpose of being communicated to Murphy, to procure an
extension of time for the payment of his claim against the defendant. At
the time they were made the defendant had no expectation that the note,
which was subsequently made, was to be taken by the plaintiff, who, in
the meantime, had purchased the claim from Murphy. We do not think that
in these circumstances the plaintiff had the right to rely on the
representations, if they were made, because they were not made with the
intention of inducing his action, and consequently that he has no ground
to maintain an action for deceit.

Case remitted to the Common Pleas Division, with direction to enter
judgment for the defendant for costs.[349]

ALDEN _v._ WRIGHT
SUPREME COURT, MINNESOTA, SEPTEMBER 30, 1891.
_Reported in 47 Minnesota Reports, 225._

Action for deceit in the exchange of real property for shares of
corporate stock. Plaintiff alleged fraudulent representations on the
part of defendants as to the value of the shares, whereby he was induced
to make the exchange. Trial. Verdict for defendants. Plaintiff appealed
from an order denying a new trial.[350]

COLLINS, J....

2. At defendants’ request the court charged the jury, in substance, that
they must find for defendants, unless it appeared by a preponderance of
testimony that the property conveyed by plaintiff in exchange for the
shares of stock was worth more than the latter; and to this plaintiff
excepted, on the ground that it prevented the jury from returning a
verdict in his favor for nominal damages; that, even if the jury should
fail to find that the property conveyed by plaintiff was of greater
value than the shares of stock transferred to him,—passing on all other
questions in his favor,—they might award him nominal damages at least;
and that the possibility of such an award was excluded by the charge.
But, at plaintiff’s request, the jury was instructed that, if they found
for him, the amount he would be entitled to recover would be the amount
of the difference between the actual value of the property which he
conveyed and the actual value of the stock received by him. The rule as
to the measure of damages in the case was stated in better form in
plaintiff’s than in defendants’ request, but one was, in effect, a
repetition of the other. The rule was correctly stated in each, and the
same proposition of law was elsewhere in the charge laid down by the
court in very concise and proper, but different, language. The essential
elements which constitute a cause of action for deceit are well stated
in Busterud _v._ Farrington, 36 Minn. 320 (31 N. W. Rep. 360), and one
is that the party induced to act has been damaged. He must have acted on
the faith of the false representations _to his damage_. A party cannot
sustain an action of this character where no harm has come to him.
Deceit and injury must concur,—Doran _v._ Eaton, 40 Minn. 35 (41 N. W.
Rep. 244);—or, as it has frequently been put by the courts, fraud
without damage or damage without fraud will not sustain the action for
deceit. Taylor _v._ Guest, 58 N. Y. 262; Nye _v._ Merriam, 35 Vt. 438;
Freeman _v._ McDaniel, 23 Ga. 354; Byard _v._ Holmes, 34 N. J. Law, 296;
3 Suth. Dam. 594; Cooley, Torts, 474; Bailey, Onus Probandi, 770. If,
therefore, the shares of stock were worth what plaintiff gave for them,
were of equal value with the property exchanged, the plaintiff was not
damaged, and was not entitled to recover; for the proper measure of
damages was the difference in value between the shares of stock and the
property conveyed by plaintiff for them. Redding _v._ Godwin, 44 Minn.
355 (46 N. W. Rep. 563), and cases cited. The plaintiff, under such a
rule, would not be permitted to recover nominal damages even without
proof of loss or injury, and there is nothing said in Potter _v._
Mellen, 36 Minn. 122 (30 N. W. Rep. 438), as counsel has contended,
indicating a contrary view. Damage is of the essence of the action of
deceit; an essential element to the right of action, and not merely a
consequence flowing from it.

_Order affirmed._[351]

FREEMAN _v._ VENNER
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 23, 1876.
_Reported in 120 Massachusetts Reports, 424._

Action of tort. Writ dated Dec. 22, 1873. Plaintiff held the
negotiable promissory note of J. W. and J. H. Cox, dated July 16,
1873, payable to plaintiff or order in two years from date; and he
also held a mortgage conditioned to secure the note. In consideration
of land to be conveyed to him by the defendant, plaintiff agreed to
assign to defendant the mortgage and note; but he did not agree to
make an unrestricted indorsement of the note, and the defendant was
not entitled to have the personal liability of the plaintiff as
indorser of the note. Plaintiff, through ignorance of the law, and by
reason of the false and fraudulent representations of defendant, on
Dec. 1, 1873, indorsed the note in blank without any qualification. As
soon as the plaintiff became aware of the obligation he had thus
assumed, and before defendant had negotiated the note or altered his
position in any way, plaintiff demanded to be allowed to qualify his
indorsement so that it should merely transfer the title according to
the agreement. Defendant refused to allow this. Thereupon plaintiff
forbade defendant to negotiate the note; but defendant,
notwithstanding, negotiated the note before maturity to one Tenney, a
_bona fide_ holder for value.

Upon a trial by a judge, without a jury, the foregoing facts were
found, substantially as alleged in the declaration.

It also appeared, that, before commencing his action, or at any time
before said trial, the plaintiff had made no payment on account or by
reason of the indorsement; that, before the commencement of this
action and before the maturity of the note, the makers thereof had
become bankrupts; that since the commencement a semi-annual instalment
of interest had become due; that Tenney had caused the real estate to
be sold by virtue of the power contained in the mortgage, had applied
a part of the proceeds of the sale in liquidation of that interest,
and, since the maturity of the note, had applied the balance of the
proceeds in part payment of the note, and had commenced an action
against the plaintiff to recover the balance of said note (due demand
having been made and notice given), which action is now pending.

Defendant requested the judge to rule that, upon the foregoing facts
the plaintiff could not maintain his action, but, if he could, that he
was entitled to recover only nominal damages. The judge declined so to
rule, and held that defendant was liable for the conversion of the
note, and that the measure of the plaintiff’s damages was the amount
which the plaintiff was legally compellable to pay to the holder of
the note, namely, the face of the note and interest, less the amount
realized from the sale under the mortgage, treating the same as a
partial payment. Defendant excepted.[352]

COLT, J. [After deciding that there was no conversion of the note.]
The further objection is, that treating this as an action to recover
damages for an alleged fraud, the plaintiff shows no damages sustained
at the time his action was commenced. It was then uncertain and
contingent whether he would ever be called on to pay the note. It was
payable to the plaintiff or order in two years, and was dated in July,
1873, shortly before its transfer by his indorsement to the defendant.
The liability of the plaintiff depended on the failure of the makers
to pay and the giving of due notice to him as indorser. No payment has
in fact ever been made by him. If the holder receives his pay from the
makers through the mortgage security or otherwise, the plaintiff will
have suffered no actionable wrong. There will have been no concurrence
of damage with fraud, within the rule on which such actions are
founded. And as there has been no invasion of the plaintiff’s rights,
no breach of promise, and no interference with his property, there can
be no recovery of even nominal damages in this action. Pasley _v._
Freeman, 3 T. R. 51; 2 Smith Lead. Cas. (6th Am. ed.) 157, and notes.

_Exceptions sustained._[353]

LUETZKE _v._ ROBERTS
SUPREME COURT, WISCONSIN, DECEMBER 4, 1906.
_Reported in 130 Wisconsin Reports, 97, 106._

[Plaintiffs, by fraudulent representations of defendants, were induced
to execute promissory notes to defendants. Upon a proceeding to cancel
and annul the notes, it appeared that the notes had been transferred
to, and were then held by, _bona fide_ purchasers for value; and hence
could not be decreed to be cancelled. It was _held_, that the court
having jurisdiction of the defendants personally, had power to render
judgment for damages. The opinion then proceeds as follows:—][354]

SIEBECKER, J. It is urged that compensatory damages cannot be awarded
because they are not ascertainable under the facts found, and that
plaintiffs must wait until they have made actual payment of the notes.
This contention cannot be sustained. The court properly held that
these notes in the hands of _bona fide_ purchasers for value
established a liability according to their terms against these
plaintiffs, and that such liability was measured by the amount they
call for on their face with interest. We deem this the correct measure
of damages in the case, and within the principle of the case of Lyle
_v._ McCormick H. M. Co., 108 Wisc. 81, 84 N. W. 18.[355]

FOTTLER _v._ MOSELEY
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 18, 1901.
_Reported in 179 Massachusetts Reports, 295._

Tort for deceit, alleging that, relying upon the false and fraudulent
representations of the defendant, a broker, that certain sales of the
stock of the Franklin Park Land Improvement Company in the Boston
Stock Exchange from January 1, to March 27, 1893, were genuine
transactions, the plaintiff revoked an order for the sale of certain
shares of that stock held for him by the defendant, whereby the
plaintiff suffered loss. Writ dated February 17, 1896.[356]

At the trial in the Superior Court, Hopkins, J., at the close of the
evidence, directed the jury to return a verdict for the defendant. The
verdict was returned as directed; and the plaintiff alleged
exceptions. The findings warranted by the evidence are stated in the
opinion of the court.

* * * * *

HAMMOND, J. The parties to this action testified in flat contradiction
of each other on many of the material issues, but the evidence in
behalf of the plaintiff would warrant a finding by the jury, that on
March 25, 1893, the plaintiff, being then the owner of certain shares
of stock in the Franklin Park Land and Improvement Company, gave an
order to the defendant, a broker who was carrying the stock for him on
a margin, to sell it at a price not less than $28.50 per share; that
on March 27 the defendant, for the purpose of inducing the plaintiff
to withdraw the order and refrain from selling, represented to the
plaintiff that the sales which had been made of said stock in the
market had all been made in good faith and had been “actual true sales
throughout”; that these statements were made as of the personal
knowledge of the defendant, and that the plaintiff, believing them to
be true and relying upon them, was thereby induced to and did cancel
his oral order to the defendant to sell, and did refrain from selling;
and that the statements were not true, as to some of the sales in the
open market, of which the last was in December, 1892, and that the
defendant knew it at the time he made the representations. The
evidence would warrant a further finding that in continuous reliance
upon such representations the plaintiff kept his stock, when he
otherwise would have sold it, until the following July, when its
market value depreciated, and he thereby suffered loss. The defendant,
protesting that he made no such representation and that the jury would
not be justified in finding that he had, says that even upon such a
finding the plaintiff would have no case. He contends that the
representation was not material, that a false representation to be
material must not only induce action but must be adequate to induce it
by offering a motive sufficient to influence the conduct of a man of
average intelligence and prudence, and that in this case the
representation complained of, so far as it was false, was not adequate
to induce action because the fictitious sales were so few and distant
in time, and that therefore it was not material.

It may be assumed that the plaintiff desired to handle his stock in
the manner most advantageous to himself, and that the question whether
he would withdraw his order to sell was dependent, somewhat, at least,
upon his view of the present or future market value of the stock; and
upon that question a man of ordinary intelligence and prudence would
consider whether the reported sales in the market were “true sales
throughout” or were fictitious, and what was the extent of each. It is
true that a corporation may be of so long standing and of such a
nature, and the number of the shares so great and the daily sales of
the stock in the open market so many and heavy, that the knowledge
that a certain percentage of the sales reported are not actual
business transactions would have no effect upon the conduct of an
ordinary man. On the other hand a corporation may be so small and of
such a nature and have so slight a hold upon the public, and the
number of its shares may be so small and the buyers so few, that the
question whether certain reported sales are fictitious may have a very
important bearing upon the action of such a man. Upon the evidence in
this case, we cannot say, as matter of law, that the representation so
far as false was not material. This question is for the jury, who are
to consider it in the light of the nature of the corporation and its
standing in the market, and of other matters, including such as those
of which we have spoken.

It is further urged by the defendant that one of the fundamental
principles in a suit like this is that the representation should have
been acted upon by the complaining party and to his injury; that at
most the plaintiff simply refrained from action, and that “refraining
from action is not acting upon representation” within the meaning of
the rule; and further that it is not shown that the damages, if any,
suffered by the plaintiff are the direct result of the deceit.

Fraud is sometimes defined as the “deception practised in order to
induce another to part with property or to surrender some legal
right,” Cooley, Torts (2d ed.), 555, and sometimes as the deception
which leads “a man into damage by wilfully or recklessly causing him
to believe and act on a falsehood.” Pollock, Torts (Webb’s ed.), 348,
349. The second definition seems to be more comprehensive than the
first (see for instance Barley _v._ Walford, 9 Q. B. 197, and Butler
_v._ Watkins, 13 Wall. 456), and while the authorities establishing
what is a cause of action for deceit are to a large extent convertible
with those which define the right to rescind a contract for fraud or
misrepresentation and the two classes of cases are generally cited
without any express discrimination, still discrimination is sometimes
needful in the comparison of the two classes of cases. Pollock, Torts
(Webb’s ed.), 352.

It is true that it must appear that the fraud should have been acted
upon. It is a little difficult to see precisely what is meant by the
contention that “refraining from action is not acting upon
representation.” If by refraining from action it is meant simply that
the person defrauded makes no change but goes on as he has been going
and would go whether the fraud had been committed or not, then the
proposition is doubtless true. Such a person has been in no way
influenced, nor has his conduct been in any way changed by the fraud.
He has not acted in reliance upon it. If, however, it is meant to
include the case where the person defrauded does not do what he had
intended and started to do and would have done save for the fraud
practised upon him, the proposition cannot be true. So far as respects
the owner of property, his change of conduct between keeping the
property on the one hand and selling it on the other, is equally
great, whether the first intended action be to keep or to sell; and if
by reason of fraud practised upon him the plaintiff was induced to
recall his order to sell, and, being continuously under the influence
of this fraud, kept his stock when, save for such fraud, he would have
sold it, then with reference to this property he acted upon the
representation within the meaning of the rule as applicable to cases
like this. Barley _v._ Walford, 9 Q. B. 197; Butler _v._ Watkins, 13
Wall. 456.

The cases of Lamb _v._ Stone, 11 Pick. 527; Wellington _v._ Small, 3
Cush. 145; and Bradley _v._ Fuller, 118 Mass. 239, upon which the
defendant relies, are not authorities for the proposition that
“refraining from action is not acting upon representation.”

As to whether the loss suffered by the plaintiff is legally
attributable to the fraud, much can be said in favor of the defendant,
and a verdict in his favor on this as well as on other material points
might be the one most reasonably to be expected upon the evidence,
especially when it is considered that during the years 1892 and 1893
the plaintiff was a director in the company; but we cannot decide the
question as a matter of law. If the fraud operated on the plaintiff’s
mind continuously, up to the time of the depreciation of the stock in
June, 1893, so that he kept his stock when otherwise he would have
sold it, and such was the direct, natural and intended result, then we
think the causal relation between the fraud and the loss is
sufficiently made out. See Reeve _v._ Dennett, 145 Mass. 23, 29.

_Exceptions sustained._[357]

FOTTLER _v._ MOSELEY
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 19, 1904.
_Reported in 185 Massachusetts Reports, 563._

Tort for deceit, alleging, that, relying upon the false and fraudulent
representations of the defendant, a broker, that certain sales of the
stock of the Franklin Park Land Improvement Company in the Boston
Stock Exchange from January 1 to March 27, 1893, were genuine
transactions, the plaintiff revoked an order for the sale of certain
shares of that stock held for him by the defendant, whereby the
plaintiff suffered loss. Writ dated February 17, 1896.

At the first trial of the case in the Superior Court a verdict was
ordered for the defendant, and the exceptions of the plaintiff were
sustained by this court in a decision reported in 179 Mass. 295. At
the new trial in the Superior Court before Sherman, J., it appeared
that one Moody Merrill, a director and officer of the Franklin Park
Land Improvement Company, absconded late in May or early in June of
1893, and that immediately upon his departure it was discovered that
he had embezzled nearly $100,000 of the funds of that company, the
result of which was that the market price of the stock immediately
fell and the stock could not be sold; that the plaintiff from the time
of the discovery of the defendant’s alleged fraud did his best to sell
his stock, but was unable to do so at more than $3 a share, at which
price he sold it after bringing this action.

The plaintiff among other requests asked the judge to rule, “That it
is of no consequence so far as the defendant’s liability is concerned
that an outside intervening cause has been the sole or contributing
cause of the decline in price to which the plaintiff’s loss is due.”

The judge refused this and other rulings requested by the plaintiff,
and instructed the jury, among other things, as follows:—

“If you find the fair market value of that stock was always above what
it was fictitiously quoted, or equal to it, and that it was so on the
25th of March, 1893, and remained so and would have remained so,
except for the embezzlement and absconding of Moody Merrill, then the
plaintiff is not entitled to recover.

“If you find that Moody Merrill’s going away did destroy the value of
the stock, practically destroy its value, then the plaintiff is not
entitled to recover anything.

“You may take all the evidence on this subject, the fact of what Moody
Merrill did, and what effect it had upon the market value of this
stock, and if that destroyed the market value, then, as I have told
you, the plaintiff is not entitled to recover anything. If his going
away and embezzlement did not affect the market value of this stock,
then the plaintiff may recover the full value of it.”

The judge submitted to the jury the following questions, which the
jury answered as stated below:—

“1. Did the defendant make a representation to the plaintiff on or
about March 25, 1893, that the quotations in the Boston Stock Exchange
of Franklin Park Land and Improvement Company stock were quotations of
actual and true sales?” The jury answered “Yes.”

“2. Were such quotations at or about the same sum as the quotations of
actual sales and the sales at public auction?” The jury answered
“Yes.”

“3. What was the fair market value of said stock on or about March 25,
1893?” The jury answered “$28.50 per share.”

“4. What was the fair market value of said stock on the last day of
May, or immediately prior to June, 1893, the day before Moody
Merrill’s absconding?” The jury answered “$27.75 per share.”

The jury returned a verdict for the defendant; and the plaintiff
alleged exceptions.

KNOWLTON, C. J. The parties and the court seem to have assumed that
the evidence was such as to warrant a verdict for the plaintiff under
the law stated at the previous decision in this case, reported in 179
Mass. 295, if the diminution in the selling price of the stock came
from common causes. The defendant’s contention is that the
embezzlement of an officer of a corporation, being an unlawful act of
a third person, should be treated as a new and independent cause of
the loss, not contemplated by the defendant, for which he is not
liable.

To create a liability, it never is necessary that a wrong-doer should
contemplate the particulars of the injury from his wrongful act, nor
the precise way in which the damages will be inflicted. He need not
even expect that damage will result at all, if he does that which is
unlawful and which involves a risk of injury. An embezzler is
criminally liable, notwithstanding that he expects to return the money
appropriated after having used it. If the defendant fraudulently
induced the plaintiff to refrain from selling his stock when he was
about to sell it, he did him a wrong, and a natural consequence of the
wrong for which he was liable was the possibility of loss from
diminution in the value of the stock, from any one of numerous causes.
Most, if not all, of the causes which would be likely to affect the
value of the stock, would be acts of third persons, or at least
conditions for which neither the plaintiff nor the defendant would be
primarily responsible. Acts of the officers, honest or dishonest, in
the management of the corporation, would be among the most common
causes of a change in value. The defendant, if he fraudulently induced
the plaintiff to keep his stock, took the risk of all such changes.
The loss to the plaintiff from the fraud is as direct and proximate,
if he was induced to hold his stock until an embezzlement was
discovered, as if the value had been diminished by a fire which
destroyed a large part of the property of the corporation, or by the
unexpected bankruptcy of a debtor who owed the corporation a large
sum. Neither the plaintiff nor the defendant would be presumed to have
contemplated all the particulars of the risk of diminution in value
for which the defendant made himself liable by his fraudulent
representations. It would be unjust to the plaintiff in such a case,
and impracticable, to enter upon an inquiry as to the cause of the
fall in value, if the plaintiff suffered from the fall wholly by
reason of the defendant’s fraud. The risk of a fall, from whatever
cause, is presumed to have been contemplated by the defendant when he
falsely and fraudulently induced the plaintiff to retain his stock.

We do not intimate that these circumstances, as well as others, may
not properly be considered in determining whether the plaintiff was
acting under the inducement of the fraudulent representations in
continuing to hold the stock up to the time of the discovery of the
embezzlement. The false representations may or may not have ceased to
operate as an inducement as to the disposition of his stock before
that time. Of course there can be no recovery, except for the direct
results of the fraud. But if the case is so far established that the
plaintiff, immediately upon the discovery of the embezzlement, was
entitled to recover on the ground that he was then holding the stock
in reliance upon the fraudulent statements, and if the great
diminution in value came while he was holding it, the fact that this
diminution was brought about by the embezzlement of an officer leaves
the plaintiff’s right no less than if it had come from an ordinary
loss.

_Exceptions sustained._[358]

MORSE _v._ HUTCHINS
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER TERM, 1869.
_Reported in 102 Massachusetts Reports, 439._

Tort for deceit in making false and fraudulent representations to the
plaintiff touching the business and profits of a firm of which the
defendant was a member, and thereby inducing the plaintiff to buy the
interest of the defendant in the stock and good will of the firm. A
count in contract for the same cause of action was joined. Answer, a
general denial and a plea of a discharge in bankruptcy.

At the trial in the Superior Court, Brigham, C. J., ruled that the
discharge in bankruptcy was a defence to the second count, but not to
the first count; and the plaintiff relied on the first count only.

The judge instructed the jury that “the measure of damages would be
the difference between the actual value of the stock and good will
purchased at the time of the purchase and the value of the same had
the representation been true.”

The jury returned a verdict for the plaintiff, and the defendant
alleged exceptions.

GRAY, J. The objections that either the joinder of a count in contract
with the count in tort, or the certificate of discharge in bankruptcy,
would defeat the plaintiff’s right of action in tort for the
defendant’s false and fraudulent representations, were hardly relied
on at the argument, and are groundless. Gen. Sts. c. 129, § 2, cl. 5.
Crafts _v._ Belden, 99 Mass. 535. U. S. St. 1867, c. 176, § 33.

The rule of damages was rightly stated to the jury. It is now well
settled that, in actions for deceit or breach of warranty, the measure
of damages is the difference between the actual value of the property
at the time of the purchase and its value if the property had been
what it was represented or warranted to be. Stiles _v._ White, 11 Met.
356; Tuttle _v._ Brown, 4 Gray, 457; Whitemore _v._ South Boston Iron
Co., 2 Allen, 52; Fisk _v._ Hicks, 11 Foster, 535; Woodward _v._
Thacher, 21 Verm. 580; Muller _v._ Eno, 4 Kernan, 597; Sherwood _v._
Sutton, 5 Mason, 1; Loder _v._ Kekulé, 3 C. B. N. S. 128; Dingle _v._
Hare, 7 C. B. N. S. 145; Jones _v._ Just, Law Rep. 3 Q. B. 197. This
is the only rule which will give the purchaser adequate damages for
not having the thing which the defendant undertook to sell him. To
allow to the plaintiff (as the learned counsel for the defendant
argued in this case) only the difference between the real value of the
property and the price which he was induced to pay for it would be to
make any advantage lawfully secured to the innocent purchaser in the
original bargain inure to the benefit of the wrong-doer; and, in
proportion as the original price was low, would afford a protection to
the party who had broken, at the expense of the party who was ready to
abide by, the terms of the contract. The fact that the property sold
was of such a character as to make it difficult to ascertain with
exactness what its value would have been if it had conformed to the
contract affords no reason for exempting the defendant from any part
of the direct consequences of his fraud. And the value may be
estimated as easily in this action as in an action against him for an
entire refusal to perform his contract.

_Exceptions overruled._

SMITH _v._ BOLLES
SUPREME COURT OF THE UNITED STATES, NOVEMBER 11, 1889.
_Reported in 132 United States Reports, 125._

Error to the United States Circuit Court for the Northern District of
Ohio.

Action to recover damages for fraudulent representations in the sale
of shares of mining stock.

The amended petition alleged (_inter alia_) that plaintiff was induced
by defendant’s fraudulent representations to buy of defendant four
thousand shares of mining stock at $1.50 per share, amounting to
$6000; that “said stock and mining property was then, and still is,
wholly worthless; and that had the same been as represented by
defendant it would have been worth at least ten dollars per share; and
so plaintiff says that by reason of the premises he has sustained
damages to the amount of forty thousand dollars.”

Answer, denying plaintiff’s material allegations. Trial by jury. The
instructions given as to damages are stated in the opinion. Verdict
for plaintiff. Motion for new trial overruled. Judgment for plaintiff.
Defendant brought error.[359]

FULLER, C. J. The bill of exceptions states that the court charged the
jury “as to the law by which the jury were to be governed in the
assessment of damages under the issues made in the case,” that “the
measure of recovery is generally the difference between the contract
price and the reasonable market value, if the property had been as
represented to be, or in case the property or stock is entirely
worthless, then its value is what it would have been worth if it had
been as represented by the defendant, and as may be shown in the
evidence before you.”

In this there was error. The measure of damages was not the difference
between the contract price and the reasonable market value if the
property had been as represented to be, even if the stock had been
worth the price paid for it; nor if the stock were worthless, could
the plaintiff have recovered the value it would have had if the
property had been equal to the representations. What the plaintiff
might have gained is not the question, but what he had lost by being
deceived into the purchase. The suit was not brought for breach of
contract. The gist of the action was that the plaintiff was
fraudulently induced by the defendant to purchase stock upon the faith
of certain false and fraudulent representations, and so as to the
other persons on whose claims the plaintiff sought to recover. If the
jury believed from the evidence that the defendant was guilty of the
fraudulent and false representations alleged, and that the purchase of
stock had been made in reliance thereon, then the defendant was liable
to respond in such damages as naturally and proximately resulted from
the fraud. He was bound to make good the loss sustained, such as the
moneys the plaintiff had paid out and interest, and any other outlay
legitimately attributable to defendant’s fraudulent conduct; but this
liability did not include the expected fruits of an unrealized
speculation. The reasonable market value, if the property had been as
represented, afforded, therefore, no proper element of recovery.

Nor had the contract price the bearing given to it by the court. What
the plaintiff paid for the stock was properly put in evidence, not as
the basis of the application of the rule in relation to the difference
between the contract price and the market or actual value, but as
establishing the loss he had sustained in that particular. If the
stock had a value in fact, that would necessarily be applied in
reduction of the damages. “The damage to be recovered must always be
the _natural and proximate consequence_ of the act complained of,”
says Mr. Greenleaf, vol. ii, § 256; and “the test is,” adds Chief
Justice Beasley in Crater _v._ Binninger, 33 N. J. Law (4 Vroom), 513,
518, “that those results are proximate which the wrong-doer from his
position must have contemplated as the probable consequence of his
fraud or breach of contract.” In that case, the plaintiff had been
induced by the deceit of the defendant to enter into an oil
speculation, and the defendant was held responsible for the moneys put
into the scheme by the plaintiff in the ordinary course of the
business, which moneys were lost, less the value of the interest which
the plaintiff retained in the property held by those associated in the
speculation.

[Remainder of opinion omitted.]

_Judgment reversed. Cause remanded with a direction to grant a new
trial._[360]

SCHWABACKER _v._ RIDDLE
SUPREME COURT, ILLINOIS, JUNE 20, 1891.
_Reported in 99 Illinois Reports, 343._

Action for deceit, brought by Riddle against Schwabacker _et als._,
alleging that, in the purchase of property to be taken at the invoice
price, Riddle was cheated out of the sum of $2677.09 by fraudulent
representations made by defendants in regard to the amount the goods
purchased inventoried. On trial there was a verdict for plaintiff. Some
of the instructions are stated in the opinion. Judgment in favor of
Riddle. Schwabacker _et als._ appealed.[361]

CRAIG, C. J.... Instruction No. 2 reads as follows:—

“If a party misrepresents a fact within his own knowledge, to the injury
of a third party, an action will lie for damages, if any, for such
misrepresentation.”

This instruction is liable to several serious objections. In the first
place, a misrepresentation, to be actionable, must be a material one, or
no action will lie. In the second place, in an action for deceit no
recovery can be had unless the plaintiff himself exercised ordinary
prudence to guard against the deception and fraud practised upon him,
unless he has been thrown off his guard by the other party. These two
principles were entirely ignored by the instruction, and the jury, under
this direction of the court, was at liberty to find against the
defendants if they misrepresented any immaterial fact, however remote,
and the plaintiff exercised no precaution whatever to guard against
imposition. This is not a sound rule to be adopted, and as the
instruction was calculated to mislead the jury, it ought not to have
been given.

* * * * *

Instruction No. 13, given for the plaintiff, reads as follows:—

“It is not necessary, in this case, that the plaintiff should show any
prior conspiracy or combination between the defendants to defraud the
plaintiff; it is enough if the evidence shows that a sale was made to
Riddle, or Riddle and Fosbender, and that the agreed price was for the
value of the property, as shown by a certain invoice, and that notes
were to be taken for the amount, and that the defendants had notes drawn
for $2677.09 more than the value of the property as shown by such
invoice; and if the plaintiff, before signing the notes, asked if they
were for the amount of the invoice, and Fosbender said they were, in the
presence and hearing of the other defendants, and if Riddle relied upon
such statement in signing the notes, which was known to the defendants,
then such conduct and representations would amount to a fraud in the
other defendants, if they resulted in damages to the plaintiff.”

[After stating an objection to this instruction.]

Again, under this instruction a recovery may be had although the
plaintiff was deceived from a total want of reasonable care on his part.
At the time the notes were signed, as we understand the evidence of
plaintiff himself, the invoice, which showed the correct amount of the
goods, was present, and in the hands of one of the defendants. If that
be true, and it could have been obtained and inspected by the plaintiff,
and he failed and neglected to do so, but relied upon a statement made
by Fosbender at the time, it was for the jury to determine whether,
under the evidence, he had exercised proper diligence to guard against
deception, and if he did not, he could not recover. But this principle
was ignored in this and other instructions given for the plaintiff.
Indeed, this principle is not stated, but seems to be ignored in all of
the instructions given for the plaintiff. This last instruction, in our
judgment, was calculated to mislead the jury.

* * * * *

_Judgment reversed._[362]

FARGO GAS & COKE COMPANY _v._ FARGO GAS & ELECTRIC COMPANY
SUPREME COURT, NORTH DAKOTA, JULY 23, 1894.
_Reported in 4 North Dakota Reports, 219._

CORLISS, J.[363] The plaintiff has recovered judgment for the balance of
the purchase price of a gas and electric plant located in the City of
Fargo, N. D., sold by plaintiff to the defendant. A portion of the
consideration was paid, and, upon being sued for the unpaid portion of
the purchase price, defendant set up as a defence a partial failure of
consideration from the non-delivery of some of the property purchased,
and also a counterclaim for damages arising out of the alleged deceit of
the plaintiff in making the sale. The view we take of the case renders a
more particular reference to the defence of partial failure of
consideration unnecessary. We will confine ourselves to the single
question of fraud. The property purchased consisted of a gas plant, with
mains and all the other classes of property which go to make up such a
plant, and also an arc electric light plant, with poles, wires, and
other fixtures distributed over different parts of the City of Fargo.
These two plants were used by the plaintiff at the time of making the
sale thereof to defendant, to light the public streets of the City of
Fargo, its public buildings, stores, hotels, and dwelling houses, and
had been so used for some time prior to such sale. The alleged
fraudulent representations were of two classes,—one class relating to
the physical condition of the plant, embracing statements as to the
number of miles of wire, the number of poles, the gas mains, and as to
the condition of the plant in other respects; and the other class
related to the net earnings of the plant for the previous year, and the
prices charged customers for gas and electric light. It appears that
defendant relied chiefly upon the earning capacity of the plant in
making the purchase, and was induced to believe that its net annual
earnings would equal 10 per cent of the purchase price ($85,300),
because of the statements of the plaintiff’s officers that its net
earnings during the past year had been $8913. There was evidence tending
to show that this statement was false, and that it must have been known
to be false by plaintiff’s officers who negotiated the sale. Having in
this brief manner set forth the general character of the property sold,
and the general nature of the fraudulent representations upon which
defendant’s counterclaim for deceit was founded, we can now
intelligently turn to what we regard as a fatal error in the case.

In the course of his charge to the jury, the learned trial judge
instructed them as follows: “If the means were at the defendant’s hands
to discover the truth or untruth of the plaintiff’s statements with
regard to the amount and character of the property, defendant must be
presumed to have had a knowledge of the actual facts.” This instruction
must be considered in the light of the refusal of the court to charge
the jury as follows, at the request of defendant’s counsel: “If you find
that, during the negotiations, statements were made by the plaintiff as
to the earnings of the plant, the defendant had a right to rely upon
these statements; and if they were so relied on, and were false, and the
defendant suffered injury thereby, the defendant would be entitled to
recover the damages which it suffered in consequence thereof.” It is
apparent from this refusal to charge, and from the charge as cited
given, that the court told the jury that, as a matter of law, defendant
did not have the right implicitly to rely upon the representations of
the plaintiff touching the character of the plant, but must make
inquiries concerning them, and must make investigation as to their truth
or falsity. It is true that the word “investigate” is not used; but,
when we consider the nature of the property and the character of the
representations made, it is obvious that something more than a mere
inspection of an object present before a purchaser was necessary in
order to enable the purchaser in this case to “discover” the truth or
falsity of plaintiff’s statements. Such an instruction to a jury might
be appropriate in an action in which fraud in the sale of a horse was
set up, the seller having represented the horse to be perfectly sound,
and it appearing that the horse stood before the purchaser at the time
the representation was made, and that the only defect consisted in the
absence of a leg, easily discernible by the ordinary use of eyesight.
But in the case at bar the means of discovering the truth or untruth of
these false statements were not at hand in the sense that they must have
been employed before the seller could be held responsible for his
fraudulent representations; and, when this language was used, the jury
must have drawn the inference from the fact that this plant was in the
same city, and could be investigated with respect to its condition and
its earnings, and the prices charged customers for gas and electric
light, and with reference to the other features embraced in the
statements made by plaintiff on the sale, that therefore the means were
at hand, within the rule laid down by the court requiring the purchaser
to discover at its peril the truth or falsity of the statements made.
Such a rule of law would be unjust and intolerable. When parties deal at
arm’s length, the doctrine of _caveat emptor_ applies; but the moment
the vendor makes a false statement of fact, and its falsity is not
palpable to the purchaser, he has an undoubted right implicitly to rely
upon it. That would, indeed, be a strange rule of law which, when the
seller had successfully entrapped his victim by false statements, and
was called to account in a court of justice for his deceit, would permit
him to escape by urging the folly of his dupe for not suspecting that
he, the seller, was a knave. In the absence of such a suspicion, it is
entirely reasonable for one to put faith in the deliberate
representations of another. The jury must have understood that the means
were at hand to discover the claim, because the defendant might have
measured the wire, counted the poles, examined the gas mains,
ascertained how much customers were paying for gas and electric light,
and might have hired an expert to examine into the earnings and expenses
of the plaintiff in running the plant, with a view to discovering
whether a business man had told the truth. It should not have been left
to the jury to determine whether the means were at hand to discover the
falsity of the statements made, in view of the character of such
statements and the nature of the property sold. The defendant, as a
matter of law, had a right to rely implicitly upon the statements made
by plaintiff touching the character of this plant. So long as defendant
did not actually know the representations to be false, it was under no
obligation to investigate to determine their truth or falsity. In Mead
_v._ Bunn, 32 N. Y. 280, the court say: “Every contracting party has an
absolute right to rely on the express statements of an existing fact,
the truth of which is known to the opposite party and unknown to him, as
a basis of mutual engagement, and he is under no obligation to
investigate and verify statements, to the truth of which the other party
to the contract, with full means of knowledge, has deliberately pledged
his faith.” In Redding _v._ Wright, (Minn.) 51 N. W. 1056 (a case very
much in point), the court say: “If the representations were fraudulently
made with the intent to induce the plaintiff to rely upon the fact being
as represented, and to act upon the belief thus induced, the wrong-doer
who succeeds in such a purpose is not to be shielded from responsibility
by the plea that the defrauded party would have discovered the falsity
of the representation if he had pursued such means of information as
were available to him.” While the rule has been in some cases stated in
terms more favorable to plaintiff, yet no decision can be found which
establishes a doctrine under which defendant would be bound, under the
circumstances of this case, to make any investigation or inquiry
touching the truth or falsity of the statements made in connection with
the sale. There are many well considered cases which sustain our view
that defendant had a right implicitly to rely upon the representations
made by plaintiff with respect to the character of the property to be
purchased by defendant. In addition to the cases already cited, we refer
to Maxfield _v._ Schwartz, 45 Minn. 150, 47 N. W. 448; Gardner _v._
Trenary, 65 Iowa, 646, 22 N. W. 912; Schumaker _v._ Mather, 133 N. Y.
590, 30 N. E. 755; McClellan _v._ Scott, 24 Wis. 81; Caldwell _v._
Henry, 76 Mo. 254; Oswald _v._ McGehee, 28 Miss. 340; Cottrill _v._
Krum, 100 Mo. 397, 13 S. W. 753; Campbell _v._ Frankern, 65 Ind. 591;
Kerr, Fraud & M. 77, 80, 81; Erickson _v._ Fisher, (Minn.) 53 N. W. 638;
Alfred Shrimpton & Sons _v._ Philbrik, (Minn.) 55 N. W. 551; Barndt _v._
Frederick, (Wis.) 47 N. W. 6; Bigelow, Fraud, 522, 528. We are aware
that cases can be found which exact from the buyer more care in
ascertaining the truth or falsity of representations than the decisions
just cited. These cases appear to us to have been rightfully decided, in
view of the facts. In determining what the courts in such cases intended
to hold, the language of each opinion must be read, in the light of the
facts of the particular case. The unmistakable drift is towards the just
doctrine that the wrong-doer cannot shield himself from liability by
asking the law to condemn the credulity of his victim. The falsity of
the statement may be apparent because the thing misrepresented is before
the buyer, and the most casual look will suffice to discover the
falsehood, no artifice being used to divert his attention; or the
statement may carry its own refutation upon its face,—may be so absurd
or monstrous that it is palpably false, as a statement by a person
carrying on a business known to the purchaser to be very small that the
receipts of the business are a million dollars a year. In these and
other similar cases the law will not allow a person to assert that he
was deceived. But the general rule is, and, upon principle, must be,
that the question is one of reliance by the buyer upon the false
statement of the seller. Whether it was wise for him to rely upon it,
whether he was prudent in so doing, whether he is not chargeable with
negligence in a certain sense in not investigating,—these inquiries are,
in general, immaterial, provided the purchaser has in fact been
deceived. The circumstances under which fraud is accomplished are so
varied, the nature of the property and the character of the
misrepresentations are so widely different, in different cases, that it
is unwise to attempt to enunciate with precision a general rule by which
all cases shall be governed. It is better to decide the cases as they
arise, keeping in view the general principle that courts will not
readily listen to the plea that the defrauded party was too easily
deceived. For this error in the charge, the judgment will be reversed,
and a new trial granted.

[Omitting opinion on another point.]

_Judgment reversed. New trial ordered._[364]

STARKWEATHER _v._ BENJAMIN
SUPREME COURT, MICHIGAN, JUNE TERM, 1875.
_Reported in 32 Michigan Reports, 305._

Error to Macomb Circuit.

CAMPBELL, J. This action was brought to recover damages arising from
alleged misrepresentations made by Starkweather to Benjamin concerning
the quantity of land in a parcel purchased from Starkweather and
others, for whom he acted, and which was bought by the acre.

The defence rested mainly on the ground that the purchaser saw the
land, and was as able to judge of its size as Starkweather.

We do not think the doctrine that where both parties have equal means
of judging there is no fraud applies to such a case. The maxim is
equally valid, that one who dissuades another from inquiry and
deceives him to his prejudice is responsible. It cannot be generally
true that persons can judge of the contents of a parcel of land by the
eye. When any approach to accuracy is needed, there must be
measurement. When a positive assurance of the area of a parcel of land
is made by the vendor to the vendee with the design of making the
vendee believe it, that assurance is very material, and equivalent to
an assurance of measurement. In this case the testimony goes very far,
and shows that the assertions and representations, which the jury must
have found to be true, were of such a nature that if believed, as they
were, a re-survey must have been an idle ceremony. They were
calculated to deceive, and as the jury have found, they did deceive
Benjamin, and he had a clear right of action for the fraud.

[Omitting remainder of opinion.]

_Judgment affirmed._[365]

MABARDY _v._ McHUGH
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 21, 1909.
_Reported in 202 Massachusetts Reports, 148._

Tort for deceit in the sale of land. Writ in the Superior Court for
the county of Middlesex dated January 18, 1906.

The case was tried before Stevens, J. The facts are stated in the
opinion. The jury found for the defendants; and the plaintiffs alleged
exceptions.

RUGG, J. This is an action of tort sounding in deceit. There was
evidence tending to show that the plaintiffs went upon a certain
irregularly shaped tract of land (for false representations inducing
the purchase of which this action was brought) with one of the
defendants, who pointed out the true boundaries and fraudulently
stated that the tract contained sixty-five acres, when in fact it
contained forty and three-fourths acres. Upon this aspect of the
evidence, the trial judge instructed the jury that “if the
plaintiffs ... were taken over the farm by the defendants ... or [and]
were shown the bounds so that the plaintiffs knew where the farm was
and what was comprised within the bounds, it would not be of any
consequence that representations may have been made by the defendant
in relation to the acreage.” The evidence being conflicting as to
whether the boundaries were shown, the jury were further instructed
that if the defendant, who talked with the plaintiffs, “knew that
there were not sixty-five or nearly sixty-five acres, or if he did not
know anything about it and stated it as a fact within his personal
knowledge, then it would be a false representation for which he would
be liable provided” the other elements essential to a recovery were
found to exist.

The correctness of the first of these instructions is challenged. It
is in exact accordance with the law as laid down in Gordon _v._
Parmelee, 2 Allen, 212, and Mooney _v._ Miller, 102 Mass. 217. The
facts in the case at bar are similar in all material respects to these
cases. An attempt is made to distinguish them on the ground that the
present plaintiffs were Syrians, ignorant of our language, and that
hence a trust relation existed between them and the defendant. But
whatever else may be said of this contention, it fails because they
were accompanied by two of their own countrymen, who were thoroughly
familiar with our language and acted as interpreters for them. In
effect, the contention of the plaintiffs amounts to a request to
overrule these two cases. They have been cited with approval in
Roberts _v._ French, 153 Mass. 60, and as supporting authorities,
without criticism, in other opinions. The court, however, has refused
to apply the rule of those decisions to other facts closely analogous.
See Lewis _v._ Jewell, 151 Mass. 345; Holst _v._ Stewart, 161 Mass.
516; Whiting _v._ Price, 172 Mass. 240; Kilgore _v._ Bruce, 166 Mass.
136. This court in recent years, by pointed language and by
conclusions reached, has indicated a plain disposition not to extend
legal immunity for the falsehood of vendors in the course of
negotiations for sales beyond the bounds already established....

This judicial attitude perhaps reflects an increasingly pervasive
moral sense in some of the common transactions of trade. While the
science of jurisprudence is not, and under present conditions cannot
be, co-extensive with the domain of morality, nor generally undertake
to differentiate between motives which mark acts as good or bad, yet
it is true, as was said by Mr. Justice Brett, in Robinson _v._
Mollett, L. R. 7 H. L. 802, 817, that “The courts have applied to the
mercantile business brought before them what have been called legal
principles, which have almost always been the fundamental ethical
rules of right and wrong.” This is only a concrete expression of the
broader generalization that law is the manifestation of the conscience
of the Commonwealth.

In many other jurisdictions the rule of Gordon _v._ Parmelee and
Mooney _v._ Miller has not been followed and false representations as
to area of land, even though true boundaries were pointed out, have
been held actionable. McGhee _v._ Bell, 170 Mo. 121, 135, 150. May
_v._ Loomis, 140 N. C. 350. Boddy _v._ Henry, 113 Iowa, 462, 465; S.
C. 126 Iowa, 31. Antle _v._ Sexton, 137 Ill. 410. Estes _v._ Odom, 91
Ga. 600, 609. Lovejoy _v._ Isbell, 73 Conn. 368, 375. Cawston _v._
Sturgis, 20 Ore. 331. Starkweather _v._ Benjamin, 32 Mich. 305. Paine
_v._ Upton, 87 N. Y. 327. Mitchell _v._ Zimmerman, 4 Texas, 75.
Walling _v._ Kinnard, 10 Texas, 508. Speed _v._ Hollingsworth, 54
Kans. 436. See also Fairchild _v._ McMahon, 139 N. Y. 290; Schumaker
_v._ Mather, 133 N. Y. 590.

Other cases apparently opposed to the Massachusetts rule, on
examination prove to go no further than to decide that
misrepresentations as to area, when there is no evidence that
boundaries were shown, constitute deceit. Griswold _v._ Gebbie, 126
Penn. St. 353. Cabot _v._ Christie, 42 Vt. 121. Coon _v._ Atwell, 46
N. H. 510. Ledbetter _v._ Davis, 121 Ind. 119. Perkins Manuf. Co. _v._
Williams, 98 Ga. 388. Sears _v._ Stinson, 3 Wash. 615. Hill _v._
Brower, 76 N. C. 124. Stearns _v._ Kennedy, 94 Minn. 439. This is the
substance of the latter part of the instruction given in the Superior
Court, and is the law of this Commonwealth.

The rule of Mooney _v._ Miller seemingly has been approved or followed
in Lynch _v._ Mercantile Trust Co., 18 Fed. Rep. 486; Crown _v._
Carriger, 66 Ala. 590; and Mires _v._ Summerville, 85 Mo. App. 183,
although the last case has been overruled in Judd _v._ Walker, 114 Mo.
App. 128, 135.

If the point were now presented for the first time, it is possible
that we might be convinced by the argument of the plaintiffs and the
great weight of persuasive authority in its support, especially in
view of Lewis _v._ Jewell, 151 Mass. 345. But there is something to be
said in support of the two earlier decisions now questioned. A
purchase and a sale of real estate is a transaction of importance and
cannot be treated as entered into lightly. People must use their own
faculties for their protection and information, and cannot assume that
the law will relieve them from the natural effects of their
heedlessness or take better care of their interests than they
themselves do. Thrift, foresight and self-reliance would be undermined
if it was the policy of the law to attempt to afford relief for mere
want of sagacity. It is an ancient and widely, if not universally,
accepted principle of the law of deceit that, where representations
are made respecting a subject as to which the complaining party has at
hand reasonably available means for ascertaining the truth and the
matter is open to inspection, if, without being fraudulently diverted
therefrom, he does not take advantage of this opportunity, he cannot
be heard to impeach the transaction on the ground of the falsehoods of
the other party. Salem India Rubber Co. _v._ Adams, 23 Pick. 256, 265.
Slaughter _v._ Gerson, 13 Wall. 379, 383. Long _v._ Warren, 68 N. Y.
426, 432. Baily _v._ Merrell, 3 Bulstr. 94. This rule in its general
statement applies to such a case as that before us. It is easy for one
disappointed in the fruits of a trade to imagine, and perhaps persuade
himself, that the cause of his loss is the deceit of the other party,
rather than his own want of judgment.

It is highly desirable that laws for conduct in ordinary affairs, in
themselves easy of comprehension and memory, when once established,
should remain fast. The doctrine of _stare decisis_ is as salutary as
it is well recognized.... While perhaps it is more important as to
far-reaching juridical principles that the court should be right, in
the light of higher civilization, later and more careful examination
of authorities, wider and more thorough discussion and more mature
reflection upon the policy of the law, than merely in harmony with
previous decisions (Barden _v._ Northern Pacific Railroad, 154 U. S.
288, 322), it nevertheless is vital that there be stability in the
courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-examination
of determined principles and speculate on a fluctuation of the law
with every change in the expounders of it. As to many matters of
frequent occurrence, the establishment of some certain guide is of
more significance than the precise form of the rule. It is likely that
no positive rule of law can be laid down that will not at some time
impinge with great apparent severity upon a morally innocent person.
The law of gravitation acts indifferently upon the just and the
unjust. A renewed declaration of law that is already in force,
supported by sound reason and not plainly wrong, in the long run
probably works out substantial justice, although it may seem harsh in
its application to some particular case. These considerations are
regarded as so weighty by the House of Lords that it cannot overrule
any of its own decisions. London Tramways Co. _v._ London County
Council, [1898] A. C. 375.

The conclusion is that we do not overrule the decisions whose
soundness has been debated at the bar, although we do not extend their
scope, but confine them strictly to their precise point, namely, that
where the seller of real estate shows upon the face of the earth its
true boundaries to the purchaser and does not fraudulently dissuade
him from making full examination and measurement and the estate is not
so extensive or of such character as to be reasonably incapable of
inspection and estimate, and there is no relation of trust between the
parties, the purchaser has no remedy for a misrepresentation as to the
area alone....

_Exceptions overruled._[366]

EASTERN TRUST & BANKING COMPANY _v._ CUNNINGHAM
SUPREME COURT, MAINE, FEBRUARY 20, 1908.
_Reported in 103 Maine Reports, 455._

SAVAGE, J. But the defendant contends further, that, if the plaintiff
did not know, it ought to have known, and would have known but for its
own negligence. We think this defence cannot avail. There are cases
which hold that where one carelessly relies upon a pretence of
inherent absurdity and incredibility upon mere idle talk, or upon a
device so shadowy as not to be capable of imposing upon any one, he
must bear his misfortune, if injured. He must not shut his eyes to
what is palpably before him. But that doctrine, if sound, is not
applicable here. We think the well-settled rule to be applied here is
that if one intentionally misrepresents to another facts particularly
within his own knowledge, with an intent that the other shall act upon
them, and he does so act, he cannot afterwards excuse himself by
saying, “You were foolish to believe me.” It does not lie in his mouth
to say that the one trusting him was negligent. In this case the fact
whether or not there were funds in the Gardiner bank to meet the
checks was peculiarly within the knowledge of the defendant. The rule
is stated in Pollock on Torts, § 252, as follows: “It is now settled
law that one who chooses to make positive assertions without warrant
shall not excuse himself by saying that the other party need not have
relied upon them. He must show that his representation was not in fact
relied upon. In short, nothing will excuse a culpable
misrepresentation short of proof that it was not relied upon, either
because the other party knew the truth, or because he relied wholly on
his own investigations, or because the alleged fact did not influence
his action at all.” In Linington _v._ Strong, 107 Ill. 295, we find
this language: “The doctrine is well settled that as a rule a party
guilty of fraudulent conduct shall not be allowed to cry ‘negligence’
as against his own deliberate fraud.... While the law does require of
all parties the exercise of reasonable prudence in the business of
life, and does not permit one to rest indifferent in reliance upon the
interested representations of an adverse party, still, as before
suggested, there is a certain limitation to this rule; and, as between
the original parties to the transaction we consider that, when it
appears that one party has been guilty of an intentional and
deliberate fraud by which to his knowledge the other party has been
misled or influenced in his action, he cannot escape the legal
consequences of his fraudulent conduct by saying that the fraud might
have been discovered had the party whom he deceived exercised
reasonable diligence and care.” See Griffin _v._ Roanoke R. & Lumber
Co., 140 N. C. 514, 53 S. E. 307, 6 L. R. A. (N. S.) 463.[367]

S. PEARSON & SON, LIMITED, _v._ LORD MAYOR OF DUBLIN
IN THE HOUSE OF LORDS, MAY 30, 1907.
_Reported in [1907] Appeal Cases, 351._

The Dublin Corporation having by their agents furnished the appellants
with plans, drawings, and specifications, the appellants contracted to
execute certain sewage outfall works according to the plans, &c. In
the plans, &c., representations were made as to the existence and
position of a certain wall. In the contract (clauses 43, 46, 47, 48)
it was stipulated that the contractor should satisfy himself as to the
dimensions, levels and nature of all existing works and other things
connected with the contract works; that the corporation did not hold
itself responsible for the accuracy of the information as to the
sections or foundations of existing walls and works; and that no
charges for extra work or otherwise would be allowed in consequence of
incorrect information or inaccuracies in the drawings or
specifications. The appellants performed the contract, and brought an
action of deceit against the corporation, claiming damages for false
representations as to the position, dimensions and foundations of the
wall, whereby the appellants were compelled to execute more costly
works than would otherwise have been required. The plans, drawings and
specifications were prepared by engineers employed by the
corporation.[368]

[At the trial before PALLES, C. B., the plaintiffs offered evidence
tending to show that the aforesaid representations were not sincerely
believed by the engineers to be true.] PALLES, C. B., refused to leave
any question to the jury, and entered judgment for the respondents on
the ground that the contractors were bound by their contract to verify
for themselves all the information given in the plans, &c.

The King’s Bench Division (Wright, Boyd, and Gibson, JJ., Lord
O’Brien, C. J., dissenting) reversed the decision of Palles, C. B.,
and entered judgment for the appellants on the ground that there was a
question of fact for the jury upon the allegation of fraud.

The Court of Appeal (Sir Samuel Walker, L. C., Fitzgibbon and Holmes,
L.JJ.) reversed that decision, and restored the decision of Palles, C.
B.

Plaintiff appealed to the House of Lords.

The House of Lords (LORDS LOREBURN, HALSBURY, ASHBOURNE, MACNAGHTEN,
JAMES OF HEREFORD, ROBERTSON, ATKINSON, and COLLINS) reversed the
order of the Court of Appeal, and restored the judgment of the King’s
Bench Division. Portions of the opinions are as follows:—

LORD LOREBURN, L. C.... Now it seems clear that no one can escape
liability for his own fraudulent statements by inserting in a contract
a clause that the other party shall not rely upon them. I will not say
that a man himself innocent may not under any circumstances, however
peculiar, guard himself by apt and express clauses from liability for
the fraud of his own agents. It suffices to say that in my opinion the
clauses before us do not admit of such a construction. They
contemplate honesty on both sides and protect only against honest
mistakes. The principal and the agent are one, and it does not signify
which of them made the incriminated statement or which of them
possessed the guilty knowledge.

* * * * *

EARL OF HALSBURY.... The action is based on the allegation of fraud,
and no subtilty of language, no craft or machinery in the form of
contract, can estop a person who complains that he has been defrauded
from having that question of fact submitted to a jury....

LORD ASHBOURNE.... [As to clause 43.] Such a clause might in some
cases be part of a fraud, and might advance and disguise a fraud, and
I cannot think that on the facts and circumstances of this case it can
have such a wide and perilous application as was contended for. Such a
clause may be appropriate and fairly apply to errors, inaccuracies,
and mistakes, but not to cases like the present....

LORD JAMES OF HEREFORD.... Now the learned Chief Baron in respect of
this clause expressed the opinion that the contractor was not entitled
in point of law to say he acted upon the statement contained in the
plans. He was told to act upon his own judgment, and ought to have
done so.

If this dictum be read as general in its terms, and so applied, it may
be read as conferring considerable advantage upon the designers of
fraud. At any rate, by inserting such a clause those who framed it
would run a fair chance of the contractor saying, “I assume that those
with whom I deal are honest and honorable men. I scout the idea of
their being guilty of fraud. An inquiry testing the plan will be
expensive and difficult, and so I will not make it.” The protecting
clause might be inserted fraudulently, with the purpose and hope that,
notwithstanding its terms, no test would take place. When the fraud
succeeds, surely those who designed the fraudulent protection cannot
take advantage of it. Such a clause would be good protection against
any mistake or miscalculation, but fraud vitiates every contract and
every clause in it. As a general principle I incline to the view that
an express term that fraud shall not vitiate a contract would be bad
in law, but it is unnecessary in this case to determine whether
special circumstances may not create an exception to that rule.

* * * * *

LORD ATKINSON.... If, therefore, the _direction_ given to the jury is
to be upheld on the grounds upon which it was purported to be based,
it must, in my opinion, be because these several articles of the
contract, on their true construction, are to be held to embody a
contract by the plaintiffs that they in effect are not, under any
circumstances, to have a remedy by action for deceit for any fraud
which may be practised upon them by the defendants or by those acting
on their behalf in the nature of a false representation, that is a
contract to submit to a fraud.

As at present advised I am inclined to think, on the authority of
Tullis _v._ Jacson, [1892] 3 Ch. 441, and Brownlie _v._ Campbell,
(1880) 5 App. Cas. 925, 937, 956, that such a contract would be
illegal in point of law. And, with the most profound respect for the
Chief Baron, I do not think that the articles of the contract relied
upon can, on their true construction, be held to have had fraud,
whether conscious or unconscious, within their purview or
contemplation, or to apply at all to such a case of fraud as the
present is alleged to be. They were, I think, intended to apply, and
do apply, to inaccuracies, errors, and mistakes, or matters of that
sort, but not to fraud, whether of principal or agent, or of both
combined.[369]

* * * * *

CHAPTER V
MALICIOUS PROSECUTION AND ABUSE OF PROCESS

HALBERSTADT _v._ NEW YORK LIFE INSURANCE CO.
COURT OF APPEALS, NEW YORK, JANUARY 5, 1909.
_Reported in 194 New York Reports, 1._

The action is brought to recover damages for an alleged malicious
prosecution claimed to have been instituted by the respondent against
the appellant in Mexico. It is in the complaint, amongst other things,
alleged that the respondent through its agent in the Criminal Court of
the city of Mexico charged the appellant with the crime of embezzlement
“and thereupon and in and by virtue of said charge and the institution
of said criminal proceedings a warrant was issued by said court for the
arrest of the plaintiff (in this action),” and that thereafter “the said
criminal proceedings for the punishment of said plaintiff were dismissed
and extinguished and the said prosecution was thereby wholly
determined ... in favor of the plaintiff.”

The respondent, by its second defence, which is challenged here for
insufficiency, alleged, in substance, that before the warrant referred
to in the complaint could be served upon the appellant and before he
could be apprehended, “he left the Republic of Mexico and thereafter
continuously remained absent ... and by such absence avoided being
arrested under such warrant, or being tried ... but remained absent from
said Republic of Mexico for a sufficient period of time to enable him to
procure the dismissal of said proceedings under the law of Mexico on
account solely of the lapse of time,” and, conversely, that said
criminal proceedings “were not dismissed on account of a determination
of the case in favor of the plaintiff on the trial thereof on the
merits, nor was it dismissed for failure to prosecute said case except
as above set forth, nor was it dismissed on account of any withdrawal of
the complaint.”

The plaintiff demurred to this defence and also to the third defence
which was not materially different from the second. The demurrer was
sustained at Special Term. This judgment was reversed by the General
Term, and the plaintiff now appeals.[370]

HISCOCK, J. The respondent’s first reply to the appellant’s attack upon
its answer is of the _tu quoque_ nature, it insisting that the complaint
is as deficient in the statement of a good cause of action as the answer
is alleged to be in the statement of a good defence. This contention is
based upon the fact that the complaint does not allege any act
subsequent or in addition to the mere issuance of a warrant in the
criminal proceeding complained of; does not allege that the warrant was
ever executed in any way whatever, or that the appellant was ever
actually brought into said proceedings either by force of process or
voluntary appearance. Therefore, the question is presented whether the
mere application for and issuance to a proper officer for execution of a
warrant on a criminal charge may institute and constitute such a
prosecution as may be made the basis of a subsequent civil action by the
party claimed to have been injured. In considering this question we must
keep in mind that the facts alleged in the complaint, and in the light
of which it is to be determined, do not show, as the answer does, that
the defendant in those proceedings was beyond the jurisdiction of the
court.

This question does not seem to have been settled by any decision which
we regard as controlling on us.

The respondent cites the following authorities deciding it in the
negative: Newfield _v._ Copperman, 15 Abb. Pr., N. S., 360; Lawyer _v._
Loomis, 3 T. & C. 393; Cooper _v._ Armour, 42 Fed. 215; Heyward _v._
Cuthbert, 4 McCord, 354; O’Driscoll _v._ M’Burney, 2 Nott & McCord, 54;
Bartlett _v._ Cristliff, 14 Atl. R. 518; Gregory _v._ Derby, 8 C. & P.
749; Paul _v._ Fargo, 84 App. Div. 9.

The case last cited was concerned with an alleged malicious prosecution
by means of civil process and what was there said must be interpreted
with reference to that fact, and thus interpreted it is not applicable
here. Of the other cases, only two, Heyward _v._ Cuthbert and Cooper
_v._ Armour, considered the question here involved with sufficient
thoroughness to require brief comment. An examination will show that the
decision in each of them rested in whole or part on a principle not, as
I believe, adopted in this state. In the former it was said that “The
foundation of this sort of action is the wrong done to the plaintiff by
the direct detention or imprisonment of his person.” As I think we shall
see hereafter, that is not a correct statement of the law in this state.
In the other case it was stated, “The only injury sustained by the
person accused, when he is not taken into custody, and no process has
been issued against him, is to his reputation; and for such an injury
the action of libel or slander is the appropriate remedy, and would seem
to be the only remedy.” I think that this doctrine, which if correct
would provide an adequate remedy outside of an action for malicious
prosecution for an injured party in a case where no warrant had been
executed, also is opposed to the weight of authority both in this state
and elsewhere hereafter to be referred to.

The authorities holding to the contrary on the question above stated,
and that the execution of the warrant is not necessary to lay the
foundation for an action of malicious prosecution, are: Addison on
Torts, vol. 2 [4th Eng. ed.], p. 478; Newell on Malicious Prosecution,
sect. 30; Stephens on Malicious Prosecution, Am. ed., sect. 8; Stapp
_v._ Partlow, Dudley’s Repts., (Ga.) 176; Clarke _v._ Postan, 6 C. & P.
423; Fezale _v._ Simpson, 2 Ill. 30; Britton _v._ Granger, 13 Ohio Cir.
Ct. Repts. 281, 291; Holmes _v._ Johnson, Busbee’s L. R. 44; Coffey _v._
Myers, 84 Ind. 105.

And to the like effect in the absence of special statutory provisions in
Swift _v._ Witchard, 103 Ga. 193.

Thus it is apparent, as before stated, that there is no controlling
decision on this question and we are remitted to a search for some
general considerations which may be decisive. It seems to me that these
may be found and that they favor the view that a prosecution may be
regarded as having been instituted even though a warrant has not been
executed.

The first one of these considerations is found in the rule applied in
civil actions and proceedings to an analogous situation. There it has
many times been held that the mere issue of various forms of civil
process for service or other execution is sufficient independent of
statute to effect the commencement of a case or proceeding. Carpenter
_v._ Butterfield, 3 Johns. Cases, 146; Cheetham _v._ Lewis, 3 Johns. 42;
Bronson _v._ Earl, 17 Johns. 63; Ross _v._ Luther, 4 Cowen, 158; Mills
_v._ Corbett, 8 How. Pr. 500; Hancock _v._ Ritchie, 11 Ind. 48, 52;
Howell _v._ Shepard, 48 Mich. 472; Webster _v._ Sharpe, 116 N. C. 466,
471.

I see no reason why a similar rule should not be applied to criminal
proceedings, at least for the purposes of such an action as this.

Then there is another reason resting on justice which seems to me to
lead us to adopt this conclusion. In opposition to what was said in the
South Carolina case already referred to, the sole foundation for an
action of malicious prosecution is not “the wrong done to the plaintiff
by the direct detention or imprisonment of his person.” In an action for
false imprisonment that would be so. But in an action of the present
type, the substantial injury for which damages are recovered and which
serves as a basis for the action may be that inflicted upon the
feelings, reputation and character by a false accusation as well as that
caused by arrest and imprisonment. This element “indeed is in many cases
the gravamen of the action.” Sheldon _v._ Carpenter, 4 N. Y. 579, 580;
Woods _v._ Finnell, 13 Bush Repts. 628; Townsend on Slander, sec. 420;
Wheeler _v._ Hanson, 161 Mass. 370; Gundermann _v._ Buschner, 73 Ill.
App. 180; Lawrence _v._ Hagerman, 56 Ill. 68; Davis _v._ Seeley, 91
Iowa, 583.

But no matter how false and damaging the charge may be in a criminal
proceeding upon which a warrant may be issued, damages for the injury
caused thereby cannot under any ordinary circumstances be recovered in
an action for libel or slander. Howard _v._ Thompson, 21 Wend. 319, 324;
Woods _v._ Wiman, 47 Hun, 362, 364; Sheldon _v._ Carpenter, _supra_;
Dale _v._ Harris, 109 Mass. 193; Gabriel _v._ McMullin, 127 Iowa, 427;
Hamilton _v._ Eno, 81 N. Y. 116; Newell on Malicious Prosecution, sec.
10.

Therefore, it follows that a person who has most grievously injured
another by falsely making a serious criminal accusation against him
whereon a warrant has been actually issued, may escape all liability by
procuring the warrant at that point to be withheld unless an action for
malicious prosecution will lie. It seems to me that under such
circumstances we should hold that such action will lie, if for no other
reason than to satisfy that principle of law which demands an adequate
remedy for every legal wrong.[371]...

VANN, J. I concur in the result because there was merely an attempt to
prosecute with no actual prosecution. The Mexican court did not acquire
jurisdiction of the person of the plaintiff, for he was not arrested,
nor was process or notice of any kind served upon him. He was not
brought into court and the prosecution could not end because it was
never begun. He could not be a party defendant until he was notified or
voluntarily appeared. He was threatened with prosecution, but neither
his person nor his property was touched. There can be no prosecution
unless knowledge thereof is brought home to the alleged defendant in
some way. If there had been a prosecution commenced the crime could not
have outlawed during the defendant’s absence, as is admitted of record.
While in civil actions, in order to arrest the Statute of Limitations,
“an attempt to commence an action, in a court of record, is equivalent
to the commencement thereof,” still the attempt goes for naught unless
followed by service, actual or constructive, within sixty days. (Code
Civil Proc. § 399.) The rule was similar at common law. Although, in
order to prevent injustice, an action was deemed to be commenced by the
delivery of process for service, it was never treated as effectual for
any purpose unless actual service was subsequently made. The authorities
cited in the prevailing opinion illustrate this proposition.

In the absence of controlling authority, which it is conceded does not
exist, I favor restricting rather than enlarging the scope of the
action. This accords with the general position of the court upon the
subject.

GRAY, HAIGHT and CHASE, JJ., concur with HISCOCK, J.; CULLEN, CH. J.,
and WILLARD BARTLETT, J., concur with VANN, J.

_Order affirmed._[372]

CHAMBERS _v._ ROBINSON
AT NISI PRIUS, CORAM RAYMOND, C. J., HILARY TERM, 1726.
_Reported in 2 Strange, 691._

An action for a malicious prosecution of an indictment for perjury.

Upon the trial it appeared, the perjury was ill-assigned, so that the
now plaintiff could not have been convicted; and that exception was
taken to it by the judge, and he was acquitted without any examination
of witnesses. But the Chief Justice held the action lay, though it was
a faulty indictment, relying upon the case of Jones _v._ Gwynn, where
the distinction in Salk. 13 was denied, and held by the whole court
that the action would lie, though the indictment was bad; a bad
indictment serving all the purposes of malice, by putting the party to
expense, and exposing him, but it serves no purpose of justice in
bringing the party to punishment if he be guilty.[373]

BYNE _v._ MOORE
IN THE COMMON PLEAS, NOVEMBER 13, 1813.
_Reported in 5 Taunton, 187._[374]

This was an action for a malicious prosecution in indicting the
plaintiff for an assault and battery. The only evidence on the part of
the plaintiff being, that the bill was preferred and not found, Lord
Chief Baron Macdonald who tried the cause, nonsuited him.[375]

BEST, Serjt., had obtained a rule _nisi_ to set aside that nonsuit and
have a new trial; against which

_Shepherd_, Serjt., showed cause.

MANSFIELD, C. J. I feel a difficulty to understand how the plaintiff
could recover in the present action, wherein he could recover no
damages, because he clearly has not proved that he has sustained any:
I can understand the ground upon which an action shall be maintained
for an indictment which contains scandal, but this contains none, nor
does any danger of imprisonment result from it: this bill was a piece
of mere waste paper. All the cases in Buller’s Nisi Prius, 13, are
directly against this action, for the author speaks of putting the
plaintiff to expense, and affecting his good fame, neither of which
could be done here. If this action could be maintained, every bill
which the grand jury threw out would be the ground of an action. The
judge too might certify in this cause against the costs, if the
damages had been under 40s.

HEATH, J., concurred.

CHAMBRE, J. It would be a very mischievous precedent if the action
could be supported on this evidence.

_Rule discharged._[376]

STEWARD _v._ GROMETT
IN THE COMMON PLEAS, NOVEMBER 11, 1859.
_Reported in 7 Common Bench Reports, New Series, 191._

ERLE, C. J.[377] I am of opinion that our judgment in this case must
be for the plaintiff. It is an action against the defendant for
falsely and maliciously, and without reasonable or probable cause,
making information on oath before a magistrate that the plaintiff had
used threatening language to him, whereby he went in fear of bodily
harm, and so procuring a warrant under which the plaintiff was
incarcerated in the castle at Swaffham, for want of sureties, for a
period of six months. It is admitted on the pleadings that the
defendant did falsely and maliciously, and without reasonable or
probable cause, procure that wrong to be done to the plaintiff; and
the question is whether the declaration shows enough to entitle the
plaintiff to maintain an action for that wrong. This is in some sort
an action for a malicious prosecution; and it has been contended by
Mr. Couch, for the defendant, that the case falls within the ordinary
rule applicable to such actions, that the plaintiff must show that the
proceeding terminated in his favor, and that no action lies where they
are shown to have terminated against the accused. But I am of opinion
that the distinction taken by Mr. Keane removes that objection, and
shows that that rule does not apply to this case, because the
proceeding before the magistrate being founded upon a statement which
the party charged is not at liberty to controvert, is an _ex parte_
proceeding, and, although it attains the result which is sought, it is
not a judgment, but is in the nature of a writ of process. It is not
like the case of an application to a magistrate upon a matter on which
he is to exercise his discretion: there, the injury sustained by the
party is the act of the law, and therefore no action lies unless the
person who sets the magistrate in motion is actuated by malice. But
here the law was directly put in motion by the defendant against the
plaintiff, and, it must be assumed, falsely and maliciously and
without reasonable or probable cause. If a party goes before a judge,
under the 1 & 2 Vict. c. 110, with an affidavit of debt for the
purpose of procuring a capias to arrest his debtor, upon a suggestion
that he is going abroad, and that is done falsely and maliciously, and
without reasonable or probable cause, an action lies. So, if a party
go to the Court of Queen’s Bench, and maliciously exhibit articles of
the peace against another, supported by a false oath that such other
had used threats against him, his statement being incontrovertible, it
is clear to my mind that an action would lie. Can it make any
difference that here the proceeding took place before a magistrate? It
seems to me that the two proceedings are quite analogous: the same
remedy is sought, only by a different mode. As in the one case the
truth of the articles cannot be controverted, so in the other the
statement made before the magistrate upon oath cannot be contradicted
by the accused. There is not the least sign of authority to show that
the magistrate had any discretion, so that the plaintiff might have
had a decision in his favor. In Burn’s Justice, sureties of the peace
are treated as being subject to precisely the same rule as articles of
the peace at the sessions or in the Court of Queen’s Bench, in respect
of their truth being incontrovertible. And there is strong reason for
assuming that to be the true state of the law; the fact of there being
no authority exactly in point as to sureties of the peace, may well be
accounted for by supposing that no one has entertained doubt enough
upon it to take the opinion of any court. But as far as authority
goes, The King _v._ Doherty, 13 East, 171, and Venafra _v._ Johnson,
10 Bing. 301, 3 M. & Sc. 807, are in favor of the plaintiff. In the
latter case, Johnson made precisely the same application to the
justices as was made here, and they exercised a precisely analogous
jurisdiction, the only difference being that there the magistrates
held the plaintiff to bail for his appearance at the sessions, whereas
here the magistrate at once committed the plaintiff to jail until he
should find the required sureties: and it was there decided by
implication that the proceeding before the magistrate was
incontrovertible; for, the court held that the judge was wrong in not
leaving it to the jury to say whether or not the defendant believed
the menaces when he put the law in motion against the plaintiff. If
Mr. Couch’s argument to-day is right, the counsel and the court in
that case were all wrong. Upon principle, therefore, and upon
authority, it seems to me that the argument for the plaintiff in this
case ought to prevail.

_Judgment for the plaintiff._[378]

FISHER _v._ BRISTOW
IN THE KING’S BENCH, JUNE 15, 1779.
_Reported in 1 Douglas, 215._

Action for a malicious presentment (for incest), in the ecclesiastical
court of the archdeaconery of Huntingdon. Demurrer to the declaration
and cause assigned, that it was not stated how the prosecution was
disposed of, or that it was not still depending. The court were clearly
of opinion, that the objection was fatal, and said it was settled, that
the plaintiff in such an action, must show the original suit, wherever
instituted, to be at an end; otherwise he might recover in the action,
and yet be afterwards convicted on the original prosecution.

_Judgment for the defendants._[379]

BROWN _v._ RANDALL
SUPREME COURT, CONNECTICUT, MARCH TERM, 1869.
_Reported in 36 Connecticut Reports, 56._

CARPENTER, J.[380] The defendants complained to a grandjuror of the town
of Norwich against the plaintiff, charging him with a breach of the
peace, and induced the grandjuror to enter a complaint to a magistrate
in due form, whereupon a warrant was issued, and the plaintiff arrested
and held to answer the complaint. After remaining in custody several
hours, the magistrate informed the defendants and their counsel, who
acted for the grandjuror, that he was ready to proceed with the trial.
The defendants sent word to the court that they should prosecute the
complaint no further, and thereupon the plaintiff was discharged. It is
alleged in the declaration that this proceeding was malicious and
without probable cause, and the jury have found that allegation to be
true.

The important question in this case is whether, upon the facts alleged
and proved, the plaintiff is entitled to recover. All the material
averments seem to have been proved except the allegation of acquittal.
That was not proved, and the court charged the jury that it was not
necessary. The defendants complain of this, as they rely upon the
non-existence of that fact as a complete defence to the action.
Decisions of courts of the highest respectability, both in England and
in this country, justify this claim. It does not appear that this
question has ever been directly determined by this court. We are
referred to the case of Monroe _v._ Maples, 1 Root, 553. But no such
question arose in that case. It simply decided that a person convicted
of the crime charged against him could not maintain the action. We are
therefore at liberty to determine the question upon principle.

The grounds of this action are, the malice of the defendant, the want of
probable cause, and an injury sustained by the plaintiff. 1 Swift’s
Digest, 491. The conviction of the plaintiff is justly considered as
conclusive evidence of probable cause. The authorities referred to
virtually decide—without sufficient reason as it seems to us—that the
termination of the prosecution by a _nolle prosequi_, or abandonment,
was equally conclusive upon that question.

One reason given for this is, that no termination of the prosecution in
favor of the accused short of an acquittal will discharge the crime or
be a bar to a new indictment. This reasoning is not satisfactory. The
possibility that the plaintiff may be again prosecuted for the same
alleged offence is not inconsistent with an entire want of probable
cause in the first prosecution. This reason seems to have been
disregarded in Sayles _v._ Briggs, 4 Met. 421. The complainant abandoned
the prosecution against the plaintiff after a trial, and the magistrate,
who could only bind over or discharge the person accused, discharged
him. The court held that the action could be maintained. Yet such a
discharge could be no bar to a subsequent prosecution.

Another reason given is, that the common law will not favor actions in
behalf of a party criminally prosecuted against one who has acted as
complainant in behalf of the public, and ostensibly for the public good;
it therefore requires that the plaintiff in such an action shall begin
by offering the verdict of a jury who have considered the cause on its
merits. This may be a very proper caution to a jury, and a matter which
ought to be considered by them in weighing evidence, but we see no
sufficient reason for adopting it as an absolute rule of law, the effect
of which is, in some cases at least, to shut out the truth. No such rule
has been adopted in this State, and we think it is contrary to the
prevailing notions of the profession. Judge Swift, in his Digest, vol.
1, p. 491, states five different modes of terminating a prosecution in
favor of the accused which will lay the foundation for this action, and
one of them is, “when the prosecution has been abandoned and given up.”

In Parker _v._ Farley, 10 Cush. 279, Shaw, C. J., in speaking of the
rule under consideration, says: “Were this a new and original question,
to be decided upon principle, it might be doubted whether it would be
just and wise to establish this as an inflexible rule of practice.”

On the whole we think it wise and safe, when a prosecution has been
abandoned, as this was, without any arrangement with the accused, and
without any request from him that it should be so abandoned, to leave
the question of probable cause to the jury.

The charge of the court was in harmony with these views, and we do not
advise a new trial.

In this opinion the other judges concurred.[381]

FOSHAY _v._ FERGUSON
SUPREME COURT, NEW YORK, MAY, 1846.
_Reported in 2 Denio, 617._

_By the Court_, BRONSON, C. J.[382] There was evidence enough in the
case to warrant the jury in finding, that the defendant set the
prosecution in motion from a bad motive. But all the books agree, that
proof of express malice is not enough, without showing also the want of
probable cause. Probable cause has been defined, a reasonable ground of
suspicion, supported by circumstances sufficiently strong in themselves
to warrant a cautious man in the belief, that the person accused is
guilty of the offence with which he is charged. Munns _v._ Nemours, 3
Wash. C. C. 37. However innocent the plaintiff may have been of the
crime laid to his charge, it is enough for the defendant to show, that
he had reasonable grounds for believing him guilty at the time the
charge was made. In Swain _v._ Stafford, 3 Iredell, N. C. 289, and 4 id.
392, the action was brought against the defendant, who was a merchant,
for charging the plaintiff with stealing a piece of ribbon from his
store. At the time the complaint was made, the defendant had received
such information as induced a belief of the plaintiff’s guilt; and
although it afterwards turned out that the property had not been taken
by any one, and was never out of the defendant’s possession, it was held
that an action for malicious prosecution could not be supported. The
doctrine that probable cause depends on the knowledge or information
which the prosecutor had at the time the charge was made, has been
carried to a great length. In Delegal _v._ Highley, 3 Bing. N. C. 950,
which was an action for maliciously, and without probable cause,
procuring a third person to charge the plaintiff with a criminal
offence, the defendant pleaded specially, showing that the plaintiff was
guilty of the offence which had been laid to his charge; and the plea
was held bad in substance, because it did not show that the defendant,
at the time the charge was made, had been informed, or knew the facts on
which the charge rested. The question of probable cause does not turn on
the actual guilt or innocence of the accused; but upon the belief of the
prosecutor concerning such guilt or innocence. Seibert _v._ Price, 5
Watts & Serg. 438.

Without going into a particular examination of the evidence in this
case, it is enough to say that the defendant, at the time he went before
the grand jury had strong grounds for believing that the plaintiff had
stolen the cattle: and, so far as appears, not a single fact had then
come to his knowledge which was calculated to induce a different
opinion. Although the plaintiff was in fact innocent, there would be no
color for this action, if it were not for the fact that the defendant
settled the matter with the plaintiff, instead of proceeding against him
for the supposed offence. If the parties intended the settlement should
extend so far as to cover up and prevent a criminal prosecution, the
defendant was guilty of compounding a felony. And the fact that he made
no complaint until the plaintiff commenced the two suits against him,
goes far to show that he was obnoxious to that charge; and that he was
governed more by his own interest, than by a proper regard to the cause
of public justice. But however culpable the defendant may have been for
neglecting his duty to the public, that cannot be made the foundation of
a private action by the plaintiff. Although the defendant may have
agreed not to prosecute, and the complaint may have been afterwards made
from a malicious feeling towards the plaintiff, still the fact of
probable cause remains; and so long as it exists, it is a complete
defence. There is enough in the defendant’s conduct to induce a rigid
scrutiny of the defence. But if upon such scrutiny it appear, that he
had reasonable grounds for believing the plaintiff guilty, and there is
nothing to show that he did not actually entertain that belief, there is
no principle upon which the action can be supported.

On a careful examination of the case, I am of opinion that the verdict
was clearly wrong. But as the charge of the judge is not given, we must
presume that the case was properly submitted to the jury; and a new
trial can therefore only be had on payment of costs.

_Ordered accordingly._[383]

CLOON _v._ GERRY
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE, 1859.
_Reported in 13 Gray, 201._

SHAW, C. J.[384] In an action for a malicious prosecution against one,
in the name of the Commonwealth, the averment on the part of the
plaintiff, that the complaint was made without reasonable cause, lies at
the foundation of the suit; and although it is in form a negative
proposition, it is incumbent on the plaintiff to establish it by
satisfactory proof. This kind of suit, by which the complainant in a
criminal prosecution is made liable to an action for damages, at the
suit of the person complained of, is not to be favored; it has a
tendency to deter men who know of breaches of the law, from prosecuting
offenders, thereby endangering the order and peace of the community.
Absence of probable cause is essential; from want of probable cause,
malice may be inferred; but from malice, even if express, want of
probable cause cannot be inferred.

An ultimate acquittal of the offence charged, though necessary to be
proved, is but a short step towards the maintenance of an action for
malicious prosecution. Malice, and absence of any reasonable and
probable cause, must also concur with an acquittal.

In the present case, the prosecution complained of was a complaint
before a justice of the peace by whom the plaintiff was convicted; from
this judgment he appealed, and on trial in the Court of Common Pleas was
acquitted.

On the trial, it appeared from the pleadings and evidence, and was
admitted, that the complaint was for an offence which the magistrate
had, by law, jurisdiction to hear, decide and render a judgment in;
also, that neither in the trial before the magistrate, nor in the trial
in the Common Pleas, was the defendant a witness. On this case, the
court ruled that such a conviction was proof of probable cause; or, to
state the proposition with more precision, it negatived the plaintiff’s
leading and essential averment that the complaint was made without
reasonable and probable cause, and that, for this reason, the action
could not be maintained, and thereupon ordered a nonsuit.

The court are of opinion that this direction was right. The question of
reasonable and probable cause, when the facts are not contested, is a
question of law. And when the plaintiff had been convicted by a
tribunal, constituted by law, with authority to render a judgment,
which, if not appealed from, would have been conclusive of his guilt,
and such judgment is not impeached on the ground of fraud, conspiracy or
subornation in its procurement, although afterwards reversed on another
trial, it constitutes sufficient proof that the prosecution was not
groundless, and to defeat an action for malicious prosecution. The case
of Whitney _v._ Peckham, 15 Mass. 243, is directly in point, and we
think it is well sustained by authorities.

It is said that the question of probable cause is a mixed question of
law and fact, and that the facts should have been left to the jury. Here
no fact material to the question was controverted, and then there was
nothing to leave to a jury.

_Exceptions overruled_.[385]

RAVENGA _v._ MACKINTOSH
IN THE KING’S BENCH, MAY 8, 1824.
_Reported in 2 Barnewall & Cresswell, 693._

This was an action for a malicious arrest: plea not guilty. At the trial
before Abbott, C. J., at the London sittings after last Hilary term, the
jury was directed to find a verdict for the defendant, if they were of
opinion that, at the time when the arrest was made, Mackintosh acted
truly and sincerely upon the faith of the opinion given by his
professional adviser, actually believing that Ravenga was personally
liable, and that he might be lawfully arrested, and that he (Mackintosh)
could recover in that action; but to find for the plaintiff, if they
were of opinion that Mackintosh believed that he must fail in the
action, and that he intended to use the opinion as a protection, in case
the proceedings were afterwards called in question; and that he made the
arrest, not with a view of obtaining his debt, but to compel the
plaintiff to sanction the debentures. The jury found a verdict for the
plaintiff, with £250 damages.[386]

The _Attorney-General_ now moved for a new trial.

BAYLEY, J. I have no doubt that in this case there was a want of
probable cause. I accede to the proposition, that if a party lays all
the facts of his case fairly before counsel, and acts _bona fide_ upon
the opinion given by that counsel (however erroneous that opinion may
be), he is not liable to an action of this description.[387] A party,
however, may take the opinions of six different persons, of which three
are one way and three another. It is therefore a question for the jury,
whether he acted _bona fide_ on the opinion, believing that he had a
cause of action. The jury in this case have found, and there was
abundant evidence to justify them in drawing the conclusion, that the
defendant did not act _bona fide_, and that he did not believe that he
had any cause of action whatever. Assuming that the defendant’s belief
that he had a cause of action would amount to a probable cause, still,
after the jury have found that he did not believe that he had any cause
of action whatever, the judge would have been bound to say, that he had
not reasonable or probable cause of action.

_Rule refused._[388]

MITCHELL _v._ JENKINS
IN THE KING’S BENCH, NOVEMBER 11, 1833.
_Reported in 5 Barnewall & Adolphus, 588._

This was an action on the case for a malicious arrest.

At the trial, before Taunton, J., at the last Summer Assizes for the
county of Devon, it appeared, that the plaintiff was indebted to the
defendant in the sum of £45, for one year’s composition of tithe; and
that the sum of £16 5_s._ was due to the plaintiff from the defendant;
that the defendant, under the advice of his attorney, arrested the
plaintiff for the whole sum of £45, instead of for the balance, after
deducting the sum of £16 5_s._ The defendant, on finding out that he was
mistaken in point of law, and that he should only have arrested for the
balance, discontinued the action.

There was no evidence at all of malice in fact; but the learned judge
told the jury, that, as the plaintiff ought not, by law, to have been
arrested for more than the balance, the law implied malice; and that the
only question for their consideration was, the amount of damages; upon
which a verdict was found for the plaintiff for £20.

A rule had been obtained, in a former term, calling on the plaintiff to
show cause why that verdict should not be set aside, and a new trial
had;[389] against which—

_Follett_ now showed cause.

_Coleridge_, Serjt., and _Bere_, contra.

DENMAN, C. J. Every arrest by a creditor for more than is due, is, in
some sense, a wrongful act. By statute, if it be made without reasonable
or probable cause, though with an entire absence of malice, the party
arresting may be deprived of his costs, and at common law, if the party
arrested has suffered damage to a greater extent than those costs, he
may, if the arrest was also made maliciously, bring his action on the
case. In that action, however, it is still incumbent on the plaintiff to
allege and to prove malice as an independent fact; though it may in some
instances be fairly inferred by the jury from the arrest itself, and the
circumstances under which it is made, without any other proof. They,
however, are to decide, as a matter of fact, whether there be malice or
not. I have always understood the question of reasonable or probable
cause on the facts found to be a question for the opinion of the court,
and malice to be altogether a question for the jury.[390] Here, the
question of malice having been wholly withdrawn from the consideration
of the jury, there ought to be a new trial.

PARKE, J. I am also of opinion that there ought to be a new trial, on
the ground that the learned judge withdrew altogether from the
consideration of the jury the question of malice. I have always
understood, since the case of Johnstone _v._ Sutton, 1 T. R. 510, which
was decided long before I was in the profession, that no point of law
was more clearly settled than that in every action for a malicious
prosecution or arrest, the plaintiff must prove what is averred in the
declaration, viz. that the prosecution or arrest was malicious and
without reasonable or probable cause: if there be reasonable or probable
cause, no malice, however distinctly proved, will make the defendant
liable; but when there is no reasonable or probable cause, it is for the
jury to infer malice from the facts proved. That is a question in all
cases for their consideration, and it having in this instance been
withdrawn from them, it is impossible to say whether they might or might
not have come to the conclusion that the arrest was malicious. It was
for them to decide it, and not for the judge. I can conceive a case
where there are mutual accounts between parties, and where an arrest for
the whole sum claimed by the plaintiff would not be malicious; for
example, the plaintiff might know that the set-off was open to dispute,
and that there was reasonable ground for disputing it. In that case,
though it might afterwards appear that the set-off did exist, the arrest
would not be malicious. The term “malice” in this form of action is not
to be considered in the sense of spite or hatred against an individual,
but of _malus animus_, and as denoting that the party is actuated by
improper and indirect motives.[391] That would not be the case where,
there being an unsettled account, with items on both sides, one of the
parties, believing _bona fide_ that a certain sum was due to him,
arrested his debtor for that sum, though it afterwards appeared that a
less sum was due; nor where a party made such an arrest, acting _bona
fide_ under a wrong notion of the law and pursuant to legal advice. The
question of malice having in this case been wholly withdrawn from the
jury, I think the rule for a new trial must be made absolute.

_Rule absolute._[392]

HADDRICK _v._ HESLOP
IN THE QUEEN’S BENCH, TRINITY TERM, 1848.
_Reported in 12 Queen’s Bench Reports, 267._

Case for maliciously and without reasonable and probable cause indicting
the plaintiff for perjury. Averment that the plaintiff was tried and
acquitted, and judgment given that he should depart without day, as by
record appeared, &c.

Plea, by Heslop: Not guilty. Issue thereon.

On the trial, before Wightman, J., at the Durham Summer Assizes, 1847,
it was shown, on the part of the plaintiff, that the now defendant
Heslop received the account of Haddrick’s evidence from another party,
and then stated that he would indict Haddrick for perjury; and that his
informant thereupon expressed an opinion that there was no ground for
such indictment; on which Heslop said that, even if there were not
sufficient grounds for the indictment, it would tie up the mouths of
Hinde and Haddrick for a time, and that he would move for a new trial.
No witnesses were called for the defence. The learned judge asked the
jury whether Heslop believed that there was reasonable ground for
indicting, and whether he had indicted from malice. The jury answered
that Heslop did not so believe; and, as to the malice, they said that
they thought that the word “malice” was strong, but that they thought
the defendant had indicted from an improper motive. The learned judge
then decided that the indictment was without reasonable or probable
cause, and told the jury that they might infer malice from the improper
motive. Verdict for the plaintiff.

In Michaelmas term (November 5th), 1847,

_Bliss_ moved for a new trial, on the grounds of misdirection.[393]

First: the question of the defendant’s belief ought not to have been
left to the jury. It is for the judge to decide whether there was
reasonable and probable cause. It is true that he may, in order to
decide this, obtain the opinion of the jury upon facts which, when
found, he himself is to act upon in deciding as to the reasonableness
and probability. But belief is not such a fact: it is material as to the
malice, but there may well exist reasonable and probable cause
constituted by facts from which the defendant has wrongly drawn an
inference of want of cause. It is otherwise where the belief becomes
material as an ingredient in the question of _mala fides_: that was the
case in Ravenga _v._ Mackintosh, where the defendant rested his defence
upon the ground that he had acted _bona fide_ on a legal opinion, and
the jury found that he had not so acted. Nothing should be left to the
jury but “the truth of the facts proved, and the justice of the
inferences to be drawn from such facts;” and it is only as affecting
those questions that the belief of the party is material.

Next: the jury were misdirected as to malice. The mere fact that the
defendant had an indirect motive, however improper, in instituting the
prosecution does not show malice. The malice required in this action is
express malice in fact, not mere malice in law. In the judgment of Lords
Mansfield and Loughborough, in Johnstone _v._ Sutton,[394] it is
said:[395] “From the want of probable cause, malice may be, and most
commonly is, implied. The knowledge of the defendant is also implied.”
The jury ought therefore to have been told that the indirect motive was
quite consistent with absence of malice, unless the defendant knew (not
simply believed) that there was no probable cause, or unless there was
some evidence of express malice towards the plaintiff.

LORD DENMAN, C. J. It would be quite outrageous if, where a party is
proved to believe that a charge is unfounded, it were to be held that he
could have reasonable and probable cause. Reference has been made to
Turner _v._ Ambler, 10 Q. B. 252, where there was an allusion to a
decision of my Brother Maule, upheld afterwards in the Common
Pleas,[396] to the effect that reasonable and probable cause cannot
exist without belief. There may possibly be some difficulty in
distinguishing the case last mentioned from some others: but I think
that belief is essential to the existence of reasonable and probable
cause: I do not mean abstract belief, but a belief upon which a party
acts. Where there is no such belief, to hold that the party had
reasonable and probable cause would be destructive of common sense.[397]
Proof of the absence of belief is almost always involved in the proof of
malice. In Turner _v._ Ambler there was no point directly made at the
trial as to want of belief: the only question was whether the facts of
themselves bore out the probability and reasonableness. But, where a
plaintiff takes upon himself to prove that, assuming the facts to be as
the defendant contends, still the defendant did not believe them, we
ought not to entertain any doubt that it is proper to leave the question
of belief as a fact to the jury. It is not absolutely necessary that
this belief should be the motive on which he acted: he may act from
malice, and yet, if there was reasonable and probable cause in which he
believed, the case against him must fail.

_Rule refused as to misdirection._

VANDERBILT _v._ MATHIS
SUPREME COURT, CITY OF NEW YORK, FEBRUARY, 1856.
_Reported in 5 Duer, 304._

_By the Court_, BOSWORTH, J.[398]—To maintain an action for malicious
prosecution, three facts, if controverted, must be established:

1. That the prosecution is at an end, and was determined in favor of the
plaintiff.

2. The want of probable cause.

3. Malice.

In such an action, it is necessary to give some evidence of the want of
probable cause. It is insufficient to prove a mere acquittal; that,
alone, is not _prima facie_ evidence of the want of probable cause.
Gorton _v._ De Angelis, 6 Wend. 418.

It is equally essential, that the former prosecution should appear to
have been maliciously instituted. Malice may be inferred from the want
of probable cause, but such an inference is one which a jury is not
required to make, at all events, merely because they may find the
absence of probable cause.

Unless the evidence, in relation to the circumstances under which the
prosecution was ended, and that given to establish the want of probable
cause, justify the inference of malice, other evidence, in support of
it, must be given.

Evidence as to the conduct of the defendant, in the course of the
transaction, his declarations on the subject, and any forwardness and
activity in exposing the plaintiff by a publication, are properly
admitted to prove malice. Such evidence must be given as will justify a
jury in finding the existence of malice.

The rule is uniformly stated, that, to maintain an action, for a former
prosecution, it must be shown to have been without probable cause, and
malicious. Vanduzer _v._ Linderman, 10 J. R. 110; Murray _v._ Long, 1
Wend. 140; 2d Stark. Ev. 494; Willans _v._ Taylor, 6 Bing. 183.

The judge, at the trial, charged, that the fact, that the plaintiff was
discharged before the magistrate showed, _prima facie_, that there was
no probable cause for the arrest, and shifted the burden of proof from
the plaintiff to the defendant, who was bound to show, affirmatively,
that there was probable cause.

He was requested to charge, “that the discharge of Vanderbilt was not
_prima facie_ evidence of the want of probable cause.” This he refused
to do. To this refusal to charge, and to the charge as made, the
defendant excepted.

He also charged, “that, if probable cause is made out, the question of
malice becomes immaterial, except as bearing on the question of
damages.”

“This question of malice, in fact, supposing that probable cause did not
exist, is material only as affecting the question of damages.”

He was requested to charge, “that the jury could not find a verdict for
the plaintiff, unless he has proved that there was no probable cause for
the complaint, and not even then, unless they believed, from the
evidence, that, in making the complaint, the defendant acted from
malicious motives.” This the judge declined to do, and to his refusal to
so charge the defendant excepted.

Although the evidence which establishes the want of probable cause may
be, and generally is, such as to justify the inference of malice, yet we
understand the rule to be, that when it is a just and proper inference
from all the facts and circumstances of the case, upon all the evidence
given in the cause, “that the defendant was not actuated by any improper
motives, but only from an honest desire to being a supposed offender to
justice, the action will not lie, because such facts and circumstances
disprove that which is of the essence of the action, viz., the malice of
the defendant in pressing the charge.”

In Bulkley _v._ Smith, 2 Duer, 271, the court stated the rule to be,
“that, in order to maintain a suit for a malicious prosecution, the
plaintiff is bound to prove the entire want of a probable cause for the
accusation, and the actual malice of the defendant in making it. Malice
is a question of fact, which, when the case turns upon it, must be
decided by the jury.”

Story, J., in Wiggin _v._ Coffin, instructed the jury that two things
must concur, to entitle a plaintiff to recover in such an action: “The
first is, the want of probable cause for the prosecution; the second is,
malice in the defendant in carrying on the prosecution. If either ground
fail, there is an end of the suit.”

In Vanduzer _v._ Linderman, 10 J. R. 110, the court said: “No action
lies, merely for bringing a suit against a person without sufficient
ground. To maintain a suit for a former prosecution, it must appear to
have been without cause, and malicious.”

If the charge must be understood to mean, that if the want of probable
cause was established, the plaintiff was entitled to recover, although
the jury should believe, from the whole evidence, that, in making the
complaint, the defendant did not act from malicious motives, then we
deem it to be erroneous. This construction is the only one, of which the
language of the instruction appears to be susceptible; for the judge, in
charging the jury stated that the “question of malice in fact, supposing
that probable cause did not exist, is material only as affecting the
question of damages.”

Malice in fact, is that kind of malice which is to be proved. When
malice may be, and is inferred, from the want of probable cause, it is
actual malice which is thus proved.

There is no theoretical malice which can satisfy this rule, and which
can coexist with the established fact, that the prosecution was
instituted in an honest belief of the plaintiff’s guilt, and with no
other motives than to bring a supposed offender to justice.

The question of malice may be a turning-point of the controversy, in an
action of this nature.

The want of probable cause may be shown, and yet upon the whole
evidence, in any given case, it may be a fair question for the
determination of a jury, whether the defendant was actuated by malice.
If the whole evidence is such, that a jury cannot properly doubt the
honesty and purity of the motive which induced the former prosecution,
and if they fully believe that it was instituted from good motives, and
in the sincere conviction that the plaintiff was guilty of the offence
charged, and without malice, the defendant would be entitled to a
verdict.

The charge made, and which was excepted to, must be deemed to have been
made, to give the jury a rule of action, in disposing of the case upon
the whole evidence. We think it was not only calculated to mislead, but
was erroneous.

A new trial must be granted, with costs to abide the event.[399]

MACK _v._ SHARP
SUPREME COURT, MICHIGAN, DECEMBER 14, 1904.
_Reported in 138 Michigan Reports, 448._

MONTGOMERY, J.[400] The court also ruled throughout the case that in
this action the defendant was not at liberty to prove that the plaintiff
was in fact guilty of the criminal offence imputed to him in the
prosecution instituted by the defendant. It is well established by
authority that in an action for malicious prosecution it is a complete
defence to show that the plaintiff was in fact guilty of the offence
charged against him by defendant, and this though the proof of guilt is
furnished by evidence not known to defendant when the prosecution
against the plaintiff was instituted. This testimony is not in such case
offered in support of probable cause, but to show that the plaintiff has
suffered no wrong by his arrest. The law considers that, if a criminal
is fortunate enough to escape conviction, he should rest content with
his good luck, and not belabor one who suspected his guilt and acted
accordingly. As was said in Newton _v._ Weaver, 13 R. I. 617:—

“The action for malicious prosecution was designed for the benefit of
the innocent, and not of the guilty. It matters not whether there was
proper cause for the prosecution, or how malicious may have been the
motives of the prosecutor, if the accused is guilty he has no legal
cause for complaint.”

See, also, Threefoot _v._ Nuckols, 68 Miss. 123; Whitehurst _v._ Ward,
12 Ala. 264; Parkhurst _v._ Masteller, 57 Iowa, 478; Turner _v._
Dinnegar, 20 Hun, 465; Lancaster _v._ McKay, 103 Ky. 616.

_The judgment is reversed, and a new trial ordered._

The other Justices concurred.[401]

CHAPMAN _v._ PICKERSGILL
IN THE COMMON PLEAS, MICHAELMAS TERM, 1762.
_Reported in 2 Wilson, 145._

Action upon the case for falsely and maliciously suing out a commission
of bankrupt against the plaintiff, who declared upon three counts; in
the first, having stated his honesty, he alleges that the defendant did
falsely and maliciously exhibit a petition to the Lord Chancellor that
the plaintiff was indebted to him in £200, and had committed an act of
bankruptcy, that the commission thereupon issued, and the plaintiff was
declared a bankrupt, and that afterwards the commission was superseded;
and the plaintiff avers that he never committed any act of bankruptcy;
the second count is much the same, with the like averment; the third
count is much the same, but without such averment. To this the defendant
pleaded the general issue, and there was a general verdict and damages
for the plaintiff taken, upon all the three counts; whereupon it was
moved that the judgment might be arrested.

This case was argued twice at the bar, in two former terms by Serjeant
_Hewitt_ and Serjeant _Burland_ for the defendant, and by Serjeant
_Whitaker_ and Serjeant _Nares_ for the plaintiff; and in this term the
Lord Chief Justice gave the opinion of the whole court, that judgment
must be for the plaintiff.

LORD CHIEF JUSTICE. Upon the arguing of this case, the first objection
was, that this action will not lie, there being a remedy given by
statute, that a proceeding on a commission of bankruptcy, was a
proceeding in nature of a civil suit; and that no action of this sort
was ever brought: but we are all of opinion that this action is
maintainable.[402]

The general grounds of this action are, that the commission was falsely
and maliciously sued out, that the plaintiff has been greatly damaged
thereby, scandalized upon record, and put to great charges in obtaining
a _supersedeas_ to the commission; here is falsehood and malice in the
defendant, and great wrong and damage done to the plaintiff thereby.
Now, wherever there is an injury done to a man’s property by a false and
malicious prosecution, it is most reasonable he should have an action to
repair himself. See 5 Mod. 407, 8; 10 Mod. 218; 12 Mod. 210. I take
these to be two leading cases, and it is dangerous to alter the law. See
also 12 Mod. 273; 7 Rep. Bulwer’s case, 1. 2 Leon. —— 1 Ro. Abr. 101; 1
Ven. 86; 1 Sid. 464. But it is said this action was never brought; and
so it was said in Ashby and White; I wish never to hear this objection
again. This action is for a tort; torts are infinitely various, not
limited or confined, for there is nothing in nature but may be an
instrument of mischief, and this of suing out a commission of bankruptcy
falsely and maliciously, is of the most injurious consequence in a
trading country.

It is further said the stat. 5 Geo. 2, has given a remedy, and therefore
this action will not lie; but we are all of opinion, that in this case
the plaintiff would have been entitled to this remedy by action at
common law, if this Act had never been made, and that the statute being
in the affirmative, hath not taken away the remedy at law. 2 Raym. 163.
And this is a universal rule, that an affirmative statute is hardly ever
repealed by a subsequent affirmative statute, for if it is possible to
reconcile two statutes they shall both stand together; if they cannot be
reconciled, the last shall be a repeal of the first; but the most
decisive answer is, that this statute-remedy is a most inadequate and
uncertain remedy; for though there be the most outrageous malice and
perjury, and the party injured suffer to the amount of ten or twenty
thousand pounds, yet the Chancellor has no power to give him more than
the penalty of £200; besides, the method of applying to the Chancellor,
is more tedious, expensive, and inconvenient than this common law
remedy, and this case in its nature is more properly the province of a
jury, than of any judge whatever.

It is further objected, that in the third count there is no averment
that the plaintiff was not indebted to the defendant, or ever committed
an act of bankruptcy; but no case was cited to show such averment to be
necessary; the ground and substance of the declaration is falsehood and
malice; there are no instances of such averments in conspiracy, that the
party was innocent, or did not do the fact on which he was indicted, but
the precedents are the other way. In an action for words, as for saying
a man is a thief, the plaintiff has no occasion to aver he is not a
thief, and this case is analogous; for after the plaintiff has alleged
that the commission was false and malicious, it would be tautology, to
make such averment that he was not indebted, &c., and this declaration
would have been good on a demurrer; more clearly it is so, after a
verdict.

_Judgment for the plaintiff._

TOMLINSON _v._ WARNER
SUPREME COURT, OHIO, DECEMBER, 1839.
_Reported in 9 Ohio Reports, 104._

Malicious prosecution. From Licking. The plaintiffs declared that they
were residents of the town of Newark, and possessed of a large amount
of personal property, deposited in a warehouse to be forwarded to New
York, for a market; and that the defendant well knowing the premises,
and that the plaintiffs had not absconded, but contriving and
maliciously intending wrongfully to injure them, made oath before a
justice of the peace, that they had absconded to the injury of their
creditors, as he verily believed, and thereupon sued out of the Court
of Common Pleas, a writ of attachment, and caused the said property to
be seized by the sheriff, and held for a long time, whereby the same
was injured, the plaintiffs deprived of the opportunity of forwarding
their goods to a market, and greatly injured. Plea, not guilty.

Upon trial to the jury, the counsel for the plaintiffs admitted that
the plaintiffs were indebted to the defendant at the time of his
affidavit, as sworn to in it; whereupon the court directed a nonsuit,
with leave to move to open it, and for a new trial, which is now
made.[403]

By the Court, WOOD, J. The only question presented in this motion, is,
do the facts set forth in the declaration constitute a legal cause of
action, provided the plaintiffs were indebted to the defendant, when
he sued out the writ of attachment?

In Connecticut, there is a statute which provides, that where a
plaintiff shall “willingly and wittingly” wrong any defendant by
prosecuting any action against him with intent wrongfully to trouble
and vex him, such plaintiff shall pay treble damages for the first
offence, be liable to a fine for the second, and for the third, may be
proceeded against as a common barrator. Judge Swift thinks the act
founded in the clearest principles of justice. Swift Dig. 493. At
common law, it seems well settled, that no action will lie for a
malicious prosecution of a civil suit, without cause, where there is
no arrest. I Salk. R. 14. The costs allowed in all other cases are
supposed to be a sufficient compensation for the injury, however
malicious. The rule itself may perhaps be admitted, but the reason on
which it is said to be founded cannot be so readily admitted, for at
common law no costs were allowed. If the plaintiff failed, he was
amerced for his false clamor, and if he succeeded, the defendant was
at the mercy of the King. But at common law, whenever there was an
arrest, holding to bail, or imprisonment, where no debt was due, or
for a greater sum than was due, with a malicious intention to injure,
the action lay for a malicious arrest. 1 Saund. R. 228. The action for
a malicious prosecution, which technically only applies to cases of
malicious prosecution of criminal complaints, lies as well where there
is not, as where there is an arrest; and the grounds of the action are
the malice of the defendant, want of probable cause, and injury to the
plaintiff’s person by imprisonment, his reputation by scandal, or to
his property by expense. 1 Swift Dig. 491. Having no direct
adjudication on the question before us, we may look to the analogies
of the law. The counsel for the defendant insist that because the
plaintiffs’ indebtedness to the defendant in the former suit is
admitted, there was probable cause for suing out the writ of
attachment. This does not seem to us to follow. To constitute probable
cause for suing out a writ of attachment, the law requires an
affidavit of indebtedness, and also that the debtor has absconded, or
is non-resident. The absence of either is absence of probable cause
for the writ, and the false affirmation of either fact, knowingly, as
a means of procuring the writ, shows express malice, whilst the taking
of property without cause is a sufficient injury to sustain the
action.

In the Supreme Court of New York, it has been decided, that case would
lie against both plaintiff and defendant, for fraudulently setting up
the judgment as unsatisfied, when in fact paid, and causing an
execution and sale of land once held by it as a lien, but which had
been afterwards conveyed by the defendant to a third person. The court
in that case say, “If it appear that the unlawful acts of the
defendant occasioned trouble, inconvenience, or expense to the
plaintiff, this action lies.” The general rule is, that for every
injury the law gives redress; and it would be a reproach to the
administration of justice, if one, by perjury, could take from another
the control of his property, under form of law, and the law afford no
remedy. Nice technicalities are sometimes applied to get rid of a hard
case; but when, under form of law, opportunity is sought to gratify
malice, to the injury of another, courts will not be astute to avoid,
but rather seek ground to sustain an action. We have no facts in this
case, before us, but the statement in the declaration, and the
admission of indebtedness; but these show a sufficient prima facie
cause of action, and cause for opening up the nonsuit.

_New trial granted._[404]

WETMORE _v._ MELLINGER
SUPREME COURT, IOWA, APRIL 9, 1884.
_Reported in 64 Iowa Reports, 741._

BECK, J.[405] The petition alleges that defendants brought an action
against plaintiff and his wife, charging in the petition that they two
conspired and confederated together to defraud defendants, by
representing to defendants, under the assumed name of Baker, that they
were the owners of certain lands in Poweshiek County, which defendants
were induced to purchase of plaintiff and his wife, who, in such assumed
name, executed to defendants a warranty deed therefor; that, in an
action by one Woodward, a deed, purporting to be executed by him to the
Bakers, under which they claimed title to the lands, was declared to be
void, for the reason that it was forged and fraudulent, and that
plaintiff herein and his wife well knew the condition of their title,
and representing that they were the owners thereof, for the purpose of
cheating defendants, and of obtaining money by false and fraudulent
pretences, and did, in that manner, obtain the sum of $3,000 from
defendants. It is further alleged that defendants herein served out a
writ of attachment in the suit brought by them, which was levied upon
real estate owned by plaintiff’s wife, and that defendants for a time
prosecuted their action, but finally dismissed it at their own costs.
Plaintiff, in his petition in this case, alleges that he was not
indebted to defendants in any sum at the time their action was brought
against him; that he was not guilty of the frauds therein charged, and
that the action was commenced and prosecuted by defendants maliciously
and without probable cause. The defendants, in their answer, admit the
commencement of the suit, the issuing of the attachment, and that it was
levied upon real estate owned by plaintiff’s wife. There was no evidence
showing, or tending to show, that the writ of attachment was levied upon
any property owned by plaintiff. The wife of plaintiff does not join in
this action.

We think the doctrine is well established by the great preponderance of
authority that no action will lie for the institution and prosecution of
a civil action with malice and without probable cause, where there has
been no arrest of the person or seizure of the property of defendant,
and no special injury sustained, which would not necessarily result in
all suits prosecuted to recover for like causes of action.

See 1 Am. Leading Cases, p. 218, note to Munn _v._ Dupont _et al._, and
cases there cited; Mayer _v._ Walter, 64 Pa. St. 289; Kramer _v._ Stock,
10 Watts, 115; Bitz _v._ Meyer, 11 Vroom, 252, S. C. 29 Am. Rep. 233;
Eberly _v._ Rupp, 90 Pa. St. 259; Gorton _v._ Brown, 27 Ill. 489;
Woodmansie _v._ Logan, 2 N. J. L. 93 (1 Pen.); Parker’s Adm’rs _v._
Frambes, Id. 156; Potts _v._ Imlay, 4 N. J. L. 330 (1 South.)

This doctrine is supported by the following considerations: The courts
are open and free to all who have grievances and seek remedies therefor,
and there should be no restraint upon a suitor, through fear of
liability resulting from failure in his action, which would keep him
from the courts. He ought not, in ordinary cases, to be subject to a
suit for bringing an action, and be required to defend against the
charge of malice and the want of probable cause. If an action may be
maintained against a plaintiff for the malicious prosecution of a suit
without probable cause, why should not a right of action accrue against
a defendant who defends without probable cause and with malice? The
doctrine surely tends to discourage vexatious litigation, rather than to
promote it.

It will be observed that the statement of the doctrine we have made
extends it no farther than to cases prosecuted in the usual manner,
where defendants suffer no special damages or grievance other than is
endured by all defendants in suits brought upon like causes of action.
If the bringing of the action operates to disturb the peace, to impose
care and expense, or even to cast discredit and suspicion upon the
defendant, the same results follow all actions of like character,
whether they be meritorious, or prosecuted maliciously and without
probable cause. They are incidents of litigation. But if an action is so
prosecuted as to entail unusual hardship upon the defendant, and subject
him to special loss of property or of reputation, he ought to be
compensated. So, if his property be seized, or if he be subjected to
arrest by an action maliciously prosecuted, the law secures to him a
remedy. In the case at bar, the pleadings and evidence show no such
special damages. No action could be prosecuted to recover money
fraudulently obtained, in which the defendant would not suffer the very
things for which plaintiff in this case seeks compensation in damages.

Counsel for plaintiff, in support of their position that the action may
be maintained, though no arrest of defendant or seizure of property be
had in the proceeding alleged to have been maliciously prosecuted, cite
Green _v._ Cochran, 43 Iowa, 544, and Moffatt _et al._ _v._ Fisher, 47
Id. 473. In the first case, the action alleged to be malicious was a
proceeding for bastardy, which, under the statute, operated as a lien
upon defendant’s lands from the commencement. In the other case, the
action which was the foundation of plaintiff’s claim was forcible entry
and detainer, and, before final disposition thereof, the defendant was
ousted of possession of the land, whereon was a coal mine. In both
instances the property of the respective defendants was reached by the
proceedings. The facts of these cases are not within the rule we have
stated, and do not support counsel’s position.

_Affirmed._[406]

FLIGHT _v._ LEMAN
IN THE QUEEN’S BENCH, JUNE 9, 1843.
_Reported in 4 Queen’s Bench Reports, 883._

Case. The second count of the declaration alleged that the defendant
heretofore, to wit 1st January, 1838, and on divers &c. between that
day and 22d November, 1838, contriving and maliciously intending to
injure, harass and damnify plaintiff, and to put him to great
vexation, unlawfully and maliciously did advise, procure, instigate
and stir up John Thomas to commence and prosecute an action of
trespass on the case in the court &c. (Queen’s Bench) against the now
plaintiff; that by and through such advice, procurement, instigation
and stirring-up, John Thomas did in fact afterwards, to wit 4th
January, 1838, commence and prosecute the last-mentioned action. The
present declaration then set out three counts of a declaration in case
at the suit of John Thomas against the defendant, averment of a trial
at nisi prius at Dorchester, on 18th July, 1838, and that the
defendant was then and there acquitted of the premises mentioned to be
charged against him by John Thomas. And thereupon afterwards, to wit
22d November, 1838, it was considered, in and by the said court &c.,
amongst other things, that the said John Thomas be in mercy for his
false claim against the now plaintiff defendant in the said
last-mentioned action as aforesaid. Whereby the now plaintiff was not
only put to great trouble and vexation, but was also obliged to pay,
and did in fact pay, a large &c., to wit £800, in and about the
defence of the said action.

The defendant pleaded, in effect, that the advice given by him was
given in the character of an attorney.

Replication _de injuria_.

Special demurrer. Joinder.[407]

LORD DENMAN, C. J. The case of Pechell _v._ Watson, 8 M. & W. 691,
proceeded on the principle that to maintain an action already
commenced was unlawful. That is not here charged; and therefore the
count ought to show the ingredients which make the instigation to a
suit actionable. The plaintiff has not done this; for, beyond all
doubt, the absence of reasonable or probable cause is one such
ingredient, in the absence of which it does not appear that the
plaintiff has been unlawfully disturbed.

PATTESON, J. I think this declaration is bad, for the reason already
given. The case is analogous to that of a complaint of malicious
prosecution or arrest; and here, as there, the want of reasonable or
probable cause ought to be alleged.

WILLIAMS, J. The averments in this declaration might be sustained by
proof that the defendant, not being an attorney, had held a
conversation with Thomas, and had said, “If your story is correct, you
might sue Flight.” No action could be maintained on that, unless it
further appeared that the now defendant knew that there was no right
to sue the now plaintiff.

COLERIDGE, J. It is not asserted here that the suit maintained was
without reasonable or probable cause: there are only general words,
imputing an instigation and a stirring-up. There should be added to
these, in strict analogy with actions for malicious prosecution or
arrest, as my Brother Patteson has pointed out, an averment of want of
reasonable or probable cause: and without such averment this
declaration shows no right of action.

_Judgment for defendant._[408]

GRAINGER _v._ HILL
IN THE COMMON PLEAS, JANUARY 20, 1838.
_Reported in 4 Bingham, New Cases, 212._

TINDAL, C. J.[409] This is a special action on the case, in which the
plaintiff declares that he was the master and owner of a vessel which,
in September, 1836, he mortgaged to the defendant for the sum of £80,
with a covenant for repayment in September, 1837, and under a
stipulation that, in the mean time, the plaintiff should retain the
command of the vessel, and prosecute voyages therein for his own profit;
that the defendants, in order to compel the plaintiff through duress to
give up the register of the vessel, without which he could not go to sea
before the money lent on mortgage became due, threatened to arrest him
for the same unless he immediately paid the amount; that, upon the
plaintiff refusing to pay it, the defendants, knowing he could not
provide bail, arrested him under a _capias_, indorsed to levy £95, 17s.
6d., and kept him imprisoned, until, by duress, he was compelled to give
up the register, which the defendants then unlawfully detained; by means
whereof the plaintiff lost four voyages from London to Caen. There is
also a count in trover for the register. The defendants pleaded the
general issue; and, after a verdict for the plaintiff, the case comes
before us on a double ground, under an application for a nonsuit, and in
arrest of judgment.

The second ground urged for a nonsuit is, that there was no proof of the
suit commenced by the defendants having been terminated. But the answer
to this, and to the objection urged in arrest of judgment, namely, the
omission to allege want of reasonable and probable cause for the
defendants’ proceeding, is the same,—that this is an action for abusing
the process of the law, by applying it to extort property from the
plaintiff, and not an action for a malicious arrest or malicious
prosecution, in order to support which action the termination of the
previous proceeding must be proved, and the absence of reasonable and
probable cause be alleged as well as proved. In the case of a malicious
arrest, the sheriff at least is instructed to pursue the exigency of the
writ; here the directions given, to compel the plaintiff to yield up the
register, were no part of the duty enjoined by the writ. If the course
pursued by the defendants is such that there is no precedent of a
similar transaction, the plaintiff’s remedy is by an action on the case,
applicable to such new and special circumstances; and his complaint
being that the process of the law has been abused, to effect an object
not within the scope of the process, it is immaterial whether the suit
which that process commenced has been determined or not, or whether or
not it was founded on reasonable and probable cause.[410]

BOND _v._ CHAPIN
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER, 1844.
_Reported in 8 Metcalf, 31._

HUBBARD, J.[411] In the present suit, which is an action on the case
against the defendant for prosecuting a suit in the name of Thomas
Bond against the plaintiff, the plaintiff avers, in his declaration,
(which accompanies the exceptions) that the defendant, without
authority from said Thomas, and having no reasonable ground for
believing that anything was due from the plaintiff to him, attached
the plaintiff’s property, and prosecuted said suit against him, from
November term, 1840, to November term, 1841, when he became nonsuit;
and evidence was offered tending to prove these allegations. The
instructions to the jury were, that “the plaintiff must prove the
former action to have been commenced and prosecuted maliciously, that
is to say, with some improper motive, or without due care to ascertain
his rights, as well as without authority, and without probable cause.”
The error complained of may have arisen from not distinguishing,
during the trial, between an action on the case for malicious
prosecution, and an action on the case for prosecuting a suit in the
name of a third person, without authority, by reason of which the
defendant sustains injury.

In a suit for malicious prosecution, the gist of the action is malice;
but there must also exist the want of probable cause. And without the
proof of both facts, the action cannot be maintained, though the
existence of malice may often be inferred from the want of probable
cause. But in an action on the case for damages for prosecuting a suit
against the plaintiff without authority, in the name of a third
person, the gist of the action is not a want of probable cause,—for
there may be a good cause of action,—but for the improper liberty of
using the name of another person in prosecuting a suit, by which the
defendant in the action is injured. Nor is the proof of malice
essential to the maintenance of such action. If the party supposes he
has authority to commence a suit, when in fact he has none, and the
nominal plaintiff does not adopt it, the action fails for want of such
authority. In such case, though the party supposed he had authority,
and acted upon that supposition, without malice, still if the
defendant suffers injury by reason of the prosecution of the
unauthorized suit against him, he may maintain an action for the
actual damages sustained by him, in the loss of time, and for money
paid to procure the discontinuance of the suit, but nothing more.
Where, however, in addition to a want of authority, the suit commenced
was altogether groundless, and was prosecuted with malicious
motives—which may be inferred from there existing no right of action,
as well as proved in other ways—then, in addition to the actual loss
of time and money, the party may recover damages for the injury
inflicted on his feelings and reputation.

In this case, the learned judge having instructed the jury that a want
of probable cause and malice must concur with the want of authority to
commence the suit in the name of a third person, to enable the
plaintiff to maintain the action, we think there was error in the
instruction, and that though the damages might be enhanced by showing
malice and a want of probable cause, yet that the proof of them is not
essential to the maintenance of the action.

_New trial granted._[412]

CHAPTER VI
DEFAMATION

CLUTTERBUCK _v._ CHAFFERS
AT NISI PRIUS, CORAM LORD ELLENBOROUGH, C. J., DECEMBER 14, 1816.
_Reported in 1 Starkie, 471._

This was an action for the publication of a libel.

The witness who was called to prove the publication of the libel (which
was contained in a letter written by the defendant to the plaintiff)
stated on cross-examination that the letter had been delivered to him
folded up, but unsealed, and that without reading it, or allowing any
other person to read it, he had delivered it to the plaintiff himself,
as he had been directed.

LORD ELLENBOROUGH held that this did not amount to a publication which
would support an action, although it would have sustained an
indictment,[413] since a publication to the party himself tends to a
breach of the peace.

_Verdict for the defendant._[414]

SNYDER _v._ ANDREWS
SUPREME COURT, NEW YORK, MARCH 5, 1849.
_Reported in 6 Barbour, 43._

This was an action on the case for a libel. The defendant pleaded the
general issue, and gave notice of special matter.[415]

The cause was tried at the Saratoga circuit in November, 1847, before
Justice Paige. On the trial the defendant admitted that he wrote the
letter containing the alleged libel, sealed the same, and put it into
the post-office at Saratoga Springs, directed to the plaintiff at his
residence. The plaintiff proved by John R. Brown that the letter was
read to the witness by the defendant at his office in the presence of a
young man who was a clerk of the defendant. The defendant’s counsel then
moved for a nonsuit, on the ground that a publication of the libel had
not been proved. The judge denied the motion.

The jury found a verdict for the plaintiff of $250. And the defendant,
upon a bill of exceptions, moved for a new trial.

WILLARD, J. The fact that the defendant read the letter to a stranger,
before it was sent to the plaintiff, was not questioned on the trial,
and is assumed to be true by the form of the objection; but it is
insisted that such reading did not amount to a publication of the libel.
No man incurs any civil responsibility by what he thinks or even writes,
unless he divulges his thoughts to the temporal prejudice of another.
Hence, a sealed letter containing libellous matter, if communicated to
no one but to the party libelled, is not the foundation for a civil
action, although it may be of an indictment. Lyle _v._ Clason, 1 Caines,
581; Hodges _v._ The State, 5 Humphrey, 112; 1 Wms. Saund. 132, _n._ 2;
Phillips _v._ Jansen, 2 Esp. 626; 2 Starkie on Slander (Wend. ed.), 14.
But where the defendant, knowing that letters addressed to the plaintiff
were usually opened by and read by his clerk, wrote a libellous letter
and directed it to the plaintiff and his clerk received and read it, it
was held there was a sufficient publication to support the action.
Delacroix _v._ Thevenot, 2 Stark. 63. And in Schenck _v._ Schenck, 1
Spencer, 208, a sealed letter addressed and delivered to the wife
containing a libel on her husband was held a publication sufficient to
enable the latter to sustain an action.[416] Reading or singing the
contents of a libel in the presence of others has been adjudged a
publication. 2 Starkie on Slander, 16; 5 Rep. 125; 9 Id. 59 b; 1 Saund.
132, _n._ 2. The reading of the letter in question by the defendant in
the presence of Brown was a sufficient publication to sustain this
action.

_New trial denied._[417]

DELACROIX _v._ THEVENOT
AT NISI PRIUS, CORAM LORD ELLENBOROUGH, C. J., MARCH 4, 1817.
_Reported in 2 Starkie, 63._

This was an action for a libel and slanderous words. The libel was
contained in a letter directed to plaintiff.

A clerk of the plaintiff proved that he had received the letter; that it
was in the handwriting of the defendant; and that in the absence of the
plaintiff he was in the habit of opening letters directed to him which
were not marked “private.” He further stated that defendant, who was
well acquainted with the plaintiff, was aware of the nature of his (the
clerk’s) employment, and that he believed defendant knew that witness
was in the habit of opening plaintiff’s letters.

LORD ELLENBOROUGH said that there was sufficient evidence for the jury
to consider whether defendant did not intend the letter to come to the
hands of a third person, which would be a publication.

_Verdict for plaintiff. Damages, £100._[418]

SHEFFILL _v._ VAN DEUSEN
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER TERM, 1859.
_Reported in 13 Gray, 304._

Action of tort for slander.

_Bigelow, J._[419] Proof of the publication of the defamatory words
alleged in the declaration was essential to the maintenance of this
action. Slander consists in uttering words to the injury of a person’s
reputation. No such injury is done when the words are uttered only to
the person concerning whom they are spoken, no one else being present or
within hearing. It is damage done to character in the opinion of other
men, and not in a party’s self-estimation, which constitutes the
material element in an action for verbal slander. Even in a civil action
for libel, evidence that the defendant wrote and sent a sealed letter to
the plaintiff, containing defamatory matter, was held insufficient proof
of publication; although it would be otherwise in an indictment for
libel, because such writings tend directly to a breach of the peace. So,
too, it must be shown that the words were spoken in the presence of some
one who understood them. If spoken in a foreign language, which no one
present understood, no action will lie therefor.[420] Edwards _v._
Wooton, 12 Co. 35; Hick’s Case, Pop. 139, Hob. 215; Wheeler & Appleton’s
Case, Godb. 340; Phillips _v._ Jansen, 2 Esp. 624; Lyle _v._ Clason, 1
Caines, 581; Hammond N. P. 287.

It is quite immaterial in the present case that the words were spoken in
a public place. The real question for the jury was, were they so spoken
as to have been heard by third persons? The defendants were therefore
entitled to the instructions for which they asked.

_Exceptions sustained._[421]

HANKINSON _v._ BILBY
IN THE EXCHEQUER, JANUARY 28, 1847.
_Reported in 16 Meeson & Welsby, 442._

Case. The declaration stated that the defendant, in the presence and
hearing of divers subjects, falsely and maliciously charged the
plaintiff, a gardener, with being a thief. Plea: Not guilty. At the
trial, before Rolfe, B., it appeared that the words were uttered by the
defendant, a toll collector, to the plaintiff, as he passed the
Kingsland turnpike-gate, in the presence of several persons as well as
the witness. The nature of the previous conversation between the
plaintiff and defendant did not appear. The learned Baron told the jury
that it was immaterial whether the defendant intended to convey a charge
of felony against the plaintiff by the words used, the question being,
whether the by-standers would understand that charge to be conveyed by
them. Verdict for the plaintiff for £5.

_Humfrey_ now moved for a new trial, on the ground of misdirection.[422]

ALDERSON, B. In this case, had there been no by-standers who could
understand the words as imputing felony, or who knew all about the
affair respecting which they were uttered, the judge’s direction would
have been wrong, for it would then be _damnum absque injuria_, the
_injuria_ being the having no lawful occasion to impute felony.

PARKE, B. The witness appears to have been well acquainted with the
affair to which the words related. If the by-standers were equally
cognizant of it, the defendant would have been entitled to a verdict;
but here the only question is, whether the private intention of a man
who utters injurious words is material, if by-standers may fairly
understand them in a sense and manner injurious to the party to whom
they relate, _e. g._, that he was a felon.

Some doubt being suggested as to the facts proved, the court conferred
with Rolfe, B.; and the next day,

POLLOCK, C. B., said, We find from my Brother Rolfe that there were
several by-standers who not only might but must have heard the
expressions which form the subject of this action. That disposes of the
case as to the matter of law. Words uttered must be construed in the
sense which hearers of common and reasonable understanding would ascribe
to them, even though particular individuals better informed on the
matter alluded to might form a different judgment on the subject.

_Rule refused._[423]

BROMAGE _v._ PROSSER
IN THE KING’S BENCH, EASTER TERM, 1825.
_Reported in 4 Barnewall & Cresswell, 247._

BAYLEY, J., now delivered the judgment of the court.[424] This was an
action for slander. The plaintiffs were bankers at Monmouth, and the
charge was, that in answer to a question from one Lewis Watkins, whether
he, the defendant, had said that the plaintiff’s bank had stopped, the
defendant’s answer was, “It was true, he had been told so.” The evidence
was, that Watkins met defendant and said, “I hear that you say the bank
of Bromage and Snead, at Monmouth, has stopped. Is it true?” Defendant
said, “Yes, it is; I was told so.” He added, “It was so reported at
Crickhowell, and nobody would take their bills, and that he had come to
town in consequence of it himself.” Watkins said, “You had better take
care what you say; you first brought the news to town, and told Mr. John
Thomas of it.” Defendant repeated, “I was told so.” Defendant had been
told, at Crickhowell, there was a run upon plaintiff’s bank, but not
that it had stopped, or that nobody would take their bills, and what he
said went greatly beyond what he had heard. The learned judge considered
the words as proved, and he does not appear to have treated it as a case
of privileged communication; but as the defendant did not appear to be
actuated by any ill will against the plaintiffs, he told the jury that
if they thought the words were not spoken maliciously, though they might
unfortunately have produced injury to the plaintiffs, the defendant
ought to have their verdict; but if they thought them spoken
maliciously, they should find for the plaintiff: and the jury having
found for the defendant, the question upon a motion for a new trial was
upon the propriety of this direction. If in an ordinary case of slander
(not a case of privileged communication), want of malice is a question
of fact for the consideration of a jury, the direction was right; but if
in such a case the law implies such malice as is necessary to maintain
the action, it is the duty of the judge to withdraw the question of
malice from the consideration of the jury: and it appears to us that the
direction in this case was wrong. That malice, in some sense, is the
gist of the action, and that therefore the manner and occasion of
speaking the words is admissible in evidence to show they were not
spoken with malice, is said to have been agreed (either by all the
judges, or at least by the four who thought the truth might be given in
evidence on the general issue) in Smith _v._ Richardson, Willes, 24; and
it is laid down in 1 Com. Dig. action upon the case for defamation, G 5,
that the declaration must show a malicious intent in the defendant, and
there are some other very useful elementary books in which it is said
that malice is the gist of the action, but in what sense the words
malice or malicious intent are here to be understood, whether in the
popular sense, or in the sense the law puts upon those expressions, none
of these authorities state. Malice in common acceptation means ill-will
against a person, but in its legal sense it means a wrongful act, done
intentionally, without just cause or excuse. If I give a perfect
stranger a blow likely to produce death, I do it of malice, because I do
it intentionally and without just cause or excuse. If I maim cattle,
without knowing whose they are; if I poison a fishery, without knowing
the owner, I do it of malice, because it is a wrongful act, and done
intentionally. If I am arraigned of felony, and wilfully stand mute, I
am said to do it of malice, because it is intentional and without just
cause or excuse. Russell on Crimes, 614, N. 1. And if I traduce a man,
whether I know him or not, and whether I intend to do him an injury or
not, I apprehend the law considers it as done of malice, because it is
wrongful and intentional. It equally works an injury, whether I meant to
produce an injury or not, and if I had no legal excuse for the slander,
why is he not to have a remedy against me for the injury it produces?
And I apprehend the law recognizes the distinction between these two
descriptions of malice, malice in fact and malice in law, in actions of
slander. In an ordinary action for words, it is sufficient to charge
that the defendant spoke them falsely, it is not necessary to state that
they were spoken maliciously. This is so laid down in Style, 392, and
was adjudged upon error in Mercer _v._ Sparks, Owen, 51; Noy, 35. The
objection there was, that the words were not charged to have been spoken
maliciously, but the court answered, that the words were themselves
malicious and slanderous, and, therefore, the judgment was affirmed. But
in actions for such slander as is _prima facie_ excusable on account of
the cause of speaking or writing it, as in the case of servant’s
characters, confidential advice, or communications to persons who ask
it, or have a right to expect it, malice in fact must be proved by the
plaintiff, and in Edmonson _v._ Stevenson, 1 Term Rep. 110, Lord
Mansfield takes the distinction between these and ordinary actions of
slander. In Weatherstone _v._ Hawkins, Bull. N. P. 8, where a master who
had given a servant a character, which prevented his being hired, gave
his brother-in-law, who applied to him upon the subject, a detail by
letter of certain instances in which the servant had defrauded him;
Wood, who argued for the plaintiff, insisted that this case did not
differ from the case of common libels, that it had the two essential
ingredients, slander and falsehood; that it was not necessary to prove
express malice; if the matter is slanderous, malice is implied, it is
sufficient to prove publication; the motives of the party publishing are
never gone into, and that the same doctrine held in actions for words,
no express malice need be proved. Lord Mansfield said the general rules
are laid down as Mr. Wood has stated, but to every libel there may be an
implied justification from the occasion. So as to the words, instead of
the plaintiff’s showing it to be false and malicious, it appears to be
incidental to the application by the intended master for the character;
and Buller, J., said, this is an exception to the general rule, on
account of the occasion of writing. In actions of this kind, the
plaintiff must prove the words “malicious” as well as false. Buller, J.,
repeats in Pasley _v._ Freeman, 3 T. R. 61, that for words spoken
confidentially upon advice asked, no action lies, unless express malice
can be proved. So in Hargrave _v._ Le Breton, 3 Burr. 2425, Lord
Mansfield states that no action can be maintained against a master for
the character he gives a servant, unless there are extraordinary
circumstances of express malice. But in an ordinary action for a libel
or for words, though evidence of malice may be given to increase the
damages, it never is considered as essential, nor is there any instance
of a verdict for a defendant on the ground of want of malice. Numberless
occasions must have occurred (particularly in cases where a defendant
only repeated what he had heard before, but without naming the author),
upon which, if that were a tenable ground, verdicts would have been
sought for and obtained, and the absence of any such instance is a proof
of what has been the general and universal opinion upon the point. Had
it been noticed to the jury how the defendant came to speak the words,
and had it been left to them as a previous question, whether the
defendant understood Watkins as asking for information for his own
guidance, and that the defendant spoke what he did to Watkins, merely by
way of honest advice to regulate his conduct, the question of malice in
fact would have been proper as a second question to the jury, if their
minds were in favor of the defendant upon the first; but as the previous
question I have mentioned was never put to the jury, but this was
treated as an ordinary case of slander, we are of opinion that the
question of malice ought not to have been left to the jury. It was,
however, pressed upon us with considerable force, that we ought not to
grant a new trial, on the ground that the evidence did not support any
of the counts in the declaration, but upon carefully attending to the
declaration and the evidence, we think we are not warranted in saying
that there was no evidence to go to the jury to support the declaration;
and had the learned judge intimated an opinion that there was no such
evidence, the plaintiff might have attempted to supply the defect. We,
therefore, think that we cannot properly refuse a new trial, upon the
ground that the result upon the trial might have been doubtful. In
granting a new trial, however, the court does not mean to say that it
may not be proper to put the question of malice as a question of fact
for the consideration of the jury; for if the jury should think that
when Watkins asked his question the defendant understood it as asked in
order to obtain information to regulate his own conduct, it will range
under the cases of privileged communication, and the question of malice,
in fact, will then be a necessary part of the jury’s inquiry; but it
does not appear that it was left to the jury in this case, to consider
whether this was understood by the defendant as an application to him
for advice, and if not, the question of malice was improperly left to
their consideration. We are, therefore, of opinion, that the rule for a
new trial must be absolute.

_Rule absolute._[425]

HANSON _v._ GLOBE NEWSPAPER COMPANY
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 20, 1893.
_Reported in 159 Massachusetts Reports, 293._

KNOWLTON, J.[426] The defendant published in its newspaper an article
describing the conduct of a prisoner brought before the Municipal Court
of Boston, and the proceedings of the court in the case, designating him
as “H. P. Hanson, a real estate and insurance broker of South Boston.”
He was, in fact, a real estate and insurance broker of South Boston, and
the article was substantially true, except that he should have been
called A. P. H. Hanson instead of H. P. Hanson. The plaintiff, H. P.
Hanson, is also a real estate and insurance broker in South Boston, and
in writing the article the reporter used his name by mistake.[427] The
justice of the Superior Court, before whom the case was tried, without a
jury, “found as a fact that the alleged libel declared on by the
plaintiff was not published by the defendant of or concerning the
plaintiff,” and the only question in the case is whether this finding
was erroneous as matter of law.

In every action of this kind the fundamental question is, What is the
meaning of the author of the alleged libel or slander, conveyed by the
words used interpreted in the light of all the circumstances? The reason
of this is obvious. Defamatory language is harmful only as it purports
to be the expression of the thought of him who uses it. In determining
the effect of a slander the questions involved are, What is the thought
intended to be expressed, and how much credit should be given to him who
expresses it? The essence of the wrong is the expression of what
purports to be the knowledge or opinion of him who utters the defamatory
words, or of some one else whose language he repeats. His meaning, to be
ascertained in a proper way, is what gives character to his act, and
makes it innocent or wrongful. The damages depend chiefly upon the
weight which is to be given to his expression of his meaning, and all
the questions relate back to the ascertainment of his meaning.

In the present case we are concerned only with the meaning of the
defendant in regard to the person to whom the language of the published
article was to be applied, and the question to be decided is, How may
his meaning legitimately be ascertained? Obviously, in the first place,
from the language used; and in construing and applying the language, the
circumstances under which it was written and the facts to which it
relates are to be considered, so far as they can readily be ascertained
by those who read the words, and who attempt to find out the meaning of
the author in regard to the person of whom they were written. It has
often been said that the meaning of the language is not necessarily that
which it may seem to have to those who read it as strangers, without
knowledge of facts and circumstances which give it color and aid in its
interpretation, but that which it has when read in the light of events
which have relation to the utterance or publication of it.

For the purposes of this case it may be assumed, in favor of the
plaintiff, that if the language used in a particular case, interpreted
in the light of such events and circumstances attending the publication
of it as could readily be ascertained by the public, is free from
ambiguity in regard to the person referred to, and points clearly to a
well known person, it would be held to have been published concerning
that person, although the defendant should show that through some
mistake of fact, not easily discoverable by the public, he had
designated in his publication a person other than the one whom he
intended to designate. It may well be held that where the language, read
in connection with all the facts and circumstances which can be used in
its interpretation, is free from ambiguity, the defendant will not be
permitted to show that through ignorance or mistake he said something,
either by way of designating the person, or making assertions about him,
different from that which he intended to say; but his true meaning
should be ascertained, if it can be, with the aid of such facts and
circumstances attending the publication as may easily be known by those
of the public who wish to discover it.

Whether the defendant should ever be permitted to state his undisclosed
intention in regard to the person of whom the words are used, may be
doubtful. If language purporting to be used of only one person would
refer equally to either of two different persons of the same name, and
if there were nothing to indicate that one was meant rather than the
other, there is good reason for holding that the defendant’s testimony
in regard to his secret intention might be received, but perhaps such a
case is hardly supposable. Odgers, in his book on Libel and Slander, at
page 129, says: “So, if the words spoken or written, though plain in
themselves, apply equally well to more persons than one, evidence may be
given both of the cause and occasion of publication, and of all the
surrounding circumstances affecting the relation between the parties,
and also any statement or declaration made by the defendant as to the
person referred to.” In Regina _v._ Barnard, 43 J. P. 127, when it was
uncertain whether the libel referred to the complainant or not, and when
the language was applicable to him, Lord Chief Justice Cockburn held the
affidavit of the writer that he did not mean him, but some one else, to
be a sufficient reason for refusing process. In De Armond _v._
Armstrong, 37 Ind. 35, evidence was received of what the witnesses
understood in regard to the person referred to. In Smart _v._ Blanchard,
42 N. H. 137, it is stated that extrinsic evidence is to be received “to
show that the defendant intended to apply his remarks to the plaintiff,”
when his meaning is doubtful. Goodrich _v._ Davis, 11 Met. 473, 480,
484, 485, and Miller _v._ Butler, 6 Cush. 71, are of similar purport.
See also Barwell _v._ Adkins, 1 M. & G. 807; Knapp _v._ Fuller, 55 Vt.
311; Commonwealth _v._ Morgan, 107 Mass. 199, 201.

If the defendant’s article had contained anything libellous against A.
P. H. Hanson, there can be no doubt that he could have maintained an
action against the defendant for this publication. The name used is not
conclusive in determining the meaning of the libel in respect to the
person referred to; it is but one fact to be considered with other facts
upon that subject. Fictitious names are often used in libels, and names
similar to that of the person intended, but differing somewhat from it.
A. P. H. Hanson could have shown that the description of him by name,
residence, and occupation was perfect, except in the use of the initials
“H. P.” instead of “A. P. H.,” that the article referred to an occasion
on which he was present, and gave a description of conduct of a
prisoner, and of proceedings in court, which was correct in its
application to him and to no one else. The internal evidence when
applied to facts well known to the public would have been ample to show
that the language referred to him, and not to the person whose name was
used.

So, in the present suit, the court had no occasion to rely on the
testimony of the writer as to the person to whom the language was
intended to apply. The language itself, in connection with the publicly
known circumstances under which it was written, showed at once that the
article referred to A. P. H. Hanson, and that the name H. P. Hanson was
used by mistake. As the evidence showed that the words were published of
and concerning A. P. H. Hanson, the finding that they were not published
of the plaintiff followed of necessity. The article was of such a kind
that it referred, and could refer, to one person only; when that person
was ascertained, it might appear that the publication as against him was
or was not libellous, and his rights, if he brought a suit, would depend
upon the finding in respect to that. No one else would have a cause of
action, even if, by reason of identity of name with that used in the
publication, he might suffer some harm. For illustration, suppose a
libel is written concerning a person described as John Smith of
Springfield. Suppose there are five persons in Springfield of that name.
The language refers to but one. When we ascertain by legitimate evidence
to which one the words are intended to apply, he can maintain an action.
The other persons of the same name cannot recover damages for a libel
merely because of their misfortune in having a name like that of the
person libelled. Or, if the defendant can justify by proving that the
words were true, and published without malice, he is not guilty of a
libel, even if, written of other persons of the same name of whose
existence very likely he was ignorant, the words would be libellous;
otherwise, one who has published that which by its terms can refer to
but one person, and be a libel on him only, might be responsible for
half a dozen libels on as many different persons, and one who has
justifiably published the truth of a person might be liable to several
persons of the same name of whom the language would be untrue. The law
of libel has never been extended, and should not be extended, to include
such cases.

Whether there should be a liability founded on negligence in any case
when the truth is published of one to whom the words, interpreted in the
light of accompanying circumstances easily ascertainable by those who
read them, plainly apply; and where, by reason of identity of names, or
similarity of names and description, a part of the public might think
them applicable to another person of whom they would be libellous, is a
question which does not arise on the pleadings in this case. So far as
we are aware, no action for such a cause has ever been maintained. It is
ordinarily to be presumed, although it may not always be the fact, that
those who are enough interested in a person to be affected by what is
said about him, will ascertain, if they easily can, whether libellous
words which purport to refer to one of his name were intended to be
applied to him or to some one else.

The question in this case, whether the words were published of and
concerning the plaintiff, was one of fact on all the evidence. Unless it
appears that the matters stated in the report would not warrant a
finding for the defendant, there must be judgment for him, even if the
finding of fact might have been the other way. We are of opinion that
the finding was well warranted, and there must be,

_Judgment on the finding._

* * * * *

HOLMES, J. I am unable to agree with the decision of the majority of the
court, and as the question is of some importance in its bearing on legal
principles, and as I am not alone in my views, I think it proper to
state the considerations which have occurred to me.

Those words [H. P. Hanson, a real estate and insurance broker of South
Boston] describe the plaintiff, and no one else. The only ground, then,
on which the matters alleged of and concerning that subject can be found
not to be alleged of and concerning the plaintiff, is that the defendant
did not intend them to apply to him, and the question is narrowed to
whether such a want of intention is enough to warrant the finding, or to
constitute a defence, when the inevitable consequence of the defendant’s
acts is that the public, or that part of it which knows the plaintiff,
will suppose that the defendant did use its language about him.

On general principles of tort, the private intent of the defendant would
not exonerate it. It knew that it was publishing statements purporting
to be serious, which would be hurtful to a man if applied to him. It
knew that it was using as the subject of those statements words which
purported to designate a particular man, and would be understood by its
readers to designate one. In fact, the words purported to designate, and
would be understood by its readers to designate, the plaintiff. If the
defendant had supposed that there was no such person, and had intended
simply to write an amusing fiction, that would not be a defence, at
least unless its belief was justifiable. Without special reason, it
would have no right to assume that there was no one within the sphere of
its influence to whom the description answered. So, when the description
which points out the plaintiff is supposed by the defendant to point out
another man whom in fact it does not describe, the defendant is equally
liable as when the description is supposed to point out nobody. On the
general principles of tort, the publication is so manifestly detrimental
that the defendant publishes it at the peril of being able to justify it
in the sense in which the public will understand it.

A man may be liable civilly, and formerly, at least by the common law of
England, even criminally, for publishing a libel without knowing it.
Curtis _v._ Mussey, 6 Gray, 261; Commonwealth _v._ Morgan, 107 Mass.
199; Dunn _v._ Hall, 1 Ind. 344; Rex _v._ Walter, 3 Esp. 21; Rex _v._
Gutch, Mood. & Malk. 433. See also Rex _v._ Cuthell, 27 St. Tr. 642. And
it seems he might be liable civilly for publishing it by mistake,
intending to publish another paper. Mayne _v._ Fletcher, 4 Man. & Ry.
311, 312, note. Odgers, Libel and Slander, (2d ed.) 5. So, when by
mistake the name of the plaintiff’s firm was inserted under the head
“First Meetings under the Bankruptcy Act,” instead of under “Dissolution
of Partnerships.” Shepheard _v._ Whitaker, L. R. 10 C. P. 502. So a man
will be liable for a slander spoken in jest, if the by-standers
reasonably understand it to be a serious charge. Donoghue _v._ Hayes,
Hayes, 265. Of course it does not matter that the defendant did not
intend to injure the plaintiff, if that was the manifest tendency of his
words. Curtis _v._ Mussey, 6 Gray, 261, 273; Haire _v._ Wilson, 9 B. &
C. 643. And to prove a publication concerning the plaintiff, it lies
upon him “only to show that this construction, which they’ve put upon
the paper, is such as the generality of readers must take it in,
according to the obvious and natural sense of it.” The King _v._ Clerk,
1 Barnard. 304, 305. See further Fox _v._ Broderick, 14 Ir. C. L. 453;
Odgers, Libel and Slander, (2d ed.) 155, 269, 435, 638. In Smith _v._
Ashley, 11 Met. 367, the jury were instructed that the publisher of a
newspaper article written by another, and supposed and still asserted by
the defendant to be a fiction, was not liable if he believed it to be
so. Under the circumstances of the case, “believed” meant “reasonably
believed.” Even so qualified, it is questioned by Mr. Odgers if the
ruling would be followed in England. Odgers, Libel and Slander, (1st Am.
ed.) 387, (2d ed.) 638. But it has no application to this case, as here
the defendant’s agent wrote the article, and there is no evidence that
he or the defendant had any reason to believe that H. P. Hanson meant
any one but the plaintiff.

The foregoing decisions show that slander and libel now, as in the
beginning, are governed by the general principles of the law of tort,
and, if that be so, the defendant’s ignorance that the words which it
published identified the plaintiff is no more an excuse, than ignorance
of any other fact about which the defendant has been put on inquiry. To
hold that a man publishes such words at his peril, when they are
supposed to describe a different man, is hardly a severer application of
the law, than when they are uttered about a man believed on the
strongest grounds to be dead, and thus not capable of being the subject
of a tort. It has been seen that by the common law of England such a
belief would not be an excuse. Hearne _v._ Stowell, 12 A. & E. 719, 726,
denying Parson Prick’s case.

I feel some difficulty in putting my finger on the precise point of
difference between the minority and majority of the court. I understand,
however, that a somewhat unwilling assent is yielded to the general
views which I have endeavored to justify, and I should gather that the
exact issue was to be found in the statement that the article was one
describing the conduct of a prisoner brought before the Municipal Court
of Boston, coupled with the later statement that the language, taken in
connection with the publicly known circumstances under which it was
written, showed at once that the article referred to A. P. H. Hanson,
and that the name of H. P. Hanson was used by mistake. I have shown why
it seems to me that these statements are misleading. I only will add on
this point, that I do not know what the publicly known circumstances
are. I think it is a mistake of fact to suppose that the public
generally know who was before the Municipal Criminal Court on a given
day. I think it is a mistake of law to say that, because a small part of
the public have that knowledge, the plaintiff cannot recover for the
harm done him in the eyes of the greater part of the public, probably
including all his acquaintances who are ignorant about the matter, and I
also think it no sufficient answer to say that they might consult the
criminal records, and find out that probably there was some error. Blake
_v._ Stevens, 4 F. & F. 232, 240. If the case should proceed further on
the facts, it might appear that, in view of the plaintiff’s character
and circumstances, all who knew him would assume that there was a
mistake, that the harm to him was merely nominal, and that he had been
too hasty in resorting to an action to vindicate himself. But that
question is not before us.

With reference to the suggestion that, if the article, in addition to
what was true concerning A. P. H. Hanson, had contained matter which was
false and libellous as to him, he might have maintained an action, it is
unnecessary to express an opinion. I think the proposition less obvious
than that the plaintiff can maintain one. If an article should describe
the subject of its statements by two sets of marks, one of which
identified one man and one of which identified another, and a part of
the public naturally and reasonably were led by the one set to apply the
statements to one plaintiff, and another part were led in the same way
by the other set to apply them to another, I see no absurdity in
allowing two actions to be maintained. But that is not this case.

Even if the plaintiff and A. P. H. Hanson had borne the same name, and
the article identified its subject only by a proper name, very possibly
that would not be enough to raise the question. For, as every one knows,
a proper name always purports to designate one person and no other, and
although, through the imperfection of our system of naming, the same
combination of letters and sounds may be applied to two or more, the
name of each, in theory of law, is distinct, although there is no way of
finding out which person was named but by inquiring which was meant.
“_Licet idem sit nomen, tamen diversum est propter diversitatem
personæ._” Bract. fol. 190 a. Commonwealth _v._ Bacon, 135 Mass. 521,
525. Cocker _v._ Crompton, 1 B. & C. 489. In re Cooper, 20 Ch. D. 611.
Mead _v._ Phenix Ins. Co., 158 Mass. 124, 125. Kyle _v._ Kavanagh, 103
Mass. 356. Raffles _v._ Wichelhaus, 2 H. & C. 906.

Mr. Justice Morton and Mr. Justice Barker agree with this opinion.[428]

PECK _v._ TRIBUNE COMPANY
SUPREME COURT OF THE UNITED STATES, MAY 17, 1909.
_Reported in 214 United States Reports, 185._

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action on the case for a libel. The libel alleged is found in
an advertisement printed in the defendant’s newspaper, _The Chicago
Sunday Tribune_, and so far as is material is as follows: “Nurse and
Patients Praise Duffy’s—Mrs. A. Schuman, One of Chicago’s Most Capable
and Experienced Nurses, Pays an Eloquent Tribute to the Great
Invigorating, Life-Giving and Curative Properties of Duffy’s Pure Malt
Whiskey....” Then followed a portrait of the plaintiff, with the words
“Mrs. A. Schuman” under it. Then, in quotation marks, “After years of
constant use of your Pure Malt Whiskey, both by myself and as given to
patients in my capacity as nurse, I have no hesitation in recommending
it as the very best tonic and stimulant for all weak and rundown
conditions,” &c., &c., with the words “Mrs. A. Schuman, 1576 Mozart St.,
Chicago, Ill.,” at the end, not in quotation marks, but conveying the
notion of a signature, or at least that the words were hers. The
declaration alleged that the plaintiff was not Mrs. Schuman, was not a
nurse, and was a total abstainer from whiskey and all spirituous
liquors. There was also a count for publishing the plaintiff’s likeness
without leave. The defendant pleaded not guilty. At the trial, subject
to exceptions, the judge excluded the plaintiff’s testimony in support
of her allegations just stated, and directed a verdict for the
defendant. His action was sustained by the Circuit Court of Appeals, 154
Fed. Rep. 330; S. C., 83 C. C. A. 202.

Of course the insertion of the plaintiff’s picture in the place and with
the concomitants that we have described imported that she was the nurse
and made the statements set forth, as rightly was decided in Wandt _v._
Hearst’s Chicago American, 129 Wisconsin, 419, 421. Morrison _v._ Smith,
177 N. Y. 366. Therefore the publication was of and concerning the
plaintiff, notwithstanding the presence of another fact, the name of the
real signer of the certificate, if that was Mrs. Schuman, that was
inconsistent, when all the facts were known, with the plaintiff’s having
signed or adopted it. Many might recognize the plaintiff’s face without
knowing her name, and those who did know it might be led to infer that
she had sanctioned the publication under an alias. There was some
suggestion that the defendant published the portrait by mistake, and
without knowledge that it was the plaintiff’s portrait or was not what
it purported to be. But the fact, if it was one, was no excuse. If the
publication was libellous the defendant took the risk. As was said of
such matters by Lord Mansfield, “Whatever a man publishes he publishes
at his peril.” The King _v._ Woodfall, Lofft, 776, 781. See further
Hearne _v._ Stowell, 12 A. & E. 719, 726; Shepheard _v._ Whitaker, L. R.
10 C. P. 502; Clark _v._ North American Co., 203 Pa. St. 346, 351, 352.
The reason is plain. A libel is harmful on its face. If a man sees fit
to publish manifestly hurtful statements concerning an individual,
without other justification than exists for an advertisement or a piece
of news, the usual principles of tort will make him liable, if the
statements are false or are true only of some one else. See Morasse _v._
Brochu, 151 Massachusetts, 567, 575.

The question, then, is whether the publication was a libel. It was held
by the Circuit Court of Appeals not to be, or at most to entitle the
plaintiff only to nominal damages, no special damage being alleged. It
was pointed out that there was no general consensus of opinion that to
drink whiskey is wrong or that to be a nurse is discreditable. It might
have been added that very possibly giving a certificate and the use of
one’s portrait in aid of an advertisement would be regarded with irony,
or a stronger feeling, only by a few. But it appears to us that such
inquiries are beside the point. It may be that the action for libel is
of little use, but while it is maintained it should be governed by the
general principles of tort. If the advertisement obviously would hurt
the plaintiff in the estimation of an important and respectable part of
the community, liability is not a question of a majority vote.

We know of no decision in which this matter is discussed upon principle.
But obviously an unprivileged falsehood need not entail universal hatred
to constitute a cause of action. No falsehood is thought about or even
known by all the world. No conduct is hated by all. That it will be
known by a large number and will lead an appreciable fraction of that
number to regard the plaintiff with contempt is enough to do her
practical harm. Thus if a doctor were represented as advertising, the
fact that it would affect his standing with others of his profession
might make the representation actionable, although advertising is not
reputed dishonest and even seems to be regarded by many with pride. See
Martin _v._ The Picayune, 115 Louisiana, 979. It seems to us impossible
to say that the obvious tendency of what is imputed to the plaintiff by
this advertisement is not seriously to hurt her standing with a
considerable and respectable class in the community. Therefore it was
the plaintiff’s right to prove her case and go to the jury, and the
defendant would have got all that it could ask if [it] had been
permitted to persuade them, if it could, to take a contrary view. Culmer
_v._ Canby, 101 Fed. Rep. 195, 197; Twombly _v._ Monroe, 136
Massachusetts, 464, 469. See Gates _v._ New York Recorder Co., 155 N. Y.
228.

It is unnecessary to consider the question whether the publication of
the plaintiff’s likeness was a tort _per se_. It is enough for the
present case that the law should at least be prompt to recognize the
injuries that may arise from an unauthorized use in connection with
other facts, even if more subtilty is needed to state the wrong than is
needed here. In this instance we feel no doubt.

_Judgment reversed._[429]

E. HULTON AND COMPANY _v._ JONES
IN THE HOUSE OF LORDS, DECEMBER 6, 1909.
_Reported in [1909] Appeal Cases, 20._

The following statement is taken from the opinion of Lord Alverstone, C.
J., in the Court of Appeal.[430]

“The action was brought by the plaintiff, a member of the Bar, in
respect of a libel published in the _Sunday Chronicle_ on July 12, 1908
(the passages complained of are set out in the statement of claim),
which appeared in an article in the defendants’ paper purporting to
describe what the Paris correspondent of the paper had witnessed at
Dieppe, and the particular passage on which the question really turns
was in these words: ‘“Whist! there is Artemus Jones with a woman who is
not his wife, who must be, you know—the other thing!” whispers a fair
neighbor of mine excitedly into her bosom friend’s ear. Really, is it
not surprising how certain of our fellow-countrymen behave when they
come abroad?’ It was alleged by the plaintiff that this passage was a
libel upon him.

“The material facts which were proved in evidence at the trial were as
follows. The plaintiff, whose real name is Thomas Jones, is thirty-seven
years old, and since the year 1901 has been a member of the Bar,
practising on the North Wales Circuit. His baptismal name was Thomas
Jones, but ever since he was at school he has been known by the name of
Artemus Jones or Thomas Artemus Jones. He was confirmed in the latter
name in the year 1886, and it appears to have been given him by his
father in order to distinguish him from other persons of the name of
Jones. The defendants alleged that the name was used as a fictitious
name adopted by the writer of the article without any knowledge of the
existence of the plaintiff or of any person named Artemus Jones; and
both the writer and the editor, who were called as witnesses by the
defendants under circumstances to which I shall have to refer, stated
that they had no knowledge whatever of the plaintiff, and had no
intention to refer to him, and that so far as they were concerned the
name was entirely an imaginary name. The counsel for the plaintiff
accepted the explanation given by the writer, Mr. Dawbarn, and the
editor, Mr. Woodbridge, and expressly stated that he did not, after
their evidence, allege that they or either of them were in fact actuated
by malice, or intended to refer to the plaintiff in their article. Some
question was raised both at the trial and on the appeal before us as to
the possibility of there being other individuals in the employment of
the defendant company who were actuated by express malice towards the
plaintiff, but for the purpose of my judgment I assume that there was no
proof of malice in fact on the part of any agent or servant of the
defendants. The plaintiff called five witnesses who stated that upon
reading the article they thought that it referred to the plaintiff, and
the plaintiff was prepared to call further witnesses to give evidence to
the same effect, but, at the suggestion of the learned judge, he
abstained from calling them....

“At the conclusion of the plaintiff’s case, Mr. Langdon, who was then
the leading counsel for the defendants, submitted that, as the name
Artemus Jones was a fictitious name, coined by the writer of the
article, and not intended to refer to any particular individual at all,
it was not a libel on anybody, and _a fortiori_ not on the plaintiff
himself. In support of this contention the case of Harrison _v._ Smith,
20 L. T. (N. S.) 713, was at that stage of the proceedings cited to the
learned judge. He ruled that, if a person chooses to publish a thing of
this description, the question is not whether the man really intended
it, but whether it would be understood by readers to apply to a
particular person, adding that, if sensible readers would see at once
that it was only an imaginary thing, if any one reading it would see
that it did not refer to a gentleman who happened to bear the name of
Artemus Jones, it would not be a libel, but if he would think the
contrary, that it did not refer to an imaginary person, but to a real
individual, the action might be maintained.”

It also appeared that up to the year 1901 plaintiff had contributed
signed articles to defendants’ newspaper.

At the trial before Channell, J., the plaintiff had a verdict for £1750,
upon which judgment was rendered. Defendants appealed.

The Court of Appeal (Lord Alverstone, C. J., and Farwell, L.
J.,—Fletcher Moulton, L. J., dissenting) dismissed the appeal. Jones
_v._ E. Hulton & Co., [1909] 2 K. B. 444.

Defendants then appealed to the House of Lords.

LORD LOREBURN, L. C. My Lords, I think this appeal must be dismissed. A
question in regard to the law of libel has been raised which does not
seem to me to be entitled to the support of your Lordships. Libel is a
tortious act. What does the tort consist in? It consists in using
language which others knowing the circumstances would reasonably think
to be defamatory of the person complaining of and injured by it. A
person charged with libel cannot defend himself by showing that he
intended in his own breast not to defame, or that he intended not to
defame the plaintiff, if in fact he did both. He has none the less
imputed something disgraceful and has none the less injured the
plaintiff. A man in good faith may publish a libel believing it to be
true, and it may be found by the jury that he acted in good faith
believing it to be true, and reasonably believing it to be true, but
that in fact the statement was false. Under those circumstances he has
no defence to the action, however excellent his intention. If the
intention of the writer be immaterial in considering whether the matter
written is defamatory, I do not see why it need be relevant in
considering whether it is defamatory of the plaintiff. The writing,
according to the old form, must be malicious, and it must be of and
concerning the plaintiff. Just as the defendant could not excuse himself
from malice by proving that he wrote it in the most benevolent spirit,
so he cannot show that the libel was not of and concerning the plaintiff
by proving that he never heard of the plaintiff. His intention in both
respects equally is inferred from what he did. His remedy is to abstain
from defamatory words.

It is suggested that there was a misdirection by the learned judge in
this case. I see none. He lays down in his summing up the law as
follows: “The real point upon which your verdict must turn is, ought or
ought not sensible and reasonable people reading this article to think
that it was a mere imaginary person such as I have said—Tom Jones, Mr.
Pecksniff as a humbug, Mr. Stiggins, or any of that sort of names that
one reads of in literature used as types? If you think any reasonable
person would think that, it is not actionable at all. If, on the other
hand, you do not think that, but think that people would suppose it to
mean some real person—those who did not know the plaintiff of course
would not know who the real person was, but those who did know of the
existence of the plaintiff would think that it was the plaintiff—then
the action is maintainable, subject to such damages as you think under
all the circumstances are fair and right to give to the plaintiff.”

I see no objection in law to that passage. The damages are certainly
heavy, but I think your Lordships ought to remember two things. The
first is that the jury were entitled to think, in the absence of proof
satisfactory to them (and they were the judges of it), that some
ingredient of recklessness, or more than recklessness, entered into the
writing and the publication of this article, especially as Mr. Jones,
the plaintiff, had been employed on this very newspaper, and his name
was well known in the paper and also well known in the district in which
the paper circulated. In the second place the jury were entitled to say
this kind of article is to be condemned. There is no tribunal more
fitted to decide in regard to publication, especially publications in
the newspaper Press, whether they bear a stamp and character which ought
to enlist sympathy and to secure protection. If they think that the
license is not fairly used and that the tone and style of the libel is
reprehensible and ought to be checked, it is for the jury to say so; and
for my part, although I think the damages are certainly high, I am not
prepared to advise your Lordships to interfere, especially as the Court
of Appeal have not thought it right to interfere, with the verdict.

Lords Atkinson, Gorell, and Shaw of Dunfermline concurred.

_Appeal dismissed._[431]

McPHERSON _v._ DANIELS
IN THE KING’S BENCH, MICHAELMAS TERM, 1829.
_Reported in 10 Barnewall & Cresswell, 263._

Slander for an imputation of insolvency. The defendant pleaded that at
the time of uttering the said words he declared that he had heard and
been told the same from and by one T. W. Woor. General demurrer.[432]

LITTLEDALE, J. For the reasons already given by my Brother Bayley, I
think that the plea is bad; but with reference to the resolution in Lord
Northampton’s case, I will say a few words. That resolution has been
frequently referred to within the last thirty years, and though not
expressly overruled has been generally disapproved of. The latter part
of that resolution is extrajudicial, for it was not necessary to come to
any resolution respecting private slander in the Star Chamber. It is
somewhat inconsistent with the third resolution, where it is laid down,
“that if one hear false and horrible rumors, either of the king or of
any of the grandees, it is not lawful for him to relate to others that
he heard J. S. say such false and horrible words, for if it should be
lawful, by this means _they may be published generally._” It was
resolved then, that in the case of _scandalum magnatum_ it was not
lawful to repeat slander, because, if it was, it might circulate
generally. Now the same inconvenience, viz. the general publication of
slander, though differing in degree, would follow from the repetition of
slander in either case. The fourth resolution, however, in terms,
perhaps does not go the length of saying that a defendant may justify
the repetition of slander generally, but only that he may justify under
certain circumstances. Assuming that it imports that a defendant may
justify the repetition of slander generally, by showing that he named
his original author, I think that it is not law.

The declaration, which contains a technical statement of the facts
necessary to support the action, alleges that the defendant falsely and
maliciously published the slander to the plaintiff’s damage. In order to
maintain such an action, there must be malice in the defendant and a
damage to the plaintiff, and the words must be untrue. Where words,
falsely and maliciously spoken, as in this case, are actionable in
themselves, the law _prima facie_ presumes a consequent damage without
proof. In other cases actual damage must be proved. To constitute a good
defence, therefore, to such an action, where the publication of the
slander is not intended to be denied, the defendant must negative the
charge of malice (which in its legal sense denotes a wrongful act done
intentionally without just cause or excuse), or show that the plaintiff
is not entitled to recover damages. It is competent to a defendant, upon
the general issue, to show that the words were not spoken maliciously;
by proving that they were spoken on an occasion, or under circumstances
which the law, on grounds of public policy, allows, as in the course of
a parliamentary or judicial proceeding, or in giving the character of a
servant. But if the defendant relies upon the truth as an answer to the
action, he must plead that matter specially; because the truth is an
answer to the action, not because it negatives the charge of malice (for
a person may wrongfully or maliciously utter slanderous matter though
true, and thereby subject himself to an indictment), but because it
shows that the plaintiff is not entitled to recover damages. For the law
will not permit a man to recover damages in respect of an injury to a
character which he either does not, or ought not, to possess. Now, a
defendant, by showing that he stated at the time when he published
slanderous matter of a plaintiff, that he heard it from a third person
does not negative the charge of malice, for a man may wrongfully and
maliciously repeat that which another person may have uttered upon a
justifiable occasion. Such a plea does not show that the slander was
published on an occasion, or under circumstances which the law, on
grounds of public policy, allows. Nor does it show that the plaintiff
has not sustained, or is not entitled in a court of law to recover,
damages. As great an injury may accrue from the wrongful repetition, as
from the first publication of slander, the first utterer may have been a
person insane, or of bad character. The person who repeats it gives
greater weight to the slander. A party is not the less entitled to
recover damages in a court of law for injurious matter published
concerning him, because another person previously published it. That
shows not that the plaintiff has been guilty of any misconduct which
renders it unfit that he should recover damages in a court of law, but
that he has been wronged by another person as well as the defendant; and
may, consequently if the slander was not published by the first utterer
on a lawful occasion, have an action for damages against that person as
well as the defendant. It seems to me, therefore, that such a plea is
not an answer to an action for slander, because it does not negative the
charge of malice, nor does it show that the plaintiff is not entitled to
recover damages.

_Judgment for plaintiff._[433]

THORLEY _v._ LORD KERRY
IN THE EXCHEQUER CHAMBER, MAY 9, 1812.
_Reported in 4 Taunton, 355._

This was a writ of error brought to reverse a judgment of the Court of
King’s Bench. “This was an action for a libel contained in a letter
addressed to Lord Kerry, and sent open by one of his servants, who
became acquainted with its contents. The libel charged his Lordship with
being a hypocrite, and using the cloak of religion for unworthy
purposes.”[434] Upon not guilty pleaded, the cause was tried at the
Surrey spring assizes, 1809, when the writing of the letter by the
defendant was proved, and that he delivered it unsealed to a servant to
carry, who opened and read it; a verdict was found for the plaintiff
with £20 damages, and judgment passed for the plaintiff without argument
in the court below. The plaintiff in error assigned the general errors.

MANSFIELD, C. J., delivered the opinion of the court.

This is a writ of error, brought to reverse a judgment of the Court of
King’s Bench, in which there was no argument. It was an action on a
libel published in a letter which the bearer of the letter happened to
open. The declaration has certainly some very curious recitals. It
recites that the plaintiff was tenant to Archibald Lord Douglas of a
messuage in Petersham; that, being desirous to become a parishioner and
to attend the vestry, he agreed to pay the taxes of the said house, that
the plaintiff in error was churchwarden, and that the defendant in error
gave him notice of his agreement with Lord Douglas; and that the
plaintiff in error, intending to have it believed that the said earl was
guilty of the offences and misconducts thereinafter mentioned (offences
there are none, misconduct there may be), wrote the letter to the said
earl which is set forth in the pleadings. There is no doubt that this
was a libel, for which the plaintiff in error might have been indicted
and punished; because, though the words impute no punishable crimes,
they contain that sort of imputation which is calculated to vilify a
man, and bring him, as the books say, into hatred, contempt, and
ridicule; for all words of that description an indictment lies; and I
should have thought that the peace and good name of individuals was
sufficiently guarded by the terror of this criminal proceeding in such
cases. The words, if merely spoken, would not be of themselves
sufficient to support an action. But the question now is, whether an
action will lie for these words so written, notwithstanding such an
action would not lie for them if spoken; and I am very sorry it was not
discussed in the Court of King’s Bench, that we might have had the
opinion of all the twelve judges on the point, whether there be any
distinction as to the right of action between written and parol scandal;
for myself, after having heard it extremely well argued, and especially,
in this case, by Mr. Barnewall, I cannot, upon principle, make any
difference between words written and words spoken, as to the right which
arises on them of bringing an action. For the plaintiff in error it has
been truly urged, that in the old books and abridgments no distinction
is taken between words written and spoken. But the distinction has been
made between written and spoken slander as far back as Charles the
Second’s time, and the difference has been recognized by the courts for
at least a century back. It does not appear to me that the rights of
parties to a good character are insufficiently defended by the criminal
remedies which the law gives, and the law gives a very ample field for
retribution by action for words spoken in the cases of special damage,
of words spoken of a man in his trade or profession, of a man in office,
of a magistrate or officer; for all these an action lies. But for mere
general abuse spoken, no action lies. In the arguments both of the
judges and counsel, in almost all the cases in which the question has
been, whether what is contained in a writing is the subject of an action
or not, it has been considered whether the words, if spoken, would
maintain an action. It is curious that they have also adverted to the
question, whether it tends to produce a breach of the peace; but that is
wholly irrelevant, and is no ground for recovering damages. So it has
been argued that writing shows more deliberate malignity; but the same
answer suffices, that the action is not maintainable upon the ground of
the malignity, but for the damage sustained. So it is argued that
written scandal is more generally diffused than words spoken, and is,
therefore, actionable; but an assertion made in a public place, as upon
the Royal Exchange, concerning a merchant in London, may be much more
extensively diffused than a few printed papers dispersed, or a private
letter; it is true that a newspaper may be very generally read, but that
is all casual. These are the arguments which prevail on my mind to
repudiate the distinction between written and spoken scandal; but that
distinction has been established by some of the greatest names known to
the law, Lord Hardwicke, Hale, I believe Holt, C. J., and others. Lord
Hardwicke, C. J., especially has laid it down that an action for a libel
may be brought on words written, when the words, if spoken, would not
sustain it. Com. Dig. tit. Libel, referring to the case in Fitzg. 122,
253, says there is a distinction between written and spoken scandal; by
his putting it down there as he does, as being the law, without making
any query or doubt upon it, we are led to suppose that he was of the
same opinion. I do not now recapitulate the cases, but we cannot, in
opposition to them, venture to lay down at this day that no action can
be maintained for any words written, for which an action could not be
maintained if they were spoken; upon these grounds we think the judgment
of the Court of King’s Bench must be affirmed. The purpose of this
action is to recover a compensation for some damage supposed to be
sustained by the plaintiff by reason of the libel. The tendency of the
libel to provoke a breach of the peace, or the degree of malignity which
actuates the writer, has nothing to do with the question. If the matter
were for the first time to be decided at this day, I should have no
hesitation in saying that no action could be maintained for written
scandal which could not be maintained for the words if they had been
spoken.

_Judgment affirmed._[435]

WEBB _v._ BEAVAN
IN THE QUEEN’S BENCH DIVISION, MAY 10, 1883.
_Reported in 11 Queen’s Bench Division, 609._

Demurrer to a statement of claim which alleged that the defendant
falsely and maliciously spoke and published of the plaintiff the words
following: “I will lock you” (meaning the plaintiff) “up in Gloucester
Gaol next week. I know enough to put you” (meaning the plaintiff)
“there,” meaning thereby that the plaintiff had been and was guilty of
having committed some criminal offence or offences. The plaintiff
claimed £500 damages.

Demurrer, on the ground that the statement of claim did not allege
circumstances showing that the defendant had spoken or published of the
plaintiff any actionable language, and that no cause of action was
disclosed. Joinder in demurrer.

_W. H. Nash_, in support of the demurrer, contended that, in order to
make the words actionable, the innuendo should have alleged that they
imputed an offence for which the plaintiff could have been indicted, and
that it was not sufficient to allege that they imputed a criminal
offence merely. He referred to Odgers on Libel and Slander, p. 54.

_Hammond Chambers_, contra, contended that, according to the earlier
authorities, the test, in ascertaining whether words were actionable
_per se_, was whether the offence imputed was punishable corporally or
by fine, and that it was not necessary to allege that the words imputed
an indictable offence. He cited Com. Dig. tit. Action on the Case for
Defamation, D. 5 and 9; Curtis _v._ Curtis, 10 Bing. 477.

POLLOCK, B. I am of opinion that the demurrer should be overruled. The
expression “indictable offence” seems to have crept into the text-books,
but I think the passages in Comyns’ Digest are conclusive to show that
words which impute any criminal offence are actionable _per se_. The
distinction seems a natural one, that words imputing that the plaintiff
has rendered himself liable to the mere infliction of a fine are not
slanderous, but that it is slanderous to say that he has done something
for which he can be made to suffer corporally.

LOPES, J. I am of the same opinion. I think it is enough to allege that
the words complained of impute a criminal offence. A great number of
offences which were dealt with by indictment twenty years ago are now
disposed of summarily, but the effect cannot be to alter the law with
respect to actions for slander.

_Demurrer overruled._[436]

BROOKER _v._ COFFIN
SUPREME COURT, NEW YORK, NOVEMBER, 1809.
_Reported in 5 Johnson, 188._

SPENCER, J., delivered the opinion of the court.[437] The first count is
for these words, “She is a common prostitute, and I can prove it;” and
the question arises, whether speaking these words gives an action
without alleging special damage.[438] By the statute (1 R. L. 124),
common prostitutes are adjudged disorderly persons, and are liable to
commitment by any justice of the peace, upon conviction, to the
bridewell or house of correction, to be kept at hard labor for a period
not exceeding sixty days, or until the next general sessions of the
peace. It has been supposed that, therefore, to charge a woman with
being a common prostitute, was charging her with such an offence as
would give an action for the slander. The same statute which authorizes
the infliction of imprisonment on common prostitutes, as disorderly
persons, inflicts the same punishment for a great variety of acts, the
commission of which renders persons liable to be considered disorderly;
and to sustain this action would be going the whole length of saying,
that every one charged with any of the acts prohibited by that statute,
would be entitled to maintain an action for defamation. Among others, to
charge a person with pretending to have skill in physiognomy, palmistry,
or pretending to tell fortunes, would, if this action is sustained, be
actionable. Upon the fullest consideration, we are inclined to adopt
this as the safest rule, and one which, as we think, is warranted by the
cases. In case the charge, if true, will subject the party charged to an
indictment for a crime involving moral turpitude, or subject him to an
infamous punishment, then the words will be in themselves
actionable;[439] and Baron Comyns considers the test to be, whether the
crime is indictable or not. 1 Com. tit. Action on the Case for
Defamation, F, 20. There is not, perhaps, so much uncertainty in the law
upon any subject as when words shall be in themselves actionable. From
the contradiction of cases, and the uncertainty prevailing on this head,
the court think they may, without overleaping the bounds of their duty,
lay down a rule which will conduce to certainty, and they therefore
adopt the rule I have mentioned as the criterion. In our opinion,
therefore, the first count in the declaration is defective.

_The defendant must, therefore, have judgment._[440]

COOPER _v._ SEAVERNS
SUPREME COURT, KANSAS, DECEMBER 11, 1909.
_Reported in 81 Kansas Reports, 267._

BURCH, J.[441] The common law of England was that verbal imputations
of unchaste conduct on the part of a female were not actionable, in
the absence of special damages, unless they related to a person in
some office or employment for which morality and virtue were
qualifications (Folkhard, Law Slan. & Lib. 7th ed., p. 43), and except
in the local courts of the city of London, the borough of Southwark
and the city of Bristol, where it was the custom to whip strumpets at
cart’s tail, tingling a basin before them (Odgers, Lib. & Slan., p.
*84). This rule has been accounted for on the supposition that in the
early, formative days of the common law social relations were rude,
manners were unrefined, and the people were accustomed to hearing
gross and vulgar epithets freely tossed about without regarding them
seriously. (Odgers, Lib. & Slan., p. *86.) The case of Oxford & ux.
_v._ Cross, in the king’s bench, Trinity term, 41 Elizabeth (1599),
Coke’s Reports (vol. 2, p. 307; part 4, p. 18a), is cited in support
of this view, wherein it was said that a custom “to maintain actions
for such brabling words is against law.” Pollock and Maitland discover
a better state of civilization from the early records than the view
indicated takes for granted:

“We should be much mistaken, however, if we believed that the temporal
law of the middle ages gave no action to the defamed. Nothing could be
less true than that our ancestors in the days of their barbarism could
only feel blows and treated hard words as of no account. Even the rude
_lex Salica_ decrees that if one calls a man ‘wolf’ or ‘hare’ one must
pay him three shillings, while if one calls a woman ‘harlot’ and
cannot prove the truth of the charge, one must pay her forty-five
shillings. The oldest English laws exact _bot_ and _wite_ if one gives
another bad names....”

This being true, a reason for the rule must be found elsewhere than in
any essential brutality of the early Englishman. The doctrine appears
to be fully accounted for through the partition of authority in
England between the spiritual and the temporal courts. (Odgers, Lib. &
Slan., p. *86.) It is familiar history that in the middle ages, for
reasons and by means which need not be sketched here, the all-powerful
ecclesiastics acquired jurisdiction over a large portion of the most
important concerns of life—testaments, matrimony, and among
innumerable others, defamation. This breach of the social order was
regarded as a sin and was punishable in the spiritual courts as
such....

The struggle to limit and define the authority of the ecclesiastical
courts was long and bitter, and frequently exhibited some striking
features. In the progress of the duel the common-law courts used as
their principal weapon the king’s writ of prohibition to restrain the
exercise of jurisdiction over causes which they desired to adjudicate.
The ecclesiastics returned the fire by excommunicating those who sued
out such writs. By and by an increasing number of pecuniary matters
came to be regarded as pertaining to things of this world, and the
civil courts finally succeeded in maintaining their right to
administer relief in an action on the case where specific damages were
occasioned by slanderous words.

[After discussing the jurisdiction of the ecclesiastical courts, the
opinion proceeds:]

Although the English judges felt constrained to follow the common-law
rule until it was superseded by act of parliament, it did not satisfy
their consciences. In 1759, in the case of Jones _v._ Herne, in the
Court of King’s Bench (2 Wil. 87, 95 Eng. Rep., Full Reprint, 701),
Chief Justice Willes, after holding it actionable to say a man is a
forger, added that if it were _res integra_ he would hold that calling
a man a rogue or a woman a whore in public company is actionable.

Very near the time when this state entered upon its separate
constitutional existence the common-law rule fell under the censure of
some of the ablest exponents of English justice.

[The opinion then sets forth a number of judicial criticisms of the
common-law doctrine and proceeds:]

From the foregoing it appears that the rule under consideration
resulted solely from the early seizure of jurisdiction over slander by
the ecclesiastical courts, which could not award damages at all, and
the inability of the temporal courts to strip that jurisdiction from
their rivals except in cases involving special damages. It never did
rest upon any principle of right or justice or any decent regard for
character. It was unsuited to the true genius and real needs of the
people over whom it tyrannized, even from the earliest times. It
created anomalies in the law of defamation which rendered that law
absurd and grotesque. For example, words “touching” some disreputable
good-for-nothing in his work or trade were actionable. The most
sensitive, cultivated, high-bred woman could be foully slandered with
impunity. Written ridicule of the style of her hat gave ground for
exemplary damages. She had no redress for spoken words inflicting one
of the deepest wounds her sex can suffer. The rule was not merely
insufferably wrong; it was wrong in a matter of so precious a nature
that it was shocking. It was suppressed because it had long been
reprobated as odious and was universally detested. The question now to
be decided is, Does that rule obtain in this state?...

This is not the case of a principle which commands considerable
approval, is founded upon fair reason, is merely of questionable
wisdom, and which therefore ought to be followed until abrogated by
the legislature. It is the case of an outlawed rule of negation whose
sole function has always been to thwart natural justice in one of the
dearest and tenderest of human interests. Therefore its rejection is
justified by Duncan _v._ Baker (21 Kan. 99) and Whitaker _v._ Hawley
(25 Kan. 674), _supra_.

The world is censorious, and a woman’s or a maiden’s reputation for
modesty and chastity is an asset of inestimable value. Its loss
renders her poor indeed. Injury in fact is the necessary result of
such a deprivation, whether or not the sufferer can point to specific
damage in a few paltry dollars or to liability to a trifling fine if
the charge were true. Therefore the pleading of special damages as a
basis for relief ought to be treated as a useless fiction, like the
one condemned in Anthony _v._ Norton (60 Kan. 341), _supra_.

Taking into consideration the origin and history of the rule, the
reason supporting it, its character, its consequences, and the degree
of its appositeness to our constitution and system of laws, it does
not apply to the conditions or meet the needs of the people of this
state, and consequently it is not a part of the law of this state.

This problem has been met and solved by different states of the
American Union in different ways. In some the rule is obediently
observed. In some it is followed under protest—is characterized as a
disgrace to the state—but still is followed. In some statutes have
relieved from its iniquity in whole or in part. In some it is frankly
repudiated by the courts because it lacks the sanction of reason and
justice. This court has no legislative functions. As Lord Campbell
said, it is here only to declare the law. Under the statute of 1868 it
must determine whether a rule of the common law invoked in a judicial
proceeding contravenes the constitution or statutes of the state, or
has been modified by judicial decision, and whether it is adapted to
the conditions and is suitable to the needs of the people of the
state. This duty has been discharged in the present case.[442]

LUMBY _v._ ALLDAY
IN THE EXCHEQUER, HILARY TERM, 1831.
_Reported in 1 Crompton & Jervis, 301._

Action for words.

The judgment of the court was now delivered by

BAYLEY, B.[443] This case came before the court upon a rule _nisi_ to
enter a nonsuit. The ground of motion was that the words (in slander)
proved upon the trial were not actionable.

Two points were discussed upon the motion: one, whether the words were
actionable or not; and the other, whether this was properly a ground of
nonsuit.

The declaration stated that the plaintiff was clerk to an incorporated
company, called the Birmingham and Staffordshire Gas Light Company, and
had behaved himself as such with great propriety, and thereby acquired,
and was daily acquiring, great gains; but that the defendant, to cause
it to be believed that he was unfit to hold his situation, and an
improper person to be employed by the company, and to cause him to be
deprived of his situation, spoke the words complained of in the
declaration, viz.: “You are a fellow, a disgrace to the town, unfit to
hold your situation, for your conduct with whores. I will have you in
the ‘Argus.’ You have bought up all the copies of the ‘Argus,’ knowing
you have been exposed. You may drown yourself, for you are not fit to
live, and are a disgrace to the situation you hold.”

The objection to maintaining an action upon these words is, that it is
only on the ground of the plaintiff being clerk to the company that they
can be actionable; that it is not alleged that they are spoken of him in
reference to his character or conduct as clerk; that they do not, from
their tenor, import that they were spoken with any such reference; that
they do not impute to him the want of any qualification such as a clerk
ought to have, or any misconduct which would make him unfit to discharge
faithfully and correctly all the duties of such a clerk.

The plaintiff relied on the rule laid down by De Grey, C. J., in Onslow
_v._ Horne, 3 Wils. 177, “that words are actionable when spoken of one
in an office of profit, which may probably occasion the loss of his
office; or when spoken of persons touching their respective professions,
trades, and business, and do or may probably tend to their damage.” The
same case occurs in Sir Wm. Bl. Rep. 753, and there the rule is
expressed to be, “if the words be of probable ill consequence to a
person in a trade or profession, or an office.”[444]

The objection to the rule, as expressed in both reports, appears to me
to be, that the words “probably” and “probable” are too indefinite and
loose, and unless they are considered as equivalent to “having a natural
tendency to,” and are confined within the limits, I have expressed in
stating the defendant’s objections, of showing the want of some
necessary qualification, or some misconduct in the office, it goes
beyond what the authorities warrant.

Every authority which I have been able to find, either shows the want of
some general requisite, as honesty, capacity, fidelity, &c., or connects
the imputation with the plaintiff’s office, trade, or business. As at
present advised, therefore, I am of opinion that the charge proved in
this case is not actionable, because the imputation it contains does not
imply the want of any of those qualities which a clerk ought to possess,
and because the imputation has no reference to his conduct as clerk. I
say as at present advised, for the reason which I am about to state.

The next question is, whether this is properly a ground of nonsuit; and
I am of opinion that, under the circumstances of this case, it is not.
The words proved are nearly all the words which the first count
contains; and if the words proved are not actionable, none of the other
words contained in that count are. When the general issue is pleaded to
a count, it puts in issue to be tried by the jury the question, whether
the facts stated in that count exist. The legal effect of those facts,
whether they constitute a cause of action or not, is not properly in
question. The proper mode to bring that legal effect into consideration
is, before trial, to demur; after trial, to move in arrest of judgment.
The duty of the judge, under whose direction the jury try questions of
fact, is not to consider whether the facts charged give a ground of
action, but to assist the jury in matters of law, which may arise upon
the trial of those facts.

As the defendant, therefore, in this case puts in issue the allegations
in the declaration, and those allegations were proved upon the trial, we
are of opinion that the rule for a nonsuit ought to be discharged; and,
notwithstanding the lapse of time, that there ought to be a rule _nisi_
to arrest the judgment, if the defendant be advised to take such rule.

_Rule discharged._[445]

JONES _v._ LITTLER
IN THE EXCHEQUER, JANUARY 16, 1841.
_Reported in 7 Meeson & Welsby, 423._

Slander. The declaration stated that the plaintiff was a brewer, and
that the defendant falsely and maliciously spoke and published of and
concerning him in the way of his trade as a brewer the false,
scandalous, malicious, and defamatory words following: “I’ll” (meaning
that he, the defendant, would) “bet £5 to £1, that Mr. Jones” (meaning
the plaintiff) “was in a sponging-house for debt within the last
fortnight, and I can produce the man who locked him up; the man told me
so himself.” Whereupon the said Henry Pye then asked the defendant, “Do
you mean to say that Mr. Jones, brewer, of Rose Hill” (meaning and
describing the plaintiff), “has been in a sponging-house within this
last fortnight for debt?” and thereupon the defendant then replied to
the said Henry Pye, and the said other persons then present, “Yes, I
do.”

The jury having returned a verdict for the plaintiff, the court granted
a rule to show cause why there should not be a new trial, on a
suggestion that the learned judge ought to have left it as a question to
the jury whether the words were spoken of the plaintiff in the way of
his trade, and did not.

PARKE, B. It is quite clear that this rule ought to be discharged, for
the only ground on which it was granted has failed, inasmuch as the
learned judge did leave the question to the jury, whether the words were
spoken of the plaintiff in his trade; and, indeed, it is plain that the
words were so used, from the fact that in the conversation in question
the plaintiff was spoken of as a brewer. Independently of that, however,
and even if they were spoken of him in his private character, I think
the case of Stanton _v._ Smith, 2 Ld. Raym. 1480, is an authority to
show that the words would have been actionable, because they must
necessarily affect him in his trade. It is there said, “We were all of
opinion that such words spoken of a tradesman must greatly lessen the
credit of a tradesman, and be very prejudicial to him, and therefore
that they were actionable.” That case is distinguishable from Ayre _v._
Craven, 2 A. & E. 2, and Doyley _v._ Roberts, 1 Bing. N. C. 135. In the
latter of those cases the words were not spoken of the plaintiff in his
business of an attorney; and in the former it did not appear in what
manner the immorality was connected with the plaintiff’s profession of a
physician; and it was possible that such imputations of incorrect
conduct, out of the line of their respective professions, might not
injure their professional characters. But this case is distinguishable,
because here the imputation is that of insolvency, which must be
injurious; for if a tradesman be incapable of paying all his debts,
whether in or out of trade, his credit as a tradesman, which depends on
his general solvency, must be injured. The case of Stanton _v._ Smith,
as it appears to me, is good law, notwithstanding the observations of
Coltman, J., in Doyley _v._ Roberts.

ALDERSON and ROLFE, BB., concurred.

_Rule discharged._[446]

SECOR _v._ HARRIS
SUPREME COURT, NEW YORK, SEPTEMBER, 1854.
_Reported in 18 Barbour, 425._

Motion by the plaintiff for a new trial, upon a bill of exceptions.

MASON, J. This is an action for slander. Upon the trial of the cause
the plaintiff proved the following words, which were also alleged in
the complaint: “Doctor Secor killed my children.” “He gave them
teaspoonful doses of calomel, and they died.” “Dr. Secor gave them
teaspoonful doses of calomel, and it killed them; they did not live
long after they took it. They died right off,—the same day.” The
plaintiff was proved to be a practising physician, and the evidence
shows that he had practised in the defendant’s family, and had
prescribed for the defendant’s children, and that the words were
spoken of him in his character of a physician. The plaintiff claimed
that the words were actionable, and that he was entitled to have this
branch of the case, upon the words, submitted to the jury. The judge
at the circuit held that the words were not actionable, and took them
from the consideration of the jury. These words, spoken of the
plaintiff as a physician, are actionable _per se_, whatever may be
said upon the question, whether they impute a criminal offence. They
do not impute a criminal offence, unless there is evidence, arising
from the quantity of the calomel which the defendant alleged that the
plaintiff gave these children, from which a jury would be justified in
finding an intention to kill them. One of them was three years of age,
and the other one year and a half. If the natural result, which should
reasonably be expected from feeding children of such tender years full
teaspoon doses of calomel, would be certain death, then it is not a
forced construction of the words to say that the defendant intended to
charge the plaintiff with an intention to kill these children, in
giving them such doses. It is not necessary, however, to say that the
judge should have submitted this case to the jury upon the question,
whether the defendant did not intend to impute to the plaintiff, by
these words, a criminal offence. I am quite inclined to think,
however, that had the judge submitted the case to the jury upon the
imputation of a criminal intent in these words, and had the jury found
that such intent was imputed, we should not be justified in setting
aside their verdict. It is not necessary, however, to place the case
upon this ground; for it is certainly slanderous to say of a physician
that he killed these children of such tender years, by giving them
teaspoonful doses of calomel. The charge, to say the least, imports
such a total ignorance of his profession as to destroy all confidence
in the physician. It is a disgrace to a physician to have it believed
that he is so ignorant of this most familiar and common medicine, as
to give such quantities thereof to such young children. The law is
well settled that words published of a physician, falsely imputing to
him general ignorance or want of skill in his profession, are
actionable, in themselves, on the ground of presumed damage. Starkie
on Slander, 100, 110, 115, 10, 12; Martyn _v._ Burlings, Cro. Eliz.
589; Bacon’s Abr. title Slander, B; Watson _v._ Van Derlash, Hetl. 69;
Tutler _v._ Alwin, 11 Mod. R. 221; Smith _v._ Taylor, 1 New R. 196;
Sumner _v._ Utley, 7 Conn. R. 257. I am aware that it was held, in the
case of Poe _v._ Mondford, Cro. El. 620, that it is not actionable to
say of a physician, “He hath killed a patient with physic;” and that,
upon the strength of the authority of that case, it was decided in
this court in Foot _v._ Brown, 8 Johns. 64, that it was not actionable
to say of an attorney or counsellor, when speaking of a particular
suit. “He knows nothing about the suit; he will lead you on until he
has undone you.” These cases are not sound. The case of Poe _v._
Mondford is repudiated in Bacon’s Abr. as authority, and cases are
referred to as holding a contrary doctrine (vol. ix. pages 49, 50).
The cases of Poe _v._ Mondford, and of Foot _v._ Brown, were reviewed
by the Supreme Court of Connecticut, in the case of Sumner _v._ Utley,
7 Conn. R. 257, with most distinguished ability, and the doctrine of
those cases repudiated. In the latter case it is distinctly held, that
words are actionable in themselves, which charge a physician with
ignorance or want of skill in his treatment of a particular patient,
if the charge be such as imports gross ignorance or unskilfulness. To
the same effect is the case of Johnson _v._ Robertson, 8 Porter’s R.
486, where it was held that the following words spoken of a physician
in regard to his treatment of a particular case, “He killed the child
by giving it too much calomel,” are actionable in themselves; and such
is the case of Tutler _v._ Alwin, 11 Mod. R. 221, where it was held to
be actionable to say of an apothecary, that “he killed a patient with
physic.” See also 3 Wilson’s R. 186; Bacon’s Abr. title Slander,
letter B, 2, vol. ix. page 49 (Bouv. ed.). The cases of Poe _v._
Mondford and Foot _v._ Brown have been repudiated by the highest
judicial tribunal in two of the American States, while the case of Poe
_v._ Mondford seems to have been repudiated in England; and I agree
with Clinch, J., that the reason upon which that case is decided is
not apparent. I do not go the length to say that falsehood may not be
spoken of a physician’s practice, in a particular case, without
subjecting the party to this action. A physician may mistake the
symptoms of a patient, or may misjudge as to the nature of his
disease, and even as to the powers of medicine, and yet his error may
be of that pardonable kind that will do him no essential prejudice,
because it is rather a proof of human imperfection than of culpable
ignorance or unskilfulness; and where charges are made against a
physician that fall within this class of cases, they are not
actionable, without proof of special damages.[447] 7 Conn. R. 257. It
is equally true, that a single act of a physician may evince gross
ignorance, and such a total want of skill, as will not fail to injure
his reputation, and deprive him of general confidence. When such a
charge is made against a physician, the words are actionable _per se_.
7 Conn. R. 257. The rule may be laid down as a general one that, when
the charge implies gross ignorance and unskilfulness in his
profession, the words are actionable _per se_. This is upon the ground
that the law presumes damage to result, from the very nature of the
charge. The law in such a case lays aside its usual strictness; for
when the presumption of damage is violent, and the difficulty of
proving it is considerable, the law supplies the defect, and, by
converting presumption into proof secures the character of the
sufferer from the misery of delay, and enables him at once to face the
calumny in open court. Starkie on Slander, 581. It was well said by
the learned Chief Justice Hosmer, in Sumner _v._ Utley, 7 Conn. 257,
that, “As a general principle, it can never be admitted that the
practice of a physician or surgeon in a particular case may be
calumniated with impunity, unless special damage is shown. By
confining the slander to particulars, a man may thus be ruined in
detail. A calumniator might follow the track of the plaintiff, and
begin by falsely ascribing to a physician the killing of three persons
by mismanagement, and then, the mistaking of an artery for a vein, and
thus might proceed to misrepresent every single case of his practice,
until his reputation should be blasted beyond remedy. Instead of
murdering character by one stroke, the victim would be cut
successively in pieces, and the only difference would consist in the
manner of effecting the same result.” It is true, as was said by the
learned Chief Justice Hosmer in that case, the redress proposed, on
the proof of special damage, is inadequate to such a case. Much time
may elapse before the fact of damage admits of any evidence; and then
the proof will always fall short of the mischief. In the mean time the
reputation of the calumniated person languishes and dies; and hence,
as we have before said, the presumption of damage being violent, and
the difficulty of proving it considerable, the law supplies the defect
by converting presumption of damage into proof: Starkie on Slander,
581; in other words, the law presumes that damages result from the
speaking of the words. In the case under consideration, the words
proved impute to the plaintiff such gross ignorance of his profession,
if nothing more, as would be calculated to destroy his character
wherever the charge should be credited. It would be calculated to make
all men speak out and say, as did the witness Richard Morris, “that it
was outrageous, and the plaintiff ought not to be permitted to
practise.” The law will therefore presume damages to result from the
speaking of the words, and consequently hold the words actionable in
themselves. The judge at the circuit erred in taking this branch of
the case from the consideration of the jury, and a new trial must be
granted; costs to abide the event of the action.

CRIPPEN, J., concurred. SHANKLAND, J., dissented.

_New trial granted._[448]

SMITH _v._ HOBSON
IN THE KING’S BENCH, TRINITY TERM, 1647.
_Reported in Style, 112._

Smith, an innkeeper in Warwick, brought an action upon the case against
Hobson for speaking these words: “Colonel Egerton had the French pox,
and hath set it in the house” (meaning the plaintiff’s house), “and
William Smith and his wife” (meaning the plaintiff and his wife) “have
it, and all you.” The plaintiff hath a verdict. The defendant moves in
arrest of judgment, and for cause shows, that the words are not
actionable; for the words are, that Colonel Egerton hath set the French
pox in the house, which is impossible; for the house could not have the
pox, and the words, “William Smith and his wife have it,” shall not be
meant that they have the pox, but the house, for that is the next
antecedent to the words, to which they shall refer. ROLL, J., held the
words here actionable, and bid the plaintiff take his judgment, if cause
were not shown to the contrary Saturday following. Judgment was
afterwards given accordingly.[449]

JOANNES _v._ BURT
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY TERM, 1863.
_Reported in 6 Allen, 336._

HOAR, J.[450] The declaration is in tort for slander, by orally imputing
insanity to the plaintiff. We are aware of no authority for maintaining
such an action, without the averment of special damage. The authorities
upon which the plaintiff relies are both cases of libel. The King _v._
Harvey, 2 B. & C. 257; Southwick _v._ Stevens, 10 Johns. 443. An action
for oral slander, in charging the plaintiff with disease, has been
confined to the imputation of such loathsome and infectious maladies as
would make him an object of disgust and aversion, and banish him from
human society. We believe the only examples which adjudged cases furnish
are of the plague, leprosy, and venereal disorders.

In addition to this vital objection in matter of substance, the
declaration fails to set forth the supposed cause of action in
substantial conformity with the requirements of the statute; and
contains many superfluous allegations, which are manifestly irrelevant,
impertinent, and scandalous.

_Appeal dismissed._[451]

FOSS _v._ HILDRETH
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY, 1865
_Reported in 10 Allen, 76._

CHAPMAN, J. The defendant’s counsel requested the court to give certain
instructions to the jury, as stated in the bill of exceptions. One of
the instructions prayed for was, that the truth is not a defence to an
action of slander, if the words were spoken maliciously or without any
reason on the part of the defendant to believe they were true.[452] But
in respect to verbal slander the law has always been otherwise. A
special plea in justification sets forth the truth of the words merely.
3 Chit. Pl. 1031.

_Exceptions overruled._[453]

SCOTT _v._ STANSFIELD
IN THE EXCHEQUER, JUNE 3, 1868.
_Reported in Law Reports, 3 Exchequer, 220._

Declaration that the defendant published of the plaintiff in relation to
his business as a scrivener these words: “You are a harpy, preying on
the vitals of the poor.”

Plea: That the defendant uttered the said words while acting as a judge
in the trial of a cause wherein the now plaintiff was defendant.

Replication: That the words were spoken falsely and without reasonable
cause, and were wholly irrelevant and impertinent to the cause before
the defendant as the latter then well knew.

Demurrer.[454]

KELLY, C. B. I am of opinion that our judgment must be for the
defendant. The question raised upon this record is whether an action is
maintainable against the judge of a county court, which is a court of
record, for words spoken by him in his judicial character and in the
exercise of his functions as judge in the court over which he presides,
where such words would as against an ordinary individual constitute a
cause of action, and where they are alleged to have been spoken
maliciously and without probable cause, and to have been irrelevant to
the matter before him. The question arises, perhaps, for the first time
with reference to a county court judge, but a series of decisions
uniformly to the same effect, extending from the time of Lord Coke to
the present time, establish the general proposition that no action will
lie against a judge for any acts done or words spoken in his judicial
capacity in a court of justice. This doctrine has been applied not only
to the Superior Courts, but to the court of a coroner and to a court
martial, which is not a court of record. It is essential in all courts
that the judges who are appointed to administer the law should be
permitted to administer it under the protection of the law independently
and freely, without favor and without fear. This provision of the law is
not for the protection or benefit of a malicious or corrupt judge, but
for the benefit of the public, whose interest it is that the judges
should be at liberty to exercise their functions with independence and
without fear of consequences. How could a judge so exercise his office
if he were in daily and hourly fear of an action being brought against
him, and of having the question submitted to a jury whether a matter on
which he had commented judicially was or was not relevant to the case
before him? Again, if a question arose as to the _bona fides_ of the
judge it would have, if the analogy of similar cases is to be followed,
to be submitted to the jury. Thus, if we were to hold that an action is
maintainable against a judge for words spoken by him in his judicial
capacity, under such circumstances as those appearing on these
pleadings, we should expose him to constant danger of having questions
such as that of good faith or relevancy raised against him before a
jury, and of having the mode in which he might administer justice in his
court submitted to their determination. It is impossible to overestimate
the inconvenience of such a result. For these reasons I am most strongly
of opinion that no such action as this can, under any circumstances, be
maintainable.

_Judgment for the defendant._[455]

MUNSTER _v._ LAMB
IN THE COURT OF APPEAL, JULY 5, 1883.
_Reported in 11 Queen’s Bench Division, 588._

BRETT, M. R.[456] This action is brought against a solicitor for words
spoken by him before a court of justice, whilst he was acting as the
advocate for a person charged in that court with an offence against the
law. For the purposes of my judgment, I shall assume that the words
complained of were uttered by the solicitor maliciously, that is to say,
not with the object of doing something useful towards the defence of his
client: I shall assume that the words were uttered without any
justification or even excuse, and from the indirect motive of personal
ill-will or anger towards the prosecutor arising out of some previously
existing cause; and I shall assume that the words were irrelevant to
every issue of fact which was contested in the court where they were
uttered; nevertheless, inasmuch as the words were uttered with reference
to, and in the course of, the judicial inquiry which was going on, no
action will lie against the defendant, however improper his behavior may
have been.

It has been contended that as a person defamed has, _prima facie_, a
cause of action, the person defaming must produce either some statute or
some previous decision directly in point which will justify his conduct.
I cannot agree with that argument. The common law does not consist of
particular cases decided upon particular facts: it consists of a number
of principles, which are recognized as having existed during the whole
time and course of the common law. The judges cannot make new law by new
decisions; they do not assume a power of that kind: they only endeavor
to declare what the common law is and has been from the time when it
first existed. But inasmuch as new circumstances, and new complications
of fact, and even new facts, are constantly arising, the judges are
obliged to apply to them what they consider to have been the common law
during the whole course of its existence, and therefore they seem to be
laying down a new law, whereas they are merely applying old principles
to a new state of facts. Therefore, with regard to the present case, we
have to find out whether there is a principle of the common law, which
although it has existed from the beginning, is now to be applied for the
first time. I cannot find that there has been a decision of a court of
law with reference to such facts as are now before us, that is, with
regard to a person acting in the capacity of counsel: but there have
been decisions upon analogous facts; and if we can find out what
principle was applied in these decisions upon the analogous facts, we
must consider how far it governs the case before us.

Actions for libel and slander have always been subject to one principle:
defamatory statements, although they may be actionable on ordinary
occasions, nevertheless are not actionable libel and slander when they
are made upon certain occasions. It is not that these statements are
libel or slander subject to a defence, but the principle is that
defamatory statements, if they are made on a privileged occasion, from
the very moment when they are made, are not libel or slander of which
the law takes notice. Many privileged occasions have been recognized.
The occasion, with which we now have to deal, is that a defamatory
statement has been made either in words or by writing in the course of
an inquiry regarding the administration of the law. It is beyond dispute
that statements made under these circumstances are privileged as to some
persons, and it has been admitted by the plaintiff’s counsel that one
set of these persons are advocates: it could not be denied that
advocates are privileged in respect of at least some defamatory
statements made by them in the course of an inquiry as to the
administration of the law. It was admitted that so long as an advocate
acts _bona fide_ and says what is relevant, owing to the privileged
occasion, defamatory statements made by him do not amount to libel or
slander, although they would have been actionable if they had not been
made whilst he was discharging his duty as an advocate. But it was
contended that an advocate cannot claim the benefit of the privilege
unless he acts _bona fide_, that is, for the purpose of doing his duty
as an advocate, and unless what he says is relevant. That is the
question which we now have to determine. Certain persons can claim the
benefit of the privilege which arises as to everything said or written
in the course of an inquiry as to the administration of the law, and
without making an exhaustive enumeration I may say that those persons
are judges, advocates, parties, and witnesses. There have been decisions
with regard to three of these classes, namely, judges, parties, and
witnesses, and it has been held that whatever they may have said in the
course of an inquiry as to the administration of the law, has been said
upon a privileged occasion, and that they are not liable to any action
for libel or slander. But it has been suggested that only some of these
classes of persons can successfully claim the privilege of the occasion,
and those are judges, parties, and witnesses, who make statements
without malice and relevantly; and that those judges, parties, and
witnesses, who either speak or write without relevancy and with malice,
cannot successfully claim the privilege of the occasion. I am inclined
to think that with regard to these classes of persons the law has not
always been stated in the same manner by the judges, and some judges
have a strong objection to carry the privilege beyond the point to which
they are obliged by authority to carry it; they are disinclined to admit
the existence of the privilege. Other judges are inclined to carry the
privilege to its full extent, and we must see what is the doctrine which
has been finally adopted. With regard to witnesses, the chief cases are,
Revis _v._ Smith, 18 C. B. 126, 25 L. J. C. P. 195, and Henderson _v._
Broomhead, 4 H. & N. 569, and with regard to witnesses, the general
conclusion is that all witnesses speaking with reference to the matter
which is before the court—whether what they say is relevant or
irrelevant, whether what they say is malicious or not—are exempt from
liability to any action in respect of what they state, whether the
statement has been made in words, that is, on _viva voce_ examination,
or whether it has been made upon affidavit. It was at one time suggested
that although witnesses could not be held liable to actions upon the
case for defamation, that is, for actions for libel and slander,
nevertheless they might be held liable in another and different form of
action on the case, namely, an action analogous to an action for
malicious prosecution, in which it would be alleged that the statement
complained of was false to the knowledge of the witness, and was made
maliciously and without reasonable or probable cause. This view has been
supported by high authority; but it seems to me wholly untenable. If an
action for libel or slander cannot be maintained, how can such an action
as I have mentioned be maintained, it being in truth an action for
defamation in an altered form? Every objection and every reason, which
can be urged against an action for libel or slander, will equally apply
against the suggested form of action. Therefore, to my mind, the best
way to deal with the suggested form of action is to dispose of it in the
words of Crompton, J., in Henderson _v._ Broomhead, where he said: “The
attempts to obtain redress for defamation having failed, an effort was
made in Revis _v._ Smith, 18 C. B. 126, 25 L. J. C. P. 195, to sustain
an action analogous to an action for malicious prosecution. That seems
to have been done in despair.” Nothing could be more strong, nothing
could show more clearly his entire disbelief in the possibility of
supporting that new form of action. The answer to the suggested form of
action was that during the hundreds of years which had elapsed such an
action never had been sustained. No reported case from the time of the
commencement of the common law until the present day can be found in
which the suggested form of action has been maintained, and yet it is
impossible to suppose that opportunities for bringing actions of that
kind and of carrying them to a conclusion have not occurred again and
again. However, the question is not as to the form of the action, but
whether an action of any kind will lie for defamation uttered in the
course of a judicial proceeding. Crompton, J., in Henderson _v._
Broomhead, also said: “No action will lie for words spoken or written in
the course of any judicial proceeding. In spite of all that can be said
against it, we find the rule acted upon from the earliest times. The
mischief would be immense if the person aggrieved, instead of preferring
an indictment for perjury, could turn his complaint into a civil action.
By universal assent it appears that in this country no such action lies.
Cresswell, J., pointed out in Revis _v._ Smith, 18 C. B. 126, that the
inconvenience is much less than it would be if the rule were otherwise.
The origin of the rule was the great mischief that would result, if
witnesses in courts of justice were not at liberty to speak freely,
subject only to the animadversion of the court.” It is there laid down
that the reason for the rule with regard to witnesses is public policy.
In Scott _v._ Stansfield it was held that all judges, inferior as well
as superior, are privileged for words spoken in the course of a judicial
proceeding, although they are uttered falsely and maliciously and
without reasonable or probable cause. The ground of the decision was
that the privilege existed for the public benefit: of course it is not
for the public benefit that persons should be slandered without having a
remedy; but upon striking a balance between convenience and
inconvenience, between benefit and mischief to the public, it is thought
better that a judge should not be subject to fear for the consequences
of anything which he may say in the course of his judicial duty.
Therefore the cases of both witnesses and judges fall within the rule as
to privileged occasions, notwithstanding it may be proved that any
defamatory words spoken by them were uttered from an indirect motive and
to gratify their own malice. In Dawkins _v._ Lord Rokeby, Law Rep. 8 Q.
B. 255, it was assumed for the purposes of the decision, that the
defendant had been guilty of both falsehood and malice; nevertheless it
was held that no action would lie against him for statements made by him
as a witness. The ground of the decision was no doubt that a witness in
giving his evidence should not be afraid of being sued for anything that
he might say. A similar view of the law was taken in Seaman _v._
Netherclift; and the same rule has been applied to the parties. If upon
the grounds of public policy and free administration of the law the
privilege be extended to judges and witnesses, although they speak
maliciously and without reasonable or probable cause, is it not for the
benefit of the administration of the law that counsel also should have
an entirely free mind? Of the three classes—judge, witness, and
counsel—it seems to me that a counsel has a special need to have his
mind clear from all anxiety. A counsel’s position is one of the utmost
difficulty. He is not to speak of that which he knows: he is not called
upon to consider, whether the facts with which he is dealing are true or
false. What he has to do, is to argue as best he can, without degrading
himself, in order to maintain the proposition which will carry with it
either the protection or the remedy which he desires for his client. If
amidst the difficulties of his position he were to be called upon during
the heat of his argument to consider whether what he says is true or
false, whether what he says is relevant or irrelevant, he would have his
mind so embarrassed that he could not do the duty which he is called
upon to perform. For, more than a judge, infinitely more than a witness,
he wants protection on the ground of benefit to the public. The rule of
law is that what is said in the course of the administration of the law,
is privileged; and the reason of that rule covers a counsel even more
than a judge or a witness. To my mind it is illogical to argue that the
protection of privilege ought not to exist for a counsel, who
deliberately and maliciously slanders another person. The reason of the
rule is, that a counsel, who is not malicious and who is acting _bona
fide_, may not be in danger of having actions brought against him. If
the rule of law were otherwise, the most innocent of counsel might be
unrighteously harrassed with suits, and therefore it is better to make
the rule of law so large that an innocent counsel shall never be
troubled, although by making it so large counsel are included who have
been guilty of malice and misconduct. In Rex _v._ Skinner, Lofft, 55,
Lord Mansfield, a judge most skilful in enunciating the principles of
the law, treated a counsel as standing in the same position as a judge
or a witness. In Dawkins _v._ Lord Rokeby, Law Rep. 8 Q. B. 255, at pp.
263, 264, 268, a most careful judgment was delivered on behalf of all
the judges in the Exchequer Chamber, and the opinion of Lord Mansfield
was cited and adopted. If the authority of these two cases is to be
followed, counsel are equally protected with judges and witnesses. I
will refer to Kennedy _v._ Hilliard, 10 Ir. C. L. Rep. N. S. 195, and in
that case Pigott, C. B., delivered a most learned judgment, in the
course of which he said: “I take this to be a rule of law, not founded
(as is the protection in other cases of privileged statements) on the
absence of malice in the party sued, but founded on public policy, which
requires that a judge, in dealing with the matter before him, a party in
preferring or resisting a legal proceeding, and a witness in giving
evidence, oral or written, in a court of justice, shall do so with his
mind uninfluenced by the fear of an action for defamation or a
prosecution for libel.” 10 Ir. C. L. Rep., at p. 209. Into the rule thus
stated the word “counsel” must be introduced, and the rule may be taken
to be the rule of the common law. That rule is founded upon public
policy. With regard to counsel, the questions of malice, _bona fides_,
and relevancy, cannot be raised; the only question is, whether what is
complained of has been said in the course of the administration of the
law. If that be so, the case against a counsel must be stopped at once.
No action of any kind, no criminal prosecution, can be maintained
against a defendant, when it is established that the words complained of
were uttered by him as counsel in the course of a judicial inquiry, that
is, an inquiry before any court of justice into any matter concerning
the administration of the law.

I am of opinion that the rule of law is such as I have pointed out, that
it ought to be applied in the present case, and therefore that this
action cannot be maintained.

From our judgments it is obvious that we dissent from the opinion of
Lord Denman, C. J., expressed by him at Nisi Prius in Kendillon _v._
Maltby, Car. & M. 402; 2 M. & R. 438.

_Appeal dismissed._[457]

SEAMAN _v._ NETHERCLIFT
IN THE COURT OF APPEAL, DECEMBER 15, 1876.
_Reported in 2 Common Pleas Division, 53._

Appeal from the decision of the Common Pleas Division, ordering
judgment to be entered for the defendant. 1 C. P. D. 540.

Claim: That defendant said of a will, to the signature of which the
plaintiff was a witness, “I believe the signature to the will to be a
rank forgery, and I shall believe so to the day of my death,” meaning
that the plaintiff had been guilty of forging the signature of the
testator, or of aiding and abetting in the forgery.

Defence: That defendant spoke the words in the course of giving his
evidence as a witness on a charge of forgery before a magistrate.

Reply: That the words were not _bona fide_ spoken by defendant as a
witness, or in answer to any question put to him as a witness, and he
was a mere volunteer in speaking them for his own purposes otherwise
than as a witness and maliciously and out of the course of his
examination.[458]

COCKBURN, C. J. The case is, to my mind, so abundantly clear, and I
believe to the minds of my learned brothers, that I think we ought not
to hesitate to at once pronounce our decision.

The plaintiff brings his action against the defendant for slander,
alleged to have been uttered on the occasion of a prosecution for
forgery before a magistrate of the city of London. The defence set up
is: “True, I did utter the words imputed to me, but I spoke them when
I was a witness in a case in which I was called as a witness.” The
plaintiff’s answer to that is, “Yes, you were called as a witness, but
you spoke these words when you were no longer giving evidence, and not
only knowing them to be false, but also not in the inquiry, and dehors
altogether the subject-matter of the inquiry, for your own purpose of
maliciously defaming me.” At the trial before Lord Coleridge it
appeared that in the Probate suit of Davies _v._ May the defendant had
been examined, as an adept, to express his opinion as to the
genuineness of a signature to a will, and he gave it as his opinion
that the signature was a forgery. The president of the court, in
addressing the jury, made some very strong observations on the
rashness of the defendant in expressing so confident an opinion in the
face of the direct evidence. Soon afterwards, on a prosecution for
forgery before the magistrate, the defendant was called as an adept by
the person charged, when he expressed an opinion favorable to the
genuineness of the document. He was then asked by the counsel for the
prosecution whether he had been a witness in the suit of Davies _v._
May. He answered, “Yes.” And he was then asked, “Did you read a report
of the observations which the presiding judge made on your evidence?”
He again said, “Yes.” And then the counsel stopped. I presume the
circumstances of the trial were well known, and the counsel thought he
had done enough. The defendant, the witness, expressed a desire to
make a statement. The magistrate told him he could not hear it.
Nevertheless the defendant persisted and made the statement, the
subject-matter of this action of slander.

On the proof of these facts Lord Coleridge reserved leave to the
defendant to move to enter judgment, if the court should be of opinion
that there was no evidence on behalf of the plaintiff which ought to
be left to the jury. It occurred to him, however, that it would be as
well to take the opinion of the jury, and they found that the
replication was true, viz., that the words were spoken, not as a
witness in the course of the inquiry, but maliciously for his own
purpose, that is, with intent to injure the plaintiff. Upon these
findings judgment was entered for the plaintiff, leave being again
reserved to enter judgment for the defendant, and the Court of Common
Pleas gave judgment for the defendant.

Now, if the findings of the jury had been founded upon evidence by
which they could have been supported, I might have had some hesitation
about the decision. But they were not; and we are asked to come to a
conclusion contrary to what has been established law for nearly three
centuries.

If there is anything as to which the authority is overwhelming it is
that a witness is privileged to the extent of what he says in course
of his examination. Neither is that privilege affected by the
relevancy or irrelevancy of what he says; for then he would be obliged
to judge of what is relevant or irrelevant, and questions might be,
and are, constantly asked which are not strictly relevant to the
issue. But that, beyond all question, this unqualified privilege
extends to a witness is established by a long series of cases, the
last of which is Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, after
which to contend to the contrary is hopeless. It was there expressly
decided that the evidence of a witness with reference to the inquiry
is privileged, notwithstanding it may be malicious; and to ask us to
decide to the contrary is to ask what is beyond our power. But I agree
that if in this case, beyond being spoken maliciously, the words had
not been spoken in the character of a witness or not while he was
giving evidence in the case, the result might have been different. For
I am very far from desiring to be considered as laying down as law
that what a witness states altogether out of the character and sphere
of a witness, or what he may say dehors the matter in hand, is
necessarily protected. I quite agree that what he says before he
enters or after he has left the witness-box is not privileged, which
was the question in the case before Lord Ellenborough. Trotman _v._
Dunn, 4 Camp. 211. Or if a man when in the witness-box were to take
advantage of his position to utter something having no reference to
the cause or matter of inquiry in order to assail the character of
another, as if he were asked, “Were you at York on a certain day?” and
he were to answer, “Yes, and A. B. picked my pocket there;” it
certainly might well be said in such a case that the statement was
altogether dehors the character of witness, and not within the
privilege.

If, therefore, the findings of the jury, that the defendant had ceased
to be a witness when he spoke the words, were justified by the
evidence, I should hesitate before I decided in his favor. But I think
the defendant was entitled to judgment on the first reservation. There
was no evidence to go to the jury upon the plaintiff’s case. What the
defendant said was said in his character of witness; for there can be
no doubt that the words were spoken in consequence of the question put
to him by counsel for the prosecution, the object and effect of the
cross-examination having been to damage his credibility as a witness
before the magistrate, and of this the witness was conscious. The
counsel, having put the question, stops; and if there had been counsel
present for the prisoner who had re-examined the witness, he would
have put the proper questions to rehabilitate him to the degree of
credit to which he was entitled. That such questions would have been
relevant I cannot bring myself for a moment to doubt, relating as they
do to the credibility of the witness, which is part of the matter of
which the magistrate has to take cognizance. That being so, the
witness himself, who is sworn to speak the whole truth, is properly
entitled, not only with a view to his own vindication, but in the
interest of justice, to make such an observation in explanation of his
former answer as is just and fair under the circumstances. That is
what the defendant did. The sitting magistrate having allowed the
disparaging question to be put and answered, ought not to have
interfered to prevent the defendant from giving an explanation. I
think the statement, coming immediately after the damaging question
had been put to him, must be taken to be part of his testimony
touching the matter in question, as it affects his credibility as a
witness in the matter as to which he was called. It was given as part
of his evidence before he had become divested of his character of
witness; and but for the question of the opposite counsel he never
would have made the statement at all.

As to the finding of malice, it is true that what the defendant said
might possibly have the effect of damaging the plaintiff’s character;
but can any one suppose that the defendant had this in his mind when
he spoke, or that he intended to injure the plaintiff? He thought only
of his own credit as a witness, which had been attacked. He spoke, on
the impulse of the moment, no doubt very foolishly; and it was
probably his foolish persistence in maintaining the same attitude and
setting up his own opinion against the positive testimony of the other
witnesses that prejudiced the jury against him, and led them to return
the findings they did, founded, in reality, upon no evidence at all.
In my opinion, the Lord Chief Justice should have nonsuited the
plaintiff, which is the conclusion at which the Court of Common Pleas
ultimately arrived; for there really was no evidence that the
defendant was speaking otherwise than as a witness and relevantly to
the matters in issue, because relevantly to his own character and
credibility as a witness in the matter. That being so, even if express
malice could have been properly inferred from the circumstances, the
case of Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, conclusively
decides that malice has ceased to be an element in the consideration
of such cases, unless it can be shown that the statement was made not
in the course of giving evidence, and therefore not in the character
of a witness. A long series of authorities, from the time of Elizabeth
to the present time, has established that the privilege of a witness
while giving evidence is absolute and unqualified. Allardice _v._
Robertson, 1 Dow, N. S. 495, 515, was relied upon by Mr. Chambers.
That was the case of an action against a magistrate for words spoken
on the bench, and Lord Wynford expressly distinguishes the two cases,
and says that the privilege of a judge of the superior courts does not
apply to the judge of an inferior court; and that in the case of the
latter the privilege is not absolute and unqualified, and that a
“subordinate judge” would be liable to an action if malice were
proved. It does not, therefore, touch the present case; and as to a
witness speaking with reference to the subject-matter of the issue, it
is clear that the privilege is unqualified.

The judgment of the Common Pleas Division must, therefore, be
affirmed.

BRAMWELL, J. A. I am of the same opinion. The judgment of the Common
Pleas affirmed two propositions. First, that what the defendant said
was said as a witness, and was relevant to the inquiry before the
magistrate; secondly, that, that being so, the Lord Chief Justice
should have stopped the trial of the action by nonsuiting the
plaintiff.

As to the first proposition, I am by no means sure that the word
“relevant” is the best word that could be used; the phrases used by
the Lord Chief Baron and the Lord Chancellor in Dawkins _v._ Lord
Rokeby, Law Rep. 7 H. L., at p. 744, would seem preferable, “having
reference,” or “made with reference to the inquiry.” Now, were the
judges of the Common Pleas Division right in holding that this
statement of the defendant had reference to the inquiry? I think that
they were. There can be no doubt that the question put by the
cross-examining counsel ought not to have been allowed: “Have you read
what Sir James Hannen is reported to have said as to your evidence in
Davies _v._ May?” What Sir James Hannen had said in a former case was
not evidence. It was, therefore, an improper question, and the answer
to it, if untrue, would not have subjected the witness to an
indictment for perjury. But the question having been put, and the
answer having been in the affirmative—and the question being, as Lord
Coleridge observed, “ingeniously suggestive,” viz., that the way the
defendant had been dealt with on the former occasion did not redound
to his credit as a witness—the defendant insisted on making in
addition the statement complained of. He did so, in my opinion, very
foolishly. It would have been better to have been satisfied with
retaining his own opinion without setting it up in direct opposition
to the positive testimony of eye-witnesses. But he foolishly, as I
think, and coarsely exclaimed, “I believe that will to be a rank
forgery, and shall believe so to the day of my death.” Suppose after
he had said “yes,” he had added in a decent and becoming manner, “and
I am sorry Sir James Hannen said what he did, for I took great pains
to form my own opinion, and I shall always retain it, as I still think
it right.” Would not that have had reference to the inquiry before the
magistrate? And would it not have been reasonable and right that the
witness should have added that statement in justification of himself?
Surely, yes. Mr. Clarke said he was prepared to maintain that as long
as a witness spoke as a witness in the witness-box, he was protected,
whether the matter had reference to the inquiry or not. I am reluctant
to affirm so extreme a proposition. Suppose while the witness is in
the box, a man were to come in at the door, and the witness were to
exclaim, “That man picked my pocket.” I can hardly think that would be
privileged. I can scarcely think a witness would be protected for
anything he might say in the witness-box, wantonly and without
reference to the inquiry. I do not say he would not be protected. It
might be held that it was better that everything a witness said as a
witness should be protected, than that witnesses should be under the
impression that what they said in the witness-box might subject them
to an action. I certainly should pause before I affirmed so extreme a
proposition, but without affirming that, I think the words “having
reference to the inquiry” ought to have a very wide and comprehensive
application, and ought not to be limited to statements for which, if
not true, a witness might be indicted for perjury, or the exclusion of
which by the judge would give ground for a new trial; but ought to
extend to that which a witness might naturally and reasonably say when
giving evidence with reference to the inquiry as to which he had been
called as a witness. Taking that view, I think the first proposition
is established, that the statement of the defendant was made as
witness and had reference to the inquiry.

As to the second proposition, that, if the first be made out, no
inquiry can be gone into as to whether the statement was false or
malicious or as a volunteer, we are bound by authority. The case of
Dawkins _v._ Lord Rokeby, Law Rep. 7 H. L. 744, is directly in point,
and binding upon us even if we disliked the decision. Mr. Chambers has
not attempted to distinguish that case except on the ground that the
inquiry in that case was before a military court. But it is clearly
not distinguishable on that ground. The learned Lords determined that
what is true of a civil tribunal is true of a military court of
inquiry; and they affirmed most distinctly the proposition that if the
evidence has reference to the inquiry, the witness is absolutely
privileged. There is also the case in the Court of Error of Henderson
_v._ Broomhead, 4 H. & N. 569, which is precisely to the same effect,
and undistinguishable from the present case.

I am, therefore, of opinion that the judgment of the Common Pleas
Division was right, and must be affirmed.

_Judgment affirmed._[459]

WHITE _v._ CARROLL
COURT OF APPEALS, NEW YORK, MARCH 18, 1870.
_Reported in 42 New York Reports, 161._

SUTHERLAND, J.[460] On the trial of this action, before Mr. Justice
Potter and a jury at the circuit, it appeared, that in 1858 and 1859, a
proceeding was going on before the surrogate of Montgomery county in
which the contested point or question was the testamentary capacity of
one Jay Phillips; that the plaintiff and the defendant were both at the
time, and for some years previously had been, practising as physicians
at Amsterdam, Montgomery county, the plaintiff as a homœopathic
physician, and the defendant as an allopathic physician; that both had
been sworn as witnesses, and testified in the proceedings before the
surrogate, the defendant some time after the plaintiff; that on the
examination of the defendant as such witness, he was asked whether any
other physician was in attendance on Jay Phillips, at the time he was
attending him, and that he answered: “Not as I know of.” That he was
then asked: “Did not any physician attend him at the time he was at Mrs.
Moore’s, when you did not?” That to this question, the defendant
answered: “Not as I know of; I understand he had a quack, I would not
call him a physician; I understood that Dr. White, as he is called, had
been there.” That this evidence was reduced to writing by the surrogate,
and filed in the surrogates’ office; and thereupon this action was
brought, the complaint in which contains two counts, one for libel, or
for words written; and the other for slander, or for words spoken.

No point was made on the trial of the action, that the words alleged in
the complaint had not been proved to have been spoken by the defendant,
but a motion was made on his part to dismiss the complaint,
substantially upon the ground that the words spoken by the defendant
were not actionable, because they were spoken on his examination as a
witness, and were spoken as pertinent and responsive to the questions
asked him.

Justice Potter denied the motion to dismiss the complaint, and the
defendant excepted.

In submitting to the jury the question, “whether the defendant, at the
time he so testified and used the words in question, believed the words
so used by him were relevant or pertinent to the question then on
trial,” Justice Potter charged the jury as follows: “That if the jury
believed, from all the circumstances proved, from the questions put to
him, and from his manner of answering, and from the answers themselves,
that he testified in good faith, or in the belief that his answers were
pertinent and relevant, then the law protected him in what he said; it
was privileged, and their verdict should be for the defendant. That if,
on the contrary, they should believe from this evidence, that the
defendant, though testifying at the time as a witness, and as such
entitled to the protection of the law, in so using the words proved, was
actuated by malice; that he used the words for the mere purpose of
defaming the plaintiff, then the law withdrew the protection it would
otherwise have afforded him, and he became amenable to the consequences
of uttering the slander, or of publishing the libel.”

There is certainly some doubt whether the defendant’s exception which he
claims applies to this part of the charge, was sufficiently specific or
definite to raise the question as to its correctness; but I shall assume
that it was; and I shall also assume, in view of what I have said
preliminarily, as the counsel for the defendant assumed on the argument,
and assumes in his points, that the only material questions presented by
this appeal, are those presented by the two exceptions referred to.

Now, as to the first, it is perfectly clear, that the question, whether
the defendant was protected under the circumstances, was not a question
of law for the court, but was a question of fact for the jury. It was
really a question of conduct, of motive, of good faith and honest
purpose, or of bad faith and malicious purpose.

The question was, whether the defendant did, or did not, avail himself
of the occasion to maliciously answer the questions put to him as a
witness, in the way he did.

This question was most emphatically a question for the jury; and, I
think it was submitted to the jury as favorably for the defendant as he
had a right to expect or ask.

It is true, that in submitting it to the jury, Justice Potter assumed
that the defendant, when he answered the questions as he did, knew what
the question in the proceeding before the surrogate was; but Justice
Potter had a right to assume this under the circumstances.

I think the judgment should be affirmed, with costs.

All concur for affirmance.

_Judgment affirmed._[461]

RICE _v._ COOLIDGE
SUPREME JUDICIAL COURT, MASSACHUSETTS, DECEMBER 1, 1876.
_Reported in 121 Massachusetts Reports, 393._

MORTON, J. This is an action of tort. The principal question raised by
the demurrer is, whether the plaintiff’s declaration states any legal
cause of action. Each count alleges, in substance, that a proceeding for
a divorce was pending in the courts of the State of Iowa, between Joseph
S. Coolidge and Mary L. Coolidge, in which the latter alleged that the
said Joseph S. Coolidge had been guilty of adultery with the plaintiff;
that the defendants conspired together and with the said Mary L.
Coolidge to procure and suborn witnesses to falsely testify in support
of said charges of adultery; and that the defendants, in pursuance and
execution of said conspiracy, did procure and suborn certain witnesses
named, to testify in said divorce suit, and to falsely swear to criminal
sexual intercourse between the plaintiff and said Joseph S. Coolidge,
and between the plaintiff and other persons, and to various other acts
and things which, if believed, would tend to bring disgrace and infamy
upon the plaintiff.

Three of the counts also allege that the defendants, in pursuance and
execution of the conspiracy, published or caused to be published a
printed pamphlet in which the false testimony of such witnesses was
repeated, and made the pretext for false and malicious charges upon the
plaintiff’s character and good name.

The gist of the plaintiff’s case is that the defendants have suborned
witnesses to falsely swear to defamatory statements concerning her, and
have done other connected acts in pursuance of a scheme or plan to
defame her. The alleged conspiracy or combination is not one of the
elements of the cause of action. That is not created by the conspiracy,
but by the wrongful acts done by the defendants to the injury of the
plaintiff. If the acts charged, when done by one alone, are not
actionable, they are not made actionable by being done by several in
pursuance of a conspiracy. Wellington _v._ Small, 3 Cush. 145; Parker
_v._ Huntington, 2 Gray, 124; Bowen _v._ Matheson, 14 Allen, 499.

The question is presented, therefore, whether the plaintiff can maintain
an action of tort, in the nature of the common-law action on the case,
against the defendants for suborning witnesses to falsely swear to
defamatory statements concerning the plaintiff in a suit in which
neither of the parties to this suit was a party.

It requires no argument to show that the acts charged as done by the
defendants, if proved, are a great wrong upon the plaintiff. It is a
general rule of the common law that a man shall have a remedy for every
injury. The plaintiff should have a remedy for the injury done to her by
the defendants, unless there are some other rules of law, or some
controlling considerations of public policy, which take the case out of
this rule.

The defendants contend that the witnesses who uttered the defamatory
statements are protected from an action, because they were statements
made in the course of judicial proceedings, and that therefore a person,
who procured and suborned them to make the statements, is not liable to
an action.

It seems to be settled by the English authorities that judges, counsel,
parties, and witnesses are absolutely exempted from liability to an
action for defamatory words published in the course of judicial
proceedings. Henderson _v._ Broomhead, 4 H. & N. 569; Revis _v._ Smith,
18 C. B. 126; Dawkins _v._ Rokeby, L. R. 8 Q. B. 255, and cases cited;
affirmed, L. R. 7 H. L. 744; Seaman _v._ Netherclift. The same doctrine
is generally held in the American courts, with the qualification, as to
parties, counsel, and witnesses, that, in order to be privileged, their
statements made in the course of an action must be pertinent and
material to the case. White _v._ Carroll, Smith _v._ Howard, 28 Iowa,
51; Barnes _v._ McCrate, 32 Maine, 442; Kidder _v._ Parkhurst, 3 Allen
393; Hoar _v._ Wood, 3 Met. 193. In the last-cited case, Chief Justice
Shaw says: “We take the rule to be well settled by the authorities, that
words spoken in the course of judicial proceedings, though they are such
as impute crime to another, and therefore, if spoken elsewhere, would
import malice and be actionable in themselves, are not actionable if
they are applicable and pertinent to the subject of inquiry.”

We assume, therefore, for the purposes of this case, that the plaintiff
cannot maintain an action against the witnesses in the suit in Iowa, for
their defamatory statements, though they were false. But it does not
follow that she may not maintain an action against those who, with
malice and intent to injure her, procured and suborned those witnesses
to testify falsely.

The reasons why the testimony of witnesses is privileged are that it is
given upon compulsion and not voluntarily, and that, in order to promote
the most thorough investigation in courts of justice, public policy
requires that witnesses shall not be restrained by the fear of being
vexed by actions at the instance of those who are dissatisfied with
their testimony.[462] But these reasons do not apply to a stranger to
the suit, who procures and suborns false witnesses, and the rule should
not be extended beyond those cases which are within its reasons.

The argument, that an accessory cannot be held civilly liable for an act
for which no remedy can be had against the principal, is not
satisfactory to our minds. The perjured witness and the one who suborns
him are joint tort-feasors, acting in conspiracy or combination to
injure the party defamed. The fact that one of them is protected from a
civil suit by a personal privilege does not exempt the other joint
tortfeasor from such suit. A similar argument was disregarded by the
court in Emery _v._ Hapgood, 7 Gray, 55, where it was held that the
defendant, who instigated and procured an officer to arrest the
plaintiff upon a void warrant, was liable to an action of tort therefor,
although the officer who served the warrant was protected from an
action, for reasons of public policy.

The defendants rely upon the cases of Bostwick _v._ Lewis, 2 Day, 447,
and Smith _v._ Lewis, 3 Johns. 157. But those cases turn upon a
principle which does not apply in the case at bar. The facts in those
cases were as follows: Lewis brought an action in Connecticut against
several defendants, in which he prevailed. Afterwards Bostwick, one of
the defendants in the original action, brought an action in Connecticut
against Lewis, for suborning a witness in that action; and Smith,
another of the defendants, brought a similar action in New York. It was
held in each case that the action could not be maintained, because, in
the language of Mr. Justice Kent, it was “an attempt to overhaul the
merits” of a former suit. The case of Dunlap _v._ Glidden, 31 Maine,
435, is to the same effect. Although the parties to a former action
cannot retry its merits, while a judgment therein is in force and
unreversed, yet any person who was not a party to the action, or in
privity with a party, may in a collateral action impeach the judgment
and overhaul the merits of the former action. Those cases, therefore,
are not decisive of the case at bar.[463]

The defendants argue that an action of this nature ought not to be
maintained, because the plaintiff therein might, by the testimony of a
single witness, prove that a witness in another action had committed
perjury. The rule of law, that a man cannot be convicted of perjury upon
the unaided testimony of one witness, is a rule applicable only to
criminal proceedings. The argument may go to show that the rule ought to
be extended to civil cases in which perjury is charged against a
witness, but it does not furnish a satisfactory reason why a plaintiff
should be altogether deprived of a remedy for an injury inflicted upon
him.

It is also urged, as an argument against the maintenance of this action,
that it is a novelty. The fact that an action is without a precedent
would call upon the court to consider with care the question whether it
is justified by correct principles of law; but if this is found, it is
without weight. In answer to the same argument, Lord Chief Justice
Willes said: “A special action on the case was introduced for this
reason, that the law will never suffer an injury and a damage without a
remedy, but there must be new facts, in every special action on the
case.” Winsmore _v._ Greenbank, Willes, 577.

Upon a careful consideration of the case, we are of opinion that there
are no rules of law and no reasons of public policy which deprive the
plaintiff of her remedy for the wrong done her by the defendants by
suborning witnesses to defame her character.[464]

_Demurrer overruled._

RYALLS _v._ LEADER
IN THE EXCHEQUER, MAY 26, 1866.
_Reported in Law Reports, 1 Exchequer, 296._

Declaration on a libel published of the plaintiff by the defendants, in
a newspaper called the “Sheffield and Rotherham Independent.”

Plea. Not guilty. Issue thereon.

The libel complained of was contained in a report of an examination of a
debtor in custody, held in York Castle, before the registrar of the
Leeds Bankruptcy Court, pursuant to the provisions of the Bankruptcy
Act, 1861 (24 & 25 Vict. c. 134), ss. 101, 102; and it conveyed an
imputation on the solvency of the plaintiff, who had been the debtor’s
partner. The cause was tried at the last Leeds spring assizes before
Keating, J., when, the publication of the defamatory matter having been
proved, the learned judge told the jury that “the libel was a privileged
communication, and that the defendants were entitled to the verdict if
the jury thought that the libel was a fair report of the proceedings
before the registrar of the Court of Bankruptcy, and published without
malice.” The report contained no original comment on what passed. The
jury found a verdict for the defendants.

In Easter Term last, a rule nisi was obtained for a new trial.[465]

POLLOCK, C. B. I am of opinion that my Brother Keating was right in his
ruling. The complaint here made is that certain proceedings held by a
registrar in bankruptcy in York Castle, and published by the defendant,
were libellous on the plaintiff. The defence is, that the alleged libel
was contained in a fair, correct, and _bona fide_ report of what took
place; and if these proceedings were in a public court, and the
publication was fair, there is no foundation for this action.[466] The
only question then is, whether the registrar’s court was under the
circumstances a public court. I think that it was. We ought, in my
opinion, to make as wide as possible the right of the public to know
what takes place in any court of justice, and to protect a fair _bona
fide_ statement of proceedings there. The jury found that the
publication of this report was _bona fide_, and the verdict, therefore,
ought not to be set aside.

BRAMWELL, B. I am of the same opinion. I think that this court was a
public court. That is shown from the terms of ss. 101 and 102. And even
if it were not so, yet if the officer who holds it chooses to make it
public, it would be public for this purpose. Then as to the point made,
that nothing ought to be published affecting a third party, even when
relevant to the inquiry, I think there is no such restriction. Those who
are present hear all the evidence, relevant or irrelevant, and those who
are absent, may, as far as I can see, have all that is said reported to
them. The doctrine contended for is an entire novelty, because, if
sound, every witness might bring an action against the newspaper
publisher reporting his evidence, and call upon that publisher to prove
all the libellous statements which might be contained in his examination
or cross-examination. I do not think that there is any such
qualification as that suggested, nor do I concur in the other suggestion
made to us, viz., that what is _irrelevant_ and libellous on a third
person is not protected. There are cases where an individual must suffer
for the public good, and it is difficult to draw the line between
relevancy and irrelevancy. My opinion is, that when once you establish
that a court is a public court, a fair _bona fide_ report of all that
passes there may be published. Possibly this privilege is applied to
courts of justice, because needless scandals are usually avoided in
them. I am therefore of opinion that this rule should be discharged.

_Rule discharged._

USILL _v._ HALES
IN THE COMMON PLEAS DIVISION, JANUARY 30, 1878.
_Reported in 3 Common Pleas Division, 319._

LORD COLERIDGE, C. J.[467] I am of opinion that this rule must be
discharged.

This was an action against the proprietor of a newspaper for publishing
a _bona fide_ and fair report of proceedings before a magistrate. Three
persons, surveyors, who had been employed by a civil engineer to assist
in the construction of a railway in Ireland, hearing that their employer
had been paid, and conceiving that the money due to them had been
improperly withheld by him, went before a police magistrate in London,
and (I must take it for the purpose of my judgment, and do so take it)
applied to him for a summons or order under the Masters and Workman’s
Act. In the result, the magistrate thought that the facts stated by the
complainants showed no ground for a summons against the plaintiff under
the Act; and therefore in the result it turned out that, in a certain
sense, an application had been made to the magistrate with regard to a
matter as to which he had no jurisdiction. I say in a certain sense: but
it has been long held, and I think most properly held, that it is not
the result but the nature of the application made to the magistrate
which founds his jurisdiction: and that, wherever an application is made
to a magistrate as to a matter over which, supposing the facts to bear
out the statement, he has jurisdiction, he then has jurisdiction to
ascertain whether the facts make out a case for the exercise of that
jurisdiction which, if the facts make out the case, undoubtedly he has.

It has been laid down again and again in broad terms that the
publication of the proceedings in courts of justice is privileged if the
report of such proceedings be fair and honest; and this is so found to
be. An attempt however has been made (and Mr. Shortt will allow me to
say that, if it were possible to have succeeded, I think his argument
would have succeeded, because he has said everything that could be said,
and has said it well) to distinguish this case and take it out of the
general proposition, by bringing it within an undoubted qualification
which has been grafted upon that general proposition, viz., that the
application to the magistrate here was what may be called an _ex parte_
or a preliminary proceeding. Now, there is no doubt that, in many cases
to which Mr. Shortt has referred, the term “_ex parte_ proceeding” has
been over and over again used by judges of great eminence, sometimes
affirmatively to say that an _ex parte_ proceeding is not privileged,
and sometimes negatively to say, this, being a proceeding not _ex
parte_, is privileged; and I do not doubt for my own part that, if this
argument had been addressed to a court some sixty or seventy years ago,
it might have met with a different result from that which it is about to
meet with to-day. Speaking frankly,—and it is useless, if a case has
made a certain impression upon your mind after you have done the best
you can to understand it, to say it has not made that impression,—it
seems to me quite plain that in such cases as Rex _v._ Fleet, 1 B. & A.
379, judgments of great judges do lay down the rule that an _ex parte_
or preliminary proceeding is not privileged on the ground, good or bad,
that it is very hard upon an individual to have a matter stated against
him behind his back which he has no means of answering; and that
oftentimes an accused person will come to trial, if he be tried, with a
heavy weight of prejudice; where the case against him has been reported
in the public newspapers, and his own answer, if he has one, from the
necessities of the case has not been similarly made known. No doubt
there are very strong observations in those cases adopted in Duncan _v._
Thwaites, 3 B. & C. 556, which go very far to maintain that proposition.
There is also a _dictum_ of one of the greatest authorities in our law,
Lord Eldon, than whom few greater lawyers have ever sat in Westminster
Hall, who is reported, by Mr. Starkie, Starkie on Libel, 4th ed., p. 191
(9), to have once observed that he recollected the time when it would
have been matter of surprise to every lawyer in Westminster Hall to
learn that the publication of _ex parte_ proceedings was legal.

But we are not now living, so to say, within the shadow of those cases:
and it is idle to deny that there are cases since that time, in which
the decisions I have just now referred to have been brought to the
attention of the learned judges, where the courts have been pressed with
the authority of those decisions, and have come to conclusions which it
is not for me to say are inconsistent, but which I am perfectly unable
to reconcile with those earlier cases; and I find what I think is
excellent good sense in the judgment of the Court of Queen’s Bench in
the case of Wason _v._ Walter, which explains how that is. It is a
passage which one of the learned counsel read to us, and it is a passage
which upon the whole I should desire to adopt and adhere to: “Whatever
disadvantages attach to a system of unwritten law,—and of this we are
fully sensible,—it has at least this advantage, that its elasticity
enables those who administer it to adapt it to the varying conditions of
society and to the requirements and habits of the age in which we live,
so as to avoid the inconveniences and injustice which arise where the
law is no longer in harmony with the wants and usages and interests of
the generation to which it is immediately applied. Our law of libel has
in many respects only gradually developed itself into anything like
satisfactory and settled form. The full liberty of public writers to
comment on the conduct and motives of public men has only in very recent
times been recognized.” And then the passage goes on,—“Even in quite
recent days judges, in holding the publication of the proceedings of
courts of justice lawful, have thought it necessary to distinguish what
we call _ex parte_ proceedings as a probable exception from the
operation of the rule. Yet _ex parte_ proceedings before magistrates,
and even before this court, as, for instance, on applications for
criminal informations, are published every day; but such a thing as an
action or indictment founded on a report of such an _ex parte_
proceeding is unheard of; and, if any such action or indictment should
be brought, it would probably be held that the true criterion of the
privilege is not whether the report was or was not _ex parte_, but
whether it was a fair and honest report of what had taken place,
published simply with a view to the honest publication, and innocent of
all intention to do injury to the reputation of the party affected.”
Now, to the general line of argument in that passage, and to the
accuracy of the statement in the last sentence I have read, I entirely
adhere; and it is familiar that not only are unimportant cases and _ex
parte_ proceedings published, but a particular class of inquiries which
in some of the earlier cases I find actually by name excluded from the
privilege,—I mean inquiries before a coroner,—are in cases which may be
supposed to interest the public reported in all the newspapers in the
kingdom; and yet no one ever heard, at least since I have known
Westminster Hall, of an action being brought by a person injuriously
affected by such publication, where the report is honest and _bona
fide_, and published without intention to injure. That, therefore, seems
to introduce this element into the determination of these cases, that
there is a certain elasticity in the rules which apply to questions of
privilege (development is perhaps the more correct expression), and that
the courts have from time to time applied as best they may what they
think is the good sense of the rules which exist to cases which have not
been positively decided to come within them. If there had been a case
directly in point in which a proceeding such as this, where the matter
was at an end, and where the publication had been found by the jury to
have been _bona fide_, honest, and fair, had been held by a court of
co-ordinate jurisdiction not to be privileged, I do not hesitate to say
for my own part that I should have gladly acted upon it, because I do
not disguise that my own judgment is not at all satisfied with the
enormous advantage to the public of having every small personal matter
reported day by day, often to the extreme pain and injury of
individuals, which is supposed to form its justification. Nevertheless,
I feel it to be the duty of a judge not to declare what he considers the
law ought to be, but to decide according to what to the best of his
judgment he finds it is: and, if he finds a principle laid down upon
competent authority, it is far better to accept and apply it broadly and
honestly, even if he is not in his own mind satisfied with the
foundation of the rule, than to attempt to fritter it away in its
application to cases which manifestly come within it.

I come therefore to the consideration of this case feeling that the
general tendency of the law has been to hold such a publication as this
to be within the protection of the privilege. Now, I do find one case
which to the best of my judgment appears to cover this case, and from
which I am unable, according to the principle laid down in it, to
distinguish the case now before us. It is a case to which much reference
has been made, and which Mr. Shortt has dealt with at considerable
length, viz., Lewis _v._ Levy; and it has no doubt a most important
bearing upon this question. I do not propose to read the elaborate
judgment delivered by Lord Campbell in that case: it is well summed up
in these words: “The rule, that the publication of a fair and correct
report of proceedings taking place in a public court of justice is
privileged, extends to proceedings taking place publicly before a
magistrate on the preliminary investigation of a criminal charge
terminating in the discharge by the magistrate of the party charged.” I
am perfectly aware that there may be subtle distinctions,—distinctions
which I will not say are merely shadowy, but which are subtle,—between
the facts of that case and those of the case now before us: but I cannot
disguise from myself that the _ratio decidendi_ and the argument by
which the court was there led to hold such proceedings to be privileged,
do in effect cover this case. I am of opinion that this is a case in
which there was a judicial proceeding terminating, not in the discharge
of the party accused, because there was no such person before the
magistrate, but terminating in a refusal to proceed with the charge and
to set the criminal process in motion. I am unable to distinguish the
principle of Lewis _v._ Levy from that involved in the present case; and
I adopt what is said there of the old,—and I may say great case, because
it was decided by judges of high authority,—of Curry _v._ Walter, so far
back as the year 1796. That case is adopted by the Court of Queen’s
Bench in a written judgment in the year 1858, as a ground of their
decision; and, whatever may have been said about it in some of the
intermediate cases, and the doubts that have been thrown upon it by some
eminent judges, it must I think be considered to be completely
rehabilitated by the judgment of the Court of Queen’s Bench in Lewis
_v._ Levy, E. B. & E. 537. I am content, therefore, to rest my judgment
in this case upon the principles laid down in Curry _v._ Walter, 1 B. &
P. 525, and deliberately reaffirmed in Lewis _v._ Levy, E. B. & E., at
p. 559, and to say that, upon the principles there laid down, I am of
opinion that this rule must be discharged.

_Rule discharged._[468]

WASON _v._ WALKER
IN THE QUEEN’S BENCH, NOVEMBER 25, 1868.
_Reported in Law Reports, 4 Queen’s Bench, 73._

The judgment of the court was delivered by

COCKBURN, C. J.[469] This case was argued a few days since before my
Brothers LUSH, HANNEN, and HAYES, and myself, and we took time, not to
consider what our judgment should be, for as to that our minds were made
up at the close of the argument, but because, owing to the importance
and novelty of the point involved, we thought it desirable that our
judgment should be reduced to writing before it was delivered.

The main question for our decision is, whether a faithful report in a
public newspaper of a debate in either house of parliament, containing
matter disparaging to the character of an individual, as having been
spoken in the course of the debate, is actionable at the suit of the
party whose character has thus been called in question. We are of
opinion that it is not.

Important as the question is, it comes now for the first time before a
court of law for decision. Numerous as are the instances in which the
conduct and character of individuals have been called in question in
parliament during the many years that parliamentary debates have been
reported in the public journals, this is the first instance in which an
action of libel founded on a report of a parliamentary debate has come
before a court of law. There is, therefore, a total absence of direct
authority to guide us. There are, indeed, _dicta_ of learned judges
having reference to the point in question, but they are conflicting and
inconclusive, and, having been unnecessary to the decision of the cases
in which they were pronounced, may be said to be extrajudicial.

* * * * *

The case of Stockdale _v._ Hansard, 9 Ad. & E. 1, which was much pressed
upon us by the counsel for the defendant, is ... beside the question. In
that case a report from the inspectors of prisons relative to the jail
of Newgate, in which a work published by the plaintiff, a bookseller,
and which had been permitted to be introduced into the prison, had been
described as “of a most disgusting nature,” and as containing, “plates
obscene and indecent in the extreme,” had been presented to the House in
conformity with the Act of 5 & 6 Wm. 4, c. 38. In another report, being
a reply to a report of the court of aldermen on the same subject, the
inspectors had reiterated their charges as to the character of the book,
adding that it had been described by medical booksellers, to whom they
(the inspectors) had applied for information as to its character, as
“one of Stockdale’s obscene books.” These papers the House had ordered
to be printed, not only for the use of members, but also, in conformity
with a modern practice, for public sale, the proceeds to be applied to
the general expenses of printing by the House. An action of libel having
been brought by Stockdale against the defendants, the printers of the
House of Commons, for publishing these papers, the defence as raised by
the plea which this court had to consider was, first, that the papers in
question had been published by order of the House of Commons; secondly,
that the House having resolved (as it had done with a view to such an
action) that the power of publishing such of its reports, votes, and
proceedings, as it should deem necessary, was an essential incident to
the functions of parliament, the question became one of privilege, as to
which the decision of the House was conclusive, and could not be
questioned in a court of law.

From the doctrines involved in this defence, namely, that the House of
Commons could by their order authorize the violation of private rights,
and, by declaring the power thus exercised to be matter of privilege,
preclude a court of law from inquiring into the existence of the
privilege,—doctrines which would have placed the rights and liberties of
the subject at the mercy of a single branch of the Legislature,—Lord
Denman and his colleagues, in a series of masterly judgments which will
secure to the judges who pronounced them admiration and reverence so
long as the law of England and a regard for the rights and liberties of
the subject shall endure, vindicated at once the majesty of the law and
the rights which it is the purpose of the law to uphold.

To the decision of this court in that memorable case we give our
unhesitating and unqualified adhesion. But the decision in that case has
no application to the present. The position, that an order of the House
of Commons cannot render lawful that which is contrary to law, still
less that a resolution of the House can supersede the jurisdiction of a
court of law by clothing an unwarranted exercise of power with the garb
of privilege, can have no application where the question is, not whether
the act complained of, being unlawful at law, is rendered lawful by the
order of the House or protected by the assertion of its privilege, but
whether it is, independently of such order or assertion of privilege, in
itself privileged and lawful.

Decided cases thus leaving us without authority on which to proceed in
the present instance, we must have recourse to principle in order to
arrive at a solution of the question before us, and fortunately we have
not far to seek before we find principles in our opinion applicable to
the case, and which will afford a safe and sure foundation for our
judgment.

It is now well established that faithful and fair reports of the
proceedings of courts of justice, though the character of individuals
may incidentally suffer, are privileged, and that for the publication of
such reports the publishers are neither criminally nor civilly
responsible.

The immunity thus afforded in respect of the publication of the
proceedings of courts of justice rests upon a twofold ground. In the
English law of libel, malice is said to be the gist of an action for
defamation. And though it is true that by malice, as necessary to give a
cause of action in respect of a defamatory statement, legal, and not
actual malice, is meant, while by legal malice, as explained by Bayley,
J., in Bromage _v._ Prosser, is meant no more than the wrongful
intention which the law always presumes as accompanying a wrongful act
without any proof of malice in fact, yet the presumption of law may be
rebutted by the circumstances under which the defamatory matter has been
uttered or published, and, if this should be the case, though the
character of the party concerned may have suffered, no right of action
will arise. “The rule,” says Lord Campbell, C. J., in the case of Taylor
_v._ Hawkins, 16 Q. B., at p. 321, “is that, if the occasion be such as
repels the presumption of malice, the communication is privileged, and
the plaintiff must then, if he can, give evidence of malice.”

It is thus that in the case of reports of proceedings of courts of
justice, though individuals may occasionally suffer from them, yet, as
they are published without any reference to the individuals concerned,
but solely to afford information to the public and for the benefit of
society, the presumption of malice is rebutted, and such publications
are held to be privileged.

The other and the broader principle on which this exception to the
general law of libel is founded is, that the advantage to the community
from publicity being given to the proceedings of courts of justice is so
great, that the occasional inconvenience to individuals arising from it
must yield to the general good. It is true that with a view to
distinguish the publication of proceedings in parliament from that of
proceedings of courts of justice, it has been said that the immunity
accorded to the reports of the proceedings of courts of justice is
grounded on the fact of the courts being open to the public, while the
houses of parliament are not; as also that by the publication of the
proceeding of the courts the people obtain a knowledge of the law by
which their dealings and conduct are to be regulated. But in our opinion
the true ground is that given by Lawrence, J., in Rex _v._ Wright, 8 T.
R., at p. 298, namely, that “though the publication of such proceedings
may be to the disadvantage of the particular individual concerned, yet
it is of vast importance to the public that the proceedings of courts of
justice should be universally known. The general advantage to the
country in having these proceedings made public, more than
counterbalances the inconvenience to the private persons whose conduct
may be the subject of such proceedings.” In Davison _v._ Duncan, 7 E. &
B., at p. 231, Lord Campbell says: “A fair account of what takes place
in a court of justice is privileged. The reason is, that the balance of
public benefit from publicity is great. It is of great consequence that
the public should know what takes place in court; and the proceedings
are under the control of the judges. The inconvenience, therefore,
arising from the chance of injury to private character is
infinitesimally small as compared to the convenience of publicity.” And
Wightman, J., says: “The only foundation for the exception is the
superior benefit of the publicity of judicial proceedings which
counterbalances the injury to individuals, though that at times may be
great.”

Both the principles, on which the exemption from legal consequences is
thus extended to the publication of the proceedings of courts of
justice, appear to us to be applicable to the case before us. The
presumption of malice is negatived in the one case as in the other by
the fact that the publication has in view the instruction and advantage
of the public, and has no particular reference to the party concerned.
There is also in the one case as in the other a preponderance of general
good over partial and occasional evil. We entirely concur with Lawrence,
J., in Rex _v._ Wright, 8 T. R., at p. 298, that the same reasons which
apply to the reports of the proceedings in courts of justice apply also
to proceedings in parliament. It seems to us impossible to doubt that it
is of paramount public and national importance that the proceedings of
the houses of parliament shall be communicated to the public, who have
the deepest interest in knowing what passes within their walls, seeing
that on what is there said and done, the welfare of the community
depends. Where would be our confidence in the government of the country
or in the Legislature by which our laws are framed, and to whose charge
the great interests of the country are committed,—where would be our
attachment to the constitution under which we live,—if the proceedings
of the great council of the realm were shrouded in secrecy and concealed
from the knowledge of the nation? How could the communications between
the representatives of the people and their constituents, which are so
essential to the working of the representative system, be usefully
carried on, if the constituencies were kept in ignorance of what their
representatives are doing? What would become of the right of petitioning
on all measures pending in parliament, the undoubted right of the
subject, if the people are to be kept in ignorance of what is passing in
either house? Can any man bring himself to doubt that the publicity
given in modern times to what passes in parliament is essential to the
maintenance of the relations subsisting between the government, the
Legislature, and the country at large? It may, no doubt, be said that,
while it may be necessary as a matter of national interest that the
proceedings of parliament should in general be made public, yet that
debates in which the character of individuals is brought into question
ought to be suppressed. But to this, in addition to the difficulty in
which parties publishing parliamentary reports would be placed, if this
distinction were to be enforced and every debate had to be critically
scanned to see whether it contained defamatory matter, it may be further
answered that there is perhaps no subject in which the public have a
deeper interest than in all that relates to the conduct of public
servants of the state,—no subject of parliamentary discussion which more
requires to be made known than an inquiry relating to it. Of this no
better illustration could possibly be given than is afforded by the case
before us. A distinguished counsel, whose qualification for the judicial
bench had been abundantly tested by a long career of forensic eminence,
is promoted to a high judicial office, and the profession and the public
are satisfied that in a most important post the services of a most
competent and valuable public servant have been secured. An individual
comes forward and calls upon the House of Lords to take measures for
removing the judge, in all other respects so well qualified for his
office, by reason that on an important occasion he had exhibited so
total a disregard of truth as to render him unfit to fill an office for
which a sense of the solemn obligations of truth and honor is an
essential qualification. Can it be said that such a subject is not one
in which the public has a deep interest, and as to which it ought not to
be informed of what passes in debate? Lastly, what greater anomaly or
more flagrant injustice could present itself than that, while from a
sense of the importance of giving publicity to their proceedings, the
houses of parliament not only sanction the reporting of their debates,
but also take measures for giving facility to those who report them,
while every member of the educated portion of the community from the
highest to the lowest looks with eager interest to the debates of either
house, and considers it a part of the duty of the public journals to
furnish an account of what passes there, we were to hold that a party
publishing a parliamentary debate is to be held liable to legal
proceedings because the conduct of a particular individual may happen to
be called in question?

The learned counsel for the plaintiff scarcely ventured as of his own
assertion to deny that the benefit to the public from having the debates
in parliament published was as great as that which arose from the
publishing of the proceedings of courts of justice, but he relied on the
_dicta_ of Littledale, J., and Patteson, J., in Stockdale _v._ Hansard,
9 Ad. & E. 1, and on the opinions of certain noble and learned lords in
the course of debates in the House of Lords on bills introduced by Lord
Campbell for the purpose of amending the law of libel.[470] There is no
doubt that in delivering their opinions in Stockdale _v._ Hansard, the
two learned judges referred to denied the necessity and in effect the
public advantage of the proceedings in parliament being made public. The
counsel for the defendant in that case having insisted, as a reason why
the power to order papers to be printed and published should be
considered within the privileges of the House of Commons, on the
advantage which resulted from the proceedings of parliament being made
known, the two learned judges, not satisfied with demonstrating, as they
did, by conclusive arguments, that the House had not the power to order
papers of a libellous character and forming no part of the proceedings
of the House to be published, still less to conclude the legality of
such a proceeding by the assertion of privilege, thought it necessary to
follow the counsel into the question of policy and convenience, and in
so doing took what we cannot but think a very short-sighted view of the
subject. This is the more to be regretted, as their observations apply
not only to the printing of papers by order of the House, the only
question before them, but also to the publication of parliamentary
proceedings in general, the consideration of which was not before them,
and therefore was unnecessary. Lord Denman, in his admirable judgment,
than which a finer never was delivered within these walls, and in which
the spirit of Holt is combined with the luminous reasoning of a
Mansfield, while overthrowing by irresistible arguments the positions of
the Attorney-General, was content to answer the argument as to the
policy of allowing papers to be published by order of either of the
houses of parliament, not by denying the policy of giving power to the
House to order the printing and publishing of papers, but by saying that
such power must be provided for by legislation. On the subject of the
publication of parliamentary debates he said nothing, nor was he called
upon to say anything. That the Legislature did not concur with the two
judges in their view of the policy is manifest from the Act of 3 Vict.
c. 9, passed in consequence of the decision in Stockdale _v._ Hansard, 9
Ad. & E. 1, the preamble of which statute recites that “it is essential
to the due and effectual exercise and discharge of the functions and
duties of parliament and to the promotion of wise legislation that no
obstructions or impediments should exist to the publication of such of
the reports, papers, votes, or proceedings of either house of parliament
as such house of parliament may deem fit or necessary to be published.”
After which the Act proceeds to provide for the prevention of actions
being brought in respect of papers published by order of either house of
parliament.

As regards the attempt of Lord Campbell to fix the legality of the
publication of parliamentary debates on the sure foundation of statutory
enactment,[471] we think it may be as well accounted for by the
apprehension, as to the result of any proceeding at law in which the
legality of such publication should come in question, produced in his
mind by the language of the judges in Stockdale _v._ Hansard, as by any
conviction of the defectiveness of the law....

We, however, are glad to think that, on closer inquiry, the law turns
out not to be as on some occasions it has been assumed to be. To us it
seems clear that the principles on which the publication of reports of
the proceedings of courts of justice have been held to be privileged
apply to the reports of parliamentary proceedings. The analogy between
the two cases is in every respect complete. If the rule has never been
applied to the reports of parliamentary proceedings till now, we must
assume that it is only because the occasion has never before arisen. If
the principles which are the foundation of the privilege in the one case
are applicable to the other, we must not hesitate to apply them, more
especially when by so doing we avoid the glaring anomaly and injustice
to which we have before adverted. Whatever disadvantages attach to a
system of unwritten law, and of these we are fully sensible, it has at
least this advantage, that its elasticity enables those who administer
it to adapt it to the varying conditions of society, and to the
requirements and habits of the age in which we live, so as to avoid the
inconsistencies and injustice which arise when the law is no longer in
harmony with the wants and usages and interests of the generation to
which it is immediately applied. Our law of libel has, in many respects,
only gradually developed itself into anything like a satisfactory and
settled form. The full liberty of public writers to comment on the
conduct and motives of public men has only in very recent times been
recognized. Comments on government, on ministers and officers of state,
on members of both houses of parliament, on judges and other public
functionaries, are now made every day, which half a century ago would
have been the subject of actions or _ex officio_ informations, and would
have brought down fine and imprisonment on publishers and authors. Yet
who can doubt that the public are gainers by the change, and that,
though injustice may often be done, and though public men may often have
to smart under the keen sense of wrong inflicted by hostile criticism,
the nation profits by public opinion being thus freely brought to bear
on the discharge of public duties? Again, the recognition of the right
to publish the proceedings of courts of justice has been of modern
growth. Till a comparatively recent time the sanction of the judges was
thought necessary even for the publication of the decisions of the
courts upon points of law. Even in quite recent days, judges in holding
publication of the proceedings of courts of justice lawful, have thought
it necessary to distinguish what are called _ex parte_ proceedings as a
probable exception from the operation of the rule. Yet _ex parte_
proceedings before magistrates, and even before this court, as, for
instance, on applications for criminal informations, are published every
day, but such a thing as an action or indictment founded on a report of
such an _ex parte_ proceeding is unheard of, and, if any such action or
indictment should be brought, it would probably be held that the true
criterion of the privilege is, not whether the report was or was not _ex
parte_, but whether it was a fair and honest report of what had taken
place, published simply with a view to the information of the public,
and innocent of all intention to do injury to the reputation of the
party affected.

It is to be observed that the analogy between the case of reports of
proceedings of courts of justice and those of proceedings in parliament
being complete, all the limitations placed on the one to prevent
injustice to individuals will necessarily attach on the other: a garbled
or partial report, or of detached parts of proceedings, published with
intent to injure individuals, will equally be disentitled to protection.
Our judgment will in no way interfere with the decisions that the
publication of a single speech for the purpose or with the effect of
injuring an individual will be unlawful, as was held in the cases of Rex
_v._ Lord Abingdon, 1 Esp. 226, and Rex _v._ Creevey, 1 M. & S. 273. At
the same time it may be as well to observe that we are disposed to agree
with what was said in Davidson _v._ Duncan, 7 E. & B., at p. 233, as to
such a speech being privileged if _bona fide_ published by a member for
the information of his constituents. But whatever would deprive a report
of the proceedings in a court of justice of immunity will equally apply
to a report of proceedings in parliament.

It only remains to advert to an argument urged against the legality of
the publication of parliamentary proceedings, namely, that such
publication is illegal as being in contravention of the standing orders
of both houses of parliament. The fact, no doubt, is, that each house of
parliament does, by its standing orders, prohibit the publication of its
debates. But, practically, each house not only permits, but also
sanctions and encourages, the publication of its proceedings, and
actually gives every facility to those who report them. Individual
members correct their speeches for publication in Hansard or the public
journals, and in every debate reports of former speeches contained
therein are constantly referred to. Collectively, as well as
individually, the members of both houses would deplore as a national
misfortune the withholding their debates from the country at large.
Practically speaking, therefore, it is idle to say that the publication
of parliamentary proceedings is prohibited by parliament. The standing
orders which prohibit it are obviously maintained only to give to each
house the control over the publication of its proceedings, and the power
of preventing or correcting any abuse of the facility afforded.
Independently of the orders of the houses, there is nothing unlawful in
publishing reports of parliamentary proceedings. Practically, such
publication is sanctioned by parliament; it is essential to the working
of our parliamentary system, and to the welfare of the nation. Any
argument founded on its alleged illegality appears to us, therefore,
entirely to fail. Should either house of parliament ever be so
ill-advised as to prevent its proceedings from being made known to the
country—which certainly never will be the case—any publication of its
debates made in contravention of its orders would be a matter between
the house and the publisher. For the present purpose, we must treat such
publication as in every respect lawful, and hold that, while honestly
and faithfully carried on, those who publish them will be free from
legal responsibility, though the character of individuals may
incidentally be injuriously affected.

So much for the great question involved in this case. We pass on to the
second branch of this rule, which has reference to alleged misdirection
in respect of the second count of the declaration, which is founded on
the article in the “Times” commenting on the debate in the House of
Lords, and the conduct of the plaintiff in preferring the petition which
gave rise to it. We are of opinion that the direction given to the jury
was perfectly correct. The publication of the debate having been
justifiable, the jury were properly told the subject was, for the
reasons we have already adverted to, pre-eminently one of public
interest, and therefore one on which public comment and observation
might properly be made, and that consequently the occasion was
privileged in the absence of malice. As to the latter, the jury were
told that they must be satisfied that the article was an honest and fair
comment on the facts,—in other words, that, in the first place, they
must be satisfied that the comments had been made with an honest belief
in their justice, but that this was not enough, inasmuch as such belief
might originate in the blindness of party zeal, or in personal or
political aversion; that a person taking upon himself publicly to
criticise and to condemn the conduct or motives of another, must bring
to the task, not only an honest sense of justice, but also a reasonable
degree of judgment and moderation, so that the result may be what a jury
shall deem, under the circumstances of the case, a fair and legitimate
criticism on the conduct and motives of the party who is the object of
censure.

Considering the direction thus given to have been perfectly correct, we
are of opinion that in respect of the alleged misdirection as also on
the former point, the ruling at _nisi prius_ was right, and that
consequently this rule must be discharged.

_Rule discharged._[472]

PURCELL _v._ SOWLER
IN THE COURT OF APPEAL, FEBRUARY 3, 1877.
_Reported in 2 Common Pleas Division Reports, 215._

Action for libel.

The libel was contained in a report, published in a Manchester
newspaper, by the defendants, the proprietors, of the proceedings at a
meeting of the board of guardians for the Altrincham poor-law union, at
which _ex parte_ charges were made against the plaintiff, the medical
officer of the union workhouse at Knutsford, of neglect in not attending
the pauper patients when sent for.

At the trial it appeared that the charges were unfounded in fact, but it
was admitted that the report was accurate and _bona fide_. A verdict was
taken by consent for the plaintiff, with nominal damages and costs,
judgment to be entered accordingly, with leave to move to enter judgment
for the defendants, if the court should be of opinion that the
publication was privileged.

The Common Pleas Division refused the motion, ordering judgment to stand
for the plaintiff. 1 C. P. D. 781.

The libel, &c., are set out at length in the report in the court below.

The defendants appealed.

MELLISH, L. J.[473] I am of the same opinion. We are asked to extend the
law of privilege as to the report of proceedings of a public body to an
extent beyond what it has as yet been carried. In Lord Campbell’s time
it was supposed that the privilege only extended to the proceedings in a
court of law. A report of such proceedings has always been held
privileged, because all her Majesty’s subjects have a right to be
present, and there would, therefore, be nothing wrong in putting the
rest of the public in the position of those who were actually present.
The privilege has been extended to the publication of debates in
parliament, and properly extended, as they stand on the same principle
as the proceedings in courts of law. There is no doubt this distinction:
that as to courts of law the public have a right to be present, but they
are only admitted to the debates in either House of Parliament when the
House chooses to permit them to be present. The House has a discretion,
but when the debates are held in public, it is clear that a newspaper
ought not to be held to commit an offence by putting those who were not
present in the same position as those who were. It is argued that this
privilege ought to be extended as to a variety of other public bodies. I
express no decided opinion, and I desire, with the Lord Chief Justice,
to be understood as expressing no opinion; but at the same time I am
clearly of opinion that the privilege ought not to be extended to such a
case as the present. A board of guardians have a discretion whether or
not they will admit the public to their meetings; and whether they
choose to exclude or choose to admit, the public have no right to
complain. But I cannot think that the courts of law are to be bound by
the mode in which the guardians exercise their discretion in admitting
or excluding strangers. Although they admit the public on an occasion
when _ex parte_ charges are made against a public officer, which may
affect his character and injure his private rights, it is most material
that there should be no further publication; there is no reason why the
charges should be made public before the person charged has been told of
the charges, and has had an opportunity of meeting them; and I cannot
see any inconvenience in holding that the publication is not privileged;
in holding otherwise we should be depriving the individual of his rights
without any commensurate advantage. The law on the subject of privilege
is clearly defined by the authorities. Such a communication as the
present ought to be confined in the first instance to those whose duty
it is to investigate the charges. If one of the guardians had met a
person not a ratepayer or parishioner, and had told him the charge
against the plaintiff, surely he would have been liable to an action of
slander. I do not mean to say that the matter was not of such public
interest as that comments would not be privileged if the facts had been
ascertained. If the neglect charged against the plaintiff had been
proved, then fair comments on his conduct might have been justified. But
that is a very different thing from publishing _ex parte_ statements,
which not only are not proved, but turn out to be unfounded in fact. I
am, therefore, clearly of opinion that the occasion of the publication
was not privileged, and that the judgment for the plaintiff ought to be
affirmed.

_Judgment affirmed._[474]

BARROWS _v._ BELL
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER, 1856.
_Reported in 7 Gray, 301._

SHAW, C. J.[475] The present is an action of tort, brought to recover
damage for a publication alleged to be a libel upon the plaintiff,
consisting of an article published in the Boston Medical and Surgical
Journal, under the direction of the defendant.

The article alleged to be libellous is headed, “The suits against the
Massachusetts Medical Society,” and it proceeds to give a brief account
of the proceedings of the medical society, which resulted in the
expulsion of the plaintiff from his membership, for misconduct.

Whatever may be the rule as adopted and practised on in England, we
think that a somewhat larger liberty may be claimed in this country and
in this Commonwealth, both for the proceedings before all public bodies,
and for the publication of those proceedings for the necessary
information of the people. So many municipal, parochial and other public
corporations, and so many large voluntary associations formed for almost
every lawful purpose of benevolence, business or interest, are
constantly holding meetings, in their nature public, and so usual is it
that their proceedings are published for general use and information,
that the law, to adapt itself to this necessary condition of society,
must of necessity admit of these public proceedings, and a just and
proper publication of them, as far as it can be done consistently with
private rights. This view of the law of libel in Massachusetts is
recognized, and to some extent sanctioned, by the case of Commonwealth
_v._ Clapp, 4 Mass. 163, and many other cases.

The Massachusetts Medical Society were not a private association; they
were a public corporation, chartered by one of the earliest Acts under
the Constitution, which was amended and their powers confirmed by
several subsequent Acts. Sts. 1781, c. 15; 1788, c. 49; 1802, c. 123;
1818, c. 113.

The charter invested the society, their members and licentiates, with
large powers and privileges, in regulating the important public interest
of the practice of medicine and surgery, enabled them to prescribe a
course of studies, to examine candidates in regard to their
qualifications for practice, and give letters testimonial to those who
might be found duly qualified. They were authorized to elect fellows,
and vested with power to suspend, expel or disfranchise any fellow or
member, and to make rules and by-laws for their government. No person
could be a member, but by his own act in accepting the appointment.

This society was regarded by these legislative Acts as a public
institution, by the action of which the public would be deeply affected
in one of its important public interests, the health of the people. The
plaintiff, by accepting his appointment as a fellow, voluntarily
submitted himself to the government and jurisdiction of the society in
his professional relations, so long as they acted within the scope of
their authority.

The _status_ or condition of being a member of this society was one of a
permanent character and recognized by law—one in which each member has a
valuable interest; and that it was so regarded by the plaintiff is
manifest from his effort to obtain a restoration to it by a judgment of
this court, by a writ of mandamus.

We think it obvious that the subject-matter of the
complaint—dishonorable conduct, a fraudulent transaction between the
plaintiff and another member of the profession and of the same
society—was within the scope of the authority conferred by law on the
society; and that the direction of the court, that their action was
conclusive upon the plaintiff, was correct. As to the legal proceedings
set forth in the supposed libel, it was admitted by the plaintiff’s
counsel that the account there given of those proceedings was
substantially true.

If then this charge of dishonorable or fraudulent conduct by the
plaintiff, in his dealings with Dr. Carpenter, was within the
jurisdiction of the medical society, and proceedings were instituted and
carried on to their final determination in the expulsion of the
plaintiff from his fellowship, then the proceedings might be rightly
characterized, as in the case of Farnsworth _v._ Storrs, as _quasi_
judicial; and then the only remaining question of fact was, whether the
publication was a true and correct narrative of such proceedings and
determination. This question the judge did leave, or proposed to leave,
to the jury; with the direction, that if they should find upon the
evidence that that part of the publication was true, the defendant would
be entitled to a verdict. We are of opinion that this direction was
right. As the verdict was for the defendant, we are to assume that it
was found by them; or, if the verdict was taken by consent, it would
have been found under the instruction that the publication did present a
true and correct narrative of the proceedings before the society, and
their determination thereon.

The fact, that these proceedings were considered closed and finished,
takes away from this publication the objection, that it would have a
tendency to prejudice the public mind and prevent the party affected
from having a fair trial.

_Judgment on the verdict for the defendant_.[476]

MILISSICH _v._ LLOYD’S
IN THE COURT OF APPEAL, FEBRUARY 10, 1877.
_Reported in 13 Cox, Criminal Cases, 575._

MELLISH, L. J.[477] In this case the defendants have appealed from a
decision of the Common Pleas Division, ordering a new trial on the
ground that the verdict given for the plaintiff was against the weight
of evidence. They are not satisfied with that order, but they come
before us to have judgment entered for themselves. The question for us
is an important one, as to the power of the court to enter judgment
under the Judicature Acts. Now, although the Judicature Acts do
undoubtedly give very general powers to the court as to entering of
judgment, it is clearly not intended by the Legislature that the court
should take advantage of that general rule to remove questions from the
consideration of the jury which are questions of fact properly for their
consideration. The action was brought by the plaintiff against Lloyd’s
for an alleged libel published by Lloyd’s in a pamphlet. At the trial,
no doubt, the defence of privileged communication was raised and Lord
Coleridge expressed an opinion that Lloyd’s would not have the same
privilege as an ordinary newspaper; and he also expressed an opinion
that, inasmuch as only the speech of the prosecuting counsel and the
summing up of the judge, and not the speech of the counsel for the
defence, at the criminal trial, was published, the report could not be a
fair one of the trial. I cannot agree with either of these doubts. I
cannot think there is any difference between the privilege attaching to
a report in a newspaper or in a pamphlet, unless some question of malice
is raised. Of course, if actual malice is alleged, the fact that the
libel was published in a pamphlet and not in a newspaper might be very
material, but when no such allegation is made I cannot conceive there is
any difference. I also cannot agree that the mere fact that the
publisher did not publish the evidence in full, but only the summing up
of the judge and the speech of the prosecuting counsel, made the report
of the trial an unfair one. I think that proposition implies that
proceedings at trials cannot be reported at all unless they are reported
in full. It must, therefore, be sufficient to publish a fair abstract of
the evidence. Now, I do not know how the reporter could do better than
take the judge’s summing up to get that fair abstract, although I do
not, of course, lay down as a matter of law that the summing up of a
judge is necessarily a correct summary for the report. I think this
report may be fair or it may be unfair; but then, is it a question of
fact or law whether the report is fair or unfair? I think that it is a
question of fact, and should be left to the jury to determine. Then the
argument is that the evidence is all one way and that it is useless
sending the case down to a new trial because no jury could reasonably
find the other way. In my opinion, the court must be very cautious not
to take upon itself the functions of a jury. Notwithstanding the great
powers given by the Judicature Acts, it is still, of course, the
province of the jury to determine between the credibility of witnesses
on either side. Here, however, the question is more what is the
inference to be drawn from the facts proved in evidence. The general
inference to be drawn from all the facts, as in Lewis _v._ Levy, E. B. &
E. 537, is for the jury. There the whole proceedings before the
magistrates were put in evidence, in order to judge of the fairness of
the report. Here a full shorthand note is produced, and, being placed in
the hands of the jury, they are to draw the inference, and not the
court. Now, although I think that persons might draw very unfair
inferences against a man who, like the plaintiff, did not appear at the
trial himself and could not defend himself from the charges which were
made against him on both sides, still, if the report is a fair one of
what took place the defendants will be privileged. The question for the
jury will be at the new trial—was the report a fair one, and would it
give a fair notion to people who were not there of what took place? That
question is one for the jury, and I think the case should, therefore, be
sent for a new trial.

_Judgment below affirmed._[478]

BARNES _v._ CAMPBELL
SUPREME COURT, NEW HAMPSHIRE, JUNE, 1879.
_Reported in 59 New Hampshire Reports, 128._

Case, for libel in accusing the plaintiff of crime. Plea, the general
issue, with a brief statement alleging that the defendants are
conductors and publishers of a newspaper published at, &c., and as such
it was part of their duty to give to their readers such items of news as
they might properly judge to be of interest and value to the community,
and that, as such conductors and publishers, they published the article
complained of, in good faith, without malice, believing and having good
reason to believe the same to be true.

Motion by the plaintiff to reject the brief statement.

SMITH, J. Matter in justification must be pleaded. But according to some
decisions, matter in excuse may be given in evidence under the general
issue, or be pleaded. State _v._ Burnham, 9 N. H. 34, 43, and
authorities cited; Carpenter _v._ Bailey, 53 N. H. 590. In this view of
the case, it is, perhaps, immaterial whether or not the brief statement
is defective. But, treating the brief statement and the motion to reject
it as intended to raise the question whether the brief statement sets
forth a defence, we are of opinion that it does not. The defendants
probably intended to set out the excuse of a lawful occasion, good
faith, proper purpose, and belief and probable cause to believe that the
publication was true. They laid stress upon their business of publishing
a newspaper. But professional publishers of news are not exempt, as a
privileged class, from the consequences of damage done by their false
news. Their communications are not privileged merely because made in a
public journal. They have the same right to give information that others
have, and no more. Smart _v._ Blanchard, 42 N. H. 137, 151; Palmer _v._
Concord, 48 N. H. 211, 216; Sheckell _v._ Jackson, 10 Cush. 25. The
occasion of the defendants’ publishing a false charge of crime against
the plaintiff was not lawful, if the end to be attained was not to give
useful information to the community of a fact of which the community had
a right to be and ought to be informed, in order that they might act
upon such information. State _v._ Burnham, 9 N. H. 34, 41, 42; Palmer
_v._ Concord, 48 N. H. 211, 217; Carpenter _v._ Bailey, 53 N. H. 590; S.
C. 56 N. H. 283. The defendants do not state facts that would constitute
a lawful occasion. They make a loose averment of their general duty to
give their readers such news as they (the defendants) might properly
judge to be of interest and value to the community. This should be
struck out of the record as insufficient and misleading. It is, in
effect, an intimation that they published the libel in the usual course
of their business, and is calculated to give the jury the erroneous
impression that the defendants’ judgment of the propriety of the
publication is evidence of the lawfulness of the occasion. The
defendants’ general business of publishing interesting and valuable news
was not, of itself, a lawful occasion for publishing this particular,
false, and criminal charge against the plaintiff. It will be for the
jury to say what weight the defendants’ business has as evidence on the
question of malice. But however high the defendants’ vocation, and
however interesting and valuable the truth which they undertake to give
their readers, their ordinary and habitual calling is no excuse for
assailing the plaintiff’s character with this false charge of crime.
They must show specific facts constituting a lawful occasion in this
particular instance, as if this false charge had been the only thing
they ever published. They allege nothing of that kind. They do not state
that the community had any interest which would have been protected or
promoted by the publication complained of if it had been true, or had a
right to be or ought to be informed of the subject-matter of it in order
that they might act upon correct information of it, or that the
information given would have been practically useful to anybody if it
had been true. This is the substance of a lawful occasion. The brief
statement contains no specification on this point.

_Motion granted._[479]

LAWLESS _v._ THE ANGLO-EGYPTIAN COTTON CO.
IN THE QUEEN’S BENCH, FEBRUARY 11, 1869.
_Reported in Law Reports, 4 Queen’s Bench, 262._

Libel. The declaration charged that the defendants falsely and
maliciously published of the plaintiff, their manager, in a certain
report of the affairs of the company, these words: “The shareholders
will observe that there is a charge of £1,306 1_s._ 7_d._ for deficiency
of stock, which the manager is responsible for; his accounts as such
manager in the company have been badly kept, and have been rendered to
us very irregularly.”

Plea: Not guilty. Issue thereon.[480]

It was objected on behalf of the defendants that there was no evidence
of a publication of the libel, and that it was a privileged
communication. The Chief Baron overruled the objections, but reserved
leave to the defendants to move to enter a nonsuit on both points. The
plaintiff having proved his special damage, the jury found a verdict for
£500.

A rule having been obtained to enter a nonsuit pursuant to the leave
reserved,

_Holker_, Q. C., and _Gorst_, showed cause.

_Manisty_, Q. C. (_R. C. Fisher_ with him), in support of the rule.

MELLOR, J. I am of opinion that the rule should be made absolute to
enter a nonsuit. Had I been able to perceive that any substantial
injustice might have been done by not leaving any question to the jury,
I should have been disposed to send the case down for a new trial. But I
think there was no evidence of express malice which ought to have been
left to the jury.

As I understand the facts of the case, the plaintiff was employed as the
agent of the defendants in Egypt, and his transactions were necessarily
brought under the notice of the auditors, who are appointed by Act of
Parliament, or at all events by the articles of association of the
company, and who are fit persons to investigate the accounts of the
company. The auditors considered that a deficiency in the stock of the
company was owing in some sense to the plaintiff’s default, and they
expressed that opinion in their report. It seems they did this after
having received such explanations as Mr. Bell could offer, but it must
be observed that those explanations were offered to the auditors and not
to the directors. What the directors did was this, in their report to a
meeting of the shareholders they appended the statement which had been
made to them by the auditors. There is nothing whatever to show that the
directors had any reason to doubt the truth of that statement, and there
was no evidence of any act on their part from which malice could be
inferred, and therefore I think the Chief Baron was right in not putting
the question of malice to the jury. As to the question of intrinsic or
extrinsic evidence, the report was one which the directors were fully
warranted in believing was correct; and there is nothing to show that
the directors acted otherwise than _bona fide_ in communicating it to
the shareholders. No doubt the directors are to make their report to a
meeting of the shareholders, to be called for that purpose, and it is
clear that those who are absent are bound by the acts of those who are
present, but the absent shareholders are interested in the prosperity or
adversity of the company, and in knowing all the circumstances upon
which the welfare of the company depends. It seems to me, therefore,
that to print the report was a necessary and reasonable mode of
communicating it to all the shareholders, who must be more or less
numerous.

This case does not fall within the rule in Cooke _v._ Wildes, 5 E. & B.
328; 24 L. J. Q. B. 367. There the question of malice was properly left
to the jury, because the letter contained defamatory expressions which
were unnecessary; the defendant was not content with stating the facts
that he had heard, but he made a calumnious observation of his own and
put a gloss on the plaintiff’s conduct which was libellous. There was
therefore intrinsic evidence of malice, and that the defendant had not
acted _bona fide_, and these questions were properly left to the jury. I
think we are bound by the cases of Somerville _v._ Hawkins and Taylor
_v._ Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313. The principle there laid
down is, that where there is no evidence of malice the judge ought not
to leave any question to the jury. Here I think the conduct of the
directors negatives malice on their part, and it is clear that they
acted _bona fide_. I think we should be going against what I may call
progress, if we were to hold that the delivery of the manuscript of the
report to the printer, for the purpose of having it printed, is a
publication which prevents the communication from being privileged. I
also think that it was the duty of the directors to communicate the
report not only to the shareholders present at the meeting, but to all
the shareholders, and that they had an interest in receiving it. I am
glad that Mr. Holker called our attention to the American authority, for
it supports the judgment of the court. In Philadelphia, Wilmington, and
Baltimore Railroad Company _v._ Quigley, 21 Howard (Rep. Sup. Court, U.
S.), 202, it was held that it was within the course of business and
employment of the president and directors for them to investigate the
conduct of their officers and agents, and to report the result to the
stockholders. It was also held, in the absence of malice and bad faith,
that the report to the shareholders was privileged; therefore, to this
extent, that case appears to me to be an express authority. But,
independently of any authority, I am quite prepared to hold that a
company, having a great number of shareholders all interested in knowing
how their officers conduct themselves, are justified in making a
communication in a printed report, relating to the conduct of their
officers, to all the shareholders, whether present or absent, if the
communication be made without malice and _bona fide_. The communication
in this case is _prima facie_ privileged, and there being no evidence
intrinsic or extrinsic of malice, that question was very properly not
left to the jury. I think the conclusion at which the Chief Baron
arrived at _nisi prius_ without hearing any argument erroneous, and with
great deference to that eminent and learned judge, I am of opinion this
rule to enter a nonsuit should be made absolute.

_Rule absolute._[481]

PADMORE _v._ LAWRENCE
IN THE QUEEN’S BENCH, JANUARY 18, 1840.
_Reported in 11 Adolphus & Ellis, 380._

Case for slander. The words charged to have been spoken by the
defendant imputed that the plaintiff had stolen a brooch belonging to
the defendant’s wife; and they were said to have been uttered in a
discourse, &c., and in the hearing of one Jane Cole and divers, &c.

Pleas. 1. Not guilty. 2. A traverse of part of the inducement not
material here.

On the trial before Parke, B., at the Hampshire summer assizes, 1838,
it appeared that the plaintiff had called at the defendant’s house,
and that soon afterwards the brooch was missed; that defendant then
went to an inn, where the plaintiff was, and stated to her his
suspicions, in the presence of a third person; and that the plaintiff,
with her own concurrence, was afterwards searched by Jane Cole and
another female, who were called in for the purpose and to whom the
defendant at the time repeated the charge. The brooch was not found on
the plaintiff, but was afterwards discovered to have been left by the
defendant’s wife at another place. The defendant’s counsel first
applied for a nonsuit, which the learned judge refused. The
defendant’s counsel then, in his address to the jury, contended that
the words were spoken without malice, under circumstances which
privileged them. The learned judge told the jury that the verdict must
be for the plaintiff, if they thought that the words imputed felony,
for that it was clear they were not privileged. Verdict for the
plaintiff.

In Michaelmas term, 1838, Erle obtained a rule for a new trial, on the
ground of misdirection.

_Crowder_ and _Butt_ now showed cause.

_Erle_ and _Barstow_, contra.[482]

LORD DENMAN, C. J. The question ought to have gone to the jury,
whether this charge was made _bona fide_. Unless Toogood _v._ Spyring
is to be overruled, it is clear that the judge was not warranted in
withdrawing that question from their consideration.

LITTLEDALE, J. The jury were to say whether the defendant believed
that the brooch was stolen by the plaintiff, and for that reason
charged her with having stolen it, and whether his language was
stronger than necessary, or whether the charge was made before more
persons than was necessary. The law has been laid down so over and
over again.

COLERIDGE, J. For the sake of public justice, charges and
communications, which would otherwise be slanderous, are protected if
_bona fide_ made in the prosecution of an inquiry into a suspected
crime. Then had not the defendant a right to make out that case? The
facts were for the jury. It is argued that the charge ought to be
true, or ought to be made only before an officer of justice. But the
exigencies of society could never permit such a restriction. If I stop
a party suspected, must not I say why I do so? Supposing it
unjustifiable to search a person against his will, here the plaintiff
agreed to be searched. The presence of other parties would not do away
with the privilege. When the two females were desired to make the
search, were they not to be told for what they were to look? The
question was clearly for the jury.

_Rule absolute._[483]

CHILD _v._ AFFLECK
IN THE KING’S BENCH, MAY 13, 1829.
_Reported in 9 Barnewall & Cresswell, 403._

Case for a libel. Plea, the general issue. At the trial before Lord
Tenterden, C. J., at the Westminster sittings after Hilary term, it
appeared in evidence that the plaintiff had been in the service of the
defendants, Mrs. Affleck having before she hired her made inquiries of
two persons, who gave her a good character. The plaintiff remained in
that service a few months, and was afterwards hired by another person,
who wrote to Mrs. Affleck for her character, and received the following
answer, which was the alleged libel: “Mrs. A.’s compliments to Mrs. S.,
and is sorry that in reply to her inquiries respecting E. Child, nothing
can be in justice said in her favor. She lived with Mrs. A. but for a
few weeks, in which short time she frequently conducted herself
disgracefully; and Mrs. A. is concerned to add she has, since her
dismissal, been credibly informed she has been and now is a prostitute
in Bury.” In consequence of this letter the plaintiff was dismissed from
her situation. It further appeared that after that letter was written,
Mrs. Affleck went to the persons who had recommended the plaintiff to
her, and made a similar statement to them. Upon this evidence it was
contended, for the defendants, that there was no proof of malice, and
that consequently the plaintiff must be nonsuited. On the other hand, it
was urged that Mrs. Affleck’s statement of what the plaintiff’s conduct
had been after she left her service was not privileged, and that, at all
events, that part of the letter and the statement that she voluntarily
made to other persons, and not in answer to any inquiries, were evidence
of malice. Lord Tenterden, C. J., was of opinion that the latter part of
the letter was privileged, and that the other communications being made
to persons who had recommended the plaintiff, were not evidence of
malice, and he directed a nonsuit.

_F. Kelly_ now moved for a rule _nisi_ for a new trial.[484]

PARKE, J. The rule laid down by Lord Mansfield, in Edmondson _v._
Stevenson, Bull. N. P. 8, has been followed ever since. It is, that in
an action for defamation in giving a character of a servant, “the gist
of it must be malice, which is not implied from the occasion of
speaking, but should be directly proved.” The question then is, whether
the plaintiff in this case adduced evidence, which, if laid before a
jury, could properly lead them to find express malice. That does not
appear upon the face of the letter. _Prima facie_ it is fair, and
undoubtedly a person asked as to the character of a servant may
communicate all that is stated in that letter. Independently of the
letter, there was no evidence except of the two persons that had
recommended the plaintiff. The communication to them, therefore, was not
officious, and Mrs. Affleck was justified in making it. In Rogers _v._
Clifton, 3 B. & P. 587, evidence of the good conduct of the servant was
given, and the communication also appeared to be officious. In Blackburn
_v._ Blackburn, 4 Bing. 395, the occasion of writing the alleged libel
did not distinctly appear, it was therefore properly left to the jury to
say, whether it was confidential and privileged or not, and they found
that it was not. Here the letter was undoubtedly _prima facie_
privileged, the plaintiff, therefore, was bound to prove express malice
in order to take away the privilege.

_Rule refused._[485]

COXHEAD _v._ RICHARDS
IN THE COMMON PLEAS, JANUARY 31, 1846.
_Reported in 2 Common Bench Reports, 569._

TINDAL, C. J.[486] This was an action upon the case for the publication
of a false and malicious libel, in the form of a letter written by one
John Cass, the first mate of a ship called The England, to the
defendant; the letter stating that the plaintiff, who was the captain of
the ship, and then in command of her, had been in a state of constant
drunkenness during part of the voyage, whereby the ship and crew had
been exposed to continual danger: and the publication by the defendant
was, the communication by him of this letter to the owner of the ship,
by reason whereof—which was the special damage alleged in the
declaration—the plaintiff was dismissed from the ship, and lost his
employment.

The defendant pleaded—first, not guilty; secondly, that the charges made
by the mate against the plaintiff in his letter were true; and, lastly,
that the shipowner did not dismiss the captain by reason, and in
consequence, of the communication of the letter to him.

Upon the last two issues a verdict was found for the plaintiff; but,
upon the first issue, for the defendant.

I told the jury at the trial, that the occasion and circumstances under
which the communication of this letter took place, were such, as, in my
opinion, to furnish a legal excuse for making the communication; and
that the inference of malice,—which the law _prima facie_ draws from the
bare act of publishing any statements false in fact, containing matter
to the reproach and prejudice of another,—was thereby rebutted; and that
the plaintiff, to entitle himself to a verdict, must show malice in
fact: concluding by telling them that they should find their verdict for
the defendant, if they thought the communication was strictly honest on
his part, and made solely in the execution of what he believed to be a
duty; but, for the plaintiff, if they thought the communication was made
from any indirect motive whatever, or from any malice against the
plaintiff. And the only question now before us, is, whether, upon the
evidence given at the trial, such direction was right.

There was no evidence whatever that the defendant was actuated by any
sinister motive in communicating the letter to Mr. Ward, the shipowner:
on the contrary, all the evidence went to prove that what he did he did
under the full belief that he was performing a duty, however mistaken he
might be as to the existence of such duty, or in his mode of performing
it. The writer of the letter was no stranger to the defendant: on the
contrary, both were proved to have been on terms of friendship with each
other for some years; and, from the tenor of the letter itself, it must
be inferred the defendant was a person upon whose judgment the writer of
the letter placed great reliance, the letter itself being written for
the professed purpose of obtaining his advice how to act, under a very
pressing difficulty. The letter was framed in very artful terms, such as
were calculated to induce the most wary and prudent man (knowing the
writer) to place reliance on the truth of its details: and there can be
no doubt but that the defendant did in fact thoroughly believe the
contents to be true, amongst other things, that the ship, of which Mr.
Ward was the owner, and the crew and cargo on board the same, had been
exposed to very imminent risk, by the continued intoxication of the
captain on the voyage from the French coast to Llanelly, where the ship
then was, and that the voyage to the Eastern Seas, for which the ship
was chartered, would be continually exposed to the same hazard, if the
vessel should continue under his command. In this state of facts, after
the letter had been a few days in his hands, the defendant considered it
to be his duty to communicate its contents to Mr. Ward, whose interests
were so nearly concerned in the information; not communicating it to the
public, but to Mr. Ward; and not accompanying such disclosure with any
directions or advice, but merely putting him in possession of the facts
stated in the letter, that he might be in a condition to investigate the
truth, and take such steps as prudence and justice to the parties
concerned required: in making which disclosure he did not act hastily or
unadvisedly, but consulted two persons well qualified to give good
advice on such an emergency—the one, an Elder Brother of the Trinity
House—the other, one of the most eminent shipowners in London: in
conformity with whose advice he gave up the letter to the owner of the
ship. At the same time, if the defendant took a course which was not
justifiable in point of law, although it proceeded from an error in
judgment only, not of intention, still it is undoubtedly he, and not the
plaintiff, who must suffer for such error.

The only question is, whether the case does or does not fall within the
principle, well recognized and established in the law, relating to
privileged or confidential communications; and, in determining this
question, two points may, as I conceive, be considered as settled—first,
that if the defendant had had any personal interest in the
subject-matter to which the letter related, as, if he had been a
part-owner of the ship, or an underwriter on the ship, or had had any
property on board, the communication of such a letter to Mr. Ward would
have fallen clearly within the rule relating to excusable
publications—and, secondly, that if the danger disclosed by the letter,
either to the ship or the cargo, or the ship’s company, had been so
immediate as that the disclosure to the shipowner was necessary to avert
such danger, then, upon the ground of social duty, by which every man is
bound to his neighbor, the defendant would have been not only justified
in making the disclosure, but would have been _bound_ to make it. A man
who received a letter informing him that his neighbor’s house would be
plundered or burnt on the night following by A. and B., and which he
himself believed, and had reason to believe, to be true, would be
justified in showing that letter to the owner of the house, though it
should turn out to be a false accusation of A. and B. The question
before us appears, therefore, to be narrowed to the consideration of the
facts which bear upon these two particular qualifications and
restrictions of the general principle.

As to the first, I do not find the rule of law is so narrowed and
restricted by any authority, that a person having information materially
affecting the interests of another, and honestly communicating it, in
the full belief, and with reasonable grounds for the belief, that it is
true, will not be excused, though he has no personal interest in the
subject-matter. Such a restriction would surely operate as a great
restraint upon the performance of the various social duties by which men
are bound to each other, and by which society is kept up. In Pattison
_v._ Jones, 8 B. & C. 578, the defendant, who had discharged the
plaintiff from his service, wrote a letter to the person who was about
to engage him, unsolicited; he was therefore a volunteer in the matter;
and might be considered as a stranger, having no interest in the
business; but, neither at the trial, nor on the motion before the court,
was it suggested that the letter was, on that account, an unprivileged
communication; but it was left to the jury to say whether the
communication was honest or malicious. Again, in Child _v._ Affleck and
Wife, the statement, by the former mistress, of the conduct of her
servant, not only during her service, but after she had left it, was
held to be privileged. The rule appears to have been correctly laid down
by the Court of Exchequer, that, “if fairly warranted by any reasonable
occasion or exigency, and honestly made, such communications are
protected, for the common convenience and welfare of society; and the
law has not restricted the right to make them, within any narrow
limits.” 1 C. M. & R. 181. In the present case, the defendant stood in a
different situation from any other person; he was the only person in the
world who had received the letter, or was acquainted with the
information contained in it. He cannot, therefore, properly be treated
as a complete stranger to the subject-matter of inquiry, even if the
rule excluded strangers from the privilege.

Upon the second ground of qualification—was the danger sufficiently
imminent to justify the communication—it is true, that the letter, which
came to the defendant’s hands about the 14th of December, contains
within it the information that the ship cannot get out of harbor before
the end of the month. It was urged that the defendant, instead of
communicating the letter to the owner, might have instituted some
inquiry himself. But it is to be observed that every day the ship
remained under the command of such a person as the plaintiff was
described to be, the ship and crew continued exposed to hazard, though
not so great hazard as when at sea; not to mention the immediate injury
to the shipowner which must necessarily follow from want of discipline
of the crew, and the bad example of such a master. And, after all, it
would be too much to say, that, even if the thing had been practicable,
any duty was cast upon _the defendant_, to lay out his time or money in
the investigation of the charge.

Upon the consideration of the case, I think it was the duty of the
defendant not to keep the knowledge he gained by this letter himself,
and thereby make himself responsible, in conscience, if his neglect of
the warnings of the letter brought destruction upon the ship or
crew—that a prudent and reasonable man would have done the same; that
the disclosure was made, not publicly, but privately to the owner, that
is, to the person who of all the world was the best qualified, both from
his interest in the subject-matter, and his knowledge of his own
officers, to form the most just conclusion as to its truth, and to adopt
the most proper and effective measures to avert the danger; after which
disclosure, not the defendant, but the owner, became liable to the
plaintiff, if the owner took steps which were not justifiable; as, by
unjustly dismissing him from his employment, if the letter was untrue.
And, as all this was done with entire honesty of purpose, and in the
full belief of the truth of the information,—and that, a reasonable
belief,—I am still of the same opinion which I entertained at the trial,
that this case ranges itself within the pale of privileged
communication, and that the action is not maintainable.

I therefore think the rule for setting aside the verdict and for a new
trial, should be discharged.

CRESWELL, J. I cannot, without much regret, express an opinion in this
case at variance with that which is entertained by my lord and one of my
learned brothers. But, having given full consideration to the arguments
urged at the bar, and the cases cited, and not being able to shake off
the impression which they made in favor of the plaintiff, I am bound to
act upon the opinion that I have formed. I will not repeat the facts of
the case, which have been already stated, but proceed shortly to explain
the grounds upon which my opinion rests.

There is no doubt that the letter published by the defendant of the
plaintiff was defamatory; and the truth of its contents could not be
proved. The plaintiff was, therefore, entitled to maintain an action
against the publisher of that letter, unless the occasion on which it
was published made the publication of such letter a lawful act, as far
as the plaintiff was concerned, if done in good faith, and without
actual malice. To sustain an action for a libel or slander, the
plaintiff must show that it was malicious; but every unauthorized
publication of defamatory matter is, in point of law, to be considered
as malicious. The law, however, on a principle of policy and
convenience, authorizes many communications, although they affect the
characters of individuals; and I take it to be a question of law,
whether the communication is authorized or not. If it be authorized, the
legal presumption of malice arising from the unauthorized publication of
defamatory matter, fails, and the plaintiff, to sustain his action, must
prove actual malice, or, as it is usually expressed, malice in fact. In
the present case, the existence of malice in fact was negatived by the
jury; and if my lord was right in telling them, that, in the absence of
malice in fact, the publication of the letter was privileged, this rule
should be discharged. It therefore becomes necessary to inquire within
what limits and boundaries the law authorizes the publication of
defamatory matter. Perhaps the best description of those limits and
boundaries that can be given in few words, is to be found in the
judgment of Parke, B., in Toogood _v._ Spyring: “The law considers such
publication as malicious, unless it is fairly made by a person in the
discharge of some public or private duty, whether legal or moral, or in
the conduct of his own affairs in matters where his interest is
concerned.” It was not contended in this case that any _legal_ duty
bound the defendant to communicate to the shipowner the contents of the
letter he had received, nor was the communication made in the conduct of
his own affairs, nor was his interest concerned: the authority for the
publication, if any, must therefore be derived from some _moral_ duty,
public or private, which it was incumbent upon him to discharge. I think
it impossible to say that the defendant was called upon by any _public
duty_ to make the communication; neither his own situation nor that of
any of the parties concerned, nor the interests at stake were such as to
affect the public weal. Was there then any _private_ duty? There was no
relation of principal and agent between the shipowner and the defendant,
nor was any trust or confidence reposed by the former in the latter;
there was no relationship or intimacy between them; no inquiries had
been made; they were, until the time in question, strangers: the duty,
if it existed at all as between them, must, therefore, have arisen from
the mere circumstance of their being fellow-subjects of the realm. But
the same relation existed between the defendant and the plaintiff. If
the property of the shipowner on the one hand was at stake, the
character of the captain was at stake on the other; and I cannot but
think that the moral duty not to publish of the latter defamatory matter
which he did not _know_ to be true, was quite as strong as the duty to
communicate to the shipowner that which he _believed_ to be true. Was,
then, the defendant bound by any moral duty towards the writer of the
letter, to make the communication? Surely not. If the captain had
misconducted himself, the mate was capable of observing it, and was as
capable of communicating it to the owner as to the defendant. The crew
were, in like manner, capable of observing and acting for themselves.
The mate (if he really believed that which he wrote to be true) might,
indeed, be under a moral duty to communicate it to his owner: but the
defendant had no right to take that vicarious duty upon himself: he was
not requested by the mate to do so, but was, on the contrary, enjoined
_not_ to make the communication.

I will not attempt to comment upon the very numerous cases that were
quoted at the bar on the one side and on the other, but will advert to
one or two which tend to explain the term “moral duty,” and see whether
it has ever been held to authorize the publication of defamatory matter
under circumstances similar to those which exist in the present case. In
Bromage _v._ Prosser, Bayley, J., in his very elaborate judgment, speaks
of slander as “_prima facie_ excusable on account of the cause of
speaking or writing it, in the case of servants’ characters,
confidential advice, or communications to those who ask it or have a
right to expect it.” With regard to the characters of servants and
agents, it is so manifestly for the advantage of society that those who
are about to employ them should be enabled to learn what their previous
conduct has been, that it may be well deemed the moral duty of former
employers to answer inquiries to the best of their belief. But,
according to the opinion of the same learned judge, intimated in
Pattison _v._ Jones, 8 B. & C. 578, it is necessary that _inquiry_
should be made, in order to render lawful the communication of
defamatory matter, although he was also of opinion that such inquiry may
be invited by the former master. And in Rogers _v._ Clifton, Chambre,
J., quoted a similar opinion of Lord Mansfield’s, expressed in Lowry
_v._ Aikenhead, Mich. 8 G. 3, 3 B. & P. 594.

It was contended during the argument of this case, that the protection
given to masters when speaking of the conduct of servants, was more
extensive, and applied also to communications made to former employers;
and Child _v._ Affleck was mentioned as an instance. But the
communication to the former master was not made a ground of action in
that case, and was introduced only as evidence that the statement made
in answer to the inquiry of the new master was malicious. The same
observation applies to Rogers _v._ Clifton; and it may be collected from
that report that Chambre, J., was of opinion, that, where statements are
made which are not in answer to inquiries, the defendant must plead, and
prove, a justification.

Again, where a party asks advice or information upon a subject on which
he is interested; or where the relative position of two parties is such
that the one has a right to expect confidential information and advice
from the other; it may be a moral duty to answer such inquiries and give
such information and advice; and the statements made may be rendered
lawful by the occasion, although defamatory of some third person, as in
Dunman _v._ Bigg, 1 Campb. 269, and Todd _v._ Hawkins, 2 M. & Rob. 20, 8
C. & P. 88.

Two cases—Herver _v._ Dowson, Bull. N. P. 8, and Cleaver _v._ Sarraude,
reported in M’Dougall _v._ Claridge, 1 Campb. 268—were quoted as
authorities for giving a more extended meaning to the term “moral duty,”
and making it include all cases where one man had information, which, if
true, it would be important for another to know. But the notes of those
cases are very short: in the former the precise circumstances under
which the statement was made—see King _v._ Watts, 8 C. & P. 614, that
such a statement made _without inquiry_ is not lawful—and in the latter,
the position of the defendant with reference to the Bishop of Durham, to
whom it was made, are left unexplained. I cannot, therefore, consider
them as satisfactory authorities for the position to establish which
they were quoted: and, in the absence of any clear and precise authority
in favor of it, I cannot persuade myself that it is correct, as, if
established at all, it must be at the expense of another moral duty,
viz., not to publish defamatory matter unless you _know_ it to be true.

For these reasons, I am of opinion, that the rule for a new trial should
be made absolute.

The court being thus divided in opinion, the rule for a new trial fell
to the ground, and the defendant retained his verdict.[487]

JOANNES _v._ BENNETT
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER, 1862.
_Reported in 5 Allen, 169._

Tort brought on the 12th of June, 1860, in the name of “The Count
Joannes (born ‘George Jones’)”[488] for two libels upon him contained in
letters to a woman to whom he was then a suitor, and was afterwards
married, endeavoring to dissuade her from entering into the marriage.

At the trial in this court, before Merrick, J., it appeared that the
defendant had for several years held the relation of pastor to the
parents of the woman, as members of his church, and to the daughter, as
a member of his choir; and there was evidence tending to show that he
was on the most intimate terms of friendship with the parents, and that,
on the 18th of May, 1860, being on a visit from his present residence in
Lockport, New York, he called upon the father at his place of business
in Boston, and was urged by him to accompany him to his residence in
South Boston, the father stating that both he and his wife were in great
distress of mind and anxiety about their daughter, and that they feared
she would engage herself in marriage to the plaintiff. On their way to
South Boston, the father stated to the defendant what he and his wife
had heard and apprehended about the plaintiff, and their views with
regard to his being an unsuitable match for their daughter, who, with a
young child by a former husband, was living with them. On reaching the
house, it was found that the daughter had gone out; and it was then
arranged that the defendant should write a letter, and materials for
that purpose were furnished, and the letter set forth in the first
count[489] was written, addressed to the daughter, and left open and
unsealed with the mother, after the principal portion of it had been
read aloud at the tea-table in the presence of the parents and a
confidential friend of the family. On leaving, the defendant was further
requested to do what he thought best to induce the daughter to break up
the match.

The judge ruled that the letter was not a privileged communication; and
a verdict was returned for the plaintiff. The defendant alleged
exceptions.

BIGELOW, C. J. The doctrine, that the cause or occasion of a publication
of defamatory matter may afford a sufficient justification in an action
for damages, has been stated in the form of a legal rule or canon, which
has been sanctioned by high judicial authority. The statement is this: A
communication made _bona fide_ upon any subject-matter in which the
party communicating has an interest, or in reference to which he has a
duty to perform, is privileged, if made to a person having a
corresponding interest or duty, although it contains defamatory matter,
which without such privilege would be libellous and actionable. It would
be difficult to state the result of judicial decisions on this subject,
and of the principles on which they rest, in a more concise, accurate
and intelligible form. Harrison _v._ Bush, 5 E. & B. 344; Gassett _v._
Gilbert, 6 Gray, 94, and cases cited. It seems to us very clear that the
defendant in the present case fails to show any facts or circumstances
in his own relation to the parties, or in the motives or inducements by
which he was led to write the letter set out in the first count of the
declaration, which bring the publication within the first branch of this
rule. He certainly had no interest of his own to serve or protect in
making a communication concerning the character, occupation and conduct
of the plaintiff, containing defamatory or libellous matter. It does not
appear that the proposed marriage which the letter written by the
defendant was intended to discountenance and prevent, could in any way
interfere with or disturb his personal or social relations. It did not
even involve any sacrifice of his feelings or injury to his affections.
The person to whom the letter was addressed was not connected with him
by the ties of consanguinity or kindred. It is not shown that he had any
peculiar interest in her welfare. Under such circumstances, without
indicating the state of facts which might afford a justification for the
use of defamatory words, it is plain that the defendant held no such
relation towards the parties as to give him any interest in the
subject-matter to which his communication concerning the plaintiff
related. Todd _v._ Hawkins, 2 M. & Rob. 20; S. C. 8 C. & P. 88. No
doubt, he acted from laudable motives in writing it. But these do not of
themselves afford a legal justification for holding up the character of
a person to contempt and ridicule. Good intentions do not furnish a
valid excuse for violating another’s rights, or give impunity to those
who cast unjust imputations on private character.

It is equally clear that the defendant did not write and publish the
alleged libellous communications in the exercise of any legal or moral
duty. He stood in no such relation towards the parties as to confer on
him a right or impose on him an obligation to write a letter containing
calumnious statements concerning the plaintiff’s character. Whatever may
be the rule which would have been applicable under similar circumstances
while he retained his relation of religious teacher and pastor towards
the person to whom this letter in question was addressed, and towards
her parents, he certainly had no duty resting upon him after that
relation had terminated. He then stood in no other attitude towards the
parties than as a friend. His duty to render them a service was no
greater or more obligatory than was his duty to refrain from uttering
and publishing slanderous or libellous statements concerning another. It
is obvious that if such communications could be protected merely on the
ground that the party making them held friendly relations with those to
whom they were written or spoken, a wide door would be left open by
which indiscriminate aspersion of private character could escape with
impunity. Indeed, it would rarely be difficult for a party to shelter
himself from the consequences of uttering or publishing a slander or
libel under a privilege which could be readily made to embrace almost
every species of communication. The law does not tolerate any such
license of speech or pen. The duty of avoiding the use of defamatory
words cannot be set aside except when it is essential to the protection
of some substantial private interest, or to the discharge of some other
paramount and urgent duty. It seems to us, therefore, that on the
question of justification set up by the defendant under a supposed
privilege which authorized him to write the letter set out in the first
count, the instructions of the court were correct.[490]

BEALS _v._ THOMPSON
SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 20, 1889.
_Reported in 149 Massachusetts Reports, 405._

Tort for a libel contained in letters written by the defendant to the
plaintiff’s husband, and charging her with having been guilty of
dishonorable conduct, deception, and ingratitude and dishonesty towards
the defendant, whereby she lost the comfort and society of her husband,
who refused to live longer with her.[491]

The jury returned a verdict for the plaintiff in the sum of $30,000; and
the defendant alleged exceptions.

FIELD, J. The exceptions also state, that the court refused “to instruct
the jury that each of the letters mentioned in plaintiff’s declaration
was a privileged communication, and that this action could not therefore
be maintained,” and “instructed the jury that no privilege was shown.”
No facts are recited in the bill of exceptions which tend to show that
the occasion was privileged, except such as may be inferred from the
relation of the parties to each other, and from the contents of the
letters. Taking the case most favorably for the defendant, it is that
the plaintiff owed a debt to the defendant for money lent to her before
her marriage, which, after her marriage with a rich man, she refused to
pay, under circumstances which showed ingratitude on her part, and that
the defendant wrote a letter to the husband defamatory of the plaintiff,
for the purpose of compelling him or her to pay the debt. This is not a
lawful method of collecting a debt, or of compelling another person than
the debtor to pay it. The defendant owed no duty to the husband to
inform him of the bad conduct of his wife before her marriage, and the
husband was under no obligation to pay the debts of his wife contracted
before her marriage. There is no evidence that the defendant in sending
the letter to the husband was acting in the discharge of any duty,
social, moral, or legal. The ruling was right. Gassett _v._ Gilbert, 6
Gray, 94; Krebs _v._ Oliver, 12 Gray, 239; Joannes _v._ Bennett, 5 All.
169; Shurtleff _v._ Parker, 130 Mass. 293; White _v._ Nicholls, 3 How.
266.

_Exceptions overruled._[492]

TOOGOOD _v._ SPYRING
IN THE EXCHEQUER, TRINITY TERM, 1834.
_Reported in 1 Crompton, Meeson & Roscoe, 181._

The judgment of the court was delivered by

PARKE, B.[493] In this case, which was argued before my Brothers
BOLLAND, ALDERSON, GURNEY, and myself, a motion was made for a nonsuit,
or a new trial, on the ground of misdirection. It was an action of
slander, for words alleged to be spoken of the plaintiff as a journeyman
carpenter, on three different occasions. It appeared that the defendant,
who was a tenant of the Earl of Devon, required some work to be done on
the premises occupied by him under the earl, and the plaintiff, who was
generally employed by Brinsdon, the earl’s agent, as a journeyman, was
sent by him to do the work. He did it, but in a negligent manner; and,
during the progress of the work, got drunk; and some circumstances
occurred which induced the defendant to believe that he had broken open
the cellar door, and so obtained access to his cider. The defendant a
day or two afterwards met the plaintiff in the presence of a person
named Taylor, and charged him with having broken open his cellar door
with a chisel, and also with having got drunk. The plaintiff denied the
charges. The defendant then said he would have it cleared up, and went
to look for Brinsdon; he afterwards returned and spoke to Taylor, in the
absence of the plaintiff; and, in answer to a question of Taylor’s, said
he was confident that the plaintiff had broken open the door. On the
same day the defendant saw Brinsdon, and complained to him that the
plaintiff had been negligent in his work, had got drunk, and he thought
he had broken open the door, and requested him to go with him in order
to examine it. Upon the trial it was objected, that these were what are
usually termed “privileged communications.” The learned judge thought
that the statement to Brinsdon might be so, but not the charge made in
the presence of Taylor; and in respect of that charge, and of what was
afterwards said to Taylor, both which statements formed the subject of
the action, the plaintiff had a verdict. We agree in his opinion, that
the communication to Brinsdon was protected, and that the statement,
upon the second meeting, to Taylor, in the plaintiff’s absence, was not;
but we think, upon consideration, that the statement made to the
plaintiff, though in the presence of Taylor, falls within the class of
communications ordinarily called privileged; that is, cases where the
occasion of the publication affords a defence in the absence of express
malice. In general, an action lies for the malicious publication of
statements which are false in fact, and injurious to the character of
another (within the well-known limits as to verbal slander), and the law
considers such publication as malicious, unless it is fairly made by a
person in the discharge of some public or private duty, whether legal or
moral, or in the conduct of his own affairs, in matters where his
interest is concerned. In such cases, the occasion prevents the
inference of malice, which the law draws from unauthorized
communications, and affords a qualified defence depending upon the
absence of actual malice. If _fairly_ warranted by any reasonable
occasion or exigency, and honestly made, such communications are
protected for the common convenience and welfare of society; and the law
has not restricted the right to make them within any narrow limits.

Among the many cases which have been reported on this subject, one
precisely in point has not, I believe, occurred; but one of the most
ordinary and common instances in which the principle has been applied in
practice is that of a former master giving the character of a discharged
servant; and I am not aware that it was ever deemed essential to the
protection of such a communication that it should be made to some person
interested in the inquiry, _alone_, and not in the presence of a third
person. If made with honesty of purpose to a party who has any interest
in the inquiry (and that has been very liberally construed, Child _v._
Affleck, 4 Man. & Ryl. 590; 9 B. & C. 403), the simple fact that there
has been some casual bystander cannot alter the nature of the
transaction. The business of life could not be well carried on if such
restraints were imposed upon this and similar communications, and if, on
every occasion in which they were made, they were not protected unless
strictly private. In this class of communications is, no doubt,
comprehended the right of a master _bona fide_ to charge his servant for
any supposed misconduct in his service, and to give him admonition and
blame; and we think that the simple circumstance of the master
exercising that right in the presence of another, does by no means of
_necessity_ take away from it the protection which the law would
otherwise afford. Where, indeed, an opportunity is _sought_ for making
such a charge before third persons, which might have been made in
private, it would afford strong evidence of a malicious intention, and
thus deprive it of that immunity which the law allows to such a
statement, when made with honesty of purpose; but the mere fact of a
third person being present does not render the communication absolutely
unauthorized, though it may be a circumstance to be left with others,
including the style and character of the language used, to the
consideration of the jury, who are to determine whether the defendant
has acted _bona fide_ in making the charge, or been influenced by
malicious motives.[494] In the present case, the defendant stood in such
a relation with respect to the plaintiff, though not strictly that of
master, as to authorize him to impute blame to him, provided it was done
fairly and honestly, for any supposed misconduct in the course of his
employment; and we think that the fact, that the imputation was made in
Taylor’s presence, does not, _of itself_, render the communication
unwarranted and officious, but at most is a circumstance to be left to
the consideration of the jury. We agree with the learned judge, that the
statement to Taylor, in the plaintiff’s absence, was unauthorized and
officious, and therefore not protected, although made in the belief of
its truth, if it were, in point of fact, false; but, inasmuch as no
damages have been separately given upon this part of the charge alone,
to which the fourth count is adapted, we cannot support a general
verdict, if the learned judge was wrong in his opinion as to the
statement to the plaintiff in Taylor’s presence; and, as we think that
at all events it should have been left to the jury whether the defendant
acted maliciously or not on that occasion, there must be a new trial.

_Rule absolute for a new trial._[495]

WILLIAMSON _v._ FREER
IN THE COMMON PLEAS, APRIL 20, 1874.
_Reported in Law Reports, 9 Common Pleas, 393._

This was an action for a libel, tried before Brett, J., at the last
assizes for Leicester. The facts were as follows: The plaintiff was
employed as assistant in the shop of the defendant, a shoemaker, at
Leicester. The defendant having accused the plaintiff of robbing him of
money, sent two post-office telegrams to her father, who resided in
London, to inform him of his suspicions. The first telegram was to this
effect: “Come at once to Leicester, if you wish to save your child from
appearing before a magistrate.” The second was as follows: “Your child
will be given in charge of the police unless you reply and come to-day.
She has taken money out of the till.”

The charge was persisted in down to the trial; but there was no evidence
to support it. It did not appear that, beyond the officials of the
post-office, through whose hands the telegrams passed, they had come to
the knowledge of any other persons than the father, mother, and brother
of the plaintiff.

The learned judge left it to the jury to say whether the statements were
libellous, and whether it was reasonable to transmit them by telegraph
rather than by post.

The jury found that the statements were libellous, and that it was not
reasonable to send them by telegraph, and they returned a verdict for
the plaintiff, damages £100.

_O’Malley, Q. C._ (with him _Merewether_), pursuant to leave, moved to
enter a verdict for the defendant.[496]

BRETT, J. I reserved the point because I thought it was a very important
one. It is whether, where a communication is to be made to a relative of
a person against whom a charge is preferred, which communication would
be privileged if sent by letter in the ordinary way the privilege is not
lost by sending it in the form of a telegram,—whether a communication in
that form can be said to be made to one person, when in point of fact it
passes through several hands before it reaches its ultimate destination.
Privilege is not wanted unless the publication is libellous. The
question then is whether the character of an innocent person is to be
destroyed because the libeller thinks fit to send the libel in this
shape rather than in a sealed letter. I do not mean to say that there
was malice in fact here. But I agree with my Lord that sending the
messages by telegraph when they might have been sent by letter was
evidence of malice. I desire, however, to put this higher. I think that
a communication which would be privileged if made by letter becomes
unprivileged if sent through the telegraph office, because it is
necessarily communicated to all the clerks through whose hands it
passes. It is like the case of a libel contained on the back of a post
card.[497] It was never meant by the Legislature that these facilities
for postal and telegraphic communication should be used for the purpose
of more easily disseminating libels. Where there is such a publication,
it avoids the privilege, because it is communicated through unprivileged
persons. As to the damages, I am not at all disposed to think them
excessive. The charge against the plaintiff was of a very grave
character. It was made with considerable severity, and it was insisted
upon even down to the trial.

_Rule refused._[498]

MARKS _v._ BAKER
SUPREME COURT, MINNESOTA, JULY 25, 1881.
_Reported in 28 Minnesota Reports, 162._

BERRY, J. This is an action for libel. The plaintiff was, at the times
hereinafter mentioned, treasurer of the city of Mankato, and, as such,
custodian of the moneys, and from April 1 to 6, 1880, a candidate for
re-election to the same office, at an election fixed for the latter day.
The defendants were residents and tax-payers of the city, and publishers
thereat of the Mankato Free Press, a weekly newspaper, and as such they
published therein, on April 2, 1880, the article complained of, in
which, as the plaintiff claims in his complaint, they charged and
intended to charge the defendant as treasurer with embezzling city
funds. It is alleged in the complaint that the matter charged as
libellous was of and concerning the plaintiff in his office—that it was
false and defamatory, and that the publication was malicious. The answer
denies malice, all intent to injure or defame plaintiff, any intention
on defendants’ part to charge him with embezzlement, and alleges that
defendants published the article complained of, as a communication,
solely for the purpose of calling the attention of the public to the
matter therein referred to, viz., to a discrepancy in certain official
reports tending to show that the plaintiff had failed to charge himself
with the full amount of city funds which he had received from the county
treasury, and with the view of obtaining an inquiry as to the cause of
such discrepancy. The answer further alleges that “the publication was
made in good faith; ... that defendants believed that there was
reasonable cause for the publication;” and “that they were then and
there discharging a sacred and moral obligation as ... editors and
publishers.” The reply puts these allegations of the answer in issue.
Upon the trial it was admitted that, notwithstanding the discrepancy,
(which in fact, existed) the plaintiff had accounted for the full sum
received by him as city treasurer from the county treasurer, so that the
defendants’ charge or insinuation to the contrary was false.

Defendant, Baker, having been called for the defence, was asked the
questions following, to which he made answers as follows, all against
the objection and exception of the plaintiff:

(1) “Did you believe the report of the city recorder to be true?
_Answer._ I did believe it to be true. (This report was that from which,
as defendants in the alleged libel charged or insinuated, it appeared
that plaintiff had failed to account for all the money received by him
from the county treasurer.)

(2) “What was your object in publishing the article? _Answer._ I
published it for the general public interest.

(3) “Did you have any other object in publishing the article? _Answer._
I did not.

(4) “You have stated that you had no other purpose than doing a public
duty in publishing the article. I want to know what your object was,—to
charge somebody with a crime, or whether you had some other object?
_Answer._ To draw attention to the discrepancy of the two reports. I had
seen what purported to be the official report of the county auditor, and
I had seen the city recorder’s; and the county auditor’s showed that
Marks, as city treasurer, had received from the county, during the
fiscal year, $115.02 more than the city recorder’s report showed that he
had received from the county for the same time. (These are the two
reports between which the discrepancy was charged to exist.)

(5) “Did you, by publishing the article, intend to charge the plaintiff
with embezzling any sum whatever?” _Answer._ “I did not.”

The defence set up in the answer is, in effect, that the publication
complained of is a privileged communication.

The rule is that a communication made in good faith upon any
subject-matter in which the party communicating has an interest, or in
reference to which he has a duty, public or private, either legal,
moral, or social, if made to a person having a corresponding interest or
duty, is privileged; that in such case the inference of malice which the
law draws from defamatory words is rebutted, and the _onus_ of proving
actual malice is cast upon the person claiming to have been defamed.
Toogood _v._ Spyring, 1 Cr. M. & R. 181; 2 Addison on Torts, § 1091;
Harrison _v._ Bush, 5 E. & B. 544; Moak’s Underhill on Torts, 146; Quinn
_v._ Scott, 22 Minn. 456. That the subject-matter of the communication
is one of public interest in the community of which the parties to the
communication are members, is sufficient, as respects interest, to
confer the privilege. Purcell _v._ Sowler, 2 C. P. D. 215; Palmer _v._
City of Concord, 48 N. H. 211; Cooley on Torts, 217. The subject-matter
of the communication in the case at bar was one of public interest in
the city of Mankato, where the publication was made, and one in which
the defendants had an interest as residents and tax-payers of the city.
It was, therefore, a privileged communication, within the rule
mentioned, if made in good faith.[499]

_Judgment affirmed._[500]

CARTER _v._ PAPINEAU
SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 27, 1916.
_Reported in 222 Massachusetts Reports, 464._

BRALEY, J.[501] The evidence would have amply warranted the jury in
finding that the defendant Papineau as priest in charge declined to
administer to the plaintiff the rite of “Holy Communion” or to permit
her to partake thereof, and that by his authority and order she had been
refused admission on the Lord’s Day to the building in which religious
services were being held. It is contended that for these acts he and the
defendant Lawrence, bishop of the diocese, are responsible in damages,
and that the verdicts in their favor were ordered wrongly.

The record shows that the Protestant Episcopal Church of America, of
which the parties are members, has a body of canons or ecclesiastical
law of its own, by which the plaintiff upon baptism and confirmation
agreed to be bound, and under which her rights of worship must be
determined. Fitzgerald _v._ Robinson, 112 Mass. 371. Grosvenor _v._
United Society of Believers, 118 Mass. 78. By the “Rubric in the Order
for the Administration of the Lord’s Supper, or Holy Communion” the
“minister” is given authority to refuse the rite to any one whom he
knows “to be an open and notorious evil liver, or to have done any wrong
to his neighbors by word or deed.” By “Canon 40. Of Regulations
Respecting the Laity,” Section II, “When a person to whom the Sacraments
of the Church have been refused, or who has been repelled from the Holy
Communion under the Rubrics, shall lodge a complaint with the Bishop, it
shall be the duty of the Bishop, unless he see fit to require the person
to be admitted or restored because of the insufficiency of the cause
assigned by the Minister, to institute such an inquiry as may be
directed by the Canons of the Diocese or Missionary District, and should
no such Canon exist, the Bishop shall proceed according to such
principles of law and equity as will insure an impartial decision, but
no Minister of this Church shall be required to admit to the Sacraments
a person so refused or repelled, without the written direction of the
Bishop.”

The plaintiff has not availed herself of this right of appeal to the
only personage having the requisite ecclesiastical authority to review
her standing as a member and communicant or to pass upon her ceremonial
rights in accordance with the principles of “law and equity.” Grosvenor
_v._ United Society of Believers, 118 Mass. 78, 91. The letter of her
counsel to the bishop, to which no reply appears to have been made,
cannot be considered as an appeal which had been denied. It contains
only recitals of all her grievances, for the rectification of which his
friendly intercession is requested.

But if an appeal had been taken properly and the decision had been
adverse, the plaintiff would have been remediless, for in this
Commonwealth her religious rights as a communicant are not enforceable
in the civil courts. Fitzgerald _v._ Robinson, 112 Mass. 371, 379.
Canadian Religious Association _v._ Parmenter, 180 Mass. 415, 420, 421.
For the same reason it is unnecessary to decide whether at common law,
as the plaintiff contends, a member of the Church of England could sue
if unjustifiably denied participation in the communion. See Rex _v._
Dibdin, [1910] P. D. 57; Thompson _v._ Dibdin, [1912] A. C. 533.

Nor can the action be maintained for defamation. Undoubtedly she
suffered mental distress, and the omission was in the presence of the
other communicants. The plaintiff, however, was not publicly declared to
be “an open and notorious evil liver,” or to be a person who had done
wrong to her neighbors by word or deed. The act of “passing her by”
without comment was within the discipline or ecclesiastical polity of
the church and does not constitute actionable defamation of character.
Farnsworth _v._ Storrs, 5 Cush. 412, 415. Fitzgerald _v._ Robinson, 112
Mass. 371. Morasse _v._ Brochu, 151 Mass. 567. See R. L. c. 36, §§ 2, 3.

The action for exclusion from the church building also must fail. It
appears that upon being informed by the constable employed for the
purpose that she could not enter the plaintiff made no attempt to pass,
but acquiesced and obeyed the order. The elements of an assault are
absent. No intimidation was used, or unjustifiable coercion exercised.
By Canon 16, to which the plaintiff subjected herself, control of the
worship and spiritual jurisdiction of the mission, including the use of
the building for religious services, was in Papineau as the minister in
charge, “subject to the authority of the Bishop.”[502]

PULLMAN _v._ WALTER HILL & COMPANY
IN THE COURT OF APPEAL, DECEMBER 19, 1890.
_Reported in [1891] 1 Queen’s Bench, 524._

Motion by the plaintiffs for a new trial.

At the trial before Day, J., with a jury, it appeared that the
plaintiffs were members of a partnership firm of R. & J. Pullman, in
which there were three other partners. The place of business of the firm
was No. 17, Greek Street, Soho. The plaintiffs were the owners of some
property in the Borough Road, which they had contracted in 1887 to sell
to Messrs. Day & Martin. The plaintiffs remained in possession of the
property for some time, and agreed to let a hoarding, which was erected
upon the property, at a rent to the defendants, who were advertising
agents, for the display of advertisements. In 1889 a dispute arose
between the plaintiffs and Day & Martin, who were building upon the
land, as to which of the two were entitled to the rent of the hoarding;
and on September 14, 1889, the defendants, after some prior
correspondence, wrote the following letter:—

“Messrs. Pullman & Co., 17, Greek Street, Soho.
“_Re_ Boro’ Road.

“Dear Sirs,—We must call your serious attention to this matter. The
builders state distinctly that you had no right to this money
whatever; consequently it has been obtained from us under false
pretences. We await your reply by return of post.

“Yours faithfully,
“(Signed) Walter Hill & Co., Limited.”

This letter was dictated by the defendants’ managing director to a
shorthand clerk, who transcribed it by a type-writing machine. This
type-written letter was then signed by the managing director, and,
having been press-copied by an office-boy, was sent by post in an
envelope addressed to Messrs. Pullman & Co., 17, Greek Street, Soho. The
defendants did not know that there were any other partners in the firm
besides the plaintiffs. The letter was opened by a clerk of the firm in
the ordinary course of business, and was read by two other clerks. The
plaintiffs brought this action for libel. The defendants contended that
there was no publication, and that, if there were, the occasion was
privileged. The learned judge held that there was no publication, that
the occasion was privileged, and that there was no evidence of malice.
He therefore nonsuited the plaintiffs.[503]

LORD ESHER, M. R. Two points were decided by the learned judge: (1) that
there had been no publication of the letter which is alleged to be a
libel; (2) that, if there had been publication, the occasion was
privileged. The question whether the letter is or is not a libel is for
the jury, if it is capable of being considered an imputation on the
character of the plaintiffs. If there is a new trial, it will be open to
the jury to consider whether there is a libel, and what the damages are.
The learned judge withdrew the case from the jury.

The first question is, whether, assuming the letter to contain
defamatory matter, there has been a publication of it. What is the
meaning of “publication”? The making known the defamatory matter after
it has been written to some person other than the person of whom it is
written. If the statement is sent straight to the person of whom it is
written, there is no publication of it; for you cannot publish a libel
of a man to himself. If there was no publication, the question whether
the occasion was privileged does not arise. If a letter is not
communicated to any one but the person to whom it is written, there is
no publication of it. And, if the writer of a letter locks it up in his
own desk, and a thief comes and breaks open the desk and takes away the
letter and makes its contents known, I should say that would not be a
publication. If the writer of a letter shows it to his own clerk in
order that the clerk may copy it for him, is that a publication of the
letter? Certainly it is showing it to a third person; the writer cannot
say to the person to whom the letter is addressed, “I have shown it to
you and to no one else.” I cannot, therefore, feel any doubt that, if
the writer of a letter shows it to any person other than the person to
whom it is written, he publishes it. If he wishes not to publish it, he
must, so far as he possibly can, keep it to himself, or he must send it
himself straight to the person to whom it is written. There was,
therefore, in this case a publication to the type-writer.

Then arises the question of privilege, and that is, whether the occasion
on which the letter was published was a privileged occasion. An occasion
is privileged when the person who makes the communication has a moral
duty to make it to the person to whom he does make it, and the person
who receives it has an interest in hearing it. Both these conditions
must exist in order that the occasion may be privileged. An ordinary
instance of a privileged occasion is in the giving a character of a
servant. It is not the legal duty of the master to give a character to
the servant, but it is his moral duty to do so; and the person who
receives the character has an interest in having it. Therefore, the
occasion is privileged, because the one person has a duty and the other
has an interest. The privilege exists as against the person who is
libelled; it is not a question of privilege as between the person who
makes and the person who receives the communication; the privilege is as
against the person who is libelled. Can the communication of the libel
by the defendants in the present case to the type-writer be brought
within the rule of privilege as against the plaintiffs—the persons
libelled? What interest had the type-writer in hearing or seeing the
communication? Clearly, she had none. Therefore, the case does not fall
within the rule.

Then again, as to the publication at the other end—I mean when the
letter was delivered. The letter was not directed to the plaintiffs in
their individual capacity; it was directed to a firm of which they were
members. The senders of the letter no doubt believed that it would go to
the plaintiffs; but it was directed to a firm. When the letter arrived
it was opened by a clerk in the employment of the plaintiffs’ firm, and
was seen by three of the clerks in their office. If the letter had been
directed to the plaintiffs in their private capacity, in all probability
it would not have been opened by a clerk. But mercantile firms and large
tradesmen generally depute some clerk to open business letters addressed
to them. The sender of the letter had put it out of his own control, and
he had directed it in such a manner that it might possibly be opened by
a clerk of the firm to which it was addressed. I agree that under such
circumstances there was a publication of the letter by the sender of it,
and in this case also the occasion was not privileged for the same
reasons as in the former case. There were, therefore, two publications
of the letter, and neither of them was privileged. And, there being no
privilege, no evidence of express malice was required; the publication
of itself implied malice. I think the learned judge was misled. I do not
think that the necessities or the luxuries of business can alter the law
of England. If a merchant wishes to write a letter containing defamatory
matter, and to keep a copy of the letter, he had better make the copy
himself. If a company have deputed a person to write a letter containing
libellous matter on their behalf, they will be liable for his acts. He
ought to write such a letter himself, and to copy it himself, and, if he
copies it into a book, he ought to keep the book in his own
custody.[504]

I think there ought to be a new trial.

_Order for new trial._

STEVENS _v._ SAMPSON
IN THE COURT OF APPEAL, NOVEMBER 15, 1879.
_Reported in 5 Exchequer Division Reports, 53._

Claim for falsely and maliciously printing and publishing of the
plaintiff certain words in certain newspapers. The libel set out in the
claim was a report, published by the defendant, of certain proceedings
in a plaint of Nettlefold _v._ Fulcher, tried at the Marylebone county
court, and brought to recover damages and costs sustained by Nettlefold
in setting aside certain proceedings instituted by Fulcher against
Nettlefold to recover the possession of certain premises. It alleged
that at the county court the defendant in the present action appeared
for Nettlefold, and made statements regarding the conduct of the
plaintiff in the present action, who was a debt collector and employed
by Fulcher as agent to recover possession of the premises.

Statement of defence: That the words alleged to have been published were
a true and correct account and report of a certain trial in a court of
justice having jurisdiction in that behalf, and of certain words spoken
during the sitting of the court in the course of the trial, and
published for the public benefit, and without malice. Issue thereon.

At the trial before Cockburn, C. J., at the Hilary Sittings, 1879, at
Westminster, it was proved that the defendant, who was a solicitor, had
sent the report set out in the claim of the trial of Nettlefold _v._
Fulcher, before the Judge of the Marylebone county court, to the local
newspapers. Cockburn, C. J., left two questions to the jury: 1. Was the
report a fair one? 2. Was it sent honestly, or with a desire to injure
the plaintiff? The jury answered these questions: 1. That it was in
substance a fair report; 2. That it was sent with a certain amount of
malice; and found a verdict for the plaintiff with 40_s._ damages.
Cockburn, C. J., directed judgment to be entered for the plaintiff for
that amount.

The defendant appealed on the ground that the judgment entered upon the
findings of the jury was wrong.

LORD COLERIDGE, C. J.[505] The question before us is whether, on the
findings of the jury, the entry of the judgment for the plaintiff is
right. I am of opinion that it was rightly entered for the plaintiff.
The principle which governs this case is plain. It is like that which
governs most other cases of privilege. In order, in cases of libel, to
establish that the communication is privileged, two elements must exist:
not only must the occasion create the privilege, but the occasion must
be made use of _bona fide_ and without malice; if either of these is
absent, the privilege does not attach; here the second element is
absent, for _bona fides_ is wanting, and malice exists. There are
certain cases in which the privilege is absolute. Words spoken in the
course of a legal proceeding by a witness or by counsel, and words used
in an affidavit in the course of a legal proceeding, are absolutely
privileged. It is considered advantageous for the public interests that
such persons should not in any way be fettered in their statements. This
is the first time that a report of proceedings in a court of justice has
been sought to be brought within this same class of privilege. I am not
disposed to extend the bounds of privilege beyond the principles already
laid down, and I find no authority for its extension.

_Judgment affirmed._[506]

CLARK _v._ MOLYNEUX
IN THE COURT OF APPEAL, DECEMBER 4, 1877.
_Reported in 47 Law Journal Reports, Common Law, 230._[507]

The action was for slander and libel. The plaintiff, a clergyman of the
Church of England, had been formerly in the army, but left it in the
year 1863; and, after taking his degree at Cambridge, was ordained by
the Bishop of Exeter, and subsequently became curate at Assington, to
the Rev. H. L. Maud.

In March, 1876, the defendant, the Rev. Canon Molyneux, the Rector of
Sudbury, which is in the neighborhood of Assington, when calling on a
Mr. G. Bevan, a banker, with whom he had been intimate for twenty-four
years, was informed by Mr. Bevan that the plaintiff was going to preach
one of a course of Lenten sermons at Newton Church, in the neighborhood,
and that he was sure that if Mr. Charles Smith, the rector, knew what
sort of a person the plaintiff was, he would never permit him to preach
in his church. Mr. Bevan then desired the defendant, as an old friend of
Mr. Smith’s, to let him know what the plaintiff’s character was. In
answer to the defendant’s inquiry as to what was the nature of the
charges against the plaintiff, Mr. Bevan said that he had been obliged
to leave the army through cheating with cards, had lived an irregular
life at Cambridge, had been guilty of gross immorality when curate at
Horringer, and had boasted of it. The defendant, placing implicit
reliance on Mr. Bevan, and thinking that it was his duty to acquaint Mr.
Charles Smith with the matter, at once rode to his house, and, finding
that he was ill in bed, communicated his information to the Rev. H.
Smith, his son, who was in the house.

At the end of the same month the defendant consulted the Rev. J. C.
Martyn, his rural dean, as to whether he should not speak to Mr. Maud,
the plaintiff’s rector. Mr. Martyn said he thought the defendant ought
to do so. As Mr. Maud was abroad, the defendant spoke to his solicitor
on the subject; and on Mr. Maud’s return he received a letter from him,
asking for information. The defendant wrote an answer detailing the
facts substantially as communicated to him by Mr. Bevan; but some of the
expressions in the letter were stronger than those used by Mr. Bevan.
“Profligate” was used instead of “irregular,” and “expelled the army,”
instead of “obliged to leave the army.”

The defendant also consulted Mr. Green, his curate, who was announced to
preach one of the same course of sermons as the plaintiff. Mr. Green had
been with the plaintiff for twenty years, and was consulted by him on
every ecclesiastical matter that came before him.

The communications made to Mr. Green, Mr. H. Smith and Mr. Martyn were
the slanders complained of, and the letter to Mr. Maud was the libel.

The defendant relied solely on the privilege of the occasions and the
_bona fides_ of his statements.

The action was tried before Baron Huddleston and a special jury at Bury
St. Edmunds, at the Summer Assizes, 1876.

The learned judge ruled that all the occasions were privileged, and the
case went to the jury on the question of express malice.

In the course of his summing up the learned judge said: “Now in law if a
man says what is not true, or writes what is libellous, or says what is
slanderous of another, it is presumed that it is malicious. But where
the occasion is privileged, then you require something more, and you
require what the law calls express malice. I must tell you what express
malice means.”

And again, at the close of the summing up:—

“What you have to consider, then, is really and substantially
this—assuming that these occasions were privileged, do you think that
the defendant made those statements and wrote that letter _bona fide_,
and in the honest belief that they were true—not merely that he believed
them himself, but honestly believed them, which means that he had good
grounds for believing them to be true. I do not mean to say
pig-headedly, pertinaciously and obstinately perhaps persuaded himself
of the matter for which he had no reasonable grounds, and of which you
twelve gentlemen would say they were perfectly unjustified. If you think
that under these circumstances Mr. Molyneux has taken himself out of the
privilege in consequence of the statements not being made _bona fide_
and in the honest belief they were true, and that therefore there is
what in law is called malice in fact, which I have explained to you,
then your verdict will be for the plaintiff.”[508]

The jury found a verdict for the plaintiff, with £200 damages.

These passages and the general tenor of the summing up, which was to the
same effect, constituted the misdirection complained of.

The defendant moved for a new trial in the Queen’s Bench Division, on
the ground of misdirection, and that the verdict was against evidence;
but the court refused the rule. The defendant appealed.

BRETT, L. J. I am of the same opinion; I think that there was, what
amounts in law to a misdirection; that the verdict was against the
evidence; and, further, that there was no evidence to go to the jury.

With regard to the alleged misdirection, I do not think that we differ
from the Queen’s Bench Division in our view of the law, but I think
that, whatever the idea Baron Huddleston intended to convey to the jury
in his careful, elaborate, and, if I may say so, able summing up, really
was, it may have materially misled them, and if it may, that is in law a
misdirection.

The summing up is founded on the assumption that the occasions of the
alleged slanders and libel were privileged, and that the defendant was
therefore excused in that which would otherwise have been actionable, if
he used the occasions fairly. Now it is right before criticising the
summing up of the learned judge to state, as clearly as one can, what
the law relating to excuse by reason of privilege in cases of libel and
slander really is. It is, I apprehend, this: When a defendant claims
that the occasion of a libel or slander is privileged, and when it is
held by the judge, whose duty it is to decide the matter, that the
occasion is privileged, the question arises,—under what conditions can
the defendant take advantage of the privilege? If the occasion is
privileged, it is so for some reason, and the defendant is entitled to
the protection of the privilege if he uses the occasion for that reason,
but not otherwise. If he uses the occasion for an indirect reason or
motive, he uses it, not for the reason which makes it privileged, but
for another. One, but by no means the only, indirect motive which can be
alleged, is the gratification of some anger or malice of his own. By
malice here I mean, not a pleading expression, but actual malice, or
what is termed malice in fact, _i. e._, a wrong feeling in the
defendant’s mind. If this malice be the indirect and wrong motive
suggested in a particular case, there are certain tests by which its
existence may be investigated. Two such tests are these: If a man is
proved to have stated what he knew to be false, no one inquires further,
everybody assumes thenceforth that he was malicious, that he did so
wrong a thing from some wrong motive. Again, if it be proved that out of
anger or from some other wrong motive the defendant has stated something
as a truth or as true, without knowing or inquiring whether it was true
or not, therefore reckless, by reason of his anger or other motive,
whether it is true or not, the jury may infer, and generally will infer,
that he used the occasion for the gratification of his anger or malice,
or other indirect motive, and not for the reason or motive which
occasions or justifies the privilege.

These tests have been suggested before, and they were approved by the
whole Court of Common Pleas in a case tried before me at Leeds, and I
apprehend they are correct.

That being so, I think that Baron Huddleston did not follow these rules
and tests, but others. Take his summing up as a whole, as I think we
ought, he left the case as if the burden of proving there was no malice
lay on the defendant, but if the occasion be privileged, the _onus_ of
showing malice is at once thrown on the plaintiff. Further, in order to
guide the jury as to what malice was, he read the passage in Bromage
_v._ Prosser; what he read there is not a definition of malice in fact,
at all, but of that malice which is a technical term in certain
pleadings, where it simply means “wilfully.” It has been held, that in
such pleadings the absence of the word maliciously is immaterial if the
word wilfully is present—because they are in such pleadings synonymous
terms. Then, I think the passage at the end of the summing up is really
a recapitulation of the sense of the whole summing up, and might lead
the jury to believe that, although they were of opinion that the
defendant did believe what he stated, he would not be protected unless
his belief was a reasonable one, as distinguished from a pig-headed,
obstinate, and insensible one. But the real question, as I have stated,
is, whether the defendant did, in fact, believe his statement,[509] or
whether being angry or moved by some other indirect motive, did not
know, and did not care, whether his statement was true or false.
Questions of pig-headedness and obstinacy may be tests as to whether a
man really did honestly believe or not, but Baron Huddleston left them
as if they were of the essence of the definition of malice.

The direction was therefore wrong if the occasions were privileged. That
they were I have a very strong opinion. The only occasion disputed is
that of the communication to Mr. Green the curate. I am clearly of
opinion that that was privileged. I think that where a clergyman
consults his curate as to his conduct in an ecclesiastical matter, the
occasion is a privileged one.

As to the other points, I think that at least the verdict was against
the evidence. But I think more, I think there was no evidence fit to be
submitted to a jury, and, therefore, if on a new trial the facts remain
the same, the judge’s duty will be to direct the jury that there is no
case. In this matter, therefore, there has been a miscarriage. But I
think that the case is not one in which to apply Order XL., rule 10, and
enter the verdict for the defendant, as it does not follow that on a new
trial further evidence may not be forthcoming.

_Appeal allowed._

CARPENTER _v._ BAILEY
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1873.
_Reported in 53 New Hampshire Reports, 590._

This is an action on the case for a libel, by J. N. Carpenter against J.
H. Bailey, the writ bearing date September 21, 1869.[510] The
declaration alleges, that, on April 20, 1869, the plaintiff was a
paymaster in the navy, stationed as purchasing agent at Portsmouth;
that, by the rules of the navy department, he was entitled to remain on
that station three years; and that the defendant, contriving, &c.,
published of him the following libel: “To the Honorable the Senators and
Members of the House of Representatives in Congress from New Hampshire:
The undersigned, after much patience has been exhausted, beg to
remonstrate against the further continuance at this station of Paymaster
J. N. Carpenter as purchasing agent. In all our struggles, Paymaster
Carpenter has always voted against us, carrying the straight Democratic
ticket, throwing his patronage adversely to the friends of General
Grant, and always filling the requirements of a tool sent here by
ex-Secretary Welles to carry out the interests of Andrew Johnson. May we
hope for relief from such a burden? Let the rebel sympathizer be
exchanged for a man who will have office hours of a convenient kind, and
will be found there _at least once a day_ to attend to those having
business there, and officers and citizens will alike be grateful.
Portsmouth, N. H., April 20, 1869. E. G. Peirce, Jr., Chas. Robinson,
Aaron Young, Daniel J. Vaughan, E. A. Stevens, W. H. Hackett, John H.
Bailey, Paine Durkee.”

The defendant pleaded in substance that he was informed and believed
that the plaintiff had done the things charged in the petition and that
he believed that “the public good, and the welfare of said
administration of General Grant, required that the said plaintiff should
be removed from said office at said station, and that a suitable officer
should be put there in his stead, and that the senators and members of
the House of Representatives in Congress from the State of New Hampshire
were the proper persons and officers to be petitioned in order to
procure the removal of the said plaintiff from said office at said naval
station, the defendant, in good faith, and without malice or ill-will to
the said plaintiff, but in order to procure the removal of the plaintiff
for the causes aforesaid from the said office, signed said petition to
said senators and representatives containing said supposed libellous
words in the plaintiff’s declaration mentioned, as he lawfully might
have done, for the cause aforesaid, and this he is ready to verify.”
Wherefore, &c.

To this plea the plaintiff demurred generally.

SARGENT, C. J. If the defendant cannot justify by showing the truth of
the matter charged, he may excuse the publication by showing that it was
made upon a lawful occasion, upon probable cause, and from good motives.

It is also said that matter in excuse in a prosecution for libel is
where the defendant, upon a lawful occasion, proceeded with good motives
upon probable grounds,—that is, upon reasons that were apparently good,
but upon a supposition which turns out to be unfounded. This is a very
different thing from showing the actual truth of the allegations: where
that is proved with a proper occasion, it is a justification without
regard to motives; but where the statements made prove false, the
defendant needs to show not only a proper occasion, but a good motive
also,—for, if the matter be untrue and the motive bad, how could the end
be justified or even excused? But when the occasion is proper, one may
be excused for stating what proves to be untrue, if he had probable
cause to believe it true, and spoke it from good motives; see
authorities, 9 N. H. 45.

So, in Palmer _v._ Concord, 48 N. H. 217, it is said, by Smith, J., that
most of what are called “privileged communications” are conditionally,
not absolutely, privileged. The question is one of good faith, or
motive, and can be settled only by a jury. A court cannot rule that a
communication is privileged, without assuming the conditions on which it
is held to be privileged, namely, that it was made in good faith, for a
justifiable purpose, and with a belief, founded on reasonable grounds,
of its truth;—and see cases cited.

In the case before us, the occasion would be a lawful one, provided the
motive was good, and there was probable cause. And the question is,
whether the mere fact, that the defendant had been informed and believed
that a fact was so, is equivalent to having probable cause to believe it
to be so. And we think it could not be assumed that it was so. A person
might be informed of a fact by one in whom he might, for some special
reason, have confidence, but to whom no one else would give the
slightest credence; and a jury would readily find that a belief in that
case was founded upon information which would not amount to probable
cause for the belief of any man of ordinary capacity. The question for
the jury would be, not whether the defendant believed it, but had he
probable cause to believe it? There might be belief without probable
cause for it; and hence it would not be sufficient to allege merely
information and belief, because that might not, in a given case, amount
to probable cause. The fourth plea is substantially correct in form, and
goes as far as the rule thus laid down will warrant; and we think this
third plea is insufficient.

_Demurrer sustained._[511]

CAMPBELL _v._ SPOTTISWOODE
IN THE QUEEN’S BENCH, APRIL 18, 1863.
_Reported in 3 Best & Smith, 769._

COCKBURN, C. J.[512] I am of opinion that there ought to be no rule. The
article on which this action is brought is undoubtedly libellous. It
imputes to the plaintiff that, in putting forth to the public the sacred
cause of the dissemination of religious truth among the heathen, he was
acting as an impostor, and that his purpose was to put money into his
own pocket by obtaining contributions to his newspaper. The article also
charges that, in furtherance of that base and sordid purpose, he
published in his newspaper the name of a fictitious person as the
authority for his statements, and still further that, with a view to
induce persons to contribute towards his professed cause, he published a
fictitious subscription list. These are serious imputations upon the
plaintiff’s moral as well as public character.

It is said, on behalf of the defendant, that, as the plaintiff addressed
himself to the public in a matter, not only of public, but of universal
interest, his conduct in that matter was open to public criticism, and I
entirely concur in that proposition. If the proposed scheme were
defective, or utterly disproportionate to the result aimed at, it might
be assailed with hostile criticism. But then a line must be drawn
between criticism upon public conduct and the imputation of motives by
which that conduct may be supposed to be actuated; one man has no right
to impute to another, whose conduct may be fairly open to ridicule or
disapprobation, base, sordid, and wicked motives, unless there is so
much ground for the imputation that a jury shall find, not only that he
had an honest belief in the truth of his statements, but that his belief
was not without foundation.

In the present case, the charges made against the plaintiff were
unquestionably without foundation. It may be that, in addition to the
motive of religious zeal, the plaintiff was not wholly insensible to the
collateral object of promoting the circulation of his newspaper, but
there was no evidence that he had resorted to false devices to induce
persons to contribute to his scheme. That being so, Mr. Bovill is
obliged to say that, because the writer of this article had a _bona
fide_ belief that the statements he made were true, he was privileged. I
cannot assent to that doctrine. It was competent to the writer to have
attacked the plaintiff’s scheme; and perhaps he might have suggested,
that the effect of the subscriptions which the plaintiff was asking the
public to contribute would be only to put money into his pocket. But to
say that he was actuated only by the desire of putting money into his
pocket, and that he resorted to fraudulent expedients for that purpose,
is charging him with dishonesty: and that is going further than the law
allows.

It is said that it is for the interests of society that the public
conduct of men should be criticised without any other limit than that
the writer should have an honest belief that what he writes is true. But
it seems to me that the public have an equal interest in the maintenance
of the public character of public men; and public affairs could not be
conducted by men of honor with a view to the welfare of the country, if
we were to sanction attacks upon them, destructive of their honor and
character, and made without any foundation. I think the fair position in
which the law may be settled is this: that where the public conduct of a
public man is open to animadversion, and the writer who is commenting
upon it makes imputations on his motives which arise fairly and
legitimately out of his conduct so that a jury shall say that the
criticism was not only honest, but also well founded, an action is not
maintainable.[513] But it is not because a public writer fancies that
the conduct of a public man is open to the suspicion of dishonesty, he
is therefore justified in assailing his character as dishonest.[514]

The cases cited do not warrant us in going that length. In Paris _v._
Levy, 2 F. & F. 71, there may have been an honest and well-founded
belief that the man who published the handbill which was commented upon
could only have had a bad motive in publishing it, and if the jury were
of that opinion, the writer who attacked him in the public press would
be protected. We cannot go farther than that.

CROMPTON, J. I am of the same opinion.... The first question is, whether
the article on which this action is brought is a libel or no libel,—not
whether it is privileged or not. It is no libel, if it is within the
range of fair comment, that is, if a person might fairly and _bona fide_
write the article; otherwise it is. It is said that there is a
privilege, not to writers in newspapers only but to the public in
general, to comment on the public acts of public men, provided the
writer believes that what he writes is true; in other words, that this
belongs to the class of privileged communications, in which the malice
of the writer becomes a question for the jury; that is, where, from the
particular circumstances or position in which a person is placed, there
is a legal or social duty in the nature of a private or peculiar right,
as opposed to the rights possessed by the community at large, to assert
what he believes. In these cases of privilege there is an exemption from
legal liability in the absence of malice; and it is necessary to prove
actual malice. But there is no such privilege here. It is the right of
all the Queen’s subjects to discuss public matters; but no person can
have a right on that ground to publish what is defamatory merely because
he believes it to be true. If this were so, a public man might have base
motives imputed to him without having an opportunity of righting
himself. Therefore it is necessary to confine privilege, as the law has
always confined it, to cases of real necessity or duty, as that of a
master giving a servant a character, or of a person who had been robbed
charging another with robbing him. Though the word “privilege” is used
loosely in some of the cases as applied to the right which every person
has to comment on public matters, I think that in all the cases cited
the real question was whether the alleged libel was a fair comment such
as every person might make upon a public matter, and if not, there was
no privilege.

BLACKBURN, J. I also think that the law governing this case is so
clearly settled that we ought not to grant a rule. It is important to
bear in mind that the question is, not whether the publication is
privileged, but whether it is a libel. The word “privilege” is often
used loosely, and in a popular sense, when applied to matters which are
not, properly speaking, privileged. But, for the present purpose, the
meaning of the word is that a person stands in such a relation to the
facts of the case that he is justified in saying or writing what would
be slanderous or libellous in any one else. For instance, a master
giving a character of a servant stands in a privileged relation; and the
cases of a memorial to the Lord Chancellor or the Home Secretary on the
conduct of a justice of the peace, Harrison _v._ Bush, and of a
statement to a public functionary, reflecting upon some public officer,
Beatson _v._ Skene, 5 H. & N. 538, rank themselves under that class. In
these cases no action lies unless there is proof of express malice. If
it could be shown that the editor or publisher of a newspaper stands in
a privileged position, it would be necessary to prove actual malice. But
no authority has been cited for that proposition;[515] and I take it to
be certain that he has only the general right which belongs to the
public to comment upon public matters, for example, the acts of a
minister of state; or, according to modern authorities somewhat
extending the doctrine, where a person has done or published anything
which may fairly be said to invite comment, as in the case of a handbill
or advertisement; Paris _v._ Levy, 2 F. & F. 71. In such cases every one
has a right to make fair and proper comment; and, so long as it is
within that limit, it is no libel.

The question of libel or no libel, at least since Fox’s Act (32 G. 3, c.
60), is for the jury; and in the present case, as the article published
by the defendant obviously imputed base and sordid motives to the
plaintiff, that question depended upon another,—whether the article
exceeded the limits of a fair and proper comment on the plaintiff’s
prospectus; and this last question was therefore rightly left to the
jury. Then Mr. Bovill asked that a further question should be left to
them, viz., whether the writer of the article honestly believed that it
was true; and the jury have found that he did. We have to say whether
that prevents an action being maintained. I think not. _Bona fide_
belief in the truth of what is written is no defence to an action; it
may mitigate the amount, but it cannot disentitle the plaintiff to
damages.

_Rule refused._[516]

CARR _v._ HOOD
BEFORE LORD ELLENBOROUGH, C. J., LONDON SITTINGS AFTER TRINITY TERM,
1808.
_Reported in 1 Campbell, 355, n._

The declaration stated, that the plaintiff, before the publishing of any
of the false, scandalous, malicious, and defamatory libels thereinafter
mentioned, was the author of, and had sold for divers large sums of
money, the respective copyrights of divers books of him the said Sir
John, to wit a certain book entitled “The Stranger in France,” a certain
other book, entitled “A Northern Summer,” a certain other book, entitled
“The Stranger in Ireland,” &c. which said books had been respectively
published in 4to, yet that defendant intending to expose him to, and to
bring upon him great contempt, laughter, and ridicule, falsely and
maliciously published a certain false, scandalous, malicious, and
defamatory libel, in the form of a book, of and concerning the said Sir
John, and of and concerning the said books, of which the said Sir John
was the author as aforesaid, which same libel was entitled “My Pocket
Book, or Hints for a Ryghte Merrie and conceited Tour, in quarto, to be
called The Stranger in Ireland in 1805, (thereby alluding to the said
book of the said Sir John, thirdly above mentioned,) by a knight errant
(thereby alluding to the said Sir John),” and which same libel contained
therein a certain false, scandalous, malicious, and defamatory print, of
and concerning the said Sir John, and of and concerning the said books
of the said Sir John, 1st and 2dly above mentioned, therein called,
“Frontispiece,” and entitled “The Knight (meaning the said Sir John)
leaving Ireland with Regret,” and containing and representing in the
said print, a certain false, scandalous and malicious, defamatory, and
ridiculous representation of the said Sir John, in the form of a man of
ludicrous and ridiculous appearance, holding a pocket-handkerchief to
his face, and appearing to be weeping, and also containing therein a
certain false, malicious, and ridiculous representation of a man of
ludicrous and ridiculous appearance, following the said representation
of the said Sir John, and representing a man loaded with, and bending
under the weight of three large books, one of them having the word
“Baltic,” printed on the back thereof, &c., and a pocket-handkerchief
appearing to be held in one of the hands of the said representation of a
man, and the corners thereof appearing to be held or tied together, as
if containing something therein, with the printed word “wardrobe”
depending therefrom, (thereby falsely, scandalously, and maliciously,
meaning and intending to represent, for the purpose of rendering the
said Sir John ridiculous, and exposing him to laughter, ridicule, and
contempt, that one copy of the said 1st mentioned book of the said Sir
John, and two copies of the said book of the said Sir John 2dly above
mentioned, were so heavy as to cause a man to bend under the weight
thereof, and that his the said Sir John’s wardrobe was very small, and
capable of being contained in a pocket-handkerchief,) and which said
libel also contained, &c. &c. The declaration concluded by laying as
special damage, that the said Sir John had been prevented and hindered
from selling to Sir Richard Philips Knt. for a large sum of money to wit
£600, the copyright of a certain book or work of him the said Sir John,
of which the said Sir John was the author, containing an account of a
tour of him the said Sir John through part of Scotland, which but for
the publishing of the said false, scandalous, malicious, and defamatory
libels, he the said Sir John would, could, and might have sold to the
said Sir Richard Philips for the said last mentioned sum of money, and
the same remained wholly unsold and undisposed of, and was greatly
depreciated and lessened in value to the said Sir John.—Plea, not
guilty.

LORD ELLENBOROUGH, as the trial was proceeding, intimated an opinion,
that if the book published by the defendants only ridiculed the
plaintiff as an author, the action could not be maintained.

_Garrow_, for the plaintiff, allowed, that when his client came forward
as an author, he subjected himself to the criticism of all who might be
disposed to discuss the merits of his works; but that criticism must be
fair and liberal; its object ought to be to enlighten the public, and to
guard them against the supposed bad tendency of a particular publication
presented to them, not to wound the feelings and to ruin the prospects
of an individual. If ridicule was employed, it should have some bounds.
While a liberty was granted of analyzing literary productions, and
pointing out their defects, still he must be considered as a libeller,
whose only object was to hold up an author to the laughter and contempt
of mankind. A man with a wen upon his neck perhaps could not complain if
a surgeon in a scientific work should minutely describe it, and consider
its nature and the means of dispersing it; but surely he might support
an action for damages against any one who should publish a book to make
him ridiculous on account of this infirmity, with a caricature print as
a frontispiece. The object of the book published by the defendants
clearly was, by means of immoderate ridicule to prevent the sale of the
plaintiff’s works, and entirely to destroy him as an author. In the late
case of Tipper _v._ Tabbart, 1 Camp. 350, his lordship had held that a
publication by no means so offensive or prejudicial to the object of it,
was libellous and actionable.

LORD ELLENBOROUGH. In that case the defendant had falsely accused the
plaintiff of publishing what he had never published. Here the supposed
libel has only attacked those works of which Sir John Carr is the avowed
author; and one writer in exposing the follies and errors of another may
make use of ridicule however poignant. Ridicule is often the fittest
weapon that can be employed for such a purpose. If the reputation or
pecuniary interests of the person ridiculed suffer, it is _damnum absque
injuria_. Where is the liberty of the press if an action can be
maintained on such principles? Perhaps the plaintiff’s “Tour through
Scotland” is now unsaleable; but is he to be indemnified by receiving a
compensation in damages from the person who may have opened the eyes of
the public to the bad taste and inanity of his compositions? Who would
have bought the works of Sir Robert Filmer after he had been refuted by
Mr. Locke? but shall it be said that he might have sustained an action
for defamation against that great philosopher, who was laboring to
enlighten and ameliorate mankind? We really must not cramp observations
upon authors and their works. They should be liable to criticism, to
exposure, and even to ridicule, if their compositions be ridiculous;
otherwise the first who writes a book on any subject will maintain a
monopoly of sentiment and opinion respecting it. This would tend to the
perpetuity of error.—Reflection on personal character is another thing.
Show me an attack on the moral character of this plaintiff, or any
attack upon his character unconnected with his authorship, and I shall
be as ready as any judge who ever sat here to protect him; but I cannot
hear of malice on account of turning his works into ridicule.

The counsel for the plaintiff still complaining of the unfairness of
this publication, and particularly of the print affixed to it, the trial
proceeded.

The _Attorney-General_ having addressed the jury on behalf of the
defendants—

LORD ELLENBOROUGH said, Every man who publishes a book commits himself
to the judgment of the public, and any one may comment upon his
performance. If the commentator does not step aside from the work, or
introduce fiction for the purpose of condemnation, he exercises a fair
and legitimate right. In the present case, had the party writing the
criticism followed the plaintiff into domestic life for the purposes of
slander, that would have been libellous; but no passage of this sort has
been produced, and even the caricature does not affect the plaintiff,
except as the author of the book which is ridiculed. The works of this
gentleman may be, for ought I know, very valuable; but whatever their
merits, others have a right to pass their judgment upon them,—to censure
them if they be censurable, and to turn them into ridicule if they be
ridiculous. The critic does a great service to the public, who writes
down any vapid or useless publication, such as ought never to have
appeared. He checks the dissemination of bad taste, and prevents people
from wasting both their time and money upon trash.—I speak of fair and
candid criticism; and this every one has a right to publish, although
the author may suffer a loss from it. Such a loss the law does not
consider as an injury; because it is a loss which the party ought to
sustain. It is in short the loss of fame and profits to which he was
never entitled. Nothing can be conceived more threatening to the liberty
of the press than the species of action before the court. We ought to
resist an attempt against free and liberal criticism at the
threshold.—The CHIEF JUSTICE concluded by directing the jury, that if
the writer of the publication complained of had not travelled out of the
work he criticised for the purpose of slander, the action would not lie;
but if they could discover in it anything personally slanderous against
the plaintiff, unconnected with the works he had given to the public, in
that case he had a good cause of action, and they would award him
damages accordingly.

_Verdict for the defendants._[517]

MERIVALE _v._ CARSON
IN THE COURT OF APPEAL, DECEMBER 2, 1887.
_Reported in 20 Queen’s Bench Division, 275._

Appeal by the defendant against the refusal of a divisional court
(Mathew and Grantham, JJ.) to allow a new trial of the action, or to
enter judgment for the defendant.

The action was brought to recover damages in respect of an alleged
libel. At the trial before Field, J., it appeared that the plaintiff and
his wife were the joint authors of a play called “The Whip Hand.” The
defendant was the editor of a theatrical newspaper called “The Stage.”
Early in May, 1886, the play was performed at a theatre in Liverpool. On
May 7 a criticism of the play was published in the defendant’s
newspaper. The part of the article charged in the statement of claim as
libellous was as follows: “‘The Whip Hand,’ the joint production of Mr.
and Mrs. Herman Merivale, gives us nothing but a hash-up of ingredients
which have been used _ad nauseam_, until one rises in protestation
against the loving, confiding, fatuous husband with the naughty wife and
her double existence, the good male genius, the limp aristocrat, and the
villainous foreigner. And why dramatic authors will insist that in
modern society comedies the villain must be a foreigner, and the
foreigner must be a villain, is only explicable on the ground, we
suppose, that there is more or less of romance about such gentry. It is
more in consonance with accepted notions that your Continental croupier
would make a much better fictitious prince, marquis, or count than
would, say, an English billiard-marker or stablelout. And so the Marquis
Colonna in ‘The Whip Hand’ is offered up by the authors upon the altar
of tradition and sacrificed in the usual manner when he gets too
troublesome to permit of the reconciliation of husband and wife, and
lover and maiden, and is proved, also much as usual, to be nothing more
than a kicked-out croupier.” The innuendo suggested was that the article
implied that the play was of an immoral tendency.

It was admitted that there was no adulterous wife in the play.

Field, J., in the course of his summing-up to the jury, said: “The
question is, first, whether this criticism bears the meaning which the
plaintiffs put upon it. If it is a fair temperate criticism, and does
not bear that meaning, or is not fairly to be read as having that
meaning, then your verdict will be for the defendants.... It is not for
a moment suggested by any one that the defendant is animated by the
smallest possible malice towards the plaintiffs. There is no ground for
saying so, and no one has said so.... The malice which is necessary in
this action is one, which, if it existed at all, will be because the
defendant has exceeded his right of criticism upon the play. You have
the play before you, you must judge for yourselves. If it is no more
than fair, honest, independent, bold, even exaggerated, criticism, then
your verdict will be for the defendant. It is for the plaintiffs to make
out their case. They have to satisfy you that it is more than that,
otherwise they cannot complain. If you are satisfied upon the evidence
that it is more than that, then you will give your verdict for the
plaintiffs.”

The jury found a verdict for the plaintiffs with one shilling damages,
and the judge entered judgment for the plaintiffs accordingly, and
declined to deprive them of costs.

The defendant appealed.[518]

LORD ESHER, M. R. This action is brought in respect of an alleged libel
contained in a criticism by the defendant upon a play written by the
plaintiffs. The first thing to be considered is, what are the questions
which in such a case ought to be left to the jury? The first question to
be left to them is, what is the meaning of the alleged libel? The jury
must look at the criticism, and say what in their opinion any reasonable
man would understand by it. I am not prepared to say that in coming to
their conclusion they would not also have to look at the work
criticised. That, however, is not very material for us to consider now.
The proper question was put to the jury in the present case. Two
interpretations of the defendant’s article were placed before them. One
was that it meant that the play is founded upon adultery, without
containing any stigma on the fact that it is so founded. The defendant’s
article is alleged to be libellous in that it attributed to the
plaintiffs that they had written a play founded upon adultery, without
any objection to it on their part, in other words, that they had written
an immoral play. On behalf of the defendant it was said that the article
had no such meaning, that the expression “naughty wife” does not mean
“adulterous wife.” It would not have that meaning in every case, but the
question is whether, looking at the context of the article, it has that
meaning. If the court should come to the conclusion that the expression
could not by any reasonable man be thought to have that meaning, they
could overrule the verdict of the jury; otherwise the question is for
the jury.

What is the next question to be put to the jury? Are they to be told
that the criticism of a play is a privileged occasion, within the
well-settled meaning of the word “privilege,” and that their verdict
must go for the defendant, unless the plaintiff can prove malice in
fact, that is, that the writer of the article was actuated by an
indirect or malicious motive? I think it is clear that that is not the
law, and that it was so decided in Campbell _v._ Spottiswoode, which has
never been overruled. All the judges, both before and ever since that
case, have acted upon the view there expressed, that a criticism upon a
written published work is not a privileged occasion. Blackburn, J., in
his judgment, shows why it is not a privileged occasion. A privileged
occasion is one on which the privileged person is entitled to do
something which no one who is not within the privilege is entitled to do
on that occasion. A person in such a position may say or write about
another person things which no other person in the kingdom can be
allowed to say or write. But, in the case of a criticism upon a
published work, every person in the kingdom is entitled to do, and is
forbidden to do exactly the same things, and therefore the occasion is
not privileged. Therefore the second question to be put to the jury is,
whether the alleged libel is or is not a libel. The form in which that
question should be put is, I think, best expressed by Crompton, J., in
Campbell _v._ Spottiswoode. He says: “Nothing is more important than
that fair and full latitude of discussion should be allowed to writers
upon any public matter, whether it be the conduct of public men, or the
proceedings in courts of justice, or in Parliament, or the publication
of a scheme, or a literary work. But it is always to be left to a jury
to say whether the publication has gone beyond the limits of a fair
comment on the subject-matter discussed. A writer is not entitled to
overstep those limits, and impute base and sordid motives which are not
warranted by the facts, and I cannot for a moment think, because he has
a _bona fide_ belief that he is publishing what is true, that is any
answer to an action for libel.” He says that upon the answer to the
question there stated it depends whether the article upon which the
action is brought is or is not a libel. The question is not whether the
article is privileged, but whether it is a libel. What is the meaning of
a “fair comment”? I think the meaning is this: is the article in the
opinion of the jury beyond that which any fair man, however prejudiced
or however strong his opinion may be, would say of the work in question?
Every latitude must be given to opinion and to prejudice, and then an
ordinary set of men with ordinary judgment must say whether any fair man
would have made such a comment on the work. It is very easy to say what
would be clearly beyond that limit; if, for instance, the writer
attacked the private character of the author. But it is much more
difficult to say what is within the limit. That must depend upon the
circumstances of the particular case. I think the right question was
really left by Field, J., to the jury in the present case. No doubt you
can find in the course of his summing up some phrases which, if taken
alone, may seem to limit too much the question put to the jury. But,
when you look at the summing up as a whole, I think it comes in
substance to the final question which was put by the judge to the jury:
“If it is no more than fair, honest, independent, bold, even
exaggerated, criticism, then your verdict will be for the defendants.”
He gives a very wide limit, and, I think, rightly. Mere exaggeration, or
even gross exaggeration, would not make the comment unfair. However
wrong the opinion expressed may be in point of truth, or however
prejudiced the writer, it may still be within the prescribed limit. The
question which the jury must consider is this: Would any fair man,
however prejudiced he may be, however exaggerated or obstinate his view,
have said that which this criticism has said of the work which is
criticised? If it goes beyond that, then you must find for the
plaintiff; if you are not satisfied that it does, then it falls within
the allowed limit, and there is no libel at all. I cannot doubt that the
jury were justified in coming to the conclusion to which they did come,
when once they had made up their minds as to the meaning of the words
used in the article, viz. that the plaintiffs had written an obscene
play; and no fair man could have said that. There was therefore a
complete misdescription of the plaintiffs’ work, and the inevitable
conclusion was that an imputation was cast upon the characters of the
authors. Even if I had thought that the right direction had not been
given to the jury, I should have declined to grant a new trial, for the
same verdict must inevitably have been found if the jury had been
rightly directed.

Another point which has been discussed is this: It is said that if in
some other case the alleged libel would not be beyond the limits of fair
criticism, and it could be shown that the defendant was not really
criticising the work, but was writing with an indirect and dishonest
intention to injure the plaintiffs, still the motive would not make the
criticism a libel. I am inclined to think that it would, and for this
reason, that the comment would not then really be a criticism of the
work. The mind of the writer would not be that of a critic, but he would
be actuated by an intention to injure the author.

In my opinion this appeal must be dismissed.

BOWEN, L. J. We must begin with asking ourselves, what is the true
meaning of the words used in the alleged libel? We have the benefit of
the machinery which the law gives—the verdict of a jury—for ascertaining
the meaning, and it must now be taken to have been conclusively settled,
that the writer of the criticism has imputed to the plaintiffs that the
story of their play turns in its main incident upon an adulterous wife,
and in such a way as not to lead any one to suppose that the plaintiffs
objected to the adultery, but, on the contrary, that they had treated
the adultery as a spicy incident in the play, without expressing any
opinion as to its morality. It has been admitted by the defendant that
the play does not in fact contain any adulterous wife, that there is no
incident of adultery in it, and therefore it is not open to the
suggestion that the plaintiffs have treated adultery lightly in such a
way as to tend to immorality. These are the facts.

What then is the law applicable to them? We must see, first, what is the
question which ought to have been left to the jury on this assumption of
the meaning of the article, and then whether it was in fact left to
them, and whether there was any miscarriage on their part. I take
precisely the same view as the Master of the Rolls with regard to the
way in which the word “privilege” ought to be used. The present case is
not, strictly speaking, one of “privileged occasion.” In a legal sense
that term is used with reference to a case in which one or more members
of the public are clothed with a greater immunity than the rest. But in
the present case we are dealing with a common right of public criticism
which every subject of the realm equally enjoys,—the right of publishing
a written criticism upon a literary work which is offered to public
criticism.

It is true that a different metaphysical exposition of this common right
is to be found in the judgment of Willes, J., in Henwood _v._ Harrison,
Law Rep. 7 C. P. 606. That learned judge and the majority of the Court
of Common Pleas seem to have treated this right as a branch of the
general law of privilege, and to have found a justification for the use
of the word “privilege” in the subject matter of the criticism, although
there is no limit of the number of the persons entitled to make the
criticism. With great respect to Willes, J., I agree with the Master of
the Rolls that this is not so good an exposition of the right as that
which is given by Blackburn, J., and Crompton, J., in Campbell _v._
Spottiswoode. But the question is rather academical than practical, for
I do not think it would make any substantial difference in the present
case which view was the right one. But, among other reasons, why I
prefer the view of Blackburn, J., and Crompton, J., is this, that it
leaves undisturbed the mode of directing the jury in cases of this class
which has been ordinarily adopted, viz., to begin by asking them whether
they think the limits of fair criticism have been passed. That implies
that there is no libel if those limits are not passed. It is only when
the writer goes beyond the limits of fair criticism that his criticism
passes into the region of libel at all. This leaves unsettled the
inquiry, and perhaps it was intended in Campbell _v._ Spottiswoode (a
case which has never been questioned) to leave it unsettled, what is the
standard for the jury of “fair criticism”? The criticism is to be
“fair,” that is, the expression of it is to be fair. The only limitation
is upon the mode of expression. In this country a man has a right to
hold any opinion he pleases, and to express his opinion, provided that
he does not go beyond the limits which the law calls “fair,” and,
although we cannot find in any decided case an exact and rigid
definition of the word “fair,” this is because the judges have always
preferred to leave the question what is “fair” to the jury. The nearest
approach, I think, to an exact definition of the word “fair” is
contained in the judgment of Lord Tenterden, C. J., in Macleod _v._
Wakley, 3 C. & P., at p. 313, where he said, “Whatever is fair, and can
be reasonably said of the works of authors or of themselves, as
connected with their works, is not actionable, unless it appears that,
under the pretext of criticising the works, the defendant takes an
opportunity of attacking the character of the author: then it will be a
libel.” It must be assumed that a man is entitled to entertain any
opinion he pleases, however wrong, exaggerated, or violent it may be,
and it must be left to the jury to say whether the mode of expression
exceeds the reasonable limits of fair criticism.

In the case of literary criticism it is not easy to conceive what would
be outside that region, unless the writer went out of his way to make a
personal attack on the character of the author of the work which he was
criticising. In such a case the writer would be going beyond the limits
of criticism altogether, and therefore beyond the limits of fair
criticism. Campbell _v._ Spottiswoode was a case of that kind, and there
the jury were asked whether the criticism was fair, and they were told
that, if it attacked the private character of the author, it would be
going beyond the limits of fair criticism. Still there is another class
of cases in which, as it seems to me, the writer would be travelling out
of the region of fair criticism,—I mean if he imputes to the author that
he has written something which in fact he has not written. That would be
a misdescription of the work. There is all the difference in the world
between saying that you disapprove of the character of a work, and that
you think it has an evil tendency, and saying that a work treats
adultery cavalierly, when in fact there is no adultery at all in the
story. A jury would have a right to consider the latter beyond the
limits of fair criticism.

Applying the law to the present case, we have to see whether the learned
judge misdirected the jury, having regard to their finding as to the
true construction of the article. Their construction of the words of the
article could not have been affected by what he said to them about the
meaning of “fair criticism.” The alleged libel stated that the story of
the plaintiffs’ play turned upon adultery. In a case of manifest
misdescription such as this the judge is not bound to go into all the
minutiæ as if the libel had been of a different character, and his
summing-up must be read with reference to this fact. I have read through
the summing-up of Field, J., and, though I do not think that his
language was altogether exact, yet what possible harm could it have done
having regard to the facts of the case? The jury had to deal with a case
of positive misdescription, a question not of opinion, but of fact. Did
not that fall clearly beyond the limits of fair criticism? Could this
court since the Judicature Act set aside the verdict of the jury, merely
because the language of the learned judge was not exactly that which he
would have used if he had written his summing-up? Assuming the
interpretation the jury put on the meaning of the words to be correct,
as we must assume, I entertain no doubt as to the correctness of the
remainder of the verdict. And, even if the view of the law as to
privilege which I do not adopt were the right view, I do not think it
would make any difference in the present case, because, the
misrepresentation being clear, the writer having not merely said that
the play had an evil tendency, but having imputed to the authors that it
was founded on adultery when there is no adultery at all in it, the jury
would have inferred, if the question had been left sufficiently to them,
that the writer was actuated by a malicious motive; that is to say, by
some motive other than that of a pure expression of a critic’s real
opinion.

_Appeal dismissed._

THOMAS _v._ BRADBURY, AGNEW & CO.
IN THE COURT OF APPEAL, JUNE 25, 1906.
_Reported in [1906] 2 King’s Bench, 627._

Application by the defendants for a new trial or that judgment should be
entered for them in an action for libel tried before Darling, J., with a
jury.

The alleged libel was the following review in _Punch_ of the plaintiff’s
book:—

“MANGLED REMAINS.

“_Extract from the Recess Diary of Toby, M. P._

“Been reading ‘Fifty Years of Fleet Street’ just issued by Macmillan.
Purports to be the ‘Life and Recollections of Sir John Robinson,’ the
man who made, and for a quarter of a century maintained at high level,
the _Daily News_. The story is written by Mr. F. M. Thomas, who has
added a new terror to death. There are biographies of sorts ranging in
value with the personality of the subject and the skill of the compiler.
The former occasionally suffers from the incapacity of the latter. But
at least his individuality is scrupulously observed. Like Don José, what
he has said he has said, his observations and written memoranda not
being mixed up with what his biographer thinks he himself thought,
uttered, and recorded. Mr. Thomas goes about the biographer’s business
in fresh fashion, complacently announced by way of introduction to the
volume. ‘I have not thought it necessary or desirable,’ he writes, ‘to
indicate in all cases what is his (Sir John Robinson’s) and what is my
own. If there is anything amusing or entertaining in these pages, I am
quite content that my dear old chief should have the credit of it. The
dulness I take upon myself.’ Here be generosity! Here magnanimity! It is
true that in the performance of his task Mr. Thomas occasionally falls
from this high estate. More than once he airily alludes to ‘our diary’
and ‘our notes,’ as if he had prepared them in collaboration with his
chief. Possibly conscious for a moment of this indiscretion, and
reverting to more generous mood, he, approaching a particular narrative,
introduces it with the remark, ‘the incident may be given in the
diarist’s own words.’ The procedure is perhaps not unusual with earlier
biographers. With Mr. Thomas the relapse is rare. When he does let the
hapless subject speak for himself, he is relegated to small type. For
the rest, it is Mr. Thomas who _loquitur_, retelling poor Robinson’s
cherished stories as if they were his own, sometimes with heavy hand
brushing off the bloom. Even in these depressing circumstances there is
no mistaking Robinson’s sly humour, his gift of graphic
characterization. The worst of it is that, happening in the very same
page upon some banal remark, some pompous platitude, the alarmed reader,
recognizing Mr. Thomas, hastily turns over half-a-dozen pages, and
possibly misses a handful of the genuine ore. These are hard lines,
unjust to Robinson, unfair to the public. It is plain to see, from the
few unmutilated extracts from Robinson’s manuscript which illuminate the
book, that the materials at hand for a delightful biography were
abundant. For nearly forty years the manager of the _Daily News_ lived
in the very heart of things. He was behind most scenes of public life,
was more or less intimately acquainted with the principal personages
figuring in it. His sympathies were bountifully wide, his observation
alert, his sense of humour keen. He loved his newspaper work with almost
passionate affection. For him fifty years of Fleet Street were worth a
cycle of Cathay. That he habitually made notes of what he saw and heard
with the view to publication in biographical form is undoubted. Mr.
Thomas, impregnable in the chain armour of complacency, positively
admits it. ‘Robinson,’ he says, ‘did leave some diaries—our diaries—more
or less fragmentary, and a number of thick, closely-written volumes of
jottings in his own handwriting, descriptive of events of which he had
been an eyewitness and people he had seen and known.’ Where is this
treasure trove? Presumably portions the biographer was good enough to
regard as worth adapting are filtered through the wordy pages of larger
type. Happily the material is so good, its original literary form so
excellent, that even this unparalleled atrocity cannot quite spoil the
book. We who knew Robinson on his throne in Bouverie Street and at the
well-known table in the dining-room of the Reform Club, rich in
recollections of William Black, Payn, and Sala; who watched him enjoying
himself like a boy at theatre first nights; who recognized his rare
capacity as a newspaper man; who knew the kind heart hidden behind a
studiously cultured severity of manner in business relations—we, perhaps
jealously, cherish his memory, and regret the surprising chance that has
made possible this slight upon it.”

The defence admitted that the defendant Lucy wrote, and that the other
defendants published, the words complained of, and pleaded that the
words were incapable of a defamatory meaning; and further, that they
were written for publication and were published as a criticism and fair
comment upon the plaintiff’s book without any malice towards the
plaintiff, and were a fair and _bona fide_ criticism and comment upon
the book which was a matter of public interest.

At the trial the plaintiff’s case was, first, that the language of the
review itself was such as to furnish evidence that the writer was not in
truth criticising the book, but was maliciously attacking the author;
and, secondly, that there was evidence outside the review that the
defendant Lucy, in writing the criticism, was actuated by malice towards
the plaintiff. As extrinsic evidence of malice the plaintiff relied upon
the strained relations between Lucy and himself before the criticism was
published; on the fact that the criticism was published as a separate
article under the heading “Mangled Remains,” and was not included in
that part of the journal usually devoted to reviews of books under the
heading “Our Booking Office”; and on the answers and demeanor of Lucy in
the witness-box at the trial. At the close of the plaintiff’s case
counsel for the defendants submitted that there was no case to go to the
jury, upon the grounds that the article was incapable of a defamatory
meaning, and that there was no evidence that it exceeded the limits of
fair comment.

The learned judge declined to withdraw the case from the jury, who found
a verdict for the plaintiff with 300_l._ damages.

The defendants appealed.[519]

_Cur. adv. vult._

* * * * *

June 25. COLLINS, M. R., read the following judgment: This is an appeal
by the defendants from the verdict and judgment for the plaintiff in an
action of libel, tried before Darling, J., and a special jury, based on
a critique of a book written by the plaintiff. The critique was written
by the defendant Lucy, and appeared in _Punch_, of which the first
defendants are the publishers. The defence was fair comment. The learned
judge refused to withdraw the case from the jury, who found for the
plaintiff, with 300_l._ damages. The defendants do not complain of
misdirection other than that involved in holding that there was any
evidence fit for the consideration of a jury. They ask for judgment on
the ground that there was nothing in the article which any reasonable
jury could find to fall outside the limits of fair comment, or in the
alternative they ask for a new trial on the ground that the verdict was
against the weight of evidence.

The defendants pressed us strongly with the case of McQuire _v._ Western
Morning News Co., [1903] 2 K. B. 100, a decision of this court in an
action for libel in respect of an article criticising adversely a play
of which the plaintiff was the author, where the court set aside a
verdict and judgment for the plaintiff on the ground that there was no
evidence on which a rational verdict for the plaintiff could be founded.
There were, however, two distinctions between that case and the present.
There was admittedly in that case no evidence of actual malice unless it
could be inferred from the terms of the article itself, and there was
some reason for supposing that the direction was misleading. In the
present case the plaintiff’s counsel strenuously contended that there
was extrinsic evidence of malice in the proved relations of the parties
before the action; the special manner in which the particular article
appeared in _Punch_; and in the expressions which fell from the
defendant Lucy, coupled with his demeanor in the witness-box, and they
relied also on the terms of an apology subsequently printed as
fortifying their contention. They urged besides that the language of the
article itself raised a question for the jury as to its meaning, and
that upon their view of its meaning would depend the question whether it
exceeded the bounds of fair comment or not. The question, therefore, for
our decision is whether there was any evidence upon which a rational
verdict for the plaintiff could be founded. If so, the learned judge was
bound to leave it to the jury. I have already said that extrinsic
evidence of malice, which I have attempted to summarize, was allowed to
go to the jury. The defendants contended that this evidence amounted to
nothing, and that no reasonable jury could act upon it, but they also
raised a contention which alone, as it seems to me, gives any importance
to this case. Their point was that if the article itself, apart from the
extrinsic evidence, did not raise a case for the jury that the bounds of
fair comment had been overstepped, proof of actual malice on the part of
the writer could not affect the question or disturb his immunity. This
is a formidable contention. It involves the assertion that fair comment
is absolute, not relative, and must be measured by an abstract standard;
that it is a thing quite apart from the opinions and motives of its
author and his personal relations towards the writer of the thing
criticised. It involves the position also that an action based on a
criticism is wholly outside the ordinary law of libel, of which malice,
express or implied, has always been considered to be the gist.

The basis of this contention, such as it is, appears to be a
misconception of the effect of the gloss, if I may so phrase it, first
put upon the law of libel in relation to fair comment in the dicta of
Crompton, J., and Blackburn, J., in Campbell _v._ Spottiswoode, decided
in 1863, and subsequently approved in Merivale _v._ Carson, decided in
1887. I have already had occasion to examine the effect of these views
upon the law of libel in McQuire _v._ Western Morning News Co., [1903] 2
K. B. 100. In my opinion the substance of the matter remains unchanged
and malice remains exactly where it did. The dicta no doubt assert the
etymological inexactitude of the word “privilege” as connoting a right
common to the public at large, and the limits of the right itself are
pointed out which, whether it be called privilege or by any other name,
does not extend to cover misstatements of fact however _bona fide_;[520]
but they in no degree affect the standard by which the fairness of the
comment is to be judged or relieve the commentator from liability, if
the comment be malicious, if, indeed, it can then be described as
comment at all. The right, though shared by the public, is the right of
every individual who asserts it, and is, qua him, an individual right
whatever name it be called by, and comment by him which is colored by
malice cannot from his standpoint be deemed fair. He, and he only, is
the person in whose motives the plaintiff in the libel action is
concerned, and if he, the person sued, is proved to have allowed his
view to be distorted by malice, it is quite immaterial that somebody
else might without malice have written an equally damnatory criticism.
The defendant, and not that other person, is the party sued. This seems
to me quite clear in point of principle; but, as already pointed out in
McQuire _v._ Western Morning News Co., [1903] 2 K. B. 100, the law
continued to be administered after Campbell _v._ Spottiswoode, just as
it always had been before, down to and since Merivale _v._ Carson. That
case decided nothing inconsistent with the law of libel as thus
administered, though each of the learned judges expressed an opinion in
favor of the view taken in the dicta I have referred to of Crompton, J.,
and Blackburn, J., in preference to that of Willes, J., in Henwood _v._
Harrison, L. R. 7 C. P. 600. But, as already pointed out in McQuire _v._
Western Morning News Co., [1903] 2 K. B. 100, the difference between the
two views is, in the language of Bowen, L. J., in Merivale _v._ Carson,
a difference in the “metaphysical exposition” of the right and “is
rather academical than practical.” I think the head-note in the
last-mentioned case is to some extent the cause of what seems to me an
erroneous impression as to the effect of the decision. The words of that
note seem to suggest a difference of right, under the general law of
libel, in respect of communications made on a privileged occasion and
communications made in the shape of criticism on a matter of public
interest. In cases of privilege, properly so called, nothing that falls
outside the privilege is protected by it, and if defamatory it must be
otherwise justified. The occasion being privileged, the extent of the
privilege may vary according to the nature of the case and the limits of
the right or duty which is the basis of the privilege. But this is
precisely the position in the case where the right exercised is one
shared by the rest of the public, and not one limited to an individual
or a class. The extent of the right has to be ascertained, and in
respect of any communication which falls within it the immunity, if it
be not absolute, can be displaced only by proof of malice. In the case
of comment on literary works the occasion is created by the publication,
and a right then arises to criticise honestly, however adversely. No
such occasion would arise in respect of a private unpublished letter. If
a writer were to get hold of a private letter of a well-known author and
publish a damnatory article on the author’s literary style and taste, as
evidenced by the letter, it seems to me that he would have no immunity
from the ordinary law in respect of defamatory writings. The only
difference, then, in the legal incidents of ordinary privilege, limited
to individuals on the one hand and the right in the public to criticise
on the other, would seem to be that the one might, with somewhat less
latitude than the other, though not, perhaps, with perfect accuracy, be
described as “privilege.” Now, the head-note might possibly suggest, at
first sight at all events, particularly when it adds “Henwood _v._
Harrison, L. R. 7 C. P. 606, dissented from,” that not merely an
academical difference in the analysis of rights had been expressed, but
that there was a difference of substance in the bearing of malice in the
two cases in respect of communications or criticisms falling _prima
facie_ within the right or privilege. The limits of the right, as I have
already pointed out, may be, and are, different, but the law with
respect to communications that _prima facie_ fall within them is the
same. Proof of malice may take a criticism _prima facie_ fair outside
the right of fair comment, just as it takes a communication _prima
facie_ privileged outside the privilege. The particular allegation which
was unprotected in Merivale _v._ Carson was never within the “right”
when the facts were ascertained by the jury in interpreting the passage
impugned. Proof of _bona fide_ belief was therefore irrelevant; nothing
but proof of the truth could justify the allegation. If the analysis be
strictly carried out it will be found that the two rights, whatever name
they are called by, are governed by precisely the same rules. The only
practical difference is that in an action based on a criticism of a
published work the transaction begins by the admission, on the part of
the plaintiff, implied from the averment by him of publication of the
work criticised, that the comment came into existence on a protected
occasion. He is placed, therefore, in precisely the same position as he
would have been in had he sued in respect of a defamatory writing _prima
facie_ unprotected and therefore actionable, but had gone on to aver
facts which created a privilege strictly so called. Beginning thus at
this stage in the transaction, he would have accepted the onus of
proving malice in fact. If he had veiled the fact that the writing
criticised had become matter of public interest by publication it would
have been _prima facie_ libellous, and the defendant would have had to
plead such a publication as would let in the right to comment on a
matter of public interest in order to bring himself within the
protection. This shows that acceptance of the dicta under discussion
does not in the slightest degree affect the place of malice in the law
of libel, and that it is only by leaving out one step in the analysis
that the public right, as distinguished from the privilege, may appear
to carry with it different incidents. There is not even any decision
that the word privilege, as used in Henwood _v._ Harrison, to which Lord
Esher was himself a party, is not as good a word as any substitute that
can be suggested to express the right by which, in certain
circumstances, writing defamatory of another person may be published
with impunity, because the presumption of malice is negatived. For the
reasons I have given the difference is one of words only, and could not
be a matter of legal decision.

I have thought it worth while to sift this contention somewhat
elaborately, as it is apparently based upon a misconception which seems
to have a tendency to repeat itself as to the effect of Merivale _v._
Carson, on the law of libel. But the contention of the defendants can be
met, not by reference to principle only, but also by direct authority.
To go back to the source itself of the supposed new departure, Campbell
_v._ Spottiswoode, Blackburn, J., says: “Honest belief may be an
ingredient to be taken into consideration by the jury in determining
whether the publication is a libel, that is, whether it exceeds the
limits of a fair and proper comment.” In Merivale _v._ Carson itself
Lord Esher, M. R., deals with the question. He says: “It is said that if
in some other case the alleged libel would not be beyond the limits of
fair criticism, and it could be shown that the defendant was not really
criticising the work, but was writing with an indirect and dishonest
intention to injure the plaintiffs still the motive would not make the
criticism a libel. I am inclined to think that it would, and for this
reason, that the comment would not then really be a criticism of the
work. The mind of the writer would not be that of a critic, but he would
be actuated by an intention to injure the author.” Though the learned
judge in this passage expresses only an inclination of opinion, the
reason given seems to me to be conclusive. But in a very recent case in
this court, the point is actually decided: Plymouth Mutual Coöperative
and Industrial Society _v._ Traders’ Publishing Association, [1906] 1 K.
B. 403. The question there was whether an interrogatory addressed to the
state of mind of the defendant, who had pleaded fair comment in an
action of libel, was admissible. The court decided that it was,
following a previous decision of this court in a case of privilege
strictly so called. Vaughan Williams, L. J., referring to White & Co.
_v._ Credit Reform Association and Credit Index, [1905] 1 K. B. 653,
says at page 413 of the report: “It seems to me that that case shows
that an interrogatory of this kind is just as relevant and admissible in
a case where the defence is fair comment as in one where it is
privilege. In either case the question raised is really as to the state
of mind of the defendant when he published the alleged libel, the
question being in the one case whether he published it in the spirit of
malice, in the other whether he published it in the spirit of
unfairness. In either case, I think such an interrogatory as the one now
in question is admissible.” Fletcher Moulton, L. J., says at page 418 of
the report: “I am clear that, both in cases in which the defence of
privilege and in those in which the defence of fair comment is set up,
the state of mind of the defendant when he published the alleged libel
is a matter directly in issue.”

It is, of course, possible for a person to have a spite against another
and yet to bring a perfectly dispassionate judgment to bear upon his
literary merits; but, given the existence of malice, it must be for the
jury to say whether it has warped his judgment. Comment distorted by
malice cannot in my opinion be fair on the part of the person who makes
it. I am of opinion, therefore, that evidence of malice actuating the
defendant was admissible, and that the learned judge was right in
letting the evidence in this case go to the jury. But I am also of
opinion on a close examination of the alleged libel that, apart from the
extrinsic evidence of malice, the learned judge could not have withdrawn
the case from the jury. One point made by the plaintiff would, I think,
of itself suffice to establish this position. The defendant Lucy says in
the alleged libel “it is plain to see from the few unmutilated
extracts ... that the materials at hand for a delightful biography were
abundant.” This statement was described by the plaintiff in a letter to
the editor of _Punch_ as “simply untrue.” A short statement was
thereupon published in the issue of December 7, in which the defendant,
while accepting the plaintiff’s statement as to the paucity of
materials, quotes a passage from the preface to the book dealing with
the existence of materials, and concludes thus: “Toby, M. P., had at the
time of writing no knowledge of the subject beyond the definite
statements quoted in the biographer’s own words. He regrets that,
accepting them in their ordinary sense, he received and conveyed an
impression of Mr. Thomas’s literary methods which turns out to have been
erroneous.” He is thus in the difficulty of having to admit a
misstatement of fact in respect of which, to put it at the lowest, a
question must arise for the jury whether the passage he relied upon
justifies the statement. I think also that the learned judge could not
have properly held that there was no evidence fit for the consideration
of the jury as to some of the innuendoes averring imputations of
discreditable motives. I am of opinion, therefore, that we could not
direct judgment for the defendants without usurping the functions of the
jury. Neither can we say that the evidence is so slight as to justify us
in ordering a new trial on the ground that the verdict is against the
weight of the evidence.

COZENS-HARDY, L. J. I agree.

SIR GORELL BARNES, PRESIDENT. I have had an opportunity of reading the
judgment of the Master of the Rolls, and I agree with it.

_Appeal dismissed._[521]

JACKSON _v._ HOPPERTON
IN THE COMMON PLEAS, MAY 25, 1864.
_Reported in 12 Weekly Reporter, 913._[522]

This case was tried before Williams, J., at Guildhall, in the sittings
after last Easter Term.

The declaration stated that, “before the speaking, &c., the defendant
had been a man-milliner, and the plaintiff had been in his service and
employ as a saleswoman and assistant, and the defendant falsely, &c.,
spoke, &c., of the plaintiff the words ‘Miss Jackson’ (thereby meaning
the plaintiff) ‘is dishonest,’ thereby meaning that the plaintiff was
a thief and a dishonest servant, and had been guilty of fraudulent
conduct in her capacity as such saleswoman, &c., whereby, &c., the
plaintiff was injured in credit and reputation, and certain persons
trading under the name and style of ‘Capper, Son, & Co.’ refused to
employ the plaintiff as saleswoman and servant in their employ, as
they otherwise would have done, and the plaintiff lost and was
deprived of her said situation in the employ of the said ‘Capper, Son,
& Co.,’ and has been for a long space of time unable to obtain
employment, &c.”

Plea—Not guilty.

The plaintiff entered the defendant’s service on December 1st, 1862,
and remained in his employ till October, 1863, when she left, he
having accused her of taking some money, and a few other things.
Shortly after she left, she returned for her boxes, and asked him for
her wages, and he then accused her of taking £3 10_s._, but said, “if
you had come back, I should have said nothing about it.” A few days
after he paid her her wages. Two or three days after this, she applied
to the Messrs. Capper, Son & Co., for a situation; and she informed
the defendant that a young lady was coming to him for a reference, and
he then said, “I will give you no reference, but if you own that you
took the money I will give you a reference.” The lady from Messrs.
Capper, Son, & Co. called at the defendant’s and asked him for the
plaintiff’s character, when he spoke the words in the declaration, and
said he would not give her a character, she was dishonest, and that he
had money and goods which he could prove she had taken. The plaintiff
did not get the situation, the wages for which were £50 a year and
board. The jury found a verdict for the plaintiff for £60.

_Mr. Chambers_, Q. C. (_Hance_ with him), now moved for a rule calling
on the plaintiff to show cause why this verdict should not be set
aside, and instead thereof a nonsuit entered, on the ground that there
was no evidence of express malice; or for a new trial, on the grounds
that the verdict was against the evidence, and that the damages were
excessive.

ERLE, C. J. I am of opinion that there should be no rule in this case.
This was an action for defamation of character, and evidence was
adduced on the part of the defendant to show that the defamatory words
were uttered on an occasion which justified the use of them. The
question left to the jury was, whether the defendant believed the
imputation of dishonesty, which he made against the plaintiff, was
true or not, and they found he did not believe it to be so, and the
judge is satisfied with their answer. I think this was a necessary
question to be left to them. Then, as to the damages being excessive,
the plaintiff lost a situation for which she would have received £50 a
year, and it cannot be said that £60 is too large a sum as
compensation for that loss. Mr. Chambers also moved on the ground that
it was the judge’s duty to nonsuit the plaintiff at the close of the
plaintiff’s case; but she tried to get another situation, and a lady
called on the defendant for her character, and he then spoke to the
lady the words complained of; where words are spoken on such an
occasion as that, if the person uttering them believe them to be true,
and there be no further evidence to show a probability that they were
spoken maliciously, it is the duty of the judge to nonsuit the
plaintiff. The cases of Taylor _v._ Hawkins, 16 Q. B. 308, and
Somerville _v._ Hawkins, 10 C. B. 583, show what is the law under such
circumstances, and lay down that, if the plaintiff give evidence from
which the jury might infer malice, such as, that the defendant made
the imputations not believing them to be true, or that at the time
when he spoke the words he did not believe he was in the discharge of
a duty, the question of malice ought to be left to the jury; and it
appears from the old cases, and also the two cases above cited, that
defamation carries with it a presumption of malice, and that it is
_prima facie_ evidence of malice, but the occasion on which the
defamatory words are spoken may rebut the _prima facie_ inference of
malice, and then additional evidence may be given to show that there
was malice, and the jury are to find on that evidence and on the libel
itself whether there be malice. In the case of Wright _v._ Woodgate, 2
C. M. & R. 573, it is thus laid down by Parke, B., at p. 577: “The
proper meaning of a privileged communication is only this, that the
occasion on which the communication was made rebuts the inference
_prima facie_ arising from a statement prejudicial to the character of
the plaintiff, and puts it upon him to prove that there was malice; in
fact, that the defendant was actuated by motives of personal spite or
ill-will, independent of the occasion on which the communication was
made. In the present case, it became, in my opinion, incumbent upon
the plaintiff to show malice in fact. This he might have made out,
either from the language of the letter itself, or by extrinsic
evidence, as by proof of the conduct or expressions of the defendant,
showing that he was actuated by a motive of personal ill-will.” And in
Taylor _v._ Hawkins, Lord Campbell lays it down at p. 321 thus: “The
rule is, that, if the occasion be such as repels the presumption of
malice, the communication is privileged, and the plaintiff must then,
if he can, give evidence of malice.” I think that the fact of his
charging her with stealing the £3 10_s._, and, not making that charge
till after she had threatened to leave, and then the fact of his
telling her that if she had come back he should have said nothing
about it, and that if she owned she took it he would give her a
reference, were sufficient facts to justify the jury in inferring that
he was not performing the important duty between man and man, of
stating what he believed to be the plaintiff’s true character, when he
spoke the words which are the subject of this action.

WILLIAMS, WILLES, and BYLES, JJ., concurred.

_Rule refused._[523]

DAVIS _v._ SHEPSTONE
IN THE PRIVY COUNCIL, MARCH 5, 1886.
_Reported in 11 Appeal Cases, 187._

The judgment of their lordships was delivered by

LORD HERSCHELL, L. C.[524] This is an appeal from a judgment of the
Supreme Court of the Colony of Natal refusing a new trial in an action
brought against the appellants in which the respondent obtained a
verdict for £500 damages.

The action was brought to recover damages for alleged libels published
by the appellants in the “Natal Witness” newspaper in the months of
March and May, 1883.

The respondent was, in December, 1882, appointed Resident Commissioner
in Zululand, and proceeded in the discharge of his duties to the Zulu
reserve territory. In the month of March, 1883, the appellants published
in an issue of their newspaper serious allegations with reference to the
conduct of the respondent whilst in the execution of his office in the
reserve territory. They stated that he had not only himself violently
assaulted a Zulu chief, but had set on his native policemen to assault
others. Upon the assumption that these statements were true, they
commented upon his conduct in terms of great severity, observing, “We
have always regarded Mr. Shepstone as a most unfit man to send to
Zululand, if for no other reason than this, that the Zulus entertain
towards him neither respect nor confidence. To these disqualifications
he has now, if our information is correct, added another which is far
more damnatory. Such an act as he has now been guilty of cannot be
passed over, if any kind of friendly relations are to be maintained
between the colony and Zululand. There are difficulties enough in that
direction without need for them to be increased by the headstrong and
almost insane imprudence and want of self-respect of the official who
unworthily represents the government of the Queen.”

In the same issue, under the heading “Zululand,” there appeared a
statement that four messengers had come from Natal to Zululand, from
whom details had been obtained of the respondent’s treatment of certain
chiefs of the reserved territory who had visited Cetewayo, and, what
purported to be the account derived from these messengers of the assault
and abusive language of which the respondent had been guilty, was given
in detail.

On the 16th of May, 1883, the appellants published a further article,
relating to the respondent, which commenced as follows:—“Some time ago
we stated in these columns that Mr. John Shepstone, whilst in Zululand,
had committed a most unprovoked and altogether incomprehensible assault
upon certain Zulu chiefs. At the time the statement was made, a good
deal of doubt was thrown upon the truth of the story. We are now in a
position to make public full details of the affair, which the closest
investigation will prove to be correct. A representative of this
journal, learning that a deputation had come to Natal to complain of the
attack, met five of the number, and in the presence of the competent
interpreters took down the stories of each man.”

The article then gave at length the statements so taken down, which
disclosed, if true, the grossest misconduct on the part of the
respondent. It was in respect of these publications of the appellants
that the action was brought by the respondent.

The appellants by their defence averred that the conduct of the
plaintiff as British Resident Commissioner was a matter of general
public interest affecting the territory of Natal, and that the alleged
libels constituted a fair and accurate report of the information brought
to the Governor of Natal, and published in the colony by messengers from
Zululand and its king as to the conduct of the plaintiff in the
discharge of the duties of his office, and a fair and impartial comment
upon the conduct of the plaintiff in his public capacity published _bona
fide_ and without malice.

The case came on for trial before Mr. Justice Wragg and a jury on the
4th of September, 1883, when it was proved that the allegations of
misconduct made against Mr. Shepstone were absolutely without
foundation, and no attempt was made to support them by evidence. It
appeared that the messengers from whom the statements contained in the
issue in March were derived had come from Zululand to see the Bishop of
Natal, and that their statements had been conveyed to the editor of a
newspaper by a letter from the bishop. The statements contained in the
issue of May were communicated by a Mr. Watson, who was connected with
the staff of the newspaper, and who had sought and obtained an interview
with certain Zulus when on their way to convey a message from the king
to the Governor of Natal.

At the close of the evidence the learned judge summed up the case to the
jury, who returned a verdict for the plaintiff, the present respondent,
for £500.

Application was afterwards made to the Supreme Court to grant a new
trial, but this application was refused, and the present appeal was then
brought. The appellants rested their appeal upon two grounds, first,
that the learned judge misdirected the jury in leaving to them the
question of privilege and in not telling them that the occasion was a
privileged one. The second ground insisted upon was that the damages
were excessive. Their Lordships are of opinion that the contention that
the learned judge ought to have told the jury that the occasion was a
privileged one, and that the plaintiff could only succeed on proof of
express malice, is not well founded.

There is no doubt that the public acts of a public man may lawfully be
made the subject of fair comment or criticism, not only by the press,
but by all members of the public. But the distinction cannot be too
clearly borne in mind between comment or criticism and allegations of
fact, such as that disgraceful acts have been committed, or
discreditable language used. It is one thing to comment upon or
criticise, even with severity, the acknowledged or proved acts of a
public man, and quite another to assert that he has been guilty of
particular acts of misconduct.[525]

In the present case the appellants, in the passages which were
complained of as libellous, charged the respondent, as now appears
without foundation, with having been guilty of specific acts of
misconduct, and then proceeded, on the assumption that the charges were
true, to comment upon his proceedings in language in the highest degree
offensive and injurious; not only so, but they themselves vouched for
the statements by asserting that though some doubt had been thrown upon
the truth of the story, the closest investigation would prove it to be
correct. In their Lordships’ opinion there is no warrant for the
doctrine that defamatory matter thus published is regarded by the law as
the subject of any privilege.

It was insisted by the counsel for the appellants that the publications
were privileged, as being a fair and accurate report of the statements
made by certain messengers from King Cetewayo upon a subject of public
importance. It has, indeed, been held that fair and accurate reports of
proceedings in parliament and in courts of justice are privileged, even
though they contain defamatory matter affecting the character of
individuals.

But in the case of Purcell _v._ Sowler the Court of Appeal expressly
refused to extend the privilege even to the report of a meeting of poor
law guardians, at which accusations of misconduct were made against
their medical officer. And in their Lordships’ opinion it is clear that
it cannot be extended to a report of statements made to the Bishop of
Natal, and by him transmitted to the appellants, or to statements made
to a reporter in the employ of the appellants, who for the purposes of
the newspaper, sought an interview with messengers on their way to lay a
complaint before the governor.

The language used by the learned judge in summing up the present case to
the jury is open to some criticism, and does not contain so clear and
complete an exposition of the law as might be desired. But in their
Lordships’ opinion, so far as it erred, it erred in being too favorable
to the appellants, and it is not open to any complaint on their part.

The only question that remains is as to the amount of damages. The
assessment of these is peculiarly the province of the jury in an action
of libel. The damages in such an action are not limited to the amount of
pecuniary loss which the plaintiff is able to prove. And their Lordships
see no reason for saying that the damages awarded were excessive or for
interfering with the finding of the jury in this respect.

They will, therefore, humbly advise Her Majesty that the judgment
appealed against should be affirmed and the appeal dismissed with costs.

CHAPTER VII
INTERFERENCE WITH PRIVACY

ROBERSON _v._ ROCHESTER FOLDING BOX COMPANY
COURT OF APPEALS, NEW YORK, JUNE 27, 1902.
_Reported in 171 New York Reports, 538._

PARKER, C. J.[526] The Appellate Division[527] has certified that the
following questions of law have arisen in this case, and ought to be
reviewed by this court: 1. Does the complaint herein state a cause of
action at law against the defendants or either of them? 2. Does the
complaint herein state a cause of action in equity against the
defendants or either of them? These questions are presented by a
demurrer to the complaint, which is put upon the ground that the
complaint does not state facts sufficient to constitute a cause of
action.

As a demurrer admits not only those facts which are expressly alleged in
the complaint, but everything which can be implied by fair and
reasonable intendment from its allegations (Marie _v._ Garrison, 83 N.Y.
14, 23), we are to inquire whether the complaint, regarded from the
standpoint of this rule, can be said to show any right to relief either
in law or in equity.

The complaint alleges that the Franklin Mills Co., one of the
defendants, was engaged in a general milling business and in the
manufacture and sale of flour; that before the commencement of the
action, without the knowledge or consent of plaintiff, defendants,
knowing that they had no right or authority so to do, had obtained made,
printed, sold, and circulated about 25,000 lithographic prints,
photographs and likenesses of plaintiff, made in a manner particularly
set up in the complaint; that upon the paper upon which the likenesses
were printed and above the portrait there were printed, in large, plain
letters, the words, “Flour of the Family,” and below the portrait in
large capital letters, “Franklin Mills Flour,” and in the lower
right-hand corner in smaller capital letters, “Rochester Folding Box
Co., Rochester, N.Y.”; that upon the same sheet were other
advertisements of the flour of the Franklin Mills Co.; that those 25,000
likenesses of the plaintiff thus ornamented have been conspicuously
posted and displayed in stores, warehouses, saloons, and other public
places; that they have been recognized by friends of the plaintiff and
other people, with the result that plaintiff has been greatly humiliated
by the scoffs and jeers of persons who have recognized her face and
picture on this advertisement and her good name has been attacked,
causing her great distress and suffering both in body and mind; that she
was made sick and suffered a severe nervous shock, was confined to her
bed and compelled to employ a physician, because of these facts; that
defendants had continued to print, make, use, sell, and circulate the
said lithographs, and that by reason of the foregoing facts plaintiff
had suffered damages in the sum of $15,000. The complaint prays that
defendants be enjoined from making, printing, publishing, circulating,
or using in any manner any likenesses of plaintiff in any form whatever,
for further relief (which it is not necessary to consider here) and for
damages.

It will be observed that there is no complaint made that plaintiff was
libelled by this publication of her portrait. The likeness is said to be
a very good one, and one that her friends and acquaintances were able to
recognize: indeed, her grievance is that a good portrait of her, and,
therefore, one easily recognized, has been used to attract attention
toward the paper upon which defendant mill company’s advertisements
appear. Such publicity, which some find agreeable, is to plaintiff very
distasteful, and thus, because of defendants’ impertinence in using her
picture without her consent for their own business purposes, she has
been caused to suffer mental distress where others would have
appreciated the compliment to their beauty implied in the selection of
the picture for such purposes; but as it is distasteful to her, she
seeks the aid of the courts to enjoin a further circulation of the
lithographic prints containing her portrait made as alleged in the
complaint, and as an incident thereto, to reimburse her for the damages
to her feelings, which the complaint fixes at the sum of $15,000.

There is no precedent for such an action to be found in the decisions of
this court; indeed, the learned judge who wrote the very able and
interesting opinion in the Appellate Division said, while upon the
threshold of the discussion of the question: “It may be said in the
first place that the theory upon which this action is predicated is new,
at least in instance if not in principle, and that few precedents can be
found to sustain the claim made by the plaintiff, if indeed it can be
said that there are any authoritative cases establishing her right to
recover in this action.” Nevertheless, that court reached the conclusion
that plaintiff had a good cause of action against defendants, in that
defendants had invaded what is called a “right of privacy”—in other
words, the right to be let alone. Mention of such a right is not to be
found in Blackstone, Kent, or any other of the great commentators upon
the law, nor so far as the learning of counsel or the courts in this
case have been able to discover, does its existence seem to have been
asserted prior to about the year 1890, when it was presented with
attractiveness and no inconsiderable ability in the Harvard Law Review
(Vol. IV, page 193) in an article entitled “The Right of Privacy.”

The so-called right of privacy is, as the phrase suggests, founded upon
the claim that a man has the right to pass through this world, if he
wills, without having his picture published, his business enterprises
discussed, his successful experiments written up for the benefit of
others, or his eccentricities commented upon either in handbills,
circulars, catalogues, periodicals, or newspapers, and, necessarily,
that the things which may not be written and published of him must not
be spoken of him by his neighbors, whether the comment be favorable or
otherwise. While most persons would much prefer to have a good likeness
of themselves appear in a responsible periodical or leading newspaper
rather than upon an advertising card or sheet, the doctrine which the
courts are asked to create for this case would apply as well to the one
publication as to the other, for the principle which a court of equity
is asked to assert in support of a recovery in this action is that the
right of privacy exists and is enforceable in equity, and that the
publication of that which purports to be a portrait of another person,
even if obtained upon the street by an impertinent individual with a
camera, will be restrained in equity, on the ground that an individual
has the right to prevent his features from becoming known to those
outside of his circle of friends and acquaintances.

If such a principle be incorporated into the body of the law through the
instrumentality of a court of equity, the attempts to logically apply
the principle will necessarily result, not only in a vast amount of
litigation, but in litigation bordering upon the absurd, for the right
of privacy, once established as a legal doctrine, cannot be confined to
the restraint of the publication of a likeness, but must necessarily
embrace as well the publication of a word-picture, a comment upon one’s
looks, conduct, domestic relations, or habits. And were the right of
privacy once legally asserted, it would necessarily be held to include
the same things if spoken instead of printed, for one, as well as the
other, invades the right to be absolutely let alone. An insult would
certainly be in violation of such a right, and with many persons would
more seriously wound the feelings than would the publication of their
picture. And so we might add to the list of things that are spoken and
done day by day which seriously offend the sensibilities of good people,
to which the principle which the plaintiff seeks to have imbedded in the
doctrine of the law would seem to apply. I have gone only far enough to
barely suggest the vast field of litigation which would necessarily be
opened up should this court hold that privacy exists as a legal right
enforceable in equity by injunction, and by damages where they seem
necessary to give complete relief.

The legislative body could very well interfere and arbitrarily provide
that no one should be permitted for his own selfish purpose to use the
picture or the name of another for advertising purposes without his
consent. In such event no embarrassment would result to the general body
of the law, for the rule would be applicable only to cases provided for
by the statute. The courts, however, being without authority to
legislate, are required to decide cases upon principle, and so are
necessarily embarrassed by precedents created by an extreme, and,
therefore, unjustifiable application of an old principle.

The court below properly said that “while it may be true that the fact
that no precedent can be found to sustain an action in any given case is
cogent evidence that a principle does not exist upon which the right may
be based, it is not the rule that the want of a precedent is a
sufficient reason for turning the plaintiff out of court,” provided—I
think should be added—there can be found a clear and unequivocal
principle of the common law which either directly or mediately governs
it or which by analogy or parity of reasoning ought to govern it.

It is undoubtedly true that in the early days of chancery jurisdiction
in England the chancellors were accustomed to deliver their judgments
without regard to principles or precedents, and in that way the process
of building up the system of equity went on, the chancellor disregarding
absolutely many established principles of the common law. “In no other
way,” says Pomeroy, “could the system of equity jurisprudence have been
commenced and continued so as to arrive at its present proportions.”
(Pomeroy’s Eq. Jur. sect. 48.) In their work the chancellors were guided
not only by what they regarded as the eternal principles of absolute
right, but also by their individual consciences; but after a time when
“the period of infancy was passed and an orderly system of equitable
principles, doctrines, and rules began to be developed out of the
increasing mass of precedents, this theory of a personal conscience was
abandoned; and ‘the conscience,’ which is an element of the equitable
jurisdiction, came to be regarded, and has so continued to the present
day, as a metaphorical term, designating the common standard of civil
right and expediency combined, based upon general principles and limited
by established doctrines to which the court appeals, and by which it
tests the conduct and rights of suitors—a juridical and not a personal
conscience.” (Pomeroy’s Eq. Jur. sect. 57.)

The importance of observing the spirit of this rule cannot be
overestimated, for, while justice in a given case may be worked out by a
decision of the court according to the notions of right which govern the
individual judge or body of judges comprising the court, the mischief
which will finally result may be almost incalculable under our system
which makes a decision in one case a precedent for decisions in all
future cases which are akin to it in the essential facts.

So in a case like the one before us, which is concededly new to this
court, it is important that the court should have in mind the effect
upon future litigation and upon the development of the law which would
necessarily result from a step so far outside of the beaten paths of
both common law and equity, assuming—what I shall attempt to show in a
moment—that the right of privacy as a legal doctrine enforceable in
equity has not, down to this time, been established by decisions.

The history of the phrase “right of privacy” in this country seems to
have begun in 1890 in a clever article in the Harvard Law Review—already
referred to—in which a number of English cases were analyzed, and,
reasoning by analogy, the conclusion was reached that—notwithstanding
the unanimity of the courts in resting their decisions upon property
rights in cases where publication is prevented by injunction—in reality
such prevention was due to the necessity of affording protection to
thoughts and sentiments expressed through the medium of writing,
printing, and the arts, which is like the right not to be assaulted or
beaten; in other words, that the principle actually involved though not
always appreciated, was that of an inviolate personality, not that of
private property.

This article brought forth a reply from the Northwestern Review (Vol.
III, page 1) urging that equity has no concern with the feelings of an
individual or with considerations of moral fitness, except as the
inconvenience or discomfort which the person may suffer is connected
with the possession or enjoyment of property, and that the English
authorities cited are consistent with such view. Those authorities are
now to be examined in order that we may see whether they were intended
to and did mark a departure from the established rule which had been
enforced for generations; or, on the other hand, are entirely consistent
with it.

[The learned judge then commented upon various English cases; also upon
several American cases, especially Schuyler _v._ Curtis, 147 N. Y. 434;
Atkinson _v._ Doherty, 121 Mich. 372; and Corliss _v._ E. W. Walker Co.,
57 Fed. Rep. 434. The point _actually decided_ in 147 N. Y. 434 and in
121 Mich. 372 was that the widow or relatives of a deceased person
cannot restrain the erection of his statue or the publication of his
picture. In the Corliss case, the court declined to grant the request of
a widow that the publication of a biography of her deceased husband
should be enjoined; and finally (64 Fed. Rep. 280) declined to restrain
the publication of his picture. The latter decision proceeded upon the
ground that Mr. Corliss was a public character.]

This distinction between public and private characters cannot possibly
be drawn. On what principle does an author or artist forfeit his right
of privacy and a great orator, a great preacher, or a great advocate
retain his? Who can draw a line of demarcation between public characters
and private characters, let that line be as wavering and irregular as
you please? In the very case then before the judge, what had Mr. Corliss
done by which he surrendered his right of privacy? In what respect did
he by his inventions “ask for and desire public recognition” any more
than a banker or merchant who prosecutes his calling? Or is the right of
privacy the possession of mediocrity alone, which a person forfeits by
giving rein to his ability, spurs to his industry, or grandeur to his
character? A lady may pass her life in domestic privacy when, by some
act of heroism or self-sacrifice, her name and fame fill the public ear.
Is she to forfeit by her good deed the right of privacy she previously
possessed? These considerations suggest the answer we would make to the
position of the learned judge and at the same time serve to make more
clear what we have elsewhere attempted to point out, namely, the
absolute impossibility of dealing with this subject save by legislative
enactment, by which may be drawn arbitrary distinctions which no court
should promulgate as a part of general jurisprudence.

* * * * *

An examination of the authorities leads us to the conclusion that the
so-called “right of privacy” has not as yet found an abiding place in
our jurisprudence, and, as we view it, the doctrine cannot now be
incorporated without doing violence to settled principles of law by
which the profession and the public have long been guided.

I do not say that, even under the existing law, in every case of the
character of the one before us, or indeed in this case, a party whose
likeness is circulated against his will is without remedy. By section
245 of the Penal Code any malicious publication by picture, effigy, or
sign which exposes a person to contempt, ridicule, or obloquy is a
libel, and it would constitute such at common law. Malicious in this
definition means simply intentional and wilful. There are many articles,
especially of medicine, whose character is such that using the picture
of a person, particularly that of a woman, in connection with the
advertisement of those articles might justly be found by a jury to cast
ridicule or obloquy on the person whose picture was thus published. The
manner or posture in which the person is portrayed might readily have a
like effect. In such cases both a civil action and a criminal
prosecution could be maintained. But there is no allegation in the
complaint before us that this was the tendency of the publication
complained of, and the absence of such an allegation is fatal to the
maintenance of the action, treating it as one of libel. This case
differs from an action brought for libellous words. In such case the
alleged libel is stated in the complaint, and if the words are libellous
_per se_, it is unnecessary to charge that their effect exposes the
plaintiff to disgrace, ridicule, or obloquy. The law attributes to them
that result. But where the libel is a picture which does not appear in
the record, to make it libellous there must be a proper allegation as to
its character.

The judgment of the Appellate Division and of the Special Term should be
reversed and questions certified answered in the negative without costs,
and with leave to the plaintiff to serve an amended complaint within
twenty days, also without costs.

* * * * *

GRAY, J. (dissenting).

* * * * *

In the present case, we may not say that the plaintiff’s complaint is
fanciful, or that her alleged injury is, purely, a sentimental one. Her
objection to the defendants’ acts is not one born of caprice; nor is it
based upon the defendants’ act being merely “distasteful” to her. We are
bound to assume, and I find no difficulty in doing so, that the
conspicuous display of her likeness, in various public places, has so
humiliated her by the notoriety and by the public comments it has
provoked, as to cause her distress and suffering, in body and in mind,
and to confine her to her bed with illness.

If it were necessary, to be entitled to equitable relief, that the
plaintiff’s sufferings, by reason of the defendants’ acts, should be
serious, and appreciable by a pecuniary standard, clearly, we might well
say, under the allegations of the complaint, that they were of such
degree of gravity. However, I am not of the opinion that the gravity of
the injury need be such as to be capable of being estimated by such a
standard. If the right of privacy exists and this complaint makes out a
case of its substantial violation, I think that the award of equitable
relief, by way of an injunction, preventing the continuance of its
invasion by the defendants, will not depend upon the complainant’s
ability to prove substantial pecuniary damages and, if the court finds
the defendants’ act to be without justification and for selfish gain and
purposes, and to be of such a character, as is reasonably calculated to
wound the feelings and to subject the plaintiff to the ridicule, or to
the contempt of others, that her right to the preventive relief of
equity will follow; without considering how far her sufferings may be
measurable by a pecuniary standard.

The right of privacy, or the right of the individual to be let alone, is
a personal right, which is not without judicial recognition. It is the
complement of the right to the immunity of one’s person. The individual
has always been entitled to be protected in the exclusive use and
enjoyment of that which is his own. The common law regarded his person
and property as inviolate, and he has the absolute right to be let
alone. (Cooley on Torts, page 29.) The principle is fundamental and
essential in organized society that every one, in exercising a personal
right and in the use of his property, shall respect the rights and
properties of others. He must so conduct himself, in the enjoyment of
the rights and privileges which belong to him as a member of society, as
that he shall prejudice no one in the possession and enjoyment of those
which are exclusively his. When, as here, there is an alleged invasion
of some personal right, or privilege, the absence of exact precedent and
the fact that early commentators upon the common law have no discussion
upon the subject are of no material importance in awarding equitable
relief. That the exercise of the preventive power of a court of equity
is demanded in a novel case, is not a fatal objection.

* * * * *

In an article in the Harvard Law Review, of December 15, 1890, which
contains an impressive argument upon the subject of the “right of
privacy,” it was well said by the authors “that the individual shall
have full protection in person and in property is a principle as old as
the common law; but it has been found necessary from time to time to
define anew the exact nature and extent of such protection.... The right
to life had come to mean the right to enjoy life—the right to be let
alone; the right to liberty secures the exercise of extensive civil
privileges; and the term ‘property’ has grown to comprise every form of
possession—intangible as well as tangible.”

Instantaneous photography is a modern invention and affords the means of
securing a portraiture of an individual’s face and form _in invitum_
their owner. While, so far forth as it merely does that, although a
species of aggression, I concede it to be an irremediable and
irrepressible feature of the social evolution. But, if it is to be
permitted that the portraiture may be put to commercial or other uses
for gain, by the publication of prints therefrom, then an act of
invasion of the individual’s privacy results, possibly more formidable
and more painful in its consequences than an actual bodily assault might
be. Security of person is as necessary as the security of property; and
for that complete personal security, which will result in the peaceful
and wholesome enjoyment of one’s privileges as a member of society,
there should be afforded protection, not only against the scandalous
portraiture and display of one’s features and person, but against the
display and use thereof for another’s commercial purposes or gain. The
proposition is, to me, an inconceivable one that these defendants may,
unauthorizedly, use the likeness of this young woman upon their
advertisement, as a method of attracting widespread public attention to
their wares, and that she must submit to the mortifying notoriety,
without right to invoke the exercise of the preventive power of a court
of equity.

Such a view, as it seems to me, must have been unduly influenced by a
failure to find precedents in analogous cases, or some declaration by
the great commentators upon the law of a common-law principle which
would, precisely, apply to and govern the action; without taking into
consideration that, in the existing state of society, new conditions
affecting the relations of persons demand the broader extension of those
legal principles, which underlie the immunity of one’s person from
attack. I think that such a view is unduly restricted, too, by a search
for some property, which has been invaded by the defendants’ act.
Property is not, necessarily, the thing itself, which is owned; it is
the right of the owner in relation to it. The right to be protected in
one’s possession of a thing, or in one’s privileges, belonging to him as
an individual, or secured to him as a member of the commonwealth, is
property, and as such entitled to the protection of the law. The
protective power of equity is not exercised upon the tangible thing, but
upon the right to enjoy it; and, so, it is called forth for the
protection of the right to that which is one’s exclusive possession, as
a property right. It seems to me that the principle, which is
applicable, is analogous to that upon which courts of equity have
interfered to protect the right of privacy, in cases of private
writings, or of other unpublished products of the mind. The writer, or
the lecturer, has been protected in his right to a literary property in
a letter, or a lecture, against its unauthorized publication; because it
is property, to which the right of privacy attaches. (Woolsey _v._ Judd,
4 Duer, 399; Gee _v._ Pritchard, 2 Swanst. 402; Abernathy _v._
Hutchinson, 3 L. J. Ch. 209; Folsom _v._ March, 2 Story, 100.) I think
that this plaintiff has the same property in the right to be protected
against the use of her face for defendant’s commercial purposes, as she
would have if they were publishing her literary compositions. The right
would be conceded, if she had sat for her photograph; but if her face,
or her portraiture, has a value, the value is hers exclusively until the
use be granted away to the public. Any other principle of decision, in
my opinion, is as repugnant to equity as it is shocking to reason. Judge
Colt, of the United States Court, in Corliss _v._ Walker Co., 64 Fed.
Rep. 280–285, a case involving the same question of an invasion of the
right of privacy, with respect to the publication of a printed likeness
of Mr. Corliss, expressed the opinion that “independently of the
question of contract, I believe the law to be that a private individual
has a right to be protected in the representation of his portrait in any
form; that this is a property as well as a personal right; and that it
belongs to the same class of rights which forbids the reproduction of a
private manuscript or painting, or the publication of private letters,
or of oral lectures delivered by a teacher to his class, or the
revelation of the contents of a merchant’s books by a clerk.” The case
itself is not in point in its facts; because the complainant was the
widow of Mr. Corliss, and thus it came within the limitations of
Schuyler _v._ Curtis.

The right to grant the injunction does not depend upon the existence of
property, which one has in some contractual form. It depends upon the
existence of property in any right which belongs to a person.

* * * * *

It would be, in my opinion, an extraordinary view which, while conceding
the right of a person to be protected against the unauthorized
circulation of an unpublished lecture, letter, drawing, or other ideal
property, yet would deny the same protection to a person whose portrait
was unauthorizedly obtained, and made use of, for commercial purposes.
The injury to the plaintiff is irreparable; because she cannot be wholly
compensated in damages for the various consequences entailed by
defendants’ acts. The only complete relief is an injunction restraining
their continuance. Whether, as incidental to that equitable relief, she
should be able to recover only nominal damages is not material; for the
issuance of the injunction does not, in such a case, depend upon the
amount of the damages in dollars and cents.

A careful consideration of the question presented upon this appeal leads
me to the conclusion that the judgment appealed from should be affirmed.

O’BRIEN, CULLEN, and WERNER, JJ., concur with PARKER, Ch. J.; BARTLETT
and HAIGHT, JJ., concur with GRAY, J.

_Judgment reversed, etc._[528]

CHAPTER VIII
INTERFERENCE WITH ADVANTAGEOUS RELATIONS

DAVIES _v._ GARDINER
IN THE COMMON PLEAS, TRINITY TERM, 1593.
_Reported in Popham, 36._[529]

An action upon the case for a slander was brought by Anne Davies against
John Gardiner; That whereas there was a communication of a marriage to
be had between the plaintiff and one Anthony Elcock, the defendant, to
the intent to hinder the said marriage, said and published that there
was a grocer in London that did get her with child, and that she had the
child by the said grocer, whereby she lost her marriage. To which the
defendant pleaded not guilty, and was found guilty at the assizes at
Aylesbury, to the damage of 200 marks. And now it was alleged, in arrest
of judgment, that this matter appeareth to be merely spiritual, and
therefore not determinable at common law, but to be prosecuted in the
spiritual court. But _per Curiam_ the action lies here, for a woman not
married cannot by intendment have so great advancement as by her
marriage, whereby she is sure of maintenance for her life, or during her
marriage, and dower and other benefits which the temporal law gives by
reason of her marriage; and therefore by this slander she is greatly
prejudiced in that which is to be her temporal advancement, for which it
is reason to give her remedy by way of action at common law. As if a
woman keep a victualling house, to which divers of great credit repair,
whereby she hath her livelihood, and one will say to her guests, that as
they respect their credits, they take care how they use such a house,
for there the woman is known to be a bawd, whereby the guests avoid her
house, to the loss of her husband, shall not she in this case have an
action at common law for such a slander? It is clear that she will. So,
if one saith that a woman is a common strumpet, and that it is a slander
to them to come to her house, whereby she loseth the advantage which she
was wont to have by her guests, she shall have her action for this at
common law.

So here upon these collateral circumstances, whereby it may appear that
she hath more prejudice than can be by calling of one harlot, and the
like.

_And judgment was given for the plaintiff._[530]

ALLSOP _v._ ALLSOP
IN THE EXCHEQUER, APRIL 25, 1860.
_Reported, in 5 Hurlstone & Norman, 534._

Declaration.—That, before the committing of the grievances, the said
Hannah was the wife of the plaintiff, William Allsop; and the defendant,
on divers occasions, falsely and maliciously spoke and published of the
plaintiff Hannah the words following (to the effect that he had had
carnal connection with her whilst she was the wife of the plaintiff,
William Allsop): “Whereby the plaintiff Hannah lost the society of her
friends and neighbors, and they refused to, and did not, associate with
her as they otherwise would have done, and she was much injured in her
credit and reputation, and brought into public scandal and disgrace;
and, by reason of the committing of the grievances, the said Hannah
became and was ill and unwell for a long time and unable to attend to
her necessary affairs and business, and the plaintiff, William Allsop,
was put to and incurred much expense in and about the endeavoring to
cure her of the illness which she labored under as aforesaid by reason
of the committing of the said grievances; and the said William Allsop
lost the society and association of his said wife for a long time in his
domestic affairs, which he otherwise would have had.”

Demurrer and joinder.[531]

POLLOCK, C. B. We are all of opinion that the defendant is entitled to
judgment. There is no precedent for any such special damage as that laid
in this declaration being made a ground of action, so as to render words
actionable which otherwise would not be so. We ought to be careful not
to introduce a new element of damage, recollecting to what a large class
of actions it would apply, and what a dangerous use might be made of it.
In actions for making false charges before magistrates, for giving false
characters, and for torts of all kinds, illness might be said to have
arisen from the wrong sustained by the plaintiff. The case of Ford _v._
Monroe, 20 Wendell, 210, is the only authority that has any tendency to
throw light on the argument; but we ought not to act upon the authority
of that case, opposed as it is to the universal practice of the law in
this country. The courts here have always taken care that parties shall
not be responsible for fanciful or remote damages, or, in fact, any that
do not fairly and naturally result from the wrongful act itself. It is
only lately that a clear and distinct view of the subject of damages was
taken, in Hadley _v._ Baxendale, 9 Exch. 341, in which it was held that
a person whose duty it is to deliver goods to another is not responsible
for any damages resulting from the non-delivery, unless they are the
damages which would result immediately and naturally, that is, according
to the usual course of things, from the breach of contract itself, or
such as may reasonably be supposed to have been in the contemplation of
both parties at the time they made contract. Slander may be repeated,
and the repetition may cause mischief. In one sense nothing is more
natural than that such should be the case. So there are many other
consequences which may follow in libel and slander in respect of which
there is no remedy. This particular damage depends on the temperament of
the party affected, and it may be laid down that illness arising from
the excitement which the slanderous language may produce is not that
sort of damage which forms a ground of action.

_Judgment for the defendant._[532]

DAVIES _v._ SOLOMON
IN THE QUEEN’S BENCH, NOVEMBER 29, 1871.
_Reported in Law Reports, 7 Queen’s Bench, 112._

BLACKBURN, J.[533] The sole difficulty in deciding the case is caused by
the opinion of Lord Wensleydale in Lynch _v._ Knight, 9 H. L. C. 577. He
held that no action would lie for slander of a wife when the only
special damage alleged was the loss to the plaintiff of the consortium
of her husband. In the present case, however, it is unnecessary to
decide this question, for the declaration, after alleging the loss of
cohabitation by the wife, proceeds to aver that “she lost, and was
deprived of the companionship, and ceased to receive the hospitality of
divers friends.” Now, first, was that consequence such as might
reasonably and naturally be expected to follow from the speaking of the
slanderous words? Judging from the habits and manners of society, of all
the consequences that might be expected to result from a statement that
a woman had committed adultery, or had been guilty of unchastity, the
most natural would be that those who had invited her and given her
hospitality would thenceforth cease to do so. Then Moore _v._ Meagher, 1
Taunt. 39, decides that the loss of the hospitality of friends is
sufficient special damage to sustain an action like the present, and the
hospitality, as the word is there used, means simply that persons
receive another into their houses, and give him meat and drink gratis.
Perhaps such a definition may rather extend the signification of the
word, but it is true in effect—for if they do not receive him, or if
they make him pay for his entertainment, that is not hospitality. In
Roberts _v._ Roberts, 5 B. & S. 384, 33 L. J. Q. B. 249, it is to be
observed, that the loss suffered by the plaintiff in being excluded from
a religious society was not temporal, and was therefore held not to be
enough. But in the present case there is a matter of temporal
damage—small though it be—laid in the declaration. It is also argued,
that inasmuch as this action is brought by the wife, the husband being
merely joined for conformity, the damage necessary to give a right to
recover must be damage to her alone, and that the loss of hospitality
which she has hitherto enjoyed is only pecuniary loss to her husband,
and not to her. That certainly is a plausible argument, as the husband
is of course bound to maintain his wife and to supply her with food,
although her friends cease to do so. I am, however, unwilling to agree
with such artificial reasoning, and I think that the real damage in this
case is to the wife herself. Notwithstanding that it is the husband’s
duty to support his wife, he is only bound to provide her with
necessaries suitable to his station in life; and she might, by visiting
friends in a higher position than himself, enjoy luxuries which he
either could not or might not choose to afford her. But I should be
sorry to say that we must enter into a nice inquiry as to whether such
hospitality would save the purse of the husband or of the wife. I am
therefore of opinion that the declaration is good; and the demurrer must
be overruled.

MELLOR and HANNEN, JJ., concurred.

_Judgment for the plaintiffs._

CORCORAN _v._ CORCORAN
IN THE EXCHEQUER, IRELAND, NOVEMBER 17, 1857.
_Reported in 7 Irish Common Law Reports, 272._

Defamation.—The summons and plaint stated the speaking of words imputing
prostitution to the plaintiff Anne, and calling her a vagabond, with an
innuendo that this word imputed that she was a vagrant without a fixed
place of abode. By means of the committing of which several grievances,
the said plaintiff Anne hath been injured in her credit and reputation,
and brought into disgrace with her acquaintances, in so much that her
brother K. Dooley, who had promised to supply the said Anne with means
to enable her to emigrate to Australia to join her husband, has now, in
consequence of the imputations cast upon her character by the said
defendant, retracted his promise until the truth or falsehood of the
said charges shall have been first ascertained and established; whereby,
&c.

Demurrer.

PENNEFATHER, B.[534] It certainly does strike me that this summons and
plaint would not be good without the allegation of special damage.

Then, as to the special damage laid. I certainly agree that mere
apprehension of damage would not be a sufficient statement; but here a
promise has been laid. It is argued that no averment of the promisor’s
intention to perform it has been made, but I think it must be taken that
he intended to perform it, until the contrary be shown. In cases of
actions for breach of promise, as, for instance, of marriage, there is
never any allegation contained to that effect, nor could it be
maintained that, without such an averment, the pleading would not be
sufficient.

Then follows an allegation here that, by reason of the speaking of the
words, the promisor retracted his promise, and broke off his treaty of
giving the plaintiff funds to enable her to emigrate. Now, if the words
stopped there, I think there is no question whatever but there was
special damage sustained by the breach of a promise which must have been
beneficial to the plaintiff. The demurrer must be overruled.

MILLER _v._ DAVID
IN THE COMMON PLEAS, JANUARY 20, 1874.
_Reported in Law Reports, 9 Common Pleas, 1187._

The first count stated that the defendant falsely and maliciously
published of the plaintiff, a stone-mason, and employed as such in
certain works carried on by one Mayberry, these words: “He was the
ringleader of the nine-hours system,” whereby and by means of which
premises the plaintiff was injured in his occupation of a stone-mason,
and was discharged from his said employment at the said works, to wit,
the Old Castle Iron and Tin Plate Works, and was without and could not
obtain employment for a considerable time, and could get no employment
but one of less value to the plaintiff, the place of employment being
distant from his place of abode, and his necessary meals thereby
becoming more costly, and such place of employment being exposed to wet
weather.

The second count was similar, except that the words spoken were: “He has
ruined the town by bringing about the nine hours system, and he has
stopped several good jobs from being carried out, by being the
ringleader of the system at Llanelly.”

Demurrer, on the ground that the words were not in themselves
defamatory, and that special damage consequent thereon, therefore, gave
no action. Joinder in demurrer.[535]

Jan. 20. The judgment of the court (LORD COLERIDGE, C. J., and KEATING,
BRETT, and DENMAN, JJ.) was delivered by

LORD COLERIDGE, C. J. In this case time was taken to consider our
judgment, from the wish entertained by at least one member of the court
to hold, if there were authority for the proposition, that a statement
false and malicious made by one person in regard to another, whereby
that other might probably, under some circumstances, and at the hands of
some persons, suffer damage, would, if the damage resulted in fact,
support an action for defamation. No proposition less wide in its terms
than this would support the present declaration; for to call a man “the
ringleader of the nine hours system,” and to say of him that he “had
ruined a place by bringing about that system,” could not under many
circumstances and at the hands of many people do the subject of such
statement any damage at all. But we are unable to find any authority for
a proposition so wide and general in its terms as would alone support
this action.[536]

The rule, as laid down by De Grey, C. J., in Onslow _v._ Horne, that
words are actionable if they be of probable ill consequence to a person
in a trade or profession, or an office, is expressly disapproved of by
the Court of Exchequer in Lumby _v._ Allday. Bayley, B., there says:
“Every authority which I have been able to find either shows the want of
some general requisite, as honesty, capacity, fidelity, or the like, or
connects the imputation with the plaintiff’s office, trade, or
business.” In that case, the words proved were a very strong imputation
on the morality of the plaintiff, who was a clerk to a gas company. But
the court held them not actionable, because the imputation conveyed by
them did not imply the want of any of those qualities which a clerk
ought to possess, and because the imputation had no reference to his
conduct as clerk. That case and the language of Bayley, B., in
delivering the judgment of the court, have since been repeatedly
approved of, and are really decisive of this case.

The words before us are not actionable in themselves. No expression in
them was argued to be so except the word “ringleader;” and, as to that,
it is sufficient perhaps to say that Dr. Johnson points out the mistake
of supposing that the word is by any means necessarily a word of bad
import; for, amongst other authorities, he cites Barrow as calling St.
Peter the “ringleader” of the Apostles.[537] Neither are the words
connected with the trade or profession of the plaintiff, either by
averment or by implication; so that, on neither ground can the
declaration be supported. There is no averment here that the consequence
which followed was intended by the defendant as the result of his words;
and therefore it is not necessary to consider the question which was
suggested on the argument, whether words not in themselves actionable or
defamatory spoken under circumstances and to persons likely to create
damage to the subject of the words, are, when the damage follows, ground
of action. The judgment of Lord Wensleydale in Lynch _v._ Knight, 9 H.
L. C., at p. 600, appears in favor of the affirmative of this question.
But it is not necessary for us, for the reasons given, to express any
opinion upon it; and upon this demurrer there must be judgment for the
defendant.

_Judgment for the defendant._

HATCHARD _v._ MÈGE
IN THE QUEEN’S BENCH DIVISION, APRIL 1, 1887.
_Reported in 18 Queen’s Bench Division Reports, 771._

DAY, J.[538] This is an application to set aside a nonsuit, which was
directed by the Lord Chief Justice on the opening statement of counsel,
and the question is whether the nonsuit was properly entered.

The statement of claim alleged that the defendants wrote and published
“of and concerning the plaintiff and his said trade as a wine-merchant
and importer the following false and malicious libel, that is to say:—

“‘Caution: Delmonico Champagne. Messrs. Delbeck & Co., finding that wine
stated to be Delmonico champagne is being advertised for sale in Great
Britain, hereby give notice that such wine cannot be the wine it is
represented to be, as no champagne shipped under that name can be
genuine unless it has their names on their labels. Messrs. Delbeck & Co.
further give notice that if such wine be shipped from France they will
take proceedings to stop such shipments, and such other proceedings in
England as they may be advised,’ thereby meaning that the plaintiff had
no right to use his said registered trade-mark or brand for champagne
imported or sold by him, and that in using such trade-mark or brand he
was acting fraudulently, and endeavoring to pass off an inferior
champagne as being of the manufacture of Messrs. Delbeck & Co., and that
the champagne imported and sold by the plaintiff was not genuine wine,
and that no person other than the defendants had the right to use the
word ‘Delmonico’ as a trade-mark or brand, or part of a trade-mark or
brand, of champagne in the United Kingdom.”

The publication there set out is complained of as a libel on the
plaintiff in relation to his trade. It is substantially a warning not to
buy Delmonico champagne because it is not genuine. The statement of
claim alleges that the publication is false and malicious; that would be
a question for the jury; it is not for us to consider the facts of the
case; we can only look at what was opened by the plaintiff’s counsel and
what appears on the pleadings. The innuendo charges that the defendants
intended to convey the meaning that the plaintiff had no right to use
his trade-mark or brand, and that the wine he sold was not genuine. It
may be that the publication bears that meaning, and that the words used
import dishonesty. The plaintiff has died, and the question to be
decided is how much, if any part, of the cause of action survives. The
statute 4 Edw. 3, c. 7, and the course of practice, make it clear that a
civil action for libel dies with the death of the person libelled. It
does not come within the spirit, and certainly not within the letter of
the statute. There is, however, a further question whether a right of
action can survive because injury to the plaintiff’s trade-mark is
alleged. Injury to trade is constantly alleged in actions for libel, and
therefore that does not affect the question of survivorship. In the
present case the second part of the statement of claim may be subdivided
into two separate and distinct claims. The first is for ordinary
defamation, either independently of the plaintiff’s trade, affecting his
character by charging him with being a dishonest man, or defamation of
him in his trade by charging him with being a dishonest wine-merchant.
That claim would not survive, for it is nothing more than a claim in
respect of a libel on an individual. But this publication may be
construed to mean that the plaintiff had no right to use his trade-mark.
This is not properly a libel, but is rather in the nature of slander of
title, which is well defined in Odgers on Libel and Slander, c. v. p.
137, in the following passage: “But wholly apart from these cases there
is a branch of the law (generally known by the inapproriate but
convenient name—slander of title) which permits an action to be brought
against any one who maliciously decries the plaintiff’s goods or some
other thing belonging to him, and thereby produces special damage to the
plaintiff. This is obviously no part of the law of defamation, for the
plaintiff’s reputation remains uninjured; it is really an action on the
case for maliciously acting in such a way as to inflict loss upon the
plaintiff. All the preceding rules dispensing with proof of malice and
special damage are therefore wholly inapplicable to cases of this kind.
Here, as in all other actions on the case, there must be _et damnum et
injuria_. The _injuria_ consists in the unlawful words maliciously
spoken, and the _damnum_ is the consequent money loss to the plaintiff.”

It appears, therefore, that the first and last parts of the innuendo in
the present case suggest slander of title. As appears from the passage I
have read, an action for slander of title is not an action for libel,
but is rather in the nature of an action on the case for maliciously
injuring a person in respect of his estate by asserting that he has no
title to it. The action differs from an action for libel in this, that
malice is not implied from the fact of publication, but must be proved,
and that the falsehood of the statement complained of, and the existence
of special damage, must also be proved in order to entitle the plaintiff
to recover. The question whether the publication is false and malicious
is for the jury. Here, I think, special damage is alleged by the
statement of claim, and if the plaintiff could have shown injury to the
sale of the wine which he sold under his trade-mark, he would have been
entitled to recover, and that is a cause of action which survives.

For these reasons I am of opinion that the nonsuit was right so far as
it related to the claim in respect of a personal libel, but was wrong as
to the claim in respect of so much of the publication as impugned the
plaintiff’s right to sell under his trade-mark or brand.

There will, therefore, be an order for a new trial, but it will be
limited to this latter part of the claim.

_Order for a new trial._[539]

MALACHY _v._ SOPER
IN THE COMMON PLEAS, NOVEMBER 25, 1836.
_Reported in 3 Bingham, New Cases, 371._

TINDAL, C. J.[540] In this case a verdict having been found for the
plaintiff at the trial of the cause with £5 damages, a motion has been
made to arrest the judgment on the ground that the declaration does not
state any legal cause of action. And we are of opinion that this
objection is well founded; and that the judgment must be arrested.

This is not an ordinary action for defamation of the person, by the
publication of slander either oral or written; in which form of action
no special damage need either be alleged or proved; the law presuming
that the uttering of the slanderous words, or the publishing of the
libel, have of themselves a natural and necessary tendency to injure the
plaintiff. But this is an action to recover damages by reason of the
publication of a paragraph in a newspaper, which contains no other
charge than that the “petition in a bill filed in the Court of Chancery
against the plaintiff, and certain other persons as share-owners in a
certain mine, for an account and an injunction, had been granted by the
Vice-Chancellor, and that persons duly authorized had arrived in the
workings.” The publication therefore is one which slanders not the
person or character of the plaintiff, but his title as one of the
shareholders to the undisputed possession and enjoyment of his shares of
the mine. And the objection taken is, that the plaintiff, in order to
maintain this action, must show a special damage to have happened from
the publication, and that this declaration shows none.

The first question therefore is, does the law require in such an action
an allegation of special damage? And looking at the authorities we think
they all point the same way. The law is clearly laid down in Sir W.
Jones, 196 (Lowe _v._ Harewood): “of slander of title, the plaintiff
shall not maintain action, unless it was _re vera_ a damage; _scil._,
that he was hindered in sale of his land; so there the particular damage
ought to be alleged.” And in addition to the cases cited at the bar,
viz., Sir John Tasborough _v._ Day, Cro. Jac. 484, and Manning _v._
Avery, Keb. 153, the case of Cane _v._ Goulding, Style’s Rep. 169, 176,
furnishes a strong authority. That was an action on the case for
slandering the plaintiff’s title, by speaking these words, viz., “his
right and title thereunto is nought, and I have a better title than he.”
The words were alleged to be spoken _falso et malitiose_, and that he
was likely to sell, and was injured by the words; and that by reason of
speaking the words, he could not recover his tithes. After verdict for
the plaintiff, there was a motion in arrest of judgment; and Rolle, C.
J., said, “there ought to be a scandal and a particular damage set
forth, and there is not here;” and upon its being moved again and argued
by the judges, Rolle, C. J., held that the action did not lie, although
it was alleged that the words were spoken _falso et malitiose_ for “the
plaintiff ought to have a special cause; but that, the verdict might
supply; but the plaintiff ought also to have showed a special damage
which he hath not done, and this the verdict cannot supply: the
declaration here is too general, and upon which no good issue can be
joined; and he ought to have alleged, that there was a communication had
before the words spoken touching the sale of the lands whereof the title
was slandered, and that by speaking of them the sale was hindered;” and
cited several cases to that effect.

We hold, therefore, on the authority of these cases, that an action for
slander of title is not properly an action for words spoken, or for
libel written and published, but an action on the case for special
damage sustained by reason of the speaking or publication of the slander
of the plaintiff’s title. This action is ranged under that division of
actions in the Digests, and other writers on the text law, and such we
feel bound to hold it to remain at the present day.

The next question is, has there been such a special damage alleged in
this case, as will satisfy the rule laid down by the authorities above
referred to? The doctrine of the older cases is, that the plaintiff
ought to aver that, by the speaking, he could not sell or lease (Cro.
Eliz. 197, Cro. Car. 140); and that it will not be sufficient to say
only, that he had an intent to sell, without alleging a communication
for sale (R. 1 Roll. 244). Admitting, however, that these may be put as
instances only, and that there may be many more cases in which a
particular damage may be equally apparent without such allegation, they
establish at least this, that in the action for slander of title, there
must be an express allegation of some particular damage resulting to the
plaintiff from such slander. Now the allegation upon this record is only
this, “that the plaintiff is injured in his rights; and the shares so
possessed by him, and in which he is interested, have been and are much
depreciated and lessened in value; and divers persons have believed and
do believe that he has little or no right to the shares, and that the
mine cannot be lawfully worked or used for his benefit; and that he hath
been hindered and prevented from selling or disposing of his said shares
in the said mine, and from working and using the same in so ample and
beneficial a manner as he otherwise would have done.” And we are of
opinion that this is not such an allegation of special damage as the
authorities above referred to require, where the action is not founded
on the words spoken or written, but upon the special damage sustained.

It has been argued in support of the present action, that it is not so
much an action for slander of title as an action for a libel on the
plaintiff in the course of his business, and in the way of gaining his
livelihood, and that such an action is strictly and properly an action
for defamation, and so classed and held by all the authorities. But we
think it sufficient to advert to the declaration, to be convinced that
the publication complained of was really and strictly a slander of the
plaintiff’s title to his shares, and nothing else. The bill in Chancery,
out of which the publication arose, is filed by Tollervy, who disputed
the plaintiff’s right to the whole of the shares, and claimed in himself
a right to part of the same, and prayed that he might be declared to be
entitled to some of them and the only mention made as to the working of
the mines, was with reference to the appointment of a receiver to the
profits thereof. And we think it would be doing violence to the natural
meaning of the terms of the publication, if we were to hold it to be
published of the plaintiff in the course of his business or occupation,
or mode of acquiring his livelihood, and not as referring to the
disputed title of the shares of the mine.

It has been urged, secondly, that however necessary it may be, according
to the ancient authorities, to allege some particular damage in cases of
unwritten slander of title, the case of written slander stands on
different grounds; and that an action may be maintained without an
allegation of damage actually sustained, if the plaintiff’s right be
impeached by a written publication, which of itself, it is contended,
affords presumption of injury to the plaintiff. No authority whatever
has been cited in support of this distinction. And we are of opinion
that the necessity for an allegation of actual damage in the case of
slander of title, cannot depend upon the medium through which that
slander is conveyed, that is, whether it be through words, or writing,
or print; but that it rests on the nature of the action itself, namely,
that it is an action for special damage actually sustained, and not an
action for slander. The circumstance of the slander of title being
conveyed in a letter or other publication appears to us to make no other
difference than that it is more widely and permanently disseminated, and
the damages in consequence more likely to be serious than where the
slander of title is by words only; but that it makes no difference
whatever in the legal ground of action.

For these reasons we are of opinion, that the action is not
maintainable, and that the judgment must be arrested; and, consequently,
it becomes unnecessary to inquire whether the _innuendo_ laid in the
declaration is more large than it ought to have been.

We therefore make the rule for arresting the judgment,

_Absolute_.[541]

WHITE _v._ MELLIN
IN THE HOUSE OF LORDS, FEBRUARY 14, 1895.
_Reported in [1895] Appeal Cases, 154._

The respondent was the proprietor of Mellin’s food for infants, which he
sold in bottles enclosed in wrappers bearing the words “Mellin’s
Infants’ Food.” The respondent was in the habit of supplying the
appellant with these bottles, which the appellant sold again to the
public after affixing on the respondent’s wrappers a label as follows:—

“Notice.

“The public are recommended to try Dr. Vance’s prepared food for
infants and invalids, it being far more nutritious and healthful than
any other preparation yet offered. Sold in barrels, each containing 1
lb. nett weight, at 7½_d._ each, or in 7 lb. packets 3_s._ 9_d._ each.
Local agent, Timothy White, chemist, Portsmouth.”

The appellant was the proprietor of Vance’s food. Discovering this
practice, the respondent brought an action against the appellant,
claiming an injunction to restrain him and damages.

At the trial before Romer, J., the plaintiff proved the above facts, and
called two analysts and a physician, the result of whose evidence is
stated in Lord Herschell’s judgment. Briefly, they testified that in
their opinion Mellin’s food was suitable for infants, especially up to
the age of six months, and persons who could not digest starchy matters,
and that Vance’s food was unsuitable for such beings, nay pernicious and
dangerous for very young infants. At the close of the plaintiff’s case
Romer, J., being of opinion that the label was merely the puff of a
rival trader and that no cause of action was disclosed, dismissed the
action with costs. The Court of Appeal (Lindley, Lopes, and Kay, L.JJ.)
being of opinion that the cause ought to have been heard out, discharged
that judgment and ordered a new trial, [1894] 3 Ch. 276.[542]

LORD HERSCHELL, L. C. (after stating the facts):—

My Lords, in the Court of Appeal Lindley, L. J., stated the law thus:
“If upon hearing the whole of the evidence to be adduced before him the
result should be that the statement contained in the label complained of
is a false statement about the plaintiff’s goods to the disparagement of
them, and if that statement has caused injury to or is calculated to
injure the plaintiff, this action will lie.” Lopes, L. J., said: “All I
desire to say is that, in my opinion, it is actionable to publish
maliciously without lawful occasion a false statement disparaging the
goods of another person and causing such other person damage, or likely
to cause such other person damage.”

None of the learned judges in the Court of Appeal dealt with the
evidence which had been adduced on behalf of the plaintiff; but I think
it must be taken that they had arrived at the conclusion that that
evidence did bring the case within those statements of the law. Of
course, if the plaintiff, on his evidence, had made out no case, he
could not complain that the learned judge decided against him and did
not hear the witnesses for the defendant; the action was in that case
properly dismissed. I take it, therefore, that although the learned
judges did not analyse the evidence or make any reference to it, they
must have concluded that it established a case coming within the law as
they laid it down. My Lords, as I understand, in the view of those
learned judges, or in the view of Lindley, L. J., to take his statement
of the law in the first place, it was necessary in order to the
maintenance of the action that three things should be proved: that the
defendant had disparaged the plaintiff’s goods, that such disparagement
was false, and that damage had resulted or was likely to result. Now, my
Lords, the only statement made by the defendant by means of the
advertisement is this: that Vance’s food was the most healthful and
nutritious for infants and invalids that had been offered to the public.
The statement was perfectly general, and would apply in its terms not
only to the respondent’s infants’ food but to all others that were
offered to the public. I will take it as sufficiently pointed at the
plaintiff’s food by reason of its being affixed to a bottle of the
plaintiff’s food when sold, and that it does disparage the plaintiff’s
goods by asserting that they are not as healthful and as nutritious as
those recommended by the defendant. The question then arises, Has it
been proved on the plaintiff’s own evidence that that was a false
disparagement of the plaintiff’s goods?

I will state what I understand to be the result of the plaintiff’s
evidence. Mellin’s food for infants and invalids is a preparation of
such a nature that the food is said to be predigested, and therefore not
to make that call upon the digestion which food ordinarily does; that as
regards children under six months of age Mellin’s food is the only one
which could be suitably used in the place of the ordinary means of
nourishment, the mother’s milk, and that any farinaceous food would at
that age be not only not nutritious but prejudicial. And so far,
accepting the plaintiff’s evidence for this purpose, there being no
evidence to the contrary, the plaintiff, I think, establishes that his
food was specially meritorious for that class of cases, and that it
would not be correct to say that as regards these children of very
tender age Vance’s food or any other farinaceous food would be not only
more healthful and nutritious, but as healthful and nutritious. But then
it appears that when a child has passed the age up to which nutrition at
the breast may ordinarily be said to continue, the use of some
farinaceous food is not only not prejudicial but desirable, and that if
the child were to be always brought up upon a food which would be
suitable during the very earliest weeks or months, its digestion would
be likely to suffer rather than benefit, and there would be not more,
but less nourishment. After twelve months, as I understand the evidence,
the farinaceous food would be distinctly better for the purposes of
nutrition and health than this predigested food. That, my Lords, I take
to be a fair statement of the result of the evidence. Can it be said,
under those circumstances, that it is a false disparagement of the
plaintiff’s goods to say that this other preparation—Vance’s—is more
nutritious and healthful for infants and invalids? I put aside the
question of invalids: upon that there was no evidence at all. The
plaintiff did not say that his was more healthful, or that the
defendant’s was not more healthful. It is therefore unnecessary to
consider the case of invalids, and it is enough to confine one’s
attention to the case of infants.

The word “infants” is not in ordinary parlance confined to children of
very tender age. If one looks at its derivation etymologically it would
apply to children so long as they are not able to articulate
distinctly—not able to speak—and nobody would hesitate to refer to
children, I should say, at least under two years of age as infants, just
as much as they would to children under six months of age. Therefore, if
you look at the class of infants as a whole, it is by no means shown
that the statement that Vance’s food is more nutritious and healthful
than the plaintiff’s food is false. If the reference had been specially
to that very early period of life during which Mellin’s food would be
beneficial and the other prejudicial, no doubt a statement of that
description might well be said to be a false statement; but looking
fairly at the language used and the meaning to be attributed to it, I am
not satisfied that it has been shown that by means of this advertisement
the defendant falsely disparaged the plaintiff’s goods. But, my Lords,
assuming that he did so, the Court of Appeal regarded it as requisite
for the maintenance of the action that something further should be
proved, and that is that the disparaging statement has caused injury to
or is calculated to injure the plaintiff. Upon that there is a complete
absence of evidence. The plaintiff was called, but he did not state that
he had sustained any injury, nor did he even say that it was calculated
to injure him, and I own it seems to me impossible, in the absence of
any such statement or evidence, to say that it is a case in which such
must be the necessary consequence; on the contrary, speaking for myself,
I should doubt very much whether it was likely to be the consequence.
After all, the advertisement is of a very common description, puffing,
it may be, extremely and in an exaggerated fashion, these particular
goods, Vance’s food. That advertisement was outside the wrapper; inside
was found an advertisement of Mellin’s food, in which Mellin’s food was
stated to be recommended by the faculty as best for infants and
invalids. Why is it to be supposed that any one buying this bottle at
the chemist’s would be led to believe that Mellin’s food which he had
bought was not a good article or not as good an article as another,
merely because a person who obviously was seeking to push a rival
article said that his article was better? My Lords, why should people
give such a special weight to this anonymous puff of Vance’s food,
obviously the work of some one who wanted to sell it, as that it should
lead him to determine to buy it instead of Mellin’s food, which was said
to be recommended by the faculty as the best for infants and invalids? I
confess I do not wonder that the plaintiff did not insist that he had
sustained injury by what the defendant had done. There is an entire
absence of any evidence that the statement complained of either had
injured or was calculated to injure the plaintiff. If so, then the case
is not brought even within the definition of the law which Lindley, L.
J., gives.

Lopes, L. J., adds the word “maliciously,” that “it is actionable to
publish maliciously without lawful occasion a false statement
disparaging the goods of another person.” By that it may be intended to
indicate that the object of the publication must be to injure another
person, and that the advertisement is not published _bona fide_ merely
to sell the advertiser’s own goods, or at all events, that he published
it with a knowledge of its falsity. One or other of those elements, it
seems to me, must be intended by the addition of the word “maliciously.”
Both those are certainly absent here. There is nothing to show that the
object of the defendant was other than to puff his own goods and so sell
them, nor is there anything to show that he did not believe that his
food was better than any other.

The only case which the learned counsel for the respondent was able to
rely upon as at all approaching the present is the case of the Western
Counties Manure Company _v._ Lawes Chemical Manure Company, L. R. 9 Ex.
218, in which case a declaration was held good which alleged the
disparagement of the plaintiff’s goods by stating that they were
inferior to those sold by the defendants.[543] In that case special
damage was alleged in the declaration, and I think that that allegation
was regarded by both the learned judges who were parties to the decision
as material and essential. In the earlier case of Evans _v._ Harlow, 5
Q. B. 624, a statement was complained of which distinctly disparaged the
plaintiff’s goods. It cautioned the public against them, it pointed out
to the public that they were not likely to realize the purpose for which
they were designed, and the allegation was that “the defendant published
a libel of and concerning the plaintiff and of and concerning him in his
said trade and of and concerning his design as follows.” In that case
there was no allegation of special damage; there was a demurrer to the
declaration, and the declaration was held bad. Now, the only distinction
that I can see between that case and the case of the Western Counties
Manure Company _v._ Lawes Chemical Manure Company is that in the latter
case special damage was alleged, whereas in the former it was not.
Bramwell, B., does not call specific attention to the differentia
between the case before him and the case of Evans _v._ Harlow, but he
says that there is nothing in any of the cases inconsistent with the
judgment which he is pronouncing. Pollock, B., who was the other judge,
pointed out that in Evans _v._ Harlow there was no allegation of special
damage. Therefore, my Lords, the utmost that the Western Counties Manure
Company _v._ Lawes Chemical Manure Company, L. R. 9 Ex. 218, can be
claimed as an authority for is this, that an action will lie for falsely
disparaging another’s goods where special damage results. Evans _v._
Harlow, 5 Q. B. 624, is a distinct authority that it will not lie where
special damage does not result. In the present case it cannot be
pretended that any special damage was either alleged or proved.

Mr. Moulton sought to extricate himself from that difficulty in this
way: he said that if this were an action for damages that might be a
well-founded objection to it, but that it is not an action for damages
but a claim for an injunction, and that although it may be that to
support an action for damages it would be necessary to allege and prove
special damage, that is not necessary where an injunction is
claimed—that it is enough if a false statement is made and is likely to
be repeated.

Now my Lords, no authority was cited to show that a Court of Equity
under any of the branches of its jurisdiction had ever granted or would
grant an injunction in such a case. Certainly there is no rule of equity
under which it may be said generally that a Court of Equity would
restrain every publication of a false statement. In the case of Canham
_v._ Jones, 2 V. & B. 218, the bill stated that a certain Mr. Swainson
had been the sole proprietor of a secret for preparing the medicine
called “Velno’s Vegetable Syrup,” and that the plaintiff had obtained
title to it under his will and had sold the medicine. Then the complaint
was that the defendant, who had been a servant of Swainson, was employed
in the preparation of the syrup but was not acquainted with the complete
preparation, certain essential ingredients being introduced only by
Swainson himself and only in the presence of the plaintiff. Then it
alleged “that the defendant being discharged from his service had made
and advertised for sale a spurious preparation under the name of Velno’s
Vegetable Syrup, stated by him to be the same medicine in composition
and quality as that made by Swainson and the plaintiff, the defendant’s
advertisement certifying that the medicine prepared by him at his
residence under the name of Velno’s Vegetable Syrup is precisely the
same with that made and sold by the late Mr. Swainson.” It was alleged
that that was untrue, and that it was a spurious preparation pretending
to be the same when it really was not. To that bill the defendant put in
a general demurrer for want of equity. That demurrer was sustained by
the Vice-Chancellor, Sir Thomas Plumer, although for the purposes of
that demurrer it was taken that the defendant selling this article was
falsely stating that it was the same as the plaintiff’s.

My Lords, the learned counsel relied upon recent cases in which an
injunction has been granted to restrain the publication of a libel, and
he suggested that there had been a growth of equity jurisprudence which
had brought within its ambit a class of cases which were previously not
regarded as within it. But when the case in which the Court of Appeal
laid down that an injunction might be granted to restrain the
publication of a libel is looked at, it will be seen that the decision
was not founded upon any principle or rule of equity jurisprudence, but
upon the fact that a Court of Common Law could have granted such an
injunction in an action of libel, and that since the Judicature Act the
power which a Court of Common Law possessed in that respect is now
possessed also by the Court of Chancery. That was distinctly the ground
upon which the judgment was founded, that “the 79th and 82d sections of
the Common Law Procedure Act 1854 undoubtedly conferred on the Courts of
Common Law the power, if a fit case should arise, to grant injunctions
at any stage of a cause in all personal actions of contract or tort,
with no limitation as to defamation;” and then, inasmuch as those powers
are now possessed by the Chancery Division, it was held that they
likewise could in such cases grant an injunction. That was the decision
in Bonnard _v._ Perryman, [1891] 2 Ch. 269.

My Lords, obviously to call for the exercise of that power it would be
necessary to show that there was an actionable wrong well laid, and if
the statement only showed a part of that which was necessary to make up
a cause of action—that is to say, if special damage was necessary to the
maintenance of the action, and that special damage was not shown—a tort
in the eye of the law would not be disclosed, the case would not be
within those provisions, and no injunction would be granted. I think,
therefore, for these reasons, that the plaintiff would not be entitled
to an injunction, any more than he would be entitled to maintain an
action unless he established all that was necessary to make out that a
tort had been committed; and for the reasons which I have given, taking
the Western Counties Manure Company _v._ Lawes Chemical Manure Company,
L. R. 9 Ex. 218, to be good law, he has not brought himself within it.

But, my Lords, I cannot help saying that I entertain very grave doubts
whether any action could be maintained for an alleged disparagement of
another’s goods, merely on the allegation that the goods sold by the
party who is alleged to have disparaged his competitor’s goods are
better either generally or in this or that particular respect than his
competitor’s are. Of course, I put aside the question (it is not
necessary to consider it) whether where a person intending to injure
another, and not in the exercise of his own trade and vaunting his own
goods, has maliciously and falsely disparaged the goods of another, an
action will lie; I am dealing with the class of cases which is now
before us, where the only disparagement consists in vaunting the
superiority of the defendant’s own goods. In Evans _v._ Harlow Lord
Denman expressed himself thus: “The gist of the complaint is the
defendant’s telling the world that the lubricators sold by the plaintiff
were not good for their purpose, but wasted the tallow. A tradesman
offering goods for sale exposes himself to observations of this kind,
and it is not by averring them to be ‘false, scandalous, malicious, and
defamatory’ that the plaintiff can found a charge of libel upon them. To
decide so would open a very wide door to litigation, and might expose
every man who said his goods were better than another’s to the risk of
an action.” My Lords, those observations seem to me to be replete with
good sense. It is to be observed that Evans _v._ Harlow, 5 Q. B. 624,
does not appear to have been decided on the ground merely that there was
no allegation of special damage. The only judge who alludes to the
absence of such an allegation is Patteson, J. No reference to it is to
be found either in the judgment of Lord Denman or in the judgment of
Wightman, J., the other two judges who took part in that decision; and I
think it is impossible not to see that, as Lord Denman says, a very wide
door indeed would be opened to litigation, and that the courts might be
constantly employed in trying the relative merits of rival productions,
if an action of this kind were allowed.

Mr. Moulton sought to distinguish the present case by saying that all
that Lord Denman referred to was one tradesman saying that his goods
were better than his rival’s. That, he said, is a matter of opinion, but
whether they are more healthful and more nutritious is a question of
fact. My Lords, I do not think it is possible to draw such a
distinction. The allegation of a tradesman that his goods are better
than his neighbor’s very often involves only the consideration whether
they possess one or two qualities superior to the other. Of course
“better” means better as regards the purpose for which they are
intended, and the question of better or worse in many cases depends
simply upon one or two or three issues of fact. If an action will not
lie because a man says that his goods are better than his neighbor’s, it
seems to me impossible to say that it will lie because he says that they
are better in this or that or the other respect. Just consider what a
door would be opened if this were permitted. That this sort of puffing
advertisement is in use is notorious; and we see rival cures advertised
for particular ailments. The Court would then be bound to inquire, in an
action brought, whether this ointment or this pill better cured the
disease which it was alleged to cure—whether a particular article of
food was in this respect or that better than another. Indeed, the courts
of law would be turned into a machinery for advertising rival
productions by obtaining a judicial determination which of the two was
the better. As I said, advertisements and announcements of that
description have been common enough; but the case of Evans _v._ Harlow,
5. Q. B. 624, was decided in the year 1844, somewhat over half a century
ago, and the fact that no such action—unless it be Western Counties
Manure Co. _v._ Lawes Chemical Manure Co., L. R. 9 Ex. 218—has ever been
maintained in the Courts of Justice is very strong indeed to show that
it is not maintainable. It is, indeed, unnecessary to decide the point
in order to dispose of the present appeal.

For the reasons which I have given I have come to the conclusion that
the judgment of the court below cannot be sustained, even assuming the
law to be as stated by the learned judges; but inasmuch as the case is
one of great importance, and some additional color would be lent to the
idea that an action of this description was maintainable by the
observations in the court below, I have thought it only right to express
my grave doubts whether any such action could be maintained even if the
facts brought the case within the law there laid down.

Upon the whole, therefore, I think that the judgment of Romer, J., was
right and ought to be restored and that this appeal should be allowed,
with the usual result as to costs; and I so move your Lordships.

_Order of the Court of Appeal reversed; Judgment of Romer, J., restored,
with costs here and in the Court of Appeal; Cause remitted to the
Chancery Division._[544]

STONE _v._ CARLAN
SUPERIOR COURT, NEW YORK, 1850.
_Reported in 13 Law Reporter, 360._

The important facts of this case appear in the opinion of the court.

CAMPBELL, J. A motion is made for an injunction restraining the
defendants from using the names “Irving Hotel,” “Irving House,”
“Irving,” &c., upon their coaches and upon certain badges worn by
defendants upon their arms and hats. The complainants have an agreement
with the proprietors of the Irving House, in this city, under which they
are permitted to use the name of such proprietors, and the name of their
hotel, upon their coaches and the badges of their servants; the
complainants paying therefor a stipulated sum, and having also entered
into bonds for the faithful discharge of these duties. All the porters
are engaged in carrying passengers and their baggage to and from the
hotels, boats, railroad depots, &c.

It was well remarked by the Master of the Rolls, in Croft _v._ Day, 7
Bevan, 84, that “No man has a right to dress himself in colors, or adopt
and bear symbols, to which he has no peculiar or exclusive right, and
thereby personate another person, for the purpose of inducing the public
to suppose, either that he is that other person, or that he is connected
with and selling the manufacture of such other person, while he is
really selling his own. It is perfectly manifest that to do these things
is to commit a fraud, and a very gross fraud. I stated upon a former
occasion, that, in my opinion, the right which any person may have to
the protection of this court does not depend upon any exclusive right
which he may be supposed to have to a particular name, or to a
particular form of words. His right is to be protected against fraud;
and fraud may be practised against him by means of a name, though the
person practising it may have a perfect right to use that name, provided
he does not accompany the use of it with such other circumstances as to
effect a fraud upon others.” I entirely concur in the foregoing views.
The question is, whether the defendants have committed a fraud. I cannot
doubt that their intention was to mislead, and to induce travellers to
believe that they were servants of the proprietors of the Irving House.
This is a large and popular hotel, well known in the country, and many a
traveller may wish to resort to it on his arrival in this city, who, at
the same time, may not know whether the carriages of the proprietors are
painted red or white, or whether the exact designation is that of the
Irving House or Irving Hotel. Such traveller may wish to intrust himself
and his baggage to the servants of the hotel, feeling that, in doing so,
he would be protected against loss or damage by the responsibility of
the proprietors. Now, in this case, it can hardly be doubted but that
the object of the defendant was to induce the belief on the part of the
travellers that they were the servants of this hotel. To induce such
belief, it was not necessary that the resemblance of all carriages and
badges should be complete. From the very circumstances of the case, it
would not be necessary to have a perfect resemblance, in order to commit
even a gross fraud. It is not necessary to go, in this case, the length
of the ordinary cases of trade-marks, though this case might come within
the rules of those cases. (See Coates _v._ Holluck, 2 Sanford Ch. R.,
and Notes, and cases there cited.) The false pretences of the defendants
would, I think, necessarily tend to mislead. The defendants have a
perfect right to engage in a spirited competition in conveyance of
passengers and their baggage. They may employ better carriages than the
plaintiffs. They may carry for less fare. They may be more active,
energetic, and attentive. The employment is open to them, but “they must
not dress themselves in colors, and adopt and bear symbols,” which
belong to others. I had some doubt, at the time of the argument, whether
the complaint should not have been made by the proprietors of the Irving
House; but, on further reflection, think that the suit is well brought.
The plaintiffs are the real parties in interest. It is possible that,
owing to the general liability of the proprietors, as innkeepers, for
the loss of the property of guests, the proprietors might also be
entitled to an injunction restraining the defendants from holding
themselves out as the servants of the hotel.

An injunction must issue, as prayed for, against all the
defendants.[545]

HUGHES _v._ McDONOUGH
SUPREME COURT OF JUDICATURE, NEW JERSEY, NOVEMBER, 1881.
_Reported in 43 New Jersey Law Reports, 459._

On writ of error.

The substance of the declaration was, that the plaintiff was a
blacksmith and horseshoer by trade, of good character, &c.; that he had
obtained the patronage of one Peter Van Riper, and that on a certain
occasion he shod a certain mare of the said Van Riper in a good and
workmanlike manner; that the defendant, maliciously intending to injure
the plaintiff in his said trade, &c., “did wilfully and maliciously
mutilate, impair and destroy the work done and performed by the said
plaintiff upon the mare of the said Van Riper, without the knowledge of
the said Van Riper, by loosing a shoe which was recently put on by the
said plaintiff, so that if the mare was driven, the shoe would come off
easily, and thus make it appear that the said plaintiff was an unskilful
and careless horseshoer and blacksmith, and that the said mare was not
shod in a good and workmanlike manner, and thus deprive the said
plaintiff of the patronage and custom of the said Van Riper.”

The second count charges the defendant with driving a nail in the foot
of the horse of Van Riper, after it had been shod by the plaintiff, with
the same design as specified in the first count.

The special damage laid was the loss of Van Riper as a customer.

Argued at June term, 1881, before Beasley, Chief Justice, and Justices
Scudder, Knapp and Reed.

The opinion of the court was delivered by

BEASLEY, C. J. The single exception taken to this record is, that the
wrongful act alleged to have been done by the defendant does not appear
to have been so closely connected with the damages resulting to the
plaintiff as to constitute an actionable tort. The contention was, that
the wrong was done to Van Riper; that it was his horse whose shoe was
loosened, and whose foot was pricked, and that the immediate injury and
damage were to him, and that, consequently, the damages of the plaintiff
were too remote to be made the basis of a legal claim.

But this contention involves a misapplication of the legal principle,
and cannot be sustained. The illegal act of the defendant had a close
causal connection with the hurt done to the plaintiff, and such hurt was
the natural and almost direct product of such cause. Such harmful result
was sure to follow, in the usual course of things, from the specified
malfeasance. The defendant is conclusively chargeable with the knowledge
of this injurious effect of his conduct, for such effect was almost
certain to follow from such conduct, without the occurrence of any
extraordinary event, or the help of any extraneous cause. The act had a
twofold injurious aspect: it was calculated to injure both Van Riper and
the plaintiff; and as each was directly damnified, I can perceive no
reason why each could not repair his losses by an action.

The facts here involved do not, with respect to their legal
significance, resemble the juncture that gave rise to the doctrine
established in the case of Vicars _v._ Wilcocks, 8 East, 1. In that
instance the action was for a slander that required the existence of
special damage as one of its necessary constituents, and it was decided
that such constituent was not shown by proof of the fact that as a
result of the defamation the plaintiff had been discharged from his
service by his employer before the end of the term for which he had
contracted. The ground of this decision was that this discharge of the
plaintiff from his employment was illegal, and was the act of a third
party, for which the defendant was not responsible, and that, as the
wrong of the slander became detrimental only by reason of an independent
wrongful act of another, the injury was to be imputed to the last wrong,
and not to that which was farther distant one remove. In his elucidation
of the law in this case, Lord Ellenborough says, alluding to the
discharge of the plaintiff from his employment, that it “was a mere
wrongful act of the master, for which the defendant was no more
answerable, than if, in consequence of the words, other persons had
afterwards assembled and seized the plaintiff and thrown him into a
horse-pond by way of punishment for his supposed transgression.” The
class of cases to which this authority belongs, rests upon the principle
that a man is responsible only for the natural consequences of his own
misdeeds, and that he is not answerable for detriments that ensue from
the misdeeds of others. But this doctrine, it is to be remembered, does
not exclude responsibility when the damage results to the party injured
through the intervention of the legal and innocent acts of third
parties; for, in such instances, damage is regarded as occasioned by the
wrongful cause, and not at all by those which are not wrongful. Where
the effect was reasonably to have been foreseen, and where, in the usual
course of events, it was likely to follow from the cause, the person
putting such cause in motion will be responsible, even though there may
have been many concurring events or agencies between such cause and its
consequences. This principle is stated, and is illustrated by a
reference to a multitude of decisions in Cooley on Torts, 70, _et
seq._...[546]

The principles thus propounded must have a controlling effect in the
decision of the question now before this court, as they decisively show
that the damage of which the plaintiff complained was not, in a legal
sense, remote from the wrongful act. What, in point of substance, was
done by the defendant, was this: he defamed, by the medium of a
fraudulent device, the plaintiff in his trade, and by means of which
defamation, the latter sustained special detriment. If this defamation
had been accomplished by word spoken or written, or by signs or
pictures, it is plain the wrong could have been remedied, in the usual
form, by an action on the case for the slander; and, plainly, no reason
exists why the law should not afford a similar redress when the same
injury has been inflicted by disreputable craft. It is admitted upon the
record that the plaintiff has sustained a loss by the fraudulent
misconduct of the defendant; that such loss was not only likely, in the
natural order of events, to proceed from such misconduct, but that it
was the design of the defendant to produce such result by his act. Under
such circumstances it would be strange indeed if the party thus wronged
could not obtain indemnification by an appeal to the judicial tribunals.

HUGHES _v._ SAMUELS BROTHERS
SUPREME COURT, IOWA, OCTOBER 17, 1916.
_Reported in 179 Iowa Reports, 1077._

GAYNOR, J. Plaintiff and defendant both reside in the city of Storm
Lake, and each is and was engaged in the retail furniture business, and,
as an incident thereto, carried on a business of undertaking. Defendants
are a copartnership.

The plaintiff claims: That on the 6th day of October, 1914, the
defendants falsely and maliciously composed and published of and
concerning the plaintiff the following:

“Bear in mind our Undertaking Department. Satisfaction guaranteed.

(Signed) H. L. Hughes.”

That the defendants caused the same to be printed upon a card and mailed
to the address of one Albert Cattermole, a citizen and resident of Storm
Lake. That at the time the card was mailed the wife of the said
Cattermole was lying critically ill in a hospital in Storm Lake. That of
this fact the defendants had full knowledge at the time they composed
and published said statement. That they composed and published it for
the malicious purpose of injuring the plaintiff in his reputation and
business as aforesaid. That the same as so published tended to provoke
plaintiff to wrath, and expose him to public hatred, contempt, and
ridicule, and to deprive him of public confidence and esteem and social
intercourse. That the same was further published for the malicious and
wicked purpose of causing the said Albert Cattermole and members of his
family, and others to whom the said card or letter might become known,
to believe that plaintiff sent the card, and for the further purpose of
inducing the said Cattermole to refrain from patronizing the business of
the plaintiff. That the publication was further made for the purpose of
inciting indignation and hatred in the minds of said Cattermole and the
members of his family towards the plaintiff and his business as an
undertaker, and that it did this. That similar cards were sent to other
persons under similar circumstances, and for the purposes aforesaid.

To this petition defendants filed a demurrer, the substance of which is,
that the plaintiff’s petition stated no cause of action; that the words
published were not libellous _per se_, and no special damages are
alleged to have been suffered by the plaintiff on account of its
publication. This demurrer was sustained by the court. Plaintiff elected
to stand on his pleading and not to plead further, and his petition was
thereupon dismissed, and from the action of the court in the premises
plaintiff has appealed to this court....

It appears that Cattermole’s wife was sick unto death at the time this
card was composed by defendants and sent to him. The defendants knew
this fact at the time they composed and mailed the card. We take
judicial notice of the fact that the city in which the parties resided
was not so populous that the active business men of the city were not
known to each other and to the general public. The card was so framed
and mailed by the defendants as to lead the receiver to believe that the
plaintiff had composed and mailed it, and this was their purpose in
mailing it. What possible reason could they have in preparing and
publishing this card? Was it to help a rival? Was it to exploit the
business of a rival? Was it intended as a letter of credit to the public
by and through which he would be better installed in its confidence and
esteem? Is this the usual and ordinary course of procedure on the part
of rival business firms? With the largest charity, we cannot think this
was the purpose of the publication. What, then, was the purpose in the
minds of these defendants when they composed and sent these cards to the
sick and dying in the community? Was it not rather, as the petition
says, to deprive him of public confidence and esteem? Was it not rather
to expose him to public contempt and ridicule? Was it not rather to
divert business through this means from the plaintiff, and to injure him
by such diversion?

Cattermole’s wife was sick unto death at the time he received this card;
confined in the hospital. What impression would this card make upon his
mind? Would it not bring before him the spectacle of a vulture waiting
to prey upon the dead? A man without sympathy for the living because he
found more revenue in the dead? What is it these defendants meant by
this thing that they have done? What end had they in view? We think,
surely, that which the petition charges, to wit, to injure the plaintiff
in his reputation and business, to expose him to public contempt or
ridicule, to deprive him of public confidence and esteem. What, then,
would be the natural and ordinary effect of such a card upon the mind of
one to whom it was sent, under the conditions attending Cattermole?
Surely it would bring the sender of such a card, under the conditions
then existing, into contempt and hatred, and deprive him of public
confidence and esteem. Can the thought be entertained for a moment that
after the receipt of a card like this under those circumstances, that
the receiver would patronize the sender in the event the stricken wife
had died? Was it to secure this for the plaintiff that the card was
sent?

Published words which directly tend to the prejudice or injury of a
person in his office, profession, or business are actionable. Williams
_v._ Davenport, 42 Minn. 393, 44 N. W. 311, 118 Am. St. Rep. 519.

Any publication calculated to expose one to public hatred, contempt, or
ridicule is libellous _per se_. Dressel _v._ Shipman, 57 Minn. 23, 58 N.
W. 684.

The general rule is, that when language is published concerning a person
or his affairs, which, from its nature, necessarily must, or presumably
will as its natural and proximate consequence, occasion him pecuniary
loss, its publication is libellous _per se_. See Townsend on Slander and
Libel, (4th ed.) §§ 146 and 147; Fry _v._ McCord, 95 Tenn. 680, 33 S. W.
568.

Peculiar damages are required to be alleged only when the publication,
with its attending facts and circumstances, is such that damages do not
naturally arise from the publication. If the publication, with its
attending facts and circumstances, is such that the court can legally
presume that injury followed as a natural and inevitable consequence of
the act complained of, then there is no occasion, in order to maintain
an action, that the plaintiff allege or prove peculiar damages. If the
nature and character of the publication, with its attending facts and
circumstances, are such as to injuriously affect or detract from the
reputation and standing of another, and as a natural and proximate
result, tend to bring him into public contempt, hatred, or ridicule,
then it is libellous _per se_. If such injury can be said to be a
natural proximate result or consequence of its publication, then the
plaintiff is presumed to have been damaged, and there is no need of any
allegation of peculiar damages. The extent of the damages is for the
jury.

It is the venom of poisoned speech that constitutes the libel. In
tracing the wrong that flows from the publication, we come first to the
mind of the reader, and inquire what effect it would naturally have upon
the ordinary thinking mind. We first consider the facts published, and
the circumstances under which they were published, and the persons to
whom a knowledge of the publication was brought. An inquiry arises,
would such a publication, under such circumstances, naturally tend to
poison the mind against the person concerning whom the matter was
published? If the matter published can be said, in its natural effect
upon the mind, to produce hurt to the good name, fame, and reputation of
the person about whom the publication is made, then we say the matter is
defamatory, and the person necessarily has suffered not only wrong, but
damages, as a proximate result of the wrong—damage to his good name,
fame, and reputation in the community. If the words in and of
themselves, when published, do not tend to this effect naturally and of
their own force and vitality, the mind naturally inquires into the
circumstances under which they were published, the manner of their
publication, and the persons to whom a knowledge of the publication was
brought. This inquiry is pursued to ascertain the effect which the
publication, under the circumstances, would naturally have upon the mind
of the person to whom a knowledge of the publication was brought. If the
words and the circumstances attending their publication would not
naturally affect the mind prejudicially against the person concerning
whom the publication is made, it must be alleged and shown, not only
that they were used in a defamatory sense, but that they were so
understood by the hearers. When words, innocent in themselves, are
charged to have been intended and used in a defamatory sense, it must be
alleged and proven that they were intended in a defamatory sense and
were so understood by the persons to whom they were addressed. If they
do not themselves convey a defamatory meaning, or an imputation that is
defamatory, something must be alleged which shows, or tends to show,
that the user of the words intended them in a defamatory sense, and that
the persons to whom a knowledge of the publication came were affected in
their mental attitude towards the person, to the injury of his good
name, fame, and reputation. The publication may be so worded that this
could not be gathered from the publication itself. It may be innocent
and even commendatory in itself, yet the facts and circumstances
attending the publication, the relationship of the parties—the defamer
and the defamed—to the public may be such, considered in the light of
the subject-matter concerning which the publication is made, that it is
apparent that there was not only an intent to defame, but that a
defamatory imputation was so exposed, that the ordinary mind easily
grasped the purpose of the publication and its injurious consequences to
the good name, fame, and reputation of the defamed.

Men receive impressions of and concerning others from what they hear
others say about them. Libel is a tort. It consists in a wrong done to
the good name, fame, and reputation of another. It is in the nature of
an assault upon the good name, fame, and reputation of another. The law
protects a man in the possession of his good name, and denies to others
the right, wrongfully and wickedly, to make an assault upon it. It is
often the only asset a man has. Rob him of this, and you rob him of all
that he has in life that makes life worth living.

A physical assault is clearly understood and easily defined. One may be
punished criminally or mulcted in damages civilly for physical assault.
Libel is an assault upon that invisible and intangible thing known as
reputation. Though invisible and intangible, it exists among men and is
prized, and the law protects it. As has been said by this court, libel
rests upon the thought that a public wrong has been committed; an act
has been done in violation of the statute, to the hurt of the
complaining citizen. A citizen’s right to remain secure in his good name
and reputation among his fellows, and to enjoy their confidence and
esteem, has been violated. A libel is that which tends to take from him
one of his most valuable rights—his right to the confidence, esteem, and
respect of his fellow men. One who, by right living and right conduct,
has built up for himself an enviable name among his fellows, and has
drawn to him their confidence and esteem, is entitled to retain and
enjoy the same, and one who wrongfully and maliciously, and without just
cause, makes an assault thereon, and impairs or injures the same, does a
grievous wrong for which he is answerable in damages.

It is true that the wrong must be found in the publication, not merely
in the wording of the thing published. The injury must flow from the
publication. The damage must be the natural and proximate result of the
publication; a result that usually, naturally, and ordinarily follows as
a result of the wrong done.

Though the article itself conveys no wrong impression concerning the
complainant, and in and of itself could do no harm, it may become most
injurious, most hurtful; it may become a direct assault upon the good
name, fame, and reputation, because of the manner and the circumstances
under which it was published. The publication must be libellous, not
necessarily that the article in and of itself is libellous.

“A libel is the malicious defamation of a person made public by any
writing,” &c. It is the malicious defamation against which the
inhibition of the statute is raised; malicious defamation made public by
writing. A writing made public which is intended to and does, because of
its publication, tend to provoke to wrath, to expose to public hatred,
contempt, or ridicule, or which deprives one of the benefits of public
confidence and social intercourse, is libellous _per se_.

Every written publication, maliciously made, defamatory of another,
which tends to any of the consequences set out in the statute, is a
violation of the inhibitions of the statute. It is therefore a wrong
done to a citizen in violation of the statute. It is therefore
actionable _per se_. The fact that it is a violation of the inhibition
of the statute makes it actionable _per se_.

In contemplation of law, reputation is a delicate plant, withered by the
breath of scandal. Any publication which imputes to another conduct
which right-thinking men condemn, whether the conduct involve a crime,
moral turpitude, or any conduct in life, purpose, or manner of living
which the common sense of right-thinking men condemns, is presumed in
law to have injuriously affected the reputation of the person so
assailed, and, by such injury, to have caused him some damage.

It follows, therefore, that libel is an assault upon character resulting
in some injury to reputation. The injury must be traceable to the
assault, and the damage must be the proximate result of the injury.
Every one recognizes the blighting effect of scandalous utterances
directed against the character, conduct, or reputation of men. Every one
recognizes that such assaults, publicly made, tend injuriously to affect
the reputation and standing of the one so assailed among his fellows. It
is from the recognition of this that the law implies damages, without
allegation or proof of special damages.

Defamation consists in maliciously poisoning the minds of others against
the party assaulted by printing, writing, &c., thereby bringing on them
some of the consequences provided against in the statute. The statute is
intended to, and does, prohibit the malicious poisoning of the minds of
others against a citizen, under the protection of the law, by the use of
public printing, &c., and this inhibition attaches whether done directly
by the wording of the thing complained of, or indirectly by insinuation,
imputation, or suggestion. The statute is intended to protect one in a
right, and to deny to others the liberty to invade that right.

With no explanation from the defendants, we may rightly assume that they
prepared and mailed this card for the purpose hereinbefore indicated,
and that the consequences charged in the petition were the consequences
that naturally flowed from the thing done. We think the pleading was
sufficient to present the question to the jury. As supporting what we
have said, see Call _v._ Larabee, 60 Iowa, 212, 14 N. W. 237; Hollenbeck
_v._ Ristine, 105 Iowa, 488, 75 N. W. 355, 67 Am. St. Rep. 306; Halley
_v._ Gregg, 74 Iowa, 564, 38 N. W. 416. In the latter case it is said,
in substance, that if the act charged constitutes a libel, as defined by
the statute, it is actionable _per se_. See Zier _v._ Hofflin, 33 Minn.
66, 21 N. W. 862, 53 Am. Rep. 9, in which it is said:

“Words which may be innocent of themselves may be rendered libellous by
the place and circumstances of their publication, for such place and
circumstances may impress on them a meaning and suggestion which,
standing alone, they do not have. Thus, though the words here do not of
themselves impute wrong, they might be published in such a place or
under such circumstances as to make them capable of naturally conveying
the impression that plaintiff had been guilty of dishonest practices,
either in contracting the debt or in withholding payment of it.... What
meaning they would naturally convey was for the jury to determine in
view of the circumstances of their publication.” State of Missouri _v._
Armstrong, 106 Mo. 395, 16 S. W. 604, reported in 13 L. R. A. 419, 27
Am. St. Rep. 361, together with citations and annotations; Nichols _v._
Daily, 30 Utah, 74, 83 Pac. 573, 3 L. R. A. N. S. 339, 116 Am. St. Rep.
296, 8 Ann. Cas. 841.

We find no case directly in point on the questions here considered. We
think, however, the plaintiff presented a fair question for the jury,
and the court erred in sustaining the demurrer, and the cause is
therefore reversed.

_Reversed._

Evans, C. J., and Ladd, J., concur. Salinger, J., special concurrence.

SALINGER, J. There is language in the opinion which indicates there may
be libel which is not libel _per se_. I do not wish to be bound by it. I
think it is settled by our cases that whatever is libellous is libellous
_per se_; that the action for libel rests on the fact that a “crime has
been committed,” and that, therefore, the law presumes damage if a libel
is established.[547]

WESTMINISTER LAUNDRY CO. _v._ HESSE ENVELOPE CO.
ST. LOUIS COURT OF APPEALS, MISSOURI, MAY 6, 1913.
_Reported in 174 Missouri Appeal Reports, 238._

NORTONI, J. This is a suit for damages, in which plaintiff recovered a
verdict for one dollar. On this verdict, judgment was given, and
defendant prosecutes an appeal therefrom.

All of the relevant facts appear from the face of the petition, and the
question of liability is to be determined thereon. It appears that the
plaintiff, the defendant and the D’Arcy Advertising Company are each
corporations engaged in their respective callings in the city of St.
Louis. Plaintiff owns and is engaged in the business of operating a
steam laundry. Defendant is engaged in the business of manufacturing
envelopes. The D’Arcy Advertising Company is engaged in the advertising
business—that is to say, it places advertisement in St. Louis for those
who choose to patronize it. The plaintiff laundry company engaged the
D’Arcy Advertising Company to do certain advertising for it by running
what is known as a “blind” advertisement. Such “blind” advertisement is
described in the petition as follows:

“The fundamental idea of same (the ‘blind’ advertisement) being the use
of some striking device well adapted to attract public attention, but
unaccompanied, upon its first appearance, by the name of the advertiser
using it, other matter being added later and the name of the advertiser,
also, being given when the curiosity of the public has been sufficiently
piqued and the attention of the public has been excited by the ‘blind’
nature of the advertisement.”

The striking device referred to in the quotation from the petition and
that contemplated in the instant case is the word “Stopurkicken.” The
petition avers that plaintiff entered into a contract with the D’Arcy
Advertising Company whereby it was to have the exclusive use of the word
“Stopurkicken;” that the D’Arcy Advertising Company, in pursuance of
plaintiff’s plan, had the word “Stopurkicken” published upon signboards
and by way of printed cards. After the word “Stopurkicken” had been so
used and before plaintiff had time to determine upon a proper supplement
to such advertisement to disclose its own name and identity, the
defendant, Hesse Envelope Company, well knowing the word “Stopurkicken”
was being used in the manner mentioned and desiring to take advantage of
the word “Stopurkicken,” as above described, printed and distributed
throughout the city of St. Louis a large number of cards bearing the
word “Stopurkicken” and followed by the name of the Hesse Envelope
Company. Because of this use of the word by defendant, Hesse Envelope
Company, plaintiff avers it is damaged and prays a recovery therefor.

It is said the word “Stopurkicken” is an attractive misspelling and
contraction of the phrase “Stop your kicking,” designed to excite public
curiosity. It is obvious the petition states no cause of action against
defendant unless the word “Stopurkicken” is either a trade-mark in which
plaintiff enjoys a proprietary right, or is possessed of a secondary
meaning, which, by user, has become a part of the good will of
plaintiff’s business, otherwise the word is _publici juris_ and
available to every person desiring to employ it identically as is the
original phrase of which it is a contraction. From the affirmative
averments of the petition, it is entirely clear plaintiff enjoyed no
trade-mark in the word under consideration. Indeed, the cause does not
proceed upon that theory. Plaintiff is engaged in the laundry business,
which, of course, is that of washing and ironing for others. There is no
suggestion in the petition that the word “Stopurkicken” was in any
manner annexed to plaintiff’s wares or the output of its laundry.
Infringement of a trade-mark consists in the unauthorized use or
colorable imitation of it upon substituted goods of the same class as
those for which the mark has been appropriated. (38 Cyc. 741.) The
petition reveals that plaintiff has not yet employed the word in any
manner so as to identify it with its business, for it says, though a
contract had been entered into between plaintiff and the D’Arcy
Advertising Company for the use of the word and it had been employed in
blank space on signboards and on cards, plaintiff had not yet revealed
its identity in connection therewith. Defendant is engaged in the
manufacture and sale of envelopes and used the word on an advertising
card followed immediately by the name Hesse Envelope Company. These
facts appearing as they do in the petition, sufficiently disclose that
no proprietary right as in trade-mark existed in the plaintiff in
respect of the word “Stopurkicken.” Not only must an exclusive
proprietary right appear in the trade-mark but the actual use of the
trade-mark is essential as a means of identifying the origin, ownership
or manufacture of the goods of its proprietor, and, furthermore, such
trade-mark must be annexed to and accompany the goods into the market to
the end of their identification. (See Grocers Journal Co. _v._ Midland
Publishing Co., 127 Mo. App. 356, 366, 105 S. W. 310; 38 Cyc. 691, 693.)
Unless the word or insignia relied upon is in some manner attached or
affixed to the article in trade or stamped or inscribed thereon, it is
not a trade-mark and the maker of such article is without trade-mark
rights concerning it. (See Oakes _v._ St. Louis Candy Co., 146 Mo. 391,
48 S. W. 467; St. Louis Piano Mfg. Co. _v._ Merkel, 1 Mo. App. 305.) It
is entirely clear that defendant in using the word “Stopurkicken” in
connection with advertising its envelopes, was not infringing upon
plaintiff’s laundry business, for the wares or commodities of the two
companies are entirely dissimilar. But aside from this, it appears
affirmatively that the plaintiff had never used the word in connection
with the output of its laundry. It had, therefore, obtained no
proprietary right thereto by continued use through affixing it to the
workmanship of its laundry turned out into the market.

For the same reasons, in part at least, no secondary right to the use of
the phrase appears in plaintiff by user such as is essential to render
it a portion of the good will of its laundry business as if reputation
obtained thereon. It is certain that the case may not be sustained as
one for unfair competition. Unfair competition consists in passing off
or attempting to pass off upon the public the goods or business of one
person as and for the goods or business of another. (See Cyc. 756.)
Nothing less than conduct tending to pass off one man’s goods or
business as that of another will constitute unfair competition, for such
is the very essence of the wrong on which the law affords redress to the
injured party. (See Elgin National Watch Co. _v._ Illinois Watch Co.,
179 U. S. 665, 674, 21 S. Ct. 270, 45 L. Ed. 365; 38 Cyc. 762, 763; 38
Cyc. 758; see, also, Grocers Journal Co. _v._ Midland Pub. Co., 127 Mo.
App. 356, 367, 105 S. W. 310.) The relief, in cases of unfair
competition, proceeds upon the theory that the words or phrase employed
as by long use in connection with the goods or business of a particular
trade come to be understood by the public as designating the goods or
business of that particular trader. Because of such user, the word or
phrase becomes identified with the business of him who employs it and
constitutes a part of its good will. Such meaning of the words or
phrase, it is said, is the genesis of the law of unfair competition as
distinguished from technical trade-mark, and, therefore, relief against
unfair competition is afforded upon the ground that one who has built up
a good will and reputation for his goods or business under a particular
designation is entitled to the benefits therefrom. And secondary to
this, the theory is that the deception of the public injures the
proprietor of the business by diverting his customers and filching his
trade. (Grocers Journal Co. _v._ Midland Pub. Co., 127 Mo. App. 356,
367, 105 S. W. 310; 38 Cyc. 760, 761, 763, 769.)

It is to be observed that, though the right to complain as for unfair
competition does not in every instance require that the complainant
shall have a proprietary right in the phrase, it does require that he
shall have used it in his business as a means of identifying his goods
as his product and for a sufficient length of time to establish a repute
therefor in the market as pointing his product. (Grocers Journal Co.
_v._ Midland Pub. Co., 127 Mo. App. 356, 367, 105 S. W. 310; Reach Co.
_v._ Simmons Hardware Co., 155 Mo. App. 412, 135 S. W. 503; 38 Cyc. 769,
763.) Unless the word or phrase involved has become a parcel of the good
will of his business by continued use in connection with the product of
the proprietor, it is entirely clear that the use of the same word by
another does not reveal an unfair competition. (Shelley _v._ Sperry, 121
Mo. App. 429, 99 S. W. 488.)

The petition shows on its face that plaintiff had never used the word
“Stopurkicken” in connection with the output of its laundry, but on the
contrary only employed it on billboards and cards otherwise blank, as an
attraction to arouse the curiosity of the public with a view of
revealing the name of the advertiser (plaintiff) thereafter. It is clear
enough that, though defendant interposed and used the same word on cards
bearing its name, as it did, no unfair competition appears when
considered in the sense of the law on the subject and until plaintiff
had obtained a right thereto by actual user in connection with the
product of its laundry, the phrase “Stopurkicken” must be regarded as
_publici juris_ and available to all who desired to employ it
identically as was the original phrase “Stop your kicking.” It is
certain the D’Arcy Advertising Company had no superior right to either
the phrase or the contracted word and that it could confer none upon
plaintiff by its contract to employ it as a means of arousing the
curiosity of the public for plaintiff’s benefit. (Reach _v._ Simmons
Hardware Co., 155 Mo. App. 412, 135 S. W. 503.) Though persons who have
acquired a right in respect of words and phrases by user as above
indicated, may assign or contract such right to another in conjunction
with the good will of the commodity, the identity of which they point,
it is obvious that an advertising agent may not appropriate any word or
phrase he chooses by merely seizing it out of our vocabulary, and confer
an exclusive right thereto on another by a contract to employ it in aid
of his business. We are advised of no principle of our jurisprudence on
which the judgment in this case may be sustained, and the counsel for
plaintiff have omitted to file a brief suggesting one. The judgment
should be reversed. It is so ordered. Reynolds, P. J., and Allen, J.,
concur.

THE MIDLAND INSURANCE CO. _v._ SMITH
IN THE QUEEN’S BENCH DIVISION, MARCH 23, 1881.
_Reported in Law Reports, 6 Queen’s Bench Division, 561._

WATKIN WILLIAMS, J.[548] This action is one of an extraordinary, and so
far as I am aware of an unprecedented, character. The questions of law
involved in the case, which was argued before me yesterday, arise upon
demurrer to the statement of claim, and I now proceed to give judgment.

The facts, which for the purposes of the argument are assumed to be
true, are as follows: The plaintiffs, an insurance company, granted to
the defendant, Charles Smith, a policy of fire insurance, dated the 26th
of June, 1880, by which they agreed with him that if certain property in
a certain house should be destroyed or damaged by fire they would pay or
make good all such loss or damage during the currency of the policy. The
defendant Mary, the wife of the defendant Charles Smith, having been
left by him in charge of the house and property insured did, with the
malicious intention of destroying the insured property and of injuring
the insurance company and of creating a claim upon the policy, wilfully
set fire to and destroy the house and the insured property. Charles
Smith, the assured, then made a claim upon the policy against the
company. The company thereupon brought this present action against Smith
and his wife, to recover damages for the loss which the company alleged
they had sustained or might sustain through the wrongful and felonious
act of the defendant Mary, if the defendant Charles made good his claim
upon his policy.

I was informed in the course of the argument, although these facts do
not appear formally before me, that the defendant Charles had, before
this present action, brought an action against the company upon the
policy to recover the amount of his loss, and that in that action the
company disputed their liability on the ground that the loss, having
been caused by the arson of the wife, was not covered by the policy, and
that they had also set up a counterclaim for damages against Smith and
his wife, who was brought in as a party to the action upon the same
ground; that that action went down to trial, and that the learned judge,
before whom the cause came on for trial, adjourned the proceedings in
order to enable the company to test the validity in law of their
contention in a separate and distinct manner before proceeding to try
the question of arson. The present action was then commenced. The
questions, however, for determination in this action must depend
exclusively upon the facts set forth in the statement of claim, and the
issues of law raised by the demurrer.

The company in support of their case started with the general principle
that “every husband is liable for the wrongful acts of his wife,” and
that as the defendant Mary had wrongfully injured and destroyed the
insured property, and had caused the damage upon which a claim upon the
policy had been based, they, as the insurers of the property, had a
right to sue her and her husband for the damage and injury so done by
her, and not the less so because the husband happened to be himself the
assured whom they had agreed to indemnify. In substance, the contention
of the company came to this, that they ought not to be called upon to
pay the assured the amount claimed, without being entitled concurrently
to claim damages from him for the loss caused by the act of his wife,
for which he is answerable.

The defendants, by their demurrer to this claim, raised two main issues
of law. In the first place they said that the company were not in a
position to maintain any action for the alleged damage done to the
goods, because they were not the owners of the goods, nor had they
sufficient interest therein to entitle them to maintain an action; that
their only right as insurers would be to avail themselves of such rights
and remedies as were vested in their assured, after they had admitted
his claim and been subrogated to his rights in relation to the subject
of insurance; and that, even if they had been subrogated to the rights
of the assured, they could only sue in his name and could not maintain
an action in their own name, and therefore that no such action could be
maintained in the present case, because the assured had no right of
action against his own wife.

In the next place the defendants contended that this action being based
upon an act, which on the face of the statement of claim amounted to a
felony, could not be maintained, because it was not shown that the
rights of the public law had been vindicated by a prosecution of the
felon.[549]

Upon the first ground of demurrer the defendants are, in my judgment,
clearly entitled to judgment both upon principle and upon authority. It
appears to me that the insurance company have no right of action under
the circumstances for the damage done to the goods by the defendant
Mary. At the time when the damage was done to the goods the company had
no property or interest in the goods sufficient to sustain any action
for damage done to them; no right or interest in the goods could accrue
to the insurance company, until they had acknowledged the claim under
the policy, and by so doing entitled themselves to the benefit of any
claims and causes of action vested in the assured; but it seems that
even up to this moment the insurance company dispute the claim and deny
the right of the assured to demand an indemnity under the policy. But,
further, it seems to me equally clear that, if they had done everything
to entitle themselves to the benefit of such a claim, it could only be
enforced in the name of the assured and for the purpose of enforcing his
rights, and inasmuch as he could have no such claim or right against his
wife, it follows that in no possible view of the case is the plaintiffs’
claim sustainable. The case of Simpson _v._ Burrell, 3 App. Cas. 279, is
in point upon this question. In that case Burrell was the owner of two
ships, one of which negligently ran down and sank the other with a
valuable cargo. Burrell’s underwriters upon the sunken ship paid him for
a total loss, and were so subrogated to all his rights. A claim was made
by the owners of the cargo in the sunken ship against Burrell, as the
owner of the ship in fault, for the value of their goods, and Burrell,
as the owner of the ship in fault, paid into court the whole value of
that ship at £8 per ton, as the limit of his liability under the
Merchant Shipping Acts, to be ratably divided among all who had
sustained loss and damage by the ship being negligently run down and
sunk; thereupon Burrell’s underwriters upon the sunken ship who had paid
for a total loss claimed to come in and share with the rest the money
paid in by the ship in fault; but the House of Lords, reversing the
decision of the Lords of Session in Scotland, decided that they had no
such right, and the reasoning in that case is directly applicable to the
present. The Lord Chancellor Cairns said, “The view of the Lord
President therefore appears to be that, after payment by the
underwriters as on a total loss, there is effected by some independent
operation of law a transfer of whatever, if anything, can be recovered
in specie of the thing insured—and by reason of the transfer of the
thing insured an independent right in the underwriters to maintain in
their own name, and without reference to the person assured, an action
for the damage to the thing insured which was the cause of the loss. I
am not aware of any authority for the view of the case thus taken. I
know of no foundation for the right of the underwriters, except the
well-known principle of law that where one person has agreed to
indemnify another he will, on making good the indemnity, be entitled to
succeed to all the ways and means by which the person indemnified might
have protected himself against or reimbursed himself for the loss.”

Lord Penzance said: “The learned counsel for the underwriters contended
that they, by virtue of the policy which they entered into in respect of
this ship, had an interest of their own in her welfare and protection,
inasmuch as any injury or loss sustained by her would indirectly fall
upon them as a consequence of their contract, and that this interest was
such as would support an action by them in their own names and behalf
against a wrong-doer. This proposition virtually affirms a principle
which I think your Lordships will do well to consider with some care, as
it will be found to have a much wider application and signification than
any which may be involved in the incidents of a contract of insurance.
The principle involved seems to me to be this,—that where damage is done
by a wrong-doer to a chattel, not only the owner of the chattel, but all
those who by contract with the owner have bound themselves to
obligations which are rendered more onerous, or have secured to
themselves advantages which are rendered less beneficial by the damage
done to the chattel, have a right of action against the wrong-doer,
although they have no immediate or reversionary property in the chattel,
and no possessory right by reason of any contract attaching to the
chattel itself, such as by lien or hypothecation. This, I say, is the
principle involved in the respondent’s contention. If it be a sound one,
it would seem to follow that if by the negligence of a wrong-doer goods
are destroyed, which the owner of them had bound himself by contract to
supply to a third person, this person, as well as the owner, has a right
of action for any loss inflicted upon him by their destruction. But if
this be true as to injuries done to chattels, it would seem to be
equally so as to injuries to the person. An individual injured by a
negligently driven carriage has an action against the owner of it. Would
a doctor, it may be asked, who had contracted to attend him and provide
medicines for a fixed sum by the year, also have a right of action in
respect of the additional cost of the attendance and medicine cast upon
him by the accident? And yet it cannot be denied that the doctor had an
interest in his patients safety. In like manner an actor or singer,
bound for a term to a manager of a theatre, is disabled by the wrongful
act of a third person to the serious loss of the manager; can the
manager recover damages for that loss from the wrong-doer? Such
instances might be indefinitely multiplied, giving rise to rights of
action which in modern communities, where every complexity of mutual
relations is daily created by contract, might be both numerous and
novel.” See, also, the cases of Randal _v._ Cockran, 1 Ves. Sen. 97;
North of England Insurance Association _v._ Armstrong, Law Rep. 5 Q. B.
244; Stewart _v._ Greenock Marine Insurance Co., 2 H. L. C. 159;
Davidson _v._ Case, 8 Price, 542; Mason _v._ Sainsbury, 3 Douglas, 61;
Yates _v._ Whyte, 4 Bing. N. C. 272.

This action cannot therefore in my judgment be maintained, nor is there
any substantial injustice in such a result, because, as it seems to me,
the insurance company are in this dilemma; the loss and damage caused by
the wrongful act of the wife either is or is not a loss which the
company have agreed to indemnify the husband against; now, if it is such
a loss, an attempt by the company to enforce against the husband a
return indemnity or reimbursement is at variance with the very substance
of their undertaking to indemnify him; if, on the other hand, the loss,
by reason of its having arisen from the act of the wife, is not within
the risks and losses covered by the policy, then this action is as
wholly misconceived, unnecessary, and unfounded, as if the loss had been
caused by any other risk not covered by the policy. The truth is that
the real and substantial contention on the part of the insurance company
is, that the loss in question having been caused by the wilful act of
the wife of the assured, although acting without the privity of her
husband, is not a loss covered or insured against by the policy. That
question might be raised in the action brought by the assured against
the company upon the policy, but it does not arise, and indeed could not
be raised, so as to receive a binding and judicial determination, in
such an action as the present. As however the question has been fully
and ably argued before me, and as the parties have expressed a desire to
elicit an opinion upon the point, I have no hesitation in saying that it
appears to me to be upon principle perfectly clear and free from doubt
that such a loss would be covered by an ordinary policy against loss
caused by fire; under such a policy the company would be liable for
every loss caused by fire, unless the fire itself were caused and
procured by the wilful act of the assured himself or some one acting
with his privity and consent. In order to escape from responsibility for
such a loss as the present the company ought to introduce into their
policy an express exception.

_Judgment for the defendants._

KLOUS _v._ HENNESSEY
SUPREME COURT, RHODE ISLAND, JUNE 14, 1881.
_Reported in 13 Rhode Island Reports, 332._

DURFEE, C. J.[550] This is an action on the case for conspiracy. The
declaration charges in effect that the defendants and one Patrick
Kenney, said Kenney being then a debtor of the plaintiffs, conspired
together to prevent the plaintiffs and the other creditors of said
Kenney from getting payment of their claims out of his property, and
that, in pursuance of the conspiracy, Kenney made fictitious mortgages
of his real and personal property to the defendants, under cover of
which the defendants removed the personal property out of the possession
of Kenney, and secreted it so that the plaintiffs were prevented from
attaching it, and thus lost their claims. At the trial, after the
plaintiffs had introduced their testimony in proof of the declaration,
the court, on motion of the defendants, it having appeared that the
plaintiffs were merely creditors at large of Kenney, without any
interest in his property or lien upon it by attachment, levy, or
otherwise, ruled that the action, in respect of the charges aforesaid,
was not maintainable. The plaintiffs excepted to the ruling for error,
and now petition for a new trial.

There is some conflict of authority on the question thus raised, but the
more numerous and, we think, the better-reasoned and stronger cases are
against the action. The principal ground of decision in these cases is
that the damage, which is the gist of the action, is too remote,
uncertain, and contingent, inasmuch as the creditor has, not an assured
right, but simply a _chance_ of securing his claim by attachment or
levy, which he may or may not succeed in improving.[551] It is
impossible to find any measure of damages for the loss of such a mere
chance or possibility. Another ground, added in some of the cases, is
that no action would lie in favor of such a creditor against the debtor
for putting his property beyond the reach of legal process, if the
debtor were to do it by himself alone, and that what would not be
actionable if done by himself alone cannot be actionable any the more
when done by him with the assistance of others. The first of these
grounds, which is the fundamental one and has been chiefly relied on,
has been so exhaustively analyzed and discussed in the cases that it is
impossible for us to add anything to the reasons adduced in support of
it; and therefore, without reproducing them, we deem it sufficient
simply to cite the cases themselves, all of which are accessible and can
be readily consulted. Lamb _v._ Stone, 11 Pick. 527; Wellington _v._
Small, 3 Cush. 145; Moody _v._ Burton, 27 Me. 427, 431; Adler _v._
Fenton, 24 How. U. S. 407; Austin _v._ Barrows, 41 Conn. 287, 296;
Kimball _v._ Harman & Burch, 34 Md. 407, 410; Bradley _v._ Fuller, 118
Mass. 239. See also Bump on Fraudulent Conveyances, 505, 506; Cooley on
Torts, 124, 586.

_Petition dismissed._[552]

HUTCHINS _v._ HUTCHINS
SUPREME COURT, NEW YORK, JANUARY, 1845.
_Reported in 7 Hill, 104._

_By the Court_, NELSON, C. J.[553] The case is substantially this:—The
father of the plaintiff devised to him, in due form of law, a farm
consisting of one hundred and fifty-one acres of land. The defendant,
being aware of the fact, and intending to deprive the plaintiff of the
benefit and advantage of the devise, and of his expected estate and
interest in the farm, falsely and maliciously represented to the father,
that, after his decease, the plaintiff intended to set up a large demand
against the estate, which would absorb the greater part of it, and thus
deprive the other children of their just share; at the same time
defaming and calumniating the character of the plaintiff in several
particulars. By these fraudulent means the defendant prevailed upon the
father to revoke and cancel the will, and to make and execute a new one,
by which the plaintiff was excluded from all participation in his
father’s estate.

This is the substance of the case, in its strongest aspect, as presented
by the pleadings; and the question arises whether any actual damage, in
contemplation of law, is shown to have been sustained by the plaintiff?

Fraud without damage, or damage without fraud, gives no cause of action;
but where both concur, an action lies. Damage, in the sense of the law,
may arise out of injuries to the person or to the property of the party;
as any wrongful invasion of either is a violation of his legal rights,
which it is the object of the law to protect. Thus, for injuries to his
health, liberty and reputation, or to his rights of property, personal
or real, the law has furnished the appropriate remedies. The former are
violations of the absolute rights of the person, from which damage
results as a legal consequence. As to the latter, the party aggrieved
must not only establish that the alleged tort or trespass has been
committed, but must aver and prove his right or interest in the property
or thing affected, before he can be deemed to have sustained damages for
which an action will lie.

Now, testing the plaintiff’s declaration by these principles, has he
made out a case from which it can be said that damage has resulted to
him? I think not. In respect to the farm devised to him by the first
will, he fails to show that he had any such interest in it as the law
will recognize. The only foundation of his claim rests upon the mere
unexecuted intention of his father to make a gift of the property; and
this cannot be said to have conferred a right of any kind. To hold
otherwise, and sanction the doctrine contended for by the plaintiff,
would be next to saying that every voluntary courtesy was matter of
legal obligation; that private thoughts and intentions, concerning
benevolent or charitable distributions of property, might be seized upon
as the foundation of a right which the law would deal with and protect.

I have not overlooked the cases referred to on the argument, of actions
of slander, where special damage must be shown in order to make the
words actionable; and where the deprivation of any present substantial
advantage, even though gratuitous, such as the loss of customers, of a
permanent home at a friend’s, or advancement in life, and such like, if
the immediate and direct consequence of the words, will sustain the
action. 1 Starkie on Slander, 158 to 186, Ed. of 1843. If this
description of special damage is to be regarded as the gist and
foundation of the action, I rather think the principle should be
regarded as peculiar to that species of injury. I am not aware of any
class of remedies given for a violation of the rights of property, where
so remote and contingent a damage has been allowed as a substantial
ground of action.

But the law applicable to the cases referred to proceeds upon the ground
that the plaintiff, by the wrongful act complained of, has been deprived
of the present, actual enjoyment of some pecuniary advantage. No such
damage can be pretended here. At best, the contemplated gift was not to
be realized till after the death of the testator, which might not happen
until after the death of the plaintiff; or the testator might change his
mind, or lose his property.

In short, the plaintiff had no interest in the property of which he says
he has been deprived by the fraudulent interference of the defendant,
beyond a mere naked possibility; an interest which might indeed
influence his hopes and expectations, but which is altogether too
shadowy and evanescent to be dealt with by courts of law.

I am of opinion that the defendant is entitled to judgment.

_Ordered accordingly._[554]

LEWIS _v._ CORBIN
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 15, 1907.
_Reported in 195 Massachusetts Reports, 520._

Action of tort. Demurrer to declaration.

KNOWLTON, C. J.[555] This is an action of tort in which the defendant is
charged with having deprived the plaintiff of a legacy, through his
fraud in inducing a testatrix to execute the codicil by which the legacy
purported to be given with only one witness, whereby the codicil was
rendered invalid. The legatee named in the codicil was the plaintiff’s
father, who had deceased before the codicil was made, although neither
the testatrix nor the defendant then knew of his death.

One question is whether this legacy, which would be void at common law
(see Maybank _v._ Brooks, 1 Brown Ch. 76; Dildine _v._ Dildine, 32 N. J.
Eq. 78, 80; Moss _v._ Helsley, 60 Tex. 426, 436), is within the R. L.
chap. 135, sec. 21, which provides that when a devise or legacy is made
to a child or other relation of the testator who dies before the
testator, leaving issue surviving the testator, such issue shall take
the gift unless the will requires a different disposition of it.

* * * * *

We are of opinion that the purpose of the Legislature is best
accomplished by holding the statute applicable to devises and legacies
given to relations who died before the making of the will, as well as
legacies and devises to those who died after the making of the will.

* * * * *

The defendant contends that the plaintiff’s declaration fails to aver
damage suffered by him on account of the defendant’s misconduct. It is
true, as he argues, that in order to create a liability of this kind,
there must be, not only a wrong inflicted by the defendant, but damage
to the plaintiff resulting directly therefrom. Lamb _v._ Stone, 11 Pick.
527, 534, 535; Wellington _v._ Small, 3 Cush. 145, 149; Bradley _v._
Fuller, 118 Mass. 239, 241. See also Jenks _v._ Hoag, 179 Mass. 583,
585; Freeman _v._ Venner, 120 Mass. 424, 426, 427; Adler _v._ Fenton, 24
How. 408, 410.

In this case the averments are, in substance, that the defendant was the
executor and residuary legatee named in a will of one Jane V. Corbin,
and that she formed a purpose to give a legacy of $5000 to Henry G.
Lewis, the plaintiff’s father, who was her second cousin, that she was
over eighty years of age, and, for advice and assistance in matters of
business, was dependent upon the defendant, who occupied a confidential
relation towards her, that, wrongfully and fraudulently intending and
contriving to defeat her will and intention, and to deprive and defraud
Henry G. Lewis and his heirs of the sum of $5000, he advised and
procured the testatrix to execute a codicil to her will in the presence
of only one witness, namely, the defendant, whereas the law of Rhode
Island required the execution of the codicil in the presence of more
than one witness, as the defendant well knew. It is then averred that
the estate of the testatrix was large, and that, if the codicil had not
failed for want of due attestation owing to the fraud practised by the
defendant, the plaintiff would have received about $1650.

Whether a person named as legatee has a remedy, in a case like this, is
a question which, so far as we know, has never been decided in this
Commonwealth. See Melanefy _v._ Morrison, 152 Mass. 473, 476. The
testatrix, desiring to give the legacy and intending to express her
desire in a way that would be effectual after her death, unless in the
meantime she should change her purpose, was fraudulently induced to
express it ineffectually, when she supposed that she had made a legal
and valid codicil. Plainly such fraudulent conduct was a wrong upon the
plaintiff as well as upon the testatrix. The question in the case is
whether the plaintiff has averred sufficient facts to show that damage
resulted to him directly as a consequence of the wrong. The defendant
relies strongly upon Hutchins _v._ Hutchins, 7 Hill, 104, decided by the
Supreme Court of New York. The declaration in that case charged that the
plaintiff’s father had made a will devising a farm to the plaintiff, and
that the defendants, who were interested in the testator’s estate, he
being a feeble man, advanced in years, and incapable of transacting
business, fraudulently induced him to make another will in which the
devise to the plaintiff was omitted. The case was heard on a demurrer.
The court said “Fraud without damage, or damage without fraud gives no
cause of action; but where both concur, an action lies.... The only
foundation of his claim rests upon the mere unexecuted intention of his
father to make a gift of the property, and this cannot be said to have
conferred a right of any kind. To hold otherwise and sanction the
doctrine contended for by the plaintiff would be next to saying that
every voluntary courtesy was matter of legal obligation, and that
private thoughts and intentions concerning benevolent or charitable
distributions of property might be seized upon as the foundation of a
right which the law would deal with and protect.... But the law
applicable to the cases referred to proceeds upon the ground that the
plaintiff, by the wrongful act complained of, has been deprived of the
present actual enjoyment of some pecuniary advantage. No such damage can
be pretended here. At best the contemplated gift was not to be received
until after the death of the plaintiff, or the testator might change his
mind, or lose his property.” This case has been cited with approval in
this Commonwealth and elsewhere. Randall _v._ Hazelton, 12 Allen, 412,
416; Emmons _v._ Alvord, 177 Mass. 466, 471; Adler _v._ Fenton, 24 How.
408, 410. We have been referred to no other decision upon similar facts,
and we have found no other. It seems pretty plain that, if a suit were
brought in the lifetime of the testator, immediately after the practice
of the fraud, no substantial damage could be recovered. Very likely the
court was right in deciding that no action could be maintained. The
plaintiff’s relation to the subject to which the fraud was directed was
not close enough to cause him pecuniary loss, apart from the happening
of subsequent events. Even if there were no fraud the legacy might never
take effect. The testator might lose his property, or destroy his will,
or make a different one. But the fraud put the plaintiff in a less
advantageous position than he otherwise would have occupied in reference
to the probability of receiving property under the will, and this change
of position, accomplished by a fraud, naturally and probably might
deprive him of that which, with fair dealing, he would receive. It seems
to us that, while the fraud does not cause substantial damage apart from
the happening of subsequent events which reasonably may be expected to
happen, if these do happen, the defendant is chargeable with the natural
consequences of his act. Suppose, in the present case, that the
testatrix did not change her purpose to give the legacy of $5000 to
Henry G. Lewis, and that for the rest of her life she desired and
intended that this legacy should take effect, and thought that it would
take effect. The fraud then would be operative up to the time of her
death, and would accomplish the result intended by its author, by
depriving the legatee of that which otherwise he would have received. It
is averred that the testatrix left an estate sufficient to pay all or
nearly all of this legacy, with the others. If the facts supposed above
are proved, does it not follow that the fraud directly and proximately
caused the plaintiff’s loss of his legacy? The defendant cannot complain
that these supposed facts followed as conditions concurring with his
fraud to cause the damage. His fraud was planned in reference to the
probability that these events would follow. In Hutchins _v._ Hutchins,
_supra_, there was no averment to show that the fraud was operative up
to the time when the title to the property was changed by the death of
the testator. The court treated the case as if the testator might have
changed his purpose as to the disposition of his estate, for reasons of
his own independently of the fraud.

While the declaration in the present case declares a result which might
justify an inference that the loss was caused by the fraud alone, the
averment seems hardly more than a statement of a conclusion of law from
the facts given previously. Upon demurrer we think the pleading is
defective in not averring facts which exclude the possibility that the
testatrix changed her purpose in regard to this legacy, and which show
that the fraud continued operative to the time of her death, and thus
caused the loss to the plaintiff.

We think the charge of fraud is a sufficient statement of an actionable
wrong. It charges much more than an expression of opinion by which the
testatrix was misled. The defendant is accused of having dealt with a
matter of fact, and with having fraudulently procured the making of the
codicil without sufficient attestation of it.

We infer from the record that the testatrix was domiciled in
Massachusetts, and that the construction of the will is governed by the
law of this State. Welch _v._ Adams, 152 Mass. 74, 79; Sewall _v._
Wilmer, 132 Mass. 131, 136.

_Demurrer sustained._[556]

DULIN _v._ BAILEY
SUPREME COURT, NORTH CAROLINA, NOVEMBER 29, 1916.
_Reported in 172 North Carolina Reports, 608._

CLARK, C. J. The complaint alleges that after the death of W. A. Bailey
the defendants conspired to deprive the plaintiff and others of the
benefits of his last will by removing from the paper writing to which
the sheet of paper containing the alleged signature of the deceased was
attached, that part providing for the legacy to the plaintiff and others
and substituting other provisions therefor. The plaintiff contends that
thereby a previous will has been admitted to probate. In the course of
the proceeding the plaintiff asked for the appointment of a commissioner
to take the examination of the defendants in the nature of a bill of
discovery. The defendants demurred that the complaint did not state a
cause of action. The court sustained the demurrer, and held that unless
the will that had been proven in common form was attacked and set aside
by caveat, the plaintiff could not maintain the cause of action set out
in the complaint. This put an end to the plaintiff’s further progress in
the cause, and she took a nonsuit and appealed.

The plaintiff is not seeking to attack the will on record, nor to
probate what she alleges was a subsequent will. She is not seeking to
recover anything out of the estate, but is bringing an action of tort
against the parties who, as she alleges, conspired and injured her by
removing the clause of, and the signature to, what was a subsequent will
by which she would have received a legacy. It is an action of spoliation
by which she alleges the defendants have prevented her receiving the sum
of money which was due her if they had not fraudulently altered and
defaced the subsequent will. She alleges that she does not attempt to
set up the second will because the evidence accessible to her would not
prove its entire contents. She prefers, therefore, to bring this action
against the defendants for their wrong-doing in fraudulently destroying
the part of the will which was beneficial to herself.

Though this action seems to be of the first impression in this state,
and is doubtless a very unusual one, there is foundation and reason for
the action upon well-settled principles of law, and we are not entirely
without precedent. In Tucker _v._ Phipps, 3 Atkins, 359; cited in
Barnesly _v._ Powell, 1 Ves. Sr. 284, it was held that, the spoliation
being clearly proven, the plaintiff could maintain his action without
setting up the will by a probate. It was held that:

“Where a will is destroyed or concealed, while the general rule is to
probate the alleged will by proof in the Ecclesiastical Court [which was
there the court for probate wills], yet the legatee might bring his
action for the damage sustained by spoliation and suppression.”

In that case the spoliation was alleged to have been a destruction or
concealment of the will by the executor. Such action against a stranger
is even more appropriate than an independent action against the
executor. Tucker _v._ Phipps is to be found in 26 English Reports
(Reprinted) 1008. Another case very much in point is Barnesley _v._
Powell, 1 Ves. 119, 27 English Reports (Reprinted) 1034, in which Tucker
_v._ Phipps is cited as authority and the court also refers with
approval to

“A late case where the defendant burned a will, in which was a legacy to
the plaintiff, so that it could not be proven in the Ecclesiastical
Court [which cannot prove a will on loose parts of the contents of it],
yet on the evidence of there being such a will, and the defendants
destroying it, the court decreed the legacy to the plaintiff, as the
defendant by his own iniquity had prevented the plaintiff from coming at
it.”

There may be other precedents, but the instances must have been rare.
Even if there had been no precedent, it would seem that, upon the
principle of justice that there is “no wrong without a remedy,” the
plaintiff is entitled to maintain this action, if, as she alleges, the
defendants conspired and destroyed the subsequent will in which the
legacy was left her. If she cannot prove the destroyed will because
unable to prove the entire contents thereof (_In re_ Hedgepeth, 150 N.
C. 245, 63 S. E. 1025), surely she is entitled to recover of the
defendants for the wrong they have done her by the conspiracy and
destruction of the will, and the measure of her damages will be the
legacy of which she has been deprived. It may be very difficult for her
to prove her allegations by legal evidence and satisfactory to a jury,
but with that we have nothing to do. The only question presented to us
is the ruling of the court below that the complaint does not state a
cause of action, and in this we think the court below was mistaken.

As the action is not to set up the will, nor against the estate, but
against the defendants individually for their tort, the action could be
brought in the county where the plaintiff resides.

Reversed.

RATCLIFFE _v._ EVANS
IN THE COURT OF APPEAL, MAY 26, 1892.
_Reported in [1892] 2 Queen’s Bench, 524._

Motion to enter judgment for the defendant, or for a new trial, by way
of appeal from the judgment entered by Mr. Commissioner Bompas, Q. C.,
in an action tried with a jury at the Chester Summer Assizes, 1891.

The statement of claim in the action alleged that the plaintiff had
for many years carried on the business, at Hawarden in the county of
Flint, of an engineer and boiler-maker under the name of “Ratcliffe &
Sons,” having become entitled to the good-will of the business upon
the death of his father, who, with others, had formerly carried on the
business as “Ratcliffe & Sons;” that the defendant was the registered
proprietor, publisher, and printer of a weekly newspaper called the
“County Herald,” circulated in Flintshire and some of the adjoining
counties, and that the plaintiff had suffered damage by the defendant
falsely and maliciously publishing and printing of the plaintiff in
relation to his business, in the “County Herald,” certain words set
forth which imported that the plaintiff had ceased to carry on his
business of engineer and boiler-maker, and that the firm of Ratcliffe
& Sons did not then exist.

At the trial the learned commissioner allowed the statement of claim
to be amended by adding that “by reason of the premises the plaintiff
was injured in his credit and reputation, and in his said business of
an engineer and boiler-maker, and he thereby lost profits which he
otherwise would have made in his said business.” The plaintiff proved
the publication of the statements complained of, and that they were
untrue. He also proved a general loss of business since the
publication; but he gave no specific evidence of the loss of any
particular customers or orders by reason of such publication. In
answer to questions left to them by the commissioner, the jury found
that the words did not reflect upon the plaintiff’s character, and
were not libellous; that the statement that the firm of Ratcliffe &
Sons was extinct was not published _bona fide_; and that the
plaintiff’s business suffered injury to the extent of £120 from the
publication of that statement. The commissioner, upon those findings,
gave judgment for the plaintiff, for £120, with costs. The defendant
appealed.[557]

The following judgment of the court (LORD ESHER, M. R., BOWEN, and
FRY, L.JJ.), was read by

BOWEN, L. J. This was a case in which an action for a false and
malicious publication about the trade and manufactures of the
plaintiff was tried at the Chester assizes, with the result of a
verdict for the plaintiff for £120. Judgment having been entered for
the plaintiff for that sum and costs, the defendant appealed to this
court for a new trial, or to enter a verdict for the defendant, on the
ground, amongst others, that no special damage, such as was necessary
to support the action, was proved at the trial. The injurious
statement complained of was a publication in the “County Herald,” a
Welsh newspaper. It was treated in the pleadings as a defamatory
statement or libel; but this suggestion was negatived, and the verdict
of the jury proceeded upon the view that the writing was a false
statement purposely made about the manufactures of the plaintiff,
which was intended to, and did in fact, cause him damage. The only
proof at the trial of such damage consisted, however, of evidence of
general loss of business without specific proof of the loss of any
particular customers or orders, and the question we have to determine
is, whether in such an action such general evidence of damage was
admissible and sufficient. That an action will lie for written or oral
falsehoods, not actionable _per se_ nor even defamatory, where they
are maliciously published, where they are calculated in the ordinary
course of things to produce, and where they do produce, actual damage,
is established law. Such an action is not one of libel or of slander,
but an action on the case for damage wilfully and intentionally done
without just occasion or excuse, analogous to an action for slander of
title. To support it actual damage must be shown, for it is an action
which only lies in respect of such damage as has actually occurred. It
was contended before us that in such an action it is not enough to
allege and prove general loss of business arising from the
publication, since such general loss is general and not special
damage, and special damage, as often has been said, is the gist of
such an action on the case. Lest we should be led astray in such a
matter by mere words, it is desirable to recollect that the term
“special damage,” which is found for centuries in the books, is not
always used with reference to similar subject-matter, nor in the same
context. At times (both in the law of tort and of contract) it is
employed to denote that damage arising out of the special
circumstances of the case which, if properly pleaded, may be
superadded to the general damage which the law implies in every breach
of contract and every infringement of an absolute right: see Ashby
_v._ White, 2 Ld. Raym. 938; 1 Sm. L. C. 9th ed. p. 268, _per_ Holt,
C. J. In all such cases the law presumes that _some_ damage will flow
in the ordinary course of things from the mere invasion of the
plaintiff’s rights, and calls it general damage. Special damage in
such a context means the particular damage (beyond the general
damage), which results from the particular circumstances of the case,
and of the plaintiff’s claim to be compensated, for which he ought to
give warning in his pleadings in order that there may be no surprise
at the trial. But where no actual and positive right (apart from the
damage done) has been disturbed, it is the damage done that is the
wrong; and the expression “special damage,” when used of this damage,
denotes the actual and temporal loss which has, in fact, occurred.
Such damage is called variously in old authorities, “express loss,”
“particular damage:” Cane _v._ Golding, Sty. 169; “damage in fact,”
“special or particular cause of loss:” Law _v._ Harwood, Cro. Car.
140; Tasburgh _v._ Day, Cro. Jac. 484.

The term “special damage” has also been used in actions on the case
brought for a public nuisance, such as the obstruction of a river or a
highway, to denote that actual and particular loss which the plaintiff
must allege and prove that he has sustained beyond what is sustained
by the general public, if his action is to be supported, such
particular loss being, as is obvious, the cause of action: see Iveson
_v._ Moore, 1 Ld. Raym. 486; Rose _v._ Groves, 5 M. & G. 613. In this
judgment we shall endeavor to avoid a term which, intelligible enough
in particular contexts, tends, when successively employed in more than
one context and with regard to different subject-matter, to encourage
confusion in thought. The question to be decided does not depend on
words, but is one of substance. In an action like the present, brought
for a malicious falsehood intentionally published in a newspaper about
the plaintiff’s business—a falsehood which is not actionable as a
personal libel and which is not defamatory in itself—is evidence to
show that a general loss of business has been the direct and natural
result admissible in evidence, and, if uncontradicted, sufficient to
maintain the action? In the case of a personal libel, such general
loss of custom may unquestionably be alleged and proved. Every libel
is of itself a wrong in regard of which the law, as we have seen,
implies general damage. By the very fact that he has committed such a
wrong, the defendant is prepared for the proof that some general
damage may have been done. As is said by Gould, J., in Iveson _v._
Moore, 1 Ld. Raym. 486, in actions against a wrong-doer a more general
mode of declaring is allowed. If, indeed, over and above this general
damage, further particular damage is under the circumstances to be
relied on by the plaintiff, such particular damage must of course be
alleged and shown. But a loss of general custom, flowing directly and
in the ordinary course of things from a libel, may be alleged and
proved generally. “It is not special damage”—says Pollock, C. B., in
Harrison _v._ Pearce, 32 L. T. (O. S.) 298,—“it is general damage
resulting from the kind of injury the plaintiff has sustained.” So in
Bluck _v._ Lovering, 1 Times L. R. 497, under a general allegation of
loss of credit in business, general evidence was received of a decline
of business presumably due to the publication of the libel, while loss
of particular customers, not having been pleaded, was held rightly to
have been rejected at the trial: see also Ingram _v._ Lawson, 6 Bing.
N. C. 212. Akin to, though distinguishable in a respect which will be
mentioned from, actions of libel are those actions which are brought
for oral slander, where such slander consists of words actionable in
themselves and the mere use of which constitutes the infringement of
the plaintiff’s right. The very speaking of such words, apart from all
damage, constitutes a wrong and gives rise to a cause of action. The
law in such a case, as in the case of libel, presumes, and in theory
allows, proof of general damage. But slander, even if actionable in
itself, is regarded as differing from libel in a point which renders
proof of general damage in slander cases difficult to be made good. A
person who publishes defamatory matter on paper or in print puts in
circulation that which is more permanent and more easily transmissible
than oral slander. Verbal defamatory statements may, indeed, be
intended to be repeated, or may be uttered under such circumstances
that their repetition follows in the ordinary course of things from
their original utterance. Except in such cases, the law does not allow
the plaintiff to recover damages which flow, not from the original
slander, but from its unauthorized repetition: Ward _v._ Weeks, 7
Bing. 211; Holwood _v._ Hopkins, Cro. Eliz. 787; Dixon _v._ Smith, 5
H. & N. 450. General loss of custom cannot properly be proved in
respect of a slander of this kind when it has been uttered under such
circumstances that its repetition does not flow directly and naturally
from the circumstances under which the slander itself was uttered. The
doctrine that in slanders actionable _per se_ general damage may be
alleged and proved with generality must be taken, therefore, with the
qualification that the words complained of must have been spoken under
circumstances which might in the ordinary course of things have
directly produced the general damage that has in fact occurred. Evans
_v._ Harries, 1 H. & N. 251, was a slander uttered in such a manner.
It consisted of words reflecting on an innkeeper in the conduct of his
business spoken openly in the presence of divers persons, guests and
customers of the inn—a floating and transitory class. The court held
that general evidence of the decline of business was rightly
receivable. “How,” asked Martin, B., “is a public-house keeper, whose
only customers are persons passing by, to show a damage resulting from
the slander, unless he is allowed to give general evidence of a loss
of custom?” Macloughlin _v._ Welsh, 10 Ir. L. Rep. 19, was an instance
of excommunication in open church. General proof was held to be
rightly admitted that the plaintiff was shunned and his mill
abandoned, though no loss of particular customers was shown. Here the
very nature of the slander rendered it necessary that such general
proof should be allowed. The defamatory words were spoken openly and
publicly, and were intended to have the exact effect which was
produced. Unless such general evidence was admissible, the injury done
could not be proved at all. If, in addition to this general loss, the
loss of particular customers was to be relied on, such particular
losses would, in accordance with the ordinary rules of pleading, have
been required to be mentioned in the statement of claim: see Ashley
_v._ Harrison, 1 Esp. 50. From libels and slanders actionable _per
se_, we pass to the case of slanders not actionable _per se_, where
actual damage done is the very gist of the action. Many old
authorities may be cited for the proposition that in such a case the
actual loss must be proved specially and with certainty: Law _v._
Harwood, Cro. Car. 140. Many such instances are collected in the
judgments in Iveson _v._ Moore, 1 Ld. Raym. 486, where, although there
was a difference as to whether the general rule had been fulfilled in
that particular kind of action on the case, no doubt was thrown on the
principle itself. As was there said—in that language of old pleaders
which has seen its day, but which connoted more accuracy of legal
thought than is produced by modern statements of claim—“damages in the
‘_per quod_,’ where the ‘_per quod_’ is the gist of the action, should
be shown certainly and specially.” But such a doctrine as this was
always subject to the qualification of good sense and of justice.
Cases may here, as before, occur where a general loss of custom is the
natural and direct result of the slander, and where it is not possible
to specify particular instances of the loss. Hartley _v._ Herring, 8
T. R. 130, is probably a case of the kind, although it does not appear
from the report under what circumstances, or in the presence of whom,
the slanderous words were uttered. But if the words are uttered to an
individual, and repetition is not intended except to a limited extent,
general loss of custom cannot be ordinarily a direct and natural
result of the limited slander: Dixon _v._ Smith, 5 H. & N. 450;
Hopwood _v._ Thorn, 19 L. J. (C. P.) 95. The broad doctrine is stated
in Buller’s Nisi Prius, p. 7, that where words are not actionable, and
the special damage is the gist of the action, saying generally that
several persons left the plaintiff’s house is not laying the special
damage. Slanders of title, written or oral, and actions such as the
present, brought for damage done by falsehoods, written or oral, about
a man’s goods or business, are similar in many respects to the
last-mentioned class of slanders not actionable in themselves. Damage
is the gist of both actions alike, and it makes no difference in this
respect whether the falsehood is oral or in writing: Malachy _v._
Soper. The necessity of alleging and proving actual temporal loss with
certainty and precision in all cases of the sort has been insisted
upon for centuries: Lowe _v._ Harewood, W. Jones, 196; Cane _v._
Golding, Sty. 176; Tasburgh _v._ Day, Cro. Jac. 484; Evans _v._
Harlow, 5 Q. B. 624. But it is an ancient and established rule of
pleading that the question of generality of pleading must depend on
the general subject-matter: Janson _v._ Stuart, 1 T. R. 754; Lord
Arlington _v._ Merricke, 2 Saund. 412, n. 4; Grey _v._ Friar, 15 Q. B.
907; see Co. Litt. 303 d; Westwood _v._ Cowne, 1 Stark. 172; Iveson
_v._ Moore, 1 Ld. Raym. 486. In all actions accordingly on the case
where the damage actually done is the gist of the action, the
character of the acts themselves which produce the damage, and the
circumstances under which these acts are done, must regulate the
degree of certainty and particularity with which the damage done ought
to be stated and proved. As much certainty and particularity must be
insisted on, both in pleading and proof of damage, as is reasonable,
having regard to the circumstances and to the nature of the acts
themselves by which the damage is done. To insist upon less would be
to relax old and intelligible principles. To insist upon more would be
the vainest pedantry. The rule to be laid down with regard to
malicious falsehoods affecting property or trade is only an instance
of the doctrines of good sense applicable to all that branch of
actions on the case to which the class under discussion belongs. The
nature and circumstances of the publication of the falsehood may
accordingly require the admission of evidence of general loss of
business as the natural and direct result produced, and perhaps
intended to be produced. An instructive illustration, and one by which
the present appeal is really covered, is furnished by the case of
Hargrave _v._ Le Breton, 4 Burr. 2422, decided a century and a half
ago. It was an example of slander of title at an auction. The
allegation in the declaration was that divers persons who would have
purchased at the auction left the place; but no particular persons
were named. The objection that they were not specially mentioned was,
as the report tells us, “easily” answered. The answer given was that
in the nature of the transaction it was impossible to specify names;
that the injury complained of was in effect that the bidding at the
auction had been prevented and stopped, and that everybody had gone
away. It had, therefore, become impossible to tell with certainty who
would have been bidders or purchasers if the auction had not been
rendered abortive. This case shows, what sound judgment itself
dictates, that in an action for falsehood producing damage to a man’s
trade, which in its very nature is intended or reasonably likely to
produce, and which in the ordinary course of things does produce, a
general loss of business, as distinct from the loss of this or that
known customer, evidence of such general decline of business is
admissible. In Hargrave _v._ Le Breton it was a falsehood openly
promulgated at an auction. In the case before us to-day, it is a
falsehood openly disseminated through the press—probably read, and
possibly acted on, by persons of whom the plaintiff never heard. To
refuse with reference to such a subject-matter to admit such general
evidence would be to misunderstand and warp the meaning of old
expressions; to depart from, and not to follow, old rules; and, in
addition to all this, would involve an absolute denial of justice and
of redress for the very mischief which was intended to be committed.
It may be added that, so far as the decision in Riding _v._ Smith can
be justified, it must be justified on the ground that the court
(rightly or wrongly) believed the circumstances under which the
falsehood was uttered to have brought it within the scope of a similar
principle. In our opinion, therefore, there has been no misdirection
and no improper admission of evidence, and this appeal should be
dismissed with costs.

_Appeal dismissed._[558]

DUDLEY _v._ BRIGGS
SUPREME JUDICIAL COURT, MASSACHUSETTS, MAY 8, 1886.
_Reported in 141 Massachusetts Reports, 582._

Tort. Writ dated Sept. 18, 1885. The declaration was as follows:

“And the plaintiff says that he is, and has been for many years, a
compiler and publisher of directories of cities, towns, and counties in
this Commonwealth and elsewhere; that by care, attention, skill, and
faithfulness, and after great labor and expense, he had acquired a large
number of subscribers among business men and other people, throughout
the cities and towns of Bristol County, and elsewhere in this
Commonwealth, for ‘The Bristol County Directory,’ which the plaintiff
has compiled and published biennially for many years, and until the acts
and doings of the defendant hereinafter complained of; that, at great
labor and expense, he had acquired a large and valuable list of
advertisers in his said directory, from whom, as well as from the said
subscribers to said directory, he obtained a large income, and would
have continued to do so, but for the acts and doings of the defendant
hereinafter alleged and set forth.

“And the plaintiff says that, according to his usual and ordinary custom
in the compilation and publication of the said ‘The Bristol County
Directory,’ he would have compiled and published the same in this year,
A. D. 1885, and he made his preparations therefor, but he says that the
defendant and his canvassers, and other servants and agents, in order to
injure the plaintiff, and to deprive him of the opportunity of compiling
and publishing said directory for said year of 1885, and
thereafterwards, and receiving the gains and profits therefrom, and to
secure the same to the defendant, together with all the gains and
profits arising therefrom, and otherwise to injure the plaintiff and get
gain, profit, and advantage to the defendant, knowingly and wilfully,
falsely and fraudulently, pretended and represented to many persons, and
particularly to the plaintiff’s patrons, the advertisers in said
directory and the subscribers thereto throughout said Bristol County,
that the plaintiff had gone out of the business of compiling and
publishing said directory, that the plaintiff had sold out said business
to the defendant, that the said canvassers and the defendant’s other
servants and agents were compiling the materials for the plaintiff’s
directory, the same as formerly, and other false and fraudulent
representations then and there made, of which the plaintiff is not yet
fully informed, and thereby deceitfully and wrongfully induced the
plaintiff’s said patrons, advertisers, and subscribers, in and
throughout said Bristol County, to give to the defendant their
advertisements and subscriptions, and to pay him instead of the
plaintiff therefor.

“Whereas, in truth and in fact, the said representations were wholly
false and untrue; the plaintiff had neither gone out of the business of
compiling and publishing the said directory, as he had done for years
before, nor had he sold out to the defendant, nor had he any intention
of doing so; nor were the defendant and his canvassers, and other agents
and servants, compiling the said directory the same as formerly or for
the plaintiff; all of which the defendant, as well as his said
canvassers and other servants and agents, well knew. And the defendant
did knowingly, wrongfully, injuriously, and deceitfully compile and
publish the said ‘The Bristol County Directory,’ for the year A. D.
1885, and vend and sell the same to the plaintiff’s patrons,
advertisers, subscribers, and other persons, as aforesaid. And the
plaintiff says that thereby he has been prevented from compiling,
publishing, and selling his said directory this year, A. D. 1885, as he
has always done heretofore; that he has lost the great gains and profits
which he would otherwise have made and received from the sale thereof,
and from advertisers in and subscribers to said directory, and has been
put to great loss and expense in preparing for said compilation and
publication, till he learned of the defendant’s said act and doings, and
thereby he will be hereafter prevented from compiling and publishing
said directory except at an increased expense and with diminished
profits.”

The defendant demurred to the declaration, on the ground that it did not
set forth a legal cause of action.

The Superior Court sustained the demurrer; and ordered judgment for the
defendant. The plaintiff appealed to this court.

FIELD, J. The plaintiff in his declaration does not allege that, by the
acts of the defendant, he has been deprived of the benefit of any
contract he had made, or of any property in existence and in his
possession, or that the defendant published his directory for 1885 as a
directory prepared and published by the plaintiff; and does not bring
his case within such decisions as Lumley _v._ Gye, Marsh _v._ Billings,
7 Cush. 322; Thomson _v._ Winchester, 19 Pick. 214; Blofeld _v._ Payne,
4 B. & A. 410; Morison _v._ Salmon, 2 M. & G. 385; and Sykes _v._ Sykes,
3 B. & C. 541.

He does not allege that he had any copyright in the previous
publications which the publication of the defendant infringed; and the
courts of the Commonwealth have no jurisdiction over infringements of
copyright. If each publication of a directory by the plaintiff every two
years was a separate publication, then the plaintiff’s declaration
amounts to this,—that he intended to publish a directory for 1885,
whereby he expected to make profits, but, by reason of the acts of the
defendant, he abandoned such an intention, and lost the profits he
otherwise would have made. But an intention in the mind of the plaintiff
to compile and publish a directory is not property, and the abandonment
of such an intention is not a loss of property. Bradley _v._ Fuller, 118
Mass. 239.

An attempt has been made to bring this case within what is called
slander of goods, manufactured and sold by another. See Western Counties
Manure Co. _v._ Lawes Chemical Manure Co., L. R. 9 Ex. 218. This implies
that the plaintiff was engaged in the business of making and selling
directories, and that the defendant made statements disparaging the
plaintiff’s business. We think that the declaration does not show that
the business of the plaintiff, in publishing a new directory every two
years, was a continuous business. The directory to be published in 1885
was to be a new compilation and publication. From the nature of the
book, perhaps this could not well be otherwise. New subscribers and new
advertisements were to be obtained. We have been shown no case where it
has been held that a false statement that the plaintiff had gone out of
business, or sold out his business to the defendant, was an actionable
slander of a person in his trade; but upon this we express no opinion.
It may be said that such statements tend to injure a man in his
business, because they tend to prevent customers from resorting to him
for trade, and to injure the value of the good-will of his business.
However this may be, the difficulty is in attaching good-will as a
valuable thing to the publication every two years of a new directory.
Such a directory could be published by anybody. It is perhaps a question
of degree whether the publication by the plaintiff had been so frequent
and regular that there can be said to be a good-will that would be
protected in law. There is no allegation of any continuing contract,
express or implied, of subscribing for, or advertising in, the
directories, as a publication periodically issued; there is no
allegation of any place of business to which customers resorted to
purchase directories. Until the plaintiff had entered upon the
compilation of the directory for 1885, we do not think that there was
any business of publishing a directory for 1885 carried on by the
plaintiff, or anything that, for example, could have been sold as a
going concern by an assignee in insolvency, if the plaintiff had become
an insolvent debtor. The cases upon liability for wrongful interference
with the business of another are largely collected in Walker _v._
Cronin; but in that case there was an actual business, with the carrying
on of which the defendant wrongfully interfered. The declaration in this
case, indeed, alleges that the plaintiff made his preparations for
compiling and publishing a directory for 1885, but it does not allege
what those preparations were, or that they were anything valuable. The
averment that he “has been put to great loss and expense in preparing
for said compilation and publication,” near the end of the declaration,
appears to be a part of the damages.

The plaintiff cites Swan _v._ Tappan, 5 Cush. 104, but there the
declaration was held insufficient, because there was no allegation of
special damage. The declaration in the present case cannot well be
distinguished in this respect from the declaration in Swan _v._ Tappan,
but we do not deem it necessary to reconsider the decision in that case
on this point. There, the plaintiff was actually engaged in selling his
book, which had already been printed and put upon the market, and the
action was the ordinary action for the malicious disparagement of the
goods of another, manufactured and kept for sale.

The plaintiff relies upon Benton _v._ Pratt, 2 Wend. 385, which perhaps
may be considered as an extreme case. See Randall _v._ Hazelton, 12 All.
412. In Benton _v._ Pratt, Seagraves and Wilson, at Allentown, had
orally agreed to purchase of the plaintiff two hundred hogs, at the
market price, if delivered within three or four weeks, and they had not
been previously supplied; and, “about the time for the delivery,” the
plaintiff was proceeding with his drove of hogs to Allentown for the
purpose of delivering to them two hundred hogs. The defendant, by his
falsehood and deceit, intentionally prevented the performance of this
contract, by persuading Seagraves and Wilson that the plaintiff was not
intending to drive his hogs to Allentown, whereby they were induced to
buy the hogs of the defendant, instead of buying the hogs of the
plaintiff, as they otherwise would have done. The court say, that it was
“not material whether the contract of the plaintiff with Seagraves and
Wilson was binding upon them or not;” but the agreement, if there was an
agreement, although not in writing, was an actual offer by Seagraves and
Wilson, not revoked, and which they would have performed, and the
plaintiff was in the actual possession of the property which Seagraves
and Wilson had offered to buy, and was actually proceeding to deliver
this property to them, in accordance with their offer.

The fatal objection to the present case is, that it is entirely
problematical whether the plaintiff would actually have published
a directory if the defendant had not made the fraudulent
misrepresentations alleged. The plaintiff abandoned his intention
to compile and publish a directory in consequence of the
defendant’s acts; but this, upon the principles stated in Bradley
_v._ Fuller, 118 Mass. 239, and the cases therein cited, is not
sufficient to support an action.

_Judgment affirmed._

GARRET _v._ TAYLOR
IN THE KING’S BENCH, EASTER TERM, 1620.
_Reported in Croke, James, 567._

Action on the case. Whereas he was a Freemason, and used to sell stones,
and to make stone buildings, and was possessed of a lease for divers
years to come of a stone-pit in Hedington, in the county of Oxford, and
digged divers stones there, as well to sell as to build withal; that the
defendant, to discredit and to deprive him of the commodity of the said
mine, imposed so many and so great threats upon his workmen, and all
comers disturbed, threatening to mayhem and vex them with suits if they
bought any stones; whereupon they all desisted from buying, and the
others from working, &c.

After judgment by _nihil dicit_ for the plaintiff, and damages found by
inquisition to fifteen pounds, it was moved in arrest of judgment, that
this action lay not; for nothing is alleged but only words, and no act
nor insult: and causeless suits on fear are no cause of action.

_Sed non allocatur_: for the threatening to mayhem, and suits, whereby
they durst not work or buy, is a great damage to the plaintiff, and his
losing the benefit of his quarries a good cause of action: and although
it be not shown how he was possessed for years, by what title, &c., yet
that being but a conveyance to this action, was held to be well enough.
And adjudged for the plaintiff.[559]

TARLETON _v._ M’GAWLEY
AT NISI PRIUS, CORAM LORD KENYON, C. J., DECEMBER 21, 1804.
_Reported in Peake, 205._

This was a special action on the case. The declaration stated that the
plaintiffs had sent a vessel called the “Bannister,” with a crew on
board, under the command of one Thomas Smith, and loaded with goods
proper for trading with the natives, to a part of the coast of Africa
called Cameroon, to trade with the natives there. That while the
last-mentioned ship was lying off Cameroon, a canoe with some natives on
board came to the same for the purpose of establishing a trade, and went
back to the shore, of which defendant had notice. And that he well
knowing the premises, but _contriving and maliciously intending to
hinder and deter the natives from trading_ with the said Thomas Smith,
for the benefit of the plaintiffs, with force and arms, fired from a
certain ship called the “Othello” of which he was master and commander,
a certain cannon loaded with gunpowder and shot, at the said canoe, and
killed one of the natives on board the same. _Whereby the natives of the
said coast were deterred and hindered from trading with the said T.
Smith for the benefit, &c., and plaintiffs lost their trade._

LORD KENYON. This action is brought by the plaintiffs to recover a
satisfaction for a civil injury which they have sustained. The injury
complained of is, that by the improper conduct of the defendant the
natives were prevented from trading with the plaintiffs. The whole of
the case is stated on the record, and if the parties desire it, the
opinion of the court may hereafter be taken whether it will support an
action. I am of opinion it will. Had this been an accidental thing, no
action could have been maintained; but it is proved that the defendant
had expressed an intention not to permit any to trade, until a debt due
from the natives to himself was satisfied. If there was any court in
that country to which he could have applied for justice he might have
done so, but he had no right to take the law into his own hands.[560]

HART _v._ ALDRIDGE
IN THE KING’S BENCH, MAY 3, 1774.
_Reported in Cowper, 54._

This came before the court on a case reserved upon the following
question: Whether under the circumstances of this case the plaintiff was
entitled to recover? It was an action of trespass on the case for
enticing away several of the plaintiff’s servants, who used to work for
him in the capacity of journeymen shoemakers. The jury found that Martin
and Clayton were employed as journeymen shoemakers by the plaintiff, but
for no determinate time, but only by the piece, and had, at the time of
the trespass laid, each of them a pair of shoes unfinished; that the
defendant persuaded them to enter into his service, and to leave these
shoes unfinished, which they accordingly did.

_Mr. Darwell_, for the plaintiff, stated it to be a question of common
law, and that the only point for the opinion of the court was, “whether
a journeyman was such a servant as the law takes notice of?” In support
of which proposition he insisted that a journeyman is as much a servant
as any other person who works for hire or wages; that neither in reason
nor at common law is there any distinction between a servant in one
capacity or another, and that the injury of seduction is in all cases
the same, though the recompense in damages may be different. He pressed
the argument _ab inconvenienti_, stating that it would be of great
detriment to the town, where the whole trade was in a great measure
carried on by this sort of servant. That the verdict had found the
defendant to be apprised of the retainer of the servants, it being in
proof that he had desired them to leave their work then in hand
unfinished.

_Mr. Willes_, contra. The single question is, whether the enticing away
a journeyman shoemaker, who is hired to make a single pair of shoes, is
such an injury to his master as that an action will lie for it. Now the
jury have found that there was no hiring for any determinate time, but
only by the piece: if so, they could not be the plaintiff’s servants;
for the term “journeyman” does not import that they belong to any
particular master.

LORD MANSFIELD interrupted him. The question is, whether saying that
such a one is a man’s journeyman, is as much as to say that he is such a
man’s servant; that is, whether the jury, by finding him to be the
plaintiff’s journeyman, do not _ex vi termini_ find him to be his
servant. A journeyman is a servant by the day; and it makes no
difference whether the work is done by the day or by the piece. He was
certainly retained to finish the work he had undertaken, and the
defendant knowingly enticed him to leave it unfinished.

What is the gist of the action? That the defendant has enticed a man
away who stood in the relation of servant to the plaintiff, and by whom
he was to be benefited. I think the point turns upon the jury finding
that the persons enticed away were employed by the plaintiff as his
journeymen. It might perhaps have been different if the men had taken
work for everybody, and after the plaintiff had employed them the
defendant had applied to them, and they had given the preference to him
in point of time. For if a man lived in his own house and took in work
for different people, it would be a strong ground to say that he was not
the journeyman of any particular master; but the gist of the present
action is that they were attached to this particular master.

ASTON, J. It is clear that a master may maintain an action against any
one for taking and enticing away his servant, upon the ground of the
interest which he has in his service and labor.[561] And even supposing,
as my lord has stated, that the servant did live in his own house, if he
were employed to finish a certain number of shoes for a particular
person by a fixed time, and a third person enticed him away, I think an
action would lie. If not, it might be of very bad consequence in trade.
He is a servant _quoad hoc_, and though the seducer and enticer is much
the worse, yet the law inflicts a penalty upon workmen leaving their
work undone.

Mr. Justice WILLES and Mr. Justice ASHHURST concurred.

_Per Curiam._ Let the _postea_ be delivered to the plaintiff.[562]

EAGER _v._ GRIMWOOD
IN THE EXCHEQUER, JUNE 1, 1847.
_Reported in 1 Exchequer Reports, 61._

Trespass for assaulting and debauching the daughter and servant of the
plaintiff, whereby she then became pregnant, &c., and the plaintiff lost
and was deprived of her services. Plea: Not guilty.

At the trial before Pollock, C. B., at the London sittings after last
Michaelmas term, the following facts appeared: The connection between
the defendant and the plaintiff’s daughter took place for the first time
two days after Christmas day, 1844. In June, 1845, the plaintiff’s
daughter gave birth to a child, which, according to the evidence of a
surgeon, was a full-grown child. It also appeared that the plaintiff had
been put to some expense in consequence of his daughter’s illness. The
learned Chief Baron left it to the jury to say whether or no the
defendant was the father of the child; and he told them that if they
believed he was not the father of the child, they should find a verdict
for him. The jury having found for the defendant.

_Prentice_ obtained a rule _nisi_ for a new trial, on the ground of
misdirection, against which

_Humfrey_ showed cause.

_Prentice_, in support of the rule.[563]

POLLOCK, C. B. The case of Grinnell _v._ Wells, 7 Man. & G. 1033, is
precisely in point. That case decided that an action for seduction
cannot be maintained without proof of loss of service. Tindal, C. J., in
delivering the judgment of the court, says: “The foundation of the
action by a father to recover damages against the wrong-doer, for the
seduction of his daughter, has been uniformly placed from the earliest
time hitherto, not upon the seduction itself, which is the wrongful act
of the defendant, but upon the loss of service of the daughter, in which
service he is supposed to have a legal right or interest.” The rule must
be absolute to enter a nonsuit, unless the plaintiff will consent to a
_stet processus_.

ALDERSON, B., ROLFE, B., and PLATT B., concurred.

_Rule accordingly._[564]

EVANS _v._ WALTON
IN THE COMMON PLEAS, JUNE 11, 1867.
_Reported in Law Reports, 2 Common Pleas, 615._

The first count of the declaration stated that Louisa Evans was and
still is the servant of the plaintiff in his business of a publican and
victualler; and that the defendant, well knowing the same, wrongfully
enticed and procured the said Louisa Evans unlawfully and without the
consent and against the will of the plaintiff, her said master, to
depart from the service of the plaintiff; whereby the plaintiff had lost
the service of the said Louisa Evans in his said business.

Pleas: Not guilty; and that Louisa Evans was not the servant of the
plaintiff, as alleged. Issue thereon.

The cause was tried before Pigott, B., at the last Spring Assizes at
Oxford. The plaintiff was a licensed victualler in Birmingham, and was
assisted in his business by his daughter Louisa, a girl about nineteen
years of age, who served in the bar and kept the accounts. On the 10th
of November, 1866, the daughter, with her mother’s permission, which was
procured by means of a fabricated letter purporting to be an invitation
to her to spend a few days with a friend at Manchester, left the
plaintiff’s house and went to a lodging-house in the neighborhood of
Birmingham, where she cohabited with the defendant, at whose dictation
the above-mentioned letter had been written. On the 19th of November the
daughter returned home, and resumed her duties for a short time, but
ultimately left her home again, and on the 9th of February was again
found cohabiting with the defendant at the same lodging-house.

On the part of the defendant it was submitted that, in order to sustain
the action, in the absence of an allegation that the defendant had
debauched the plaintiff’s daughter, it was necessary to show a binding
contract of service.

The learned Baron, after consulting Blackburn, J., intimated an opinion
that the action would lie upon the declaration as framed; but he
reserved to the defendant leave to move to enter a nonsuit if the court
should be of opinion that in point of law the action was not
maintainable,—the court to have power to draw any inferences of fact,
and to amend the declaration if necessary, according to the facts
proved.

The case was then left to the jury, who returned a verdict for the
plaintiff, damages, £50.

_Huddleston_, Q. C., in Easter term, obtained a rule _nisi_.

_Powell_, Q. C., and _J. O. Griffits_ (June 11) showed cause, submitting
that the action would lie upon the declaration as it stood.

The court called on

_H. James_ and _Jelf_, in support of the rule. There are two kinds of
action for loss of service, viz., an action for the seduction and
consequent loss of service of a daughter, and an action for enticing
away a servant. In order to sustain the first, it is not enough that
there has been criminal intercourse, but it must be shown that that
intercourse has resulted in pregnancy or other illness so as to cause a
disability in the daughter to perform her accustomed duties: Eager _v._
Grimwood; Boyle _v._ Brandon, 13 M. & W. 738; but an actual contract of
service need not be proved. It is not suggested that there is any such
cause of action here. In Sedgwick on Damages (2d ed.), page 543, it is
said that “although the defendant be guilty of the seduction, but the
jury are of opinion that the child is not his, the plaintiff cannot
recover. In other words, without some damage to the plaintiff or master
occasioned by the illness of the female, and resulting from the illicit
intercourse, the plaintiff is without relief.” And for this Eager _v._
Grimwood is cited.

[BOVILL, C. J. Eager _v._ Grimwood is cited in Smith’s Leading Cases
(6th ed.), vol. i. p. 260, with evident disapprobation.]

No precedent is to be found without the allegation _per quod servitium
amisit_. The action for seduction is an anomalous one.

[WILLES, J. Upon the first point, I think we are bound by the case of
Eager _v._ Grimwood. The question is, whether the action may not be
maintained for enticing the girl away from her father’s service.]

To sustain an action for enticing away a servant, it is necessary to
show a valid and binding contract of service, which has been broken
through the procurement of the defendant. Actual service is not enough.
Here, there was no contract, express or implied, for the breach of which
the father could have sued his daughter. All that the defendant can be
charged with having done is, inciting the daughter to do that which in
the exercise of her own free will she had an undoubted right to do. If
an action would lie for this, it would equally lie for inducing a
daughter to quit her father’s house for the purpose of marrying
her.[565] See Fitz. N. B. 90 H. In Cox _v._ Muncey, 6 C. B. N. S. 375,
it was held by this court that no action will lie for enticing away an
apprentice, unless there be a valid contract of apprenticeship; and the
like was held as to a servant by the Court of Queen’s Bench in Sykes
_v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463.

[BOVILL, C. J. At the end of Lord Denman’s judgment, in Sykes _v._
Dixon, there is a remark which seems to be adverse to your view. “Then,”
says his Lordship, “it was argued, on the authority of Keane _v._
Boycott, 2 H. Bl. 511, that the objection” (that is, to the validity of
the contract) “was not one which a third person could take: and that
might be so in a case where the servant was _de facto_ continuing in the
service; but not here, where he had quitted his master, and taken his
chance in hiring himself to the defendant.” Here the daughter was _de
facto_ continuing in the service of her father when the defendant
seduced her therefrom.]

All the authorities were referred to in Lumley _v._ Gye, and amongst
them Blake _v._ Lanyon; but in none of them was the action held to lie
in the absence of a binding contract of service.[566]

BOVILL, C. J. The rule in this case was granted principally on the
contention of the defendant’s counsel that, in order to sustain the
action, it was necessary to show that there was a binding contract of
service between the father and the daughter. And for this proposition
various text-books were referred to, and several cases cited, amongst
which was that of Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463. But,
when that case is looked at, I find no such principle involved in the
decision. Indeed, in each of the cases, from the form of the
declaration, it became necessary to prove some contract for service
beyond that which the law would imply from the relation of the parties.
No authority is to be found where it has been held that in an action for
enticing away the plaintiff’s daughter a binding contract of service
must be alleged and proved. But there are abundant authorities to show
the contrary. It is said that the case of seduction is anomalous in this
respect. There is, however, no foundation for that assertion. In the
case of an action for the seduction of a daughter, no proof of service
is necessary beyond the services implied from the daughter’s living in
her father’s house as a member of his family. So, in the case of an
action for assaulting the plaintiff’s infant son or daughter, no
evidence of service is necessary beyond that which the law will imply as
between parent and child. In Barber _v._ Dennis, 6 Mod. 69; 1 Salk. 68,
the widow of a waterman, who, as was said, by the usage of Waterman’s
Hall, may take an apprentice, had her apprentice taken from her and put
on board a Queen’s ship, where he earned two tickets, which came to the
defendant’s hands, and for which the mistress brought trover. It was
agreed that the action would well lie if the apprentice were a legal
apprentice, for his possession would be that of his master, and whatever
he earns shall go to his master; but it was objected that the company of
watermen is a voluntary society, and that being free of it does not make
a man free of London, so that the custom of London for persons under one
and twenty to bind themselves apprentices does not extend to watermen;
which was agreed by all. Then it was said that the supposed apprentice
here was no legal apprentice, if the indentures be not enrolled pursuant
to the 5 Eliz. c. 4, and, if he were not a legal apprentice, the
plaintiff had no title. But Holt, C. J., said he would understand him an
apprentice or servant _de facto_, and that would suffice against them,
being wrong-doers. Again, in Fitz. N. B. 91 G. it is laid down that, “if
a man ought to have toll in a fair, &c., and his servants are disturbed
in gathering the same, he shall have trespass for assault of his
servants, and for the loss of their service,” &c. To this is appended a
note by Lord Hale: “Trespass for beating his servants, _per quod
servitium amisit_, lies, although he was not retained, but served only
at will. 11 Hen. IV. fol. 2, _per_ Hull, accordant. And so if A. retains
B. to be his servant, who departs into another county and serves C., A.,
before any request or seizure, cannot beat B.; and, if he does, C. shall
have trespass against him (21 Hen. VI. fol. 9), and recover damages,
having regard to the loss of service (22 Ass. 76): and the retainer is
traversable. 11 Hen. VI. fol. 30.” These authorities, and the principle
upon which the action for assaulting a servant is founded, would seem to
show that an actual binding contract is not necessary. There is no
allegation in this declaration of a hiring for any definite time. All
that is alleged is, that the girl was the daughter and servant of the
plaintiff. It cannot be doubted that the jury would infer from the facts
that the relation of master and servant did exist, without any evidence
of a contract for a definite time; and, if we are to draw inferences
from the facts, I should come to the same conclusion. Then, was that
relation put an end to? The service, no doubt, was one which would be
determinable at the will of either party, as is said by Bramwell, B., in
Thompson _v._ Ross, 5 H. & N. 16. That this kind of service is
sufficient, I should gather from the language used by this court in
Hartley _v._ Cummings, 5 C. B. 247, and particularly from the judgment
of Maule, J. That was an action for seducing workmen from the service of
the plaintiff, a glass and alkali manufacturer, and harboring them after
notice. It appeared that one Pike was in the service of the plaintiff,
and the defendant induced him to leave. In giving judgment, Maule, J.,
says: “The objection urged on the part of the defendant is, that the
agreement entered into by Pike with the plaintiff was one that gave the
latter no right to compel Pike to serve him, inasmuch as it was void
either for want of mutuality or because it was a contract to an
unreasonable extent operating in restraint of trade. On the other side,
it was insisted, upon the authority of Keane _v._ Boycott, 2 H. Bl. 511,
that it is quite immaterial, for the purpose of this action, whether the
agreement was void or not; for that it is not competent to the
defendants, who are wrong-doers, to take advantage of its invalidity. In
answer to this, the case of Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D.
463, was cited on the part of the defendants, where it is said to have
been decided by the Court of Queen’s Bench that such an objection may be
set up by a third person not a party to the agreement. It is unnecessary
to say whether that case may not be distinguished from the
present,—there being no subsisting service that was interrupted by the
act of the defendant,—because I am of opinion that in this case there
was a contract between Hartley and Pike, which was perfectly valid,
notwithstanding the objections that have been urged.” Whether or not
there was a subsisting service seems to be the test. I think the jury
properly assumed that there was a subsisting service here. It is said
that the girl’s services were not lost to the plaintiff by reason of the
defendant’s having enticed her away; for that, inasmuch as she
afterwards returned to her father’s house, the relation of master and
servant was not put an end to by any act of the defendant’s. I think
however, there was a sufficient interruption of the service to entitle
the plaintiff to maintain the action, and that the rule to enter a
nonsuit should be discharged.

WILLES, J. I am of the same opinion. I cannot look at it as an anomaly
to hold that the daughter was the servant of her father at the time the
defendant by his enticement induced her to forbear from rendering to her
father the services which were due to him from her. There is a series of
cases in the books, of which that in the Year-Book of 11 Hen. IV, fol.
2, is probably the first, to show that this action is maintainable. This
case was followed by a very remarkable one of M. 22 Hen. VI, fol. 30, in
which that doctrine is fully recognized, and where service at will and
service upon a retainer are put upon the same footing with regard to any
complaint of being wrongfully deprived of their fruits, and it is
pointed out that the writ at common law ran, “_quare un tiel servientem
meum in servitio meo existentem cepit et abduxit_,” without alleging any
contract or retainer. That runs so completely with the earlier case, and
also with the doctrine of Lord Denman in Sykes _v._ Dixon, 9 Ad. & E.
693, 699; 1 P. & D. 463, and of Maule, J., in Hartley _v._ Cummings, 5
C. B. 247, and also with the observations of Bramwell, B., in Thompson
_v._ Ross, that I feel no difficulty in holding that, upon authority, as
well as in good sense, the father of a family, in respect of such
service as his daughter renders him from her sense of duty and filial
gratitude, stands in the same position as an ordinary master. If she is
in his service, whether _de son bon gre_ or _sur retainer_, he is
equally entitled to her services, and to maintain an action against one
who entices her away. Assuming that the service was at the will of both
parties, like a tenancy at will, the relation must be put an end to in
some way before the rights of the master under it can be lost. As a
question of fact, was the daughter in the service of her father at the
time the cause of action arose? Was the relation of master and servant
put an end to by her quitting her father’s house by means of the false
pretence to which the defendant induced her to resort? There was no
proof that she quitted without any intention to return to her home. What
pretence, then, was there for assuming that the service at will was put
an end to? To use the language of Newton, J., in the case of 22 Hen. VI,
fol. 30, it is no more than if a servant should absent herself for the
purpose of going to church on the Sabbath day. Then, was the defendant
guilty of any wrong in keeping her away from the plaintiff’s service? I
apprehend that, where the relation of master and servant exists, any
fraud whereby the servant is induced to absent herself affords a ground
of action. Somewhat the same sort of question arose in Winsmore _v._
Greenbank, where, in an action on the case for inducing the plaintiff’s
wife to continue absent, it was held to be sufficient to state that “the
defendant unlawfully and unjustly persuaded, procured, and enticed the
wife to continue absent, &c., by means of which persuasion, &c., she did
continue absent, &c., whereby the plaintiff lost the comfort and society
of his wife,” &c., without setting forth the means used by the
defendant, or alleging that any adultery had been committed. There is
really no difficulty when once the relation of master and servant at the
time of the acts complained of is established. It was said that,
inasmuch as none of the usual consequences, such as sickness or the
birth of a child, resulted from the defendant’s acts, no action is
maintainable for the mere improper intercourse. Be it so, as there is an
authority in favor of that position; but that only removes the charge of
debauching the plaintiff’s daughter out of the way. It does seem to me
to be an extraordinary thing, and to reduce the argument to an
absurdity, to say that the plaintiff would have had a sufficient cause
of action against the defendant if the daughter had proved with child by
him, and had gone back to her father’s house and been confined there,
and that the fact of the father having through his fraud been deprived
of his daughter’s services during the nine days’ concubinage affords no
ground of action. The conclusion I arrive at is, that it was a question
for the jury whether at the time the daughter left her father’s house
there was an existing service _de facto_, and whether by the defendant’s
means and procurement that service was denied to the plaintiff. If both
those questions were found against the defendant, the plaintiff was
clearly entitled to the verdict. I think there was abundant evidence to
support the finding, and that the rule must be discharged.

_Rule discharged._[567]

LUMLEY _v._ GYE
IN THE QUEEN’S BENCH, TRINITY TERM, 1853.
_Reported in 2 Ellis & Blackburn, 216._

CROMPTON, J.[568] The declaration in this case consisted of three
counts. The two first stated a contract between the plaintiff, the
proprietor of the Queen’s Theatre, and Miss Wagner, for the performance
by her for a period of three months at the plaintiff’s theatre; and it
then stated that the defendant, knowing the premises and with a
malicious intention, whilst the agreement was in full force, and before
the expiration of the period for which Miss Wagner was engaged,
wrongfully and maliciously enticed and procured Miss Wagner to refuse to
sing or perform at the theatre, and to depart from and abandon her
contract with the plaintiff and all service thereunder, whereby Miss
Wagner wrongfully, during the full period of the engagement, refused and
made default in performing at the theatre; and special damage arising
from the breach of Miss Wagner’s engagement was then stated. The third
count stated that Miss Wagner had been hired and engaged by the
plaintiff, then being the owner of her Majesty’s Theatre, to perform at
the said theatre for a certain specified period as the dramatic artiste
of the plaintiff for reward to her in that behalf, and had become and
was such dramatic artiste for the plaintiff at his said theatre for
profit to the plaintiff in that behalf; and that the defendant, well
knowing the premises and with a malicious intention, whilst Miss Wagner
was such artiste of the plaintiff, wrongfully and maliciously enticed
and procured her, so being such artiste of the plaintiff, to depart from
and out of the said employment of the plaintiff, whereby she wrongfully
departed from and out of the said service and employment of the
plaintiff, and remained and continued absent from such service and
employment until the expiration of her said hiring and engagement to the
plaintiff by effluxion of time; and special damage arising from the
breach of Miss Wagner’s engagement was then stated. To this declaration
the defendant demurred; and the question for our decision is, Whether
all or any of the counts are good in substance?

The effect of the two first counts is, that a person, under a binding
contract to perform at a theatre, is induced by the malicious act of the
defendant to refuse to perform and entirely to abandon her contract;
whereby damage arises to the plaintiff, the proprietor of the theatre.
The third count differs, in stating expressly that the performer had
agreed to perform as the dramatic artiste of the plaintiff, and _had
become and was_ the dramatic artiste of the plaintiff for reward to her;
and that the defendant maliciously procured her to depart out of the
employment of the plaintiff as such dramatic artiste; whereby she did
depart out of the employment and service of the plaintiff; whereby
damage was suffered by the plaintiff. It was said, in support of the
demurrer, that it did not appear in the declaration that the relation of
master and servant ever subsisted between the plaintiff and Miss Wagner;
that Miss Wagner was not averred, especially in the two first counts, to
have entered upon the service of the plaintiff; and that the engagement
of a theatrical performer, even if the performer has entered upon the
duties, is not of such a nature as to make the performer a servant,
within the rule of law which gives an action to the master for the
wrongful enticing away of his servant. And it was laid down broadly, as
a general proposition of law, that no action will lie for procuring a
person to break a contract, although such procuring is with a malicious
intention and causes great and immediate injury. And the law as to
enticing servants was said to be contrary to the general rule and
principle of law, and to be anomalous, and probably to have had its
origin from the state of society when serfdom existed, and to be founded
upon, or upon the equity of, the Statute of Laborers. It was said that
it would be dangerous to hold that an action was maintainable for
persuading a third party to break a contract, unless some boundary or
limits could be pointed out; and that the remedy for enticing away
servants was confined to cases where the relation of master and servant,
in a strict sense, subsisted between the parties; and that, in all other
cases of contract, the only remedy was against the party breaking the
contract.

Whatever may have been the origin or foundation of the law as to
enticing of servants, and whether it be, as contended by the plaintiff,
an instance and branch of a wider rule, or whether it be, as contended
by the defendant, an anomaly and an exception from the general rule of
law on such subjects, it must now be considered clear law that a person
who wrongfully and maliciously, or, which is the same thing, with
notice, interrupts the relation subsisting between master and servant by
procuring the servant to depart from the master’s service, or by
harboring and keeping him as servant after he has quitted it and during
the time stipulated for as the period of service, whereby the master is
injured, commits a wrongful act for which he is responsible at law. I
think that the rule applies wherever the wrongful interruption operates
to prevent the service during the time for which the parties have
contracted that the service shall continue; and I think that the
relation of master and servant subsists, sufficiently for the purpose of
such action, during the time for which there is in existence a binding
contract of hiring and service between the parties; and I think that it
is a fanciful and technical and unjust distinction to say that the not
having actually entered into the service, or that the service not
actually continuing, can make any difference. The wrong and injury are
surely the same, whether the wrong-doer entices away the gardener, who
has hired himself for a year, the night before he is to go to his work,
or after he has planted the first cabbage on the first morning of his
service; and I should be sorry to support a distinction so unjust, and
so repugnant to common sense, unless bound to do so by some rule or
authority of law plainly showing that such distinction exists....[569]

The objection as to the actual employment not having commenced would not
apply in the present case to the third count, which states that Miss
Wagner had become the artiste of the plaintiff, and that the defendant
had induced her to depart from the employment. But it was further said
that the engagement, employment or service, in the present case, was not
of such a nature as to constitute the relation of master and servant, so
as to warrant the application of the usual rule of law giving a remedy
in case of enticing away servants. The nature of the injury and of the
damage being the same, and the supposed right of action being in strict
analogy to the ordinary case of master and servant, I see no reason for
confining the case to services or engagements under contracts for
services of any particular description; and I think that the remedy, in
the absence of any legal reason to the contrary, may well apply to all
cases where there is an unlawful and malicious enticing away of any
person employed to give his personal labor or service for a given time
under the direction of a master or employer who is injured by the
wrongful act; more especially when the party is bound to give such
personal services exclusively to the master or employer; though I by no
means say that the service need be exclusive....[570]

In deciding this case on the narrower ground, I wish by no means to be
considered as deciding that the larger ground taken by Mr. _Cowling_ is
not tenable, or as saying that in no case except that of master and
servant is an action maintainable for _maliciously_ inducing another to
break a contract to the injury of the person with whom such contract has
been made. It does not appear to me to be a sound answer, to say that
the act in such cases is the act of the party who breaks the contract;
for that reason would apply in the acknowledged case of master and
servant. Nor is it an answer, to say that there is a remedy against the
contractor, and that the party relies on the contract; for, besides that
reason also applying to the case of master and servant, the action on
the contract and the action against the malicious wrong-doer may be for
a different matter; and the damages occasioned by such malicious injury
might be calculated on a very different principle from the amount of the
debt which might be the only sum recoverable on the contract. Suppose a
trader, _with a malicious intent to ruin a rival trader_, goes to a
banker or other party who owes money to his rival, and begs him not to
pay the money which he owes him, and by that means ruins or greatly
prejudices the party: I am by no means prepared to say that an action
could not be maintained, and that damages, beyond the amount of the debt
if the injury were great, or much less than such amount if the injury
were less serious, might not be recovered. Where two or more parties
were concerned in inflicting such injury, an indictment, or a writ of
conspiracy at common law, might perhaps have been maintainable; and,
where a writ of conspiracy would lie for an injury inflicted by two, an
action on the case in the nature of conspiracy will generally lie; and
in such action on the case the plaintiff is entitled to recover against
one defendant without proof of any conspiracy, the malicious injury and
not the conspiracy being the gist of the action.[571] In this class of
cases it must be assumed that it is the malicious act of the defendant,
and that malicious act only, which causes the servant or contractor not
to perform the work or contract which he would otherwise have done. The
servant or contractor may be utterly unable to pay anything like the
amount of the damage sustained entirely from the wrongful act of the
defendant; and it would seem unjust, and contrary to the general
principles of law, if such wrong-doer were not responsible for the
damage caused by his wrongful and malicious act. Several of the cases
cited by Mr. _Cowling_ on this part of the case seem well worthy of
attention.

Without however deciding any such more general question, I think that we
are justified in applying the principle of the action for enticing away
servants to a case where the defendant _maliciously procures_ a party,
who is under a valid contract to give her exclusive personal services to
the plaintiff for a specified period, to refuse to give such services
_during the period for which she had so contracted_, whereby the
plaintiff was injured.

I think, therefore, that our judgment should be for the plaintiff.

ERLE, J. The question raised upon this demurrer is, Whether an action
will lie by the proprietor of a theatre against a person who maliciously
procures an entire abandonment of a contract to perform exclusively at
that theatre for a certain time; whereby damage was sustained? And it
seems to me that it will. The authorities are numerous and uniform, that
an action will lie by a master against a person who procures that a
servant should unlawfully leave his service. The principle involved in
these cases comprises the present; for there, the right of action in the
master arises from the wrongful act of the defendant in procuring that
the person hired should break his contract, by putting an end to the
relation of employer and employed; and the present case is the same. If
it is objected that this class of actions for procuring a breach of
contract of hiring rests upon no principle, and ought not to be extended
beyond the cases heretofore decided, and that, as those have related to
contracts respecting trade, manufactures, or household service, and not
to performance at a theatre, therefore they are no authority for an
action in respect of a contract for such performance; the answer appears
to me to be, that the class of cases referred to rests upon the
principle that the procurement of the violation of the right is a cause
of action, and that, when this principle is applied to a violation of a
right arising upon a contract of hiring, the nature of the service
contracted for is immaterial. It is clear that the procurement of the
violation of a right is a cause of action in all instances where the
violation is an actionable wrong, as in violations of a right to
property, whether real or personal, or to personal security; he who
procures the wrong is a joint wrong-doer, and may be sued, either alone
or jointly with the agent, in the appropriate action for the wrong
complained of. Where a right to the performance of a contract has been
violated by a breach thereof, the remedy is upon the contract against
the contracting party; and, if he is made to indemnify for such breach,
no further recourse is allowed; and, as in case of the procurement of a
breach of contract the action is for a wrong and cannot be joined with
the action on the contract, and as the act itself is not likely to be of
frequent occurrence nor easy of proof, therefore the actions for this
wrong, in respect of other contracts than those of hiring, are not
numerous; but still they seem to me sufficient to show that the
principle has been recognized. In Winsmore _v._ Greenbank it was decided
that the procuring of a breach of the contract of a wife is a cause of
action. The only distinction in principle between this case and other
cases of contracts is, that the wife is not liable to be sued; but the
judgment rests on no such grounds; the procuring a violation of the
plaintiff’s right under the marriage contract is held to be an
actionable wrong. In Green _v._ Button, 2 C. M. & R. 707, it was decided
that the procuring a breach of a contract of sale of goods by a false
claim of lien is an actionable wrong. Sheperd _v._ Wakeman, 1 Sid. 79,
is to the same effect, where the defendant procured a breach of a
contract of marriage by asserting that the woman was already married. In
Ashley _v._ Harrison, 1 Peake’s N. P. C. 194; S. C. 1 Esp. N. P. C. 48,
and in Taylor _v._ Neri, 1 Esp. N. P. C. 386, it was properly decided
that the action did not lie, because the battery, in the first case, and
the libel, in the second case, upon the contracting parties were not
shown to be with intent to cause those persons to break their contracts,
and so the defendants by their wrongful acts did not procure the
breaches of contract which were complained of. If they had so acted for
the purpose of procuring those breaches, it seems to me they would have
been liable to the plaintiffs. To these decisions, founded on the
principle now relied upon, the cases for procuring breaches of contracts
of hiring should be added; at least Lord Mansfield’s judgment in Bird
_v._ Randall, 3 Burr. 1345, is to that effect. This principle is
supported by good reason. He who maliciously procures a damage to
another by violation of his right ought to be made to indemnify; and
that, whether he procures an actionable wrong or a breach of contract.
He who procures the non-delivery of goods according to contract may
inflict an injury, the same as he who procures the abstraction of goods
after delivery; and both ought on the same ground to be made
responsible. The remedy on the contract may be inadequate, as where the
measure of damages is restricted; or in the case of non-payment of a
debt where the damage may be bankruptcy to the creditor who is
disappointed, but the measure of damages against the debtor is interest
only; or, in the case of the non-delivery of the goods, the
disappointment may lead to a heavy forfeiture under a contract to
complete a work within a time, but the measure of damages against the
vendor of the goods for non-delivery may be only the difference between
the contract price and the market value of the goods in question at the
time of the breach. In such cases, he who procures the damage
maliciously might justly be made responsible beyond the liability of the
contractor.

With respect to the objection that the contracting party had not begun
the performance of the contract, I do not think it a tenable ground of
defence. The procurement of the breach of the contract may be equally
injurious, whether the service has begun or not, and in my judgment
ought to be equally actionable, as the relation of employer and employed
is constituted by the contract alone, and no act of service is necessary
thereto.

The result is that there ought to be, in my opinion, judgment for the
plaintiff.

[The concurring opinion of WIGHTMAN, J., is omitted.]

COLERIDGE, J. It may simplify what I have to say, if I first state what
are the conclusions which I seek to establish. They are these: that in
respect of breach of contract the general rule of our law is to confine
its remedies by action to the contracting parties, and to damages
directly and proximately consequential on the act of him who is
sued;[572] that, as between master and servant, there is an admitted
exception; that this exception dates from the Statute of Laborers, 23
Edw. III., and both on principle and according to authority is limited
by it. If I am right in these positions, the conclusion will be for the
defendant, because enough appears on this record to show, as to the
first, that he, and, as to the second, that Johanna Wagner, is not
within the limits so drawn.

First, then, that the remedy for breach of contract is by the general
rule of our law confined to the contracting parties. I need not argue
that, if there be any remedy by action against a stranger, it must be by
action on the case. Now, to found this, there must be both injury in the
strict sense of the word (that is a wrong done), and loss resulting from
that injury: the injury or wrong done must be the act of the defendant;
and the loss must be a direct and natural, not a remote and indirect
consequence of the defendant’s act. Unless there be a loss thus directly
and proximately connected with the act, the mere intention, or even the
endeavor, to produce it will not found the action. The existence of the
intention, that is the malice, will in some cases be an essential
ingredient in order to constitute the wrongfulness or injurious nature
of the act; but it will neither supply the want of the act itself, or
its hurtful consequences: however complete the _injuria_, and whether
with malice or without, if the act be after all _sine damno_, no action
on the case will lie. The distinction between civil and criminal
proceedings in this respect is clear and material; and a recollection of
the different objects of the two will dispose of any argument founded
merely on the allegation of malice in this declaration, if I shall be
found right in thinking that the defendant’s act has not been the direct
or proximate cause of the damage which the plaintiff alleges he has
sustained. If a contract has been made between A. and B. that the latter
should go supercargo for the former on a voyage to China, and C.,
however maliciously, persuades B. to break his contract, but in vain, no
one, I suppose, would contend that any action would lie against C. On
the other hand, suppose a contract of the same kind made between the
same parties to go to Sierra Leone, and C. urgently and _bona fide_
advises B. to abandon his contract, which on consideration B. does,
whereby loss results to A.; I think no one will be found bold enough to
maintain that an action would lie against C. In the first case no loss
has resulted; the malice has been ineffectual; in the second, though a
loss has resulted from the act, that act was not C.’s, but entirely and
exclusively B.’s own. If so, let malice be added, and let C. have
persuaded, not _bona fide_ but _mala fide_ and maliciously, still, all
other circumstances remaining the same, the same reason applies; for it
is _malitia sine damno_, if the hurtful act is entirely and exclusively
B.’s, which last circumstance cannot be affected by the presence or
absence of malice in C. Thus far I do not apprehend much difference of
opinion: there would be such a manifest absurdity in attempting to trace
up the act of a free agent breaking a contract to all the advisers who
may have influenced his mind, more or less honestly, more or less
powerfully, and to make them responsible civilly for the consequences of
what after all is his own act, and for the whole of the hurtful
consequences of which the law makes him directly and fully responsible,
that I believe it will never be contended for seriously. This was the
principle on which Lord Kenyon proceeded in Ashley _v._ Harrison, 1
Peake’s N. P. C. 194; S. C. 1 Esp. N. P. C. 48. There the defendant
libelled Madame Mara; the plaintiff alleged that, in consequence, she,
from apprehension of being hissed and ill-treated, forbore to sing for
him, though engaged, whereby he lost great profits. Lord Kenyon
nonsuited the plaintiff: he thought the defendant’s act too remote from
the damage assigned. But it will be said that this declaration charges
more than is stated in the case last supposed, because it alleges, not
merely a persuasion or enticement, but a procuring. In Winsmore _v._
Greenbank the same word was used in the first count of the declaration,
which alone is material to the present case; and the Chief Justice, who
relied on it, and distinguished it from enticing, defined it to mean
“persuading with effect;” and he held that the husband might sue a
stranger for persuading with effect his wife to do a wrongful act
directly hurtful to himself. Although I should hesitate to be bound by
every word of the judgment, yet I am not called on to question this
definition or the decision of the case. Persuading with effect, or
effectually or successfully persuading, may no doubt sometimes be
actionable—as in trespass—even where it is used towards a free agent;
the maxims, _qui facit per alium facit per se_, and _respondeat
superior_, are unquestionable; but, where they apply, the wrongful act
done is properly charged to be the act of him who has procured it to be
done. He is sued as a principal trespasser, and the damage, if proved,
flows directly and immediately from his act, though it was the hand of
another, and he a free agent, that was employed. But, when you apply the
term of effectual persuasion to the breach of a contract, it has
obviously a different meaning; the persuader has not broken and could
not break the contract, for he had never entered into any; he cannot be
sued upon the contract; and yet it is the breach of the contract only
that is the cause of damage: Neither can it be said that in breaking the
contract the contractor is the agent of him who procures him to do so;
it is still his own act; he is principal in so doing, and is the only
principal. This answer may seem technical; but it really goes to the
root of the matter. It shows that the procurer has not done the hurtful
act; what he has done is too remote from the damage to make him
answerable for it. The case itself of Winsmore _v._ Greenbank seems to
me to have little or no bearing on the present: a wife is not, as
regards her husband, a free agent or separate person; if to be
considered so for the present purpose, she is rather in the character of
a servant, with this important peculiarity, that, if she be induced to
withdraw from his society and cohabit with another or do him any wrong,
no action is maintainable by him against her. In the case of criminal
conversation, trespass lies against the adulterer as for an assault on
her, however she may in fact have been a willing party to all that the
defendant had done. No doubt, therefore, effectual persuasion to the
wife to withdraw and conceal herself from her husband is in the eye of
the law an actual withdrawing and concealing her; and so, in other
counts of the declaration, was it charged in this very case of Winsmore
_v._ Greenbank. A case explainable and explained on the same principle
is that of ravishment of ward. The writ for this lay against one who
procured a man’s ward to depart from him; and, where this was urged in a
case hereafter to be cited (Mich. 11 H. 4, fol. 23 A. pl., 46, 2 E. & B.
255), Judge Hankford[573] gives the answer: the reason is, he says,
because the ward is a chattel, and vests in him who has the right. None
of this reasoning applies to the case of a breach of contract; if it
does, I should be glad to know how any treatise on the law of contract
could be complete without a chapter on this head, or how it happens that
we have no decisions upon it. Certainly no subject could well be more
fruitful or important; important contracts are more commonly broken with
than without persuaders or procurers, and these often responsible
persons when the principals may not be so. I am aware that with respect
to an action on the case the argument _primæ impressionis_ is sometimes
of no weight. If the circumstances under which the action would be
brought have not before arisen, or are of rare occurrence, it will be of
none, or only of inconsiderable weight; but, if the circumstances have
been common, if there has been frequently occasion for the action, I
apprehend it _is_ important to find that the action has yet never been
tried. Now we find a plentiful supply both of text and decision in the
case of seduction of servants; and what inference does this lead to,
contrasted with the silence of the books and the absence of decisions on
the case of breach of ordinary contracts? Let this too be considered:
that, if by the common law it was actionable effectually to persuade
another to break his contract to the damage of the contractor, it would
seem on principle to be equally so to uphold him, after the breach, in
continuing it. Now upon this the two conflicting cases of Adams _v._
Bafeald, 1 Leon. 240, and Blake _v._ Lanyon, 6 T. R. 221, are worth
considering. In the first, two judges against one decided that an action
does not lie for retaining the servant of another, unless the defendant
has first procured the servant to leave his master; in the second, this
was overruled; and, although it was taken as a fact that the defendant
had hired the servant in ignorance and, as soon as he knew that he had
left his former master with work unfinished, requested him to return,
which we must understand to have been a real, earnest request, and only
continued him after his refusal, which we must take to have been his
independent refusal, it was held that the action lay; and this reason is
given: “The very act of giving him employment is affording him the means
of keeping out of his former service.” Would the judges who laid this
down have held it actionable to give a stray servant food or clothing or
lodging out of charity? Yet these would have been equally means of
keeping him out of his former service. The true ground on which this
action was maintainable, if at all, was the Statute of Laborers, to
which no reference was made. But I mention this case now as showing how
far courts of justice may be led if they allow themselves, in the
pursuit of perfectly complete remedies for all wrongful acts, to
transgress the bounds which our law, in a wise consciousness as I
conceive of its limited powers, has imposed on itself, of redressing
only the proximate and direct consequences of wrongful acts. To draw a
line between advice, persuasion, enticement and procurement is
practically impossible in a court of justice; who shall say how much of
a free agent’s resolution flows from the interference of other minds, or
the independent resolution of his own? This is a matter for the casuist
rather than the jurist; still less is it for the juryman. Again, why
draw the line between bad and good faith? If advice given _mala fide_,
and loss sustained, entitle me to damages, why, though the advice be
given honestly, but under wrong information, with a loss sustained, am I
not entitled to them? According to all legal analogies the _bona fides_
of him who, by a conscious wilful act, directly injures me will not
relieve him from the obligation to compensate me in damages for my loss.
Again, where several persons happen to persuade to the same effect, and
in the result the party persuaded acts upon the advice, how is it to be
determined against whom the action may be brought, whether they are to
be sued jointly or severally, in what proportions damages are to be
recovered? Again, if, instead of limiting our recourse to the agent,
actual or constructive, we will go back to the person who immediately
persuades or procures him one step, why are we stop there? The first
mover, and the malicious mover too, may be removed several steps
backward from the party actually induced to break the contract; why are
we not to trace him out? Morally he may be the most guilty. I adopt the
arguments of Lord Abinger and my brother Alderson in the case of
Winterbottom _v._ Wright, 10 M. & W. 109; if we go the first step, we
can show no good reason for not going fifty. And, again, I ask how is it
that, if the law really be as the plaintiff contends, we have no
discussions upon such questions as these in our books, no decisions in
our reports? Surely such cases would not have been of rare occurrence;
they are not of slight importance, and could hardly have been decided
without reference to the Courts in Banc. Not one was cited in the
argument bearing closely enough upon this point to warrant me in any
further detailed examination of them. I conclude therefore what occurs
to me on the first proposition on which the plaintiff’s case rests.

_Judgment for plaintiff._[574]

BOWEN _v._ HALL
IN THE COURT OF APPEAL, FEBRUARY 5, 1881.
_Reported in 6 Queen’s Bench Division, 333._

BRETT, L. J.[575] The Lord Chancellor agrees with me in the judgment I
am about to read, and it is to be taken therefore as the judgment of the
Lord Chancellor as well as of myself.

In this case, we were of opinion at the hearing, that the contract was
one for personal service, though not one which established strictly for
all purposes the relation of master and servant between the plaintiff
and Pearson. We were of opinion that there was evidence to justify a
finding that Pearson had been induced by the defendants to break his
contract of service, that he had broken it, and had thereby, in fact,
caused some injury to the plaintiff. We were of opinion that the act of
the defendants was done with knowledge of the contract between the
plaintiff and Pearson, was done in order to obtain an advantage for one
of the defendants at the expense of the plaintiff, was done from a wrong
motive, and would therefore justify a finding that it was done in that
sense maliciously. There remained nevertheless the question, whether
there was any evidence to be left to the jury against the defendants
Hall and Fletcher, it being objected that Pearson was not a servant of
the plaintiff. The case was accurately within the authority of the case
of Lumley _v._ Gye. If that case was rightly decided, the objection in
this case failed. The only question then which we took time to consider
was whether the decision of the majority of the judges in that case
should be supported in a Court of Error. That case was so elaborately
discussed by the learned judges who took part in it, that little more
can be said about it, than whether, after careful consideration, one
agrees rather with the judgments of the majority, or with the most
careful, learned, and able judgment of Mr. Justice Coleridge. The
decision of the majority will be seen, on a careful consideration of
their judgments, to have been founded upon two chains of reasoning.
First, that wherever a man does an act which in law and in fact is a
wrongful act, and such an act as may, as a natural and probable
consequence of it, produce injury to another, and which in the
particular case does produce such an injury, an action on the case will
lie. This is the proposition to be deduced from the case of Ashby _v._
White, 1 Sm. L. C. (8th ed.), p. 264. If these conditions are satisfied,
the action does not the less lie because the natural and probable
consequence of the act complained of is an act done by a third person:
or because such act so done by the third person is a breach of duty or
contract by him or an act illegal on his part, or an act otherwise
imposing an actionable liability on him. It has been said that the law
implies that the act of the third party, being one which he has free
will and power to do or not to do, is his own wilful act, and therefore
is not the natural or probable result of the defendants’ act. In many
cases that may be so, but if the law is so to imply in every case, it
will be an implication contrary to manifest truth and fact. It has been
said that if the act of the third person is a breach of duty or contract
by him, or is an act which it is illegal for him to do, the law will not
recognize that it is a natural or probable consequence of the
defendant’s act. Again, if that were so held in all cases, the law would
in some refuse to recognize what is manifestly true in fact. If the
judgment of Lord Ellenborough in Vicars _v._ Wilcocks, 8 East, 1,
requires this doctrine for its support, it is in our opinion wrong.

We are of opinion that the propositions deduced above from Ashby _v._
White, 1 Sm. L. C. (8th ed.), p. 264, are correct. If they be applied to
such a case as Lumley _v._ Gye, the question is whether all the
conditions are by such a case fulfilled. The first is that the act of
the defendants which is complained of must be an act wrongful in law and
in fact. Merely to persuade a person to break his contract, may not be
wrongful in law or fact as in the second case put by Coleridge, J.,
_supra_. But if the persuasion be used for the indirect purpose of
injuring the plaintiff, or of benefiting the defendant at the expense of
the plaintiff, it is a malicious act which is in law and in fact a wrong
act, and therefore a wrongful act, and therefore an actionable act if
injury ensues from it. We think that it cannot be doubted that a
malicious act, such as is above described, is a wrongful act in law and
in fact. The act complained of in such a case as Lumley _v._ Gye, and
which is complained of in the present case, is therefore, because
malicious, wrongful. That act is a persuasion by the defendant of a
third person to break a contract existing between such third person and
the plaintiff. It cannot be maintained that it is not a natural and
probable consequence of that act of persuasion that the third person
will break his contract. It is not only the natural and probable
consequence, but by the terms of the proposition which involves the
success of the persuasion, it is the actual consequence. Unless there be
some technical doctrine to oblige one to say so, it seems impossible to
say correctly, in point of fact, that the breach of contract is too
remote a consequence of the act of the defendants. The technical
objections alluded to above have been suggested as the consequences of
the judgment in Vicars _v._ Wilcocks, 8 East, 1. But that judgment when
so used or relied on seems to us to be disapproved in the opinions given
in the House of Lords in Lynch _v._ Knight, 9 H. L. C. 577, and seems to
us when so used to be unreasonable. In the case of Lumley _v._ Gye, and
in the present case, the third condition is fulfilled, namely, that the
act of the defendant caused an injury to the plaintiff, unless again it
can be said correctly that the injury is too remote from the cause. But
that raises again the same question as has been just dismissed. It is
not too remote if the injury is the natural and probable consequence of
the alleged cause. That is stated in all the opinions in Lynch _v._
Knight, 9 H. L. C. 577. The injury is in such a case in law as well as
in fact a natural and probable consequence of the cause, because it is
in fact the consequence of the cause, and there is no technical rule
against the truth being recognized. It follows that in Lumley _v._ Gye,
and in the present case, all the conditions necessary to maintain an
action on the case are fulfilled.

Another chain of reasoning was relied on by the majority in Lumley _v._
Gye, and powerfully combated by Coleridge, J. It was said that the
contract in question was within the principle of the Statute of
Laborers, that is to say, that the same evil was produced by the same
means, and that as the statute made such means when employed in the case
of master and servant, strictly so called, wrongful, the common law
ought to treat similar means employed with regard to parties standing in
a similar relation as also wrongful. If, in order to support Lumley _v._
Gye, it had been necessary to adopt this proposition we should have much
doubted, to say the least. The reasoning of Coleridge, J., upon the
second head of his judgment seems to us to be as nearly as possible, if
not quite, conclusive. But we think it is not necessary to base the
support of the case upon this latter proposition. We think the case is
better supported upon the first and larger doctrine. And we are
therefore of opinion that the judgment of the Queen’s Bench Division was
correct, and that the principal appeal must be dismissed.

_Appeal dismissed._[576]

GLAMORGAN COAL CO., LIMITED _v._ SOUTH WALES MINERS’ FEDERATION
IN THE COURT OF APPEAL, AUGUST 11, 1903.
_Reported in [1903] 2 King’s Bench, 545._

SOUTH WALES MINERS’ FEDERATION _v._ GLAMORGAN COAL CO., LIMITED
IN THE HOUSE OF LORDS, APRIL 14, 1905.
_Reported in [1905] Appeal Cases, 239._

Appeal by the plaintiffs from the decision of BIGHAM, J., [1903] 1 K. B.
118.[577]

The action was brought by the Glamorgan Coal Company, Limited, and
seventy-three other plaintiffs, owners of collieries in South Wales,
against the South Wales Miners’ Federation, its trustees, its officers,
and a number of members of its executive council, claiming damages for
wrongfully and maliciously procuring and inducing workmen employed in
the plaintiffs’ collieries to break their contracts of service with the
plaintiffs. In the alternative the plaintiffs sued the defendants for
wrongfully, unlawfully, and maliciously conspiring together to do the
acts complained of. The plaintiffs claimed both damages and an
injunction.

The defence consisted of denials of the material allegations in the
statement of claim, and of a plea that the acts complained of were done,
if at all, with reasonable justification and excuse. The trial of the
action was commenced with a special jury; but ultimately the jury was
discharged, and all questions of law and fact, as well as the
ascertainment of damages, if any, were by consent left to the
determination of the learned judge.

The following facts (_inter alia_) were stated, in substance, by BIGHAM,
J., in his written opinion:—

The plaintiffs are seventy-four limited liability companies associated
together for the protection of their own interests under the style of
the Monmouthshire and South Wales Coal Owners’ Association. They work
upwards of 200 collieries in the South Wales district, and in these
collieries they employ about 100,000 men.

For the last twenty or twenty-five years the masters and the men in the
South Wales colliery district have worked together under an agreement,
called the sliding scale agreement, by which the rate of wages paid to
the men is made to depend on the price for the time being of a certain
agreed class of coal—that is to say, as the price of that coal rises or
falls so the rate of wages moves up or down. Clause 23 of the sliding
scale agreement is as follows: “It is hereby agreed that all notices to
terminate contracts on the part of the employers as well as employed,
shall be given only on the first day of any calendar month, and to
terminate on the last day of the same month.”

The defendant federation was formed in 1898, and in 1899 was registered
under the Friendly Societies Act. Practically all the miners in the
South Wales district became members of it. There are about 128,000
members; including all, or very nearly all, the men who work for the
plaintiffs. In 1900 the federation was in the possession of funds
amounting to 100,000_l._ By its rules its objects are declared to be to
provide funds to carry on the business of the federation; taking into
consideration the question of trade and wages; to protect workmen
generally, and regulate the relations between them and employers; and to
call conferences to deal with questions affecting the workmen of a
trade, wage, and legislative character.

In November, 1900, the executive council of the federation requested the
workmen to hold meetings for the purpose of electing delegates to attend
a conference on November 12. Delegates were accordingly elected, and at
the conference a resolution was passed authorizing the council of the
federation to declare a general holiday at any time they might think it
necessary for the protection of wages and of the industry generally.

On October 23, 1901, a “manifesto” to the workmen was published, stating
that it had been resolved that the workmen shall observe as general
holidays Friday and Saturday next. Subsequently two other stop-days were
ordered, viz.: for October 31 and November 6. (The reasons for issuing
the manifesto are stated in the opinion of STIRLING, L. J., _post._) The
result was that the men stayed away from work on the four days, and so
broke their contracts with the masters.

The manifesto purported to be issued by the sliding scale committee, and
was signed by the members of that committee, who were also members of
the executive council of the federation. But in fact the issuing of the
manifesto was caused by the executive council of the federation. In
truth it was the federation who were acting; the name of the sliding
scale committee being used as a blind, with the purpose of securing the
funds of the federation from possible liability under the decision in
the Taff Vale Case, [1901] App. Cas. 426.

BIGHAM, J., concluded his findings of fact with the following
statement:—

“The evidence satisfies me that the action of the federation, and of the
other defendants in 1901, was dictated by an honest desire to forward
the interest of the workmen, and was not, in any sense, prompted by a
wish to injure the masters. Neither the federation nor the other
defendants had any prospect of personal gain from the operation of the
stop-days. Having been requested by the men by the resolution of
November 12, 1900, to advise and direct them as to when to stop work,
the federation and the other defendants, who were its officers, in my
opinion, did to the best of their ability advise and direct the men.
Whether they advised them wisely I cannot say, though I am inclined to
think not. But I am satisfied that they advised them honestly, and
without malice of any kind against the plaintiffs.

“I have to decide, in these circumstances, whether an action in tort
will lie against the defendants. The advice and guidance of the
defendants was solicited and given. If followed, it involved, as the
defendants knew, the breaking of the subsisting contracts. It was
followed, as the defendants wished it should be, and damage resulted to
the masters; but there was no malicious intention to cause injury, no
profit was gained for themselves by the defendants, and their sole
object was to benefit the men whom they were advising and directing.”

The learned judge gave judgment for the defendants on both branches of
the plaintiffs’ claim. His opinion is reported in [1903] 1 K. B. 118.

Plaintiffs appealed.

[The opinion of VAUGHAN WILLIAMS, L. J., in favor of affirmance, is
omitted.]

ROMER, L. J. The law applicable to this case is, I think, well settled.
I need only refer to two passages in which that law is shortly and
comprehensively stated. In Quinn _v._ Leathem [1901], A. C. 495, at p.
510, Lord Macnaghten said: “A violation of legal right committed
knowingly is a cause of action, and it is a violation of legal right to
interfere with contractual relations recognized by law if there be no
sufficient justification for the interference.” And in Mogul Steamship
Co. _v._ McGregor, Gow & Co., 23 Q. B. D. 598, at p. 614, Bowen, L. J.,
included in what is forbidden “the intentional procurement of a
violation of individual rights, contractual or other, assuming always
that there is no just cause for it.” But although, in my judgment, there
is no doubt as to the law, yet I fully recognize that considerable
difficulties may arise in applying it to the circumstances of any
particular case. When a person has knowingly procured another to break
his contract, it may be difficult under the circumstances to say whether
or not there was “sufficient justification or just cause” for his act. I
think it would be extremely difficult, even if it were possible, to give
a complete and satisfactory definition of what is “sufficient
justification,” and most attempts to do so would probably be
mischievous. I certainly shall not make the attempt. In particular I do
not think it necessary or useful to discuss the point as to how far the
question of justification can be assimilated to the question of malice
in cases of libel and slander. As Collins, M. R., said in Read _v._
Friendly Society of Operative Stonemasons, [1902] 2 K. B. 732, at p.
739: “It is not at all necessary in this case to embark upon the
question whether ‘without just cause’ is a complete equivalent for what
was meant in the common law by ‘malice.’ I am inclined to think that,
though in many cases adequate as a description, it is not co-extensive
with it, nor do I think that in civil actions any more than in criminal
it will be possible to eliminate motives from the discussion.” I
respectfully agree with what Bowen, L. J., said in the Mogul Case, when
considering the difficulty that might arise whether there was sufficient
justification or not: “The good sense of the tribunal which had to
decide would have to analyze the circumstances and to discover on which
side of the line each case fell.” I will only add that, in analyzing or
considering the circumstances, I think that regard might be had to the
nature of the contract broken; the position of the parties to the
contract; the grounds for the breach; the means employed to procure the
breach; the relation of the person procuring the breach to the person
who breaks the contract; and I think also to the object of the person in
procuring the breach. But, though I deprecate the attempt to define
justification, I think it right to express my opinion on certain points
in connection with breaches of contract procured where the contract is
one of master and servant. In my opinion, a defendant sued for knowingly
procuring such a breach is not justified of necessity merely by his
showing that he had no personal animus against the employer, or that it
was to the advantage or interest of both the defendant and the workman
that the contract should be broken. I take the following simple case to
illustrate my view. If A. wants to get a specially good workman, who is
under contract with B., as A. knows, and A. gets the workman to break
his contract to B.’s injury by giving him higher wages, it would not, in
my opinion, afford A. a defence to an action against him by B. that he
could establish he had no personal animus against B., and that it was
both to the interest of himself and of the workman that the contract
with B. should be broken. I think that the principle involved in this
simple case, taken by me by way of illustration, really governs the
present case. For it is to be remembered that what A. has to justify is
his action, not as between him and the workman, but as regards the
employer B. And, if I proceed to apply the law I have stated to the
circumstances of the present case, what do I find? On the findings of
fact it is to my mind clear that the defendants, the federation,
procured the men to break their contracts with the plaintiffs—so that I
need not consider how the question would have stood if what the
federation had done had been merely to advise the men, or if the men,
after taking advice, had arranged between themselves to break their
contracts, and the federation had merely notified the men’s intentions
to the plaintiffs. The federation did more than advise. They acted, and
by their agents actually procured the men to leave their work and break
their contracts. In short, it was the federation who caused the injury
to the plaintiffs. This was practically admitted before us by the
counsel for the federation, and, indeed, such an admission could not, in
my opinion, be avoided, having regard to the facts stated by the learned
judge in his judgment. And it is not disputed that the federation acted
as they did knowingly. So that the only question which remains is one of
justification. Now the justification urged is that it was thought, and I
will assume for this purpose rightly thought, to be in the interest of
the men that they should leave their work in order to keep up the price
of coal, on which the amount of wages of the men depended. As to this, I
can only say that to my mind the ground alleged affords no justification
for the conduct of the federation towards the employers; for, as I have
already pointed out, the absence on the part of the federation of any
malicious intention to injure the employers in itself affords no
sufficient justification. But it was said that the federation had a duty
towards the men which justified them in doing what they did. For myself
I cannot see that they had any duty which in any way compelled them to
act, or justified them in acting, as they did towards the plaintiffs.
And the fact that the men and the federation, as being interested in or
acting for the benefit of the men, were both interested in keeping up
prices, and so in breaking the contracts, affords in itself no
sufficient justification for the action of the federation as against the
plaintiffs, as I have already pointed out. I think, therefore, that the
appeal must succeed.

STIRLING, L. J.

* * * * *

That interference with contractual relations known to the law may in
some cases be justified is not, in my opinion, open to doubt. For
example, I think that a father who discovered that a child of his had
entered into an engagement to marry a person of immoral character would
not only be justified in interfering to prevent that contract from being
carried into effect, but would greatly fail in his duty to his child if
he did not. This duty is recognized by the courts; for the Court of
Chancery and the Chancery Division of the High Court of Justice have
continually so interfered on behalf of wards of Court, sometimes with a
heavy hand; and the principle on which the judges of those courts have
acted is simply that of doing on behalf of the ward that which a
right-minded father would do in the true interest of his child. I
conceive that circumstances might occur which would give rise to the
same duty in the case of a contract of service. I need not say that the
present is a very different case from that which I have just put. It
would no doubt be desirable if a general rule could be formulated which
would determine in what cases such a justification exists; but no such
rule has been laid down, and I doubt whether this can be done; so far as
I can see it must be left (in the language of Lord Bowen) to the
tribunal to analyze the circumstances of each particular case and
discover whether a justification exists or not.

In the present case the learned judge finds that the federation and the
other defendants “had lawful justification or excuse for what they did
in this, that having been solicited by the men to advise and guide them
on the question of stop-days, it was their duty and right to give them
advice, and to do what might be necessary to secure that the advice
should be followed;” and the existence of this duty has been strongly
pressed upon us in argument by the learned counsel for the several
defendants. It will be observed that the learned judge expressly finds
that the defendants were not merely advisers, but also agents “to do
what might be necessary to secure that the advice should be followed.”
In the view which I take of the facts the defendants not only gave
advice, but acted, and their action took the form of interfering with
the contractual relations between the masters and the men. If in so
doing they committed a tort, it would be no answer to say that they
acted upon the advice of a third person, as, for example, their own
solicitor; and it is difficult to see how they can be in a better
position simply because the advice on which they acted emanated from
themselves.

In my judgment the liability of the defendants must turn on the answer
to be given to the question whether the circumstances of the case were
in fact such as to justify the defendants, or any of them, in acting as
they did.

The circumstances were these: Middlemen at Cardiff were attempting to
reduce the price of coal, and it was feared that some employers might
yield to the pressure of competition and enter into agreements for the
sale of coal at prices lower than those existing at the time, with the
result that the wages of the miners, which were regulated by a sliding
scale, would be reduced.

To counteract this it was considered desirable by the men’s advisers
that prices should be sustained by diminishing the output of coal, and
that this should be effected by the men taking the holidays complained
of. It was not contended or suggested that a limitation of the output of
coal was an illegitimate object or aim on the part of the men, or that,
if it could have been attained without the breach of contracts (as, for
example, by the service of proper notices putting an end to those
contracts), the men would not have been within their legal rights. The
difficulty which presented itself was this,—that one of the terms of the
arrangement under which the sliding scale of wages existed was that
notices of the determination of contracts of employment should only be
given on the first day of a calendar month to terminate on the last day,
and this prevented notices of determination being effective at the
desired moment. The critical period was known to occur in October or
November. The men persuaded themselves that it was the masters’ interest
as well as their own that they should have power to take holidays at
this period; but this was a point on which the masters were entitled to
have their own opinion; and from what occurred in November, 1900, it was
known to the men that the masters’ view did not agree with that of the
men. If the men had faith in the soundness of their opinion, their
course was to negotiate through the defendants for a modification of the
sliding scale arrangement; what they actually thought fit to do was that
while insisting on the benefit of the sliding scale they treated
themselves as emancipated from the observance of one of the terms on
which that scale had been agreed to, although the masters objected, and
although the course taken by the men might result in serious damages to
the masters, or some of them. This is, I think, a difficult position to
maintain. The justification set up seems to me to amount to no more than
this—that the course which they took, although it might be to the
detriment of the masters, was for the pecuniary interest of the men; and
I think it wholly insufficient. The defendants took active steps to
carry this policy into effect, and, as I have said, interfered to bring
about the violation of legal rights. In my judgment they fail to justify
those acts, and the appeal ought to be allowed.

THE COURT declined to grant an immediate injunction, but reserved
liberty to the plaintiffs to apply for an injunction in case it should
be necessary to do so.

_Appeal allowed._

The defendants appealed to the House of Lords.

The EARL OF HALSBURY, L. C., gave an opinion in favor of dismissing the
appeal.

LORD MACNAGHTEN.

* * * * *

But what is the alleged justification in the present case? It was said
that the council—the executive of the federation—had a duty cast upon
them to protect the interests of the members of the union, and that they
could not be made legally responsible for the consequences of their
action if they acted honestly in good faith and without any sinister or
indirect motive. The case was argued with equal candor and ability. But
it seems to me that the argument may be disposed of by two simple
questions. How was the duty created? What in fact was the alleged duty?
The alleged duty was created by the members of the union themselves, who
elected or appointed the officials of the union to guide and direct
their action; and then it was contended that the body to whom the
members of the union have thus committed their individual freedom of
action are not responsible for what they do if they act according to
their honest judgment in furtherance of what they consider to be the
interest of their constituents. It seems to me that if that plea were
admitted there would be an end of all responsibility. It would be idle
to sue the workmen, the individual wrong-doers, even if it were
practicable to do so. Their counsellors and protectors, the real authors
of the mischief, would be safe from legal proceedings. The only other
question is, What is the alleged duty set up by the federation? I do not
think it can be better described than it was by Mr. Lush. It comes to
this—it is the duty on all proper occasions, of which the federation or
their officials are to be the sole judges, to counsel and procure a
breach of duty.

I agree with Romer and Stirling, L.JJ., and I think the appeal must be
dismissed.

LORD JAMES.

* * * * *

In order, therefore, to establish the existence of good cause and
excuse, all the defendants can say is, “We, the federation, had the duty
cast upon us to advise the workmen. We did advise them to commit an
unlawful act, but in giving that advice we honestly believed that they
would be in a better financial position than if they acted lawfully and
fulfilled their contracts.” Even if it be assumed that such allegations
are correct in fact, I think that no justification in law is established
by them. The intention of the defendants was directly to procure the
breach of contracts. The fact that their motives were good in the
interests of those they moved to action does not form any answer to
those who have suffered from the unlawful act. During the arguments that
have been addressed to your Lordships I do not think quite sufficient
distinction was drawn between the intention and the motives of the
defendants. Their intention clearly was that the workmen should break
their contracts. The defendants’ motives, no doubt, were that by so
doing wages should be raised. But if in carrying out the intention the
defendants purposely procured an unlawful act to be committed, the wrong
that is thereby inflicted cannot be obliterated by the existence of a
motive to secure a money benefit to the wrong-doers.

For these reasons I think the judgment of the Court of Appeal should be
affirmed.[578]

LORD LINDLEY. My Lords, I agree so entirely with the judgments of Romer
and Stirling, L.JJ., that I should say no more were it not for the great
importance of some of the arguments addressed to your Lordships on this
appeal and which deserve notice.

It is useless to try and conceal the fact that an organized body of men
working together can produce results very different from those which can
be produced by an individual without assistance. Moreover, laws adapted
to individuals not acting in concert with others require modification
and extension if they are to be applied with effect to large bodies of
persons acting in concert. The English law of conspiracy is based upon
and is justified by this undeniable truth.

But the possession of great power, whether by one person or by many, is
quite as consistent with its lawful as with its unlawful employment; and
there is no legal presumption that it will be or has been unlawfully
exercised in any particular case. Some illegal act must be proved to be
threatened and intended, or to have been committed, before any court of
justice in the United Kingdom can properly make such conduct the basis
of any decision.

These remarks are as applicable to trade unions as to other less
powerful organizations. Their power to intimidate and coerce is
undoubted; its exercise is comparatively easy and probable; but it would
be wrong on this account to treat their conduct as illegal in any
particular case without proof of further facts which make it so. It is
not incumbent on a trade union to rebut any presumption of illegality
based only on their power to do wrong. Freedom necessarily involves such
a power; but the mere fact of its existence does not justify any legal
presumption that it will be abused.

In the case before your Lordships there is proof that the members of the
mining federation combined to break and did break their contracts with
their employers by stopping work without proper notice and without
proper leave. There is also proof that the officials of the federation
assisted the men to do this by ordering them to stop work on particular
days named by the officials. To break a contract is an unlawful act, or,
in the language of Lord Watson in Allen _v._ Flood, [1898] A. C. at p.
96, “a breach of contract is in itself a legal wrong.” The form of
action for such a wrong is quite immaterial in considering the general
question of the legality or illegality of a breach of contract. Any
party to a contract can break it if he chooses; but in point of law he
is not entitled to break it even on offering to pay damages. If he wants
to entitle himself to do that he must stipulate for an option to that
effect. Non-lawyers are apt to think that everything is lawful which is
not criminally punishable; but this is an entire misconception. A breach
of contract would not be actionable if nothing legally wrong was
involved in the breach.

The federation by its officials are clearly proved in this case to have
been engaged in intentionally assisting in the concerted breach of a
number of contracts entered into by workmen belonging to the federation.
This is clearly unlawful, according to Lumley _v._ Gye, 2 E. & B. 216,
and Quinn _v._ Leathem, [1901] A. C. 495, and the more recent case of
Read _v._ Friendly Society of Stonemasons, [1902] 2 K. B. 732. Nor is
this conclusion opposed to Allen _v._ Flood, [1898] A. C. 1, or the
Mogul Steamship Company’s Case, [1892] A. C. 25, where there was no
unlawful act committed.

The appellants’ counsel did not deny that, in his view of the case, the
defendants’ conduct required justification, and it was contended (1)
that all which the officials did was to advise the men, and (2) that the
officials owed a duty to the men to advise and assist them as they did.

As regards advice, it is not necessary to consider when, if ever, mere
advice to do an unlawful act is actionable when the advice is not
libellous or slanderous. Nor is it necessary to consider those cases in
which a person, whose rights will be violated if a contract is
performed, is justified in endeavoring to procure a breach of such
contract. Nor is it necessary to consider what a parent or guardian may
do to protect his child or ward. That there are cases in which it is not
actionable to exhort a person to break a contract may be admitted; and
it is very difficult to draw a sharp line separating all such cases from
all others. But the so-called advice here was much more than counsel; it
was accompanied by orders to stop, which could not be disobeyed with
impunity. A refusal to stop work as ordered would have been regarded as
disloyal to the federation. This is plain from the speeches given in
evidence on the trial; and in my opinion it is a very important element
in the case which cannot be ignored.

As regards duty the question immediately arises—duty to do what? The
defendants have to justify a particular line of conduct, which was
wrongful, i. e., aiding and abetting the men in doing what both the men
and the officials knew was legally wrong. The constitution of the union
may have rendered it the duty of the officials to advise the men what
could be legally done to protect their own interests; but a legal duty
to do what is illegal and known so to be is a contradiction in terms. A
similar argument was urged without success in the case of the Friendly
Society of Stonemasons, [1902] 2 K. B. 732, already referred to.

Then your Lordships were invited to say that there was a moral or social
duty on the part of the officials to do what they did, and that, as they
acted _bona fide_ in the interest of the men and without any ill-will to
the employers, their conduct was justifiable; and your Lordships were
asked to treat this case as if it were like a case of libel or slander
on a privileged occasion. My Lords, this contention was not based on
authority, and its only merits are its novelty and ingenuity. The
analogy is, in my opinion, misleading, and to give effect to this
contention would be to legislate and introduce an entirely new law, and
not to expound the law as it is at present. It would be to render many
acts lawful which, as the law stands, are clearly unlawful.

My Lords, I have purposely abstained from using the word “malice.”
Bearing in mind that malice may or may not be used to denote ill-will,
and that in legal language presumptive or implied malice is
distinguishable from express malice, it conduces to clearness in
discussing such cases as these to drop the word “malice” altogether, and
to substitute for it the meaning which is really intended to be conveyed
by it. Its use may be necessary in drawing indictments; but when all
that is meant by malice is an intention to commit an unlawful act
without reference to spite or ill-feeling, it is better to drop the word
malice and so avoid all misunderstanding.

The appeal ought to be dismissed with costs.

_Order of the Court of Appeal affirmed and appeal dismissed with
costs._[579]

JERSEY CITY PRINTING CO. _v._ CASSIDY
COURT OF CHANCERY, NEW JERSEY, DECEMBER 11, 1906.
_Reported in 63 New Jersey Equity Reports, 759._

On motion, on order to show cause, for an injunction to restrain
defendants, former employes of the complainant, and now on strike, from
unlawful interference with the complainant’s business, the employment of
workmen, &c. Heard on bill, answer and affidavits.

Upon filing the bill an order was made restraining the defendants “from
in any manner knowingly and intentionally causing or attempting to cause
by threats, offers of money, payment of money, offering to pay or the
payment of transportation expenses, inducements or persuasions to any
employe of the complainant under contract to render service to it to
break such contract by quitting such service; from any and all personal
molestation of persons willing to be employed by complainant with intent
to coerce such persons to refrain from entering such employment; from
addressing persons willing to be employed by complainant against their
will and thereby causing them personal annoyance with a view to persuade
them to refrain from such employment; from loitering or picketing in the
streets near the premises of complainant, Nos. 68 and 70 York street,
and No. 37 Montgomery street, Jersey City, with intent to procure the
personal molestation and annoyance of persons employed or willing to be
employed by complainant and with a view to cause persons so employed to
quit their employment, or persons willing to be employed by complainant
to refrain from such employment; from entering the premises of
complainant, Nos. 68 and 70 York street, Jersey City, against its will
with intent to interfere with its business; from violence, threats of
violence, insults, indecent talk, abusive epithets practiced upon any
persons without their consent with intent to coerce them to refrain from
entering the employment of complainant, or to leave its employment.”

STEVENSON, V. C. (orally). The bill is filed to restrain a body of
workmen, who are on a strike, and other persons associated with them,
from doing certain things which are alleged to be injurious to the
complainant, their former employer. The things that they are restrained
from doing are specified in the restraining order. That order was not
made hastily. It was formulated with care on the part of the court, and
I do not understand that counsel for the defendant criticises its terms
on the ground that they are too broad. The defence is that the persons
who are enjoined have not been doing, and are not threatening now to do,
any of those things that are interdicted. That is the sum and substance
of the defence, which has been presented by a great many affidavits and
with very great force.

The order does not interfere with the right of the workman to cease his
employment for any reasons that he deems sufficient. It does not
undertake to say that workmen may not refuse to be employed if certain
other classes of workmen are retained in employment. It leaves the
workman absolutely free to abstain from work—for good reasons, for bad
reasons, for no reasons. His absolute freedom to work, or not to work,
is not in any way impaired. The restraining order is based upon the
theory that the right of the workman to cease his employment, to refuse
to be employed, and to do that in conjunction with his fellow-workmen,
is just as absolute as is the right of the employer to refuse further to
employ one man, or ten men, or twenty men who have theretofore been in
his employment. From an examination of the cases and a very careful
consideration of the subject I am unable to discover any right in the
courts, as the law now stands, to interfere with this absolute freedom
on the part of the employer to employ whom he will, and to cease to
employ whom he will; and the corresponding freedom on the part of the
workman, for any reason or no reason, to say that he will no longer be
employed; and the further right of the workmen, of their own free will,
to combine and meet as one party, as a unit, the employer who, on the
other side of the transaction, appears as a unit before them. Any
discussion of the motives, purposes or intentions of the employer in
exercising his absolute right to employ or not to employ as he sees fit,
or of the free combination of employes in exercising the corresponding
absolute right to be employed or not as they see fit, seems to me to be
in the air.

Thus, there is a wide field in which employes may combine and exercise
the arbitrary right of “dictating” to their common employer “how he
shall conduct his business.” The exact correlative of this right of the
employe exists, in an equal degree, in the employer. He may arbitrarily
“dictate” to five thousand men in his employ in regard to matters in
respect of which their conduct ought, according to correct social and
ethical principles, to be left entirely free. But if the “dictation” is
backed up solely by the announcement that, if it is not submitted to,
the dictating party will refrain from employing, or refrain from being
employed, as the case may be, no legal or equitable right belonging to
the party dictated to, which I am able to discern, is thereby invaded.

Some of the expressions which I have used, and which are commonly used,
in relation to this subject seem to me to be misleading. Union workmen
who inform their employer that they will strike if he refuses to
discharge all non-union workmen in his employ are acting within their
absolute right, and, in fact, are merely dictating the terms upon which
they will be employed. All such terms necessarily relate both to “how
the employer shall conduct his business” and how the employes shall
conduct their business.

The doctrine of the old cases, of which we have in New Jersey an
interesting example in State _v._ Donaldson, 3 Vr. 151, which placed the
employe, when acting in combination with his fellow-workmen, at a
tremendous disadvantage as compared with his employer, I think may be
regarded as entirely exploded. The authority of the deliverances of the
supreme court in State _v._ Donaldson was largely, if not entirely,
abolished by statute in 1883.

The principles which I have endeavored to state are all recognized in
the restraining order in this case, and are so plainly recognized that
the intelligent and industrious counsel for the defendants is unable to
point out any respect wherein the terms of the order should be modified.
The things which the restraining order interdicts are things which, for
the purposes of this argument, it is practically conceded the defendants
have no right to do.

In this situation of the case it would seem to be unnecessary to further
consider the legal propriety of the restraining order, much less to take
it up clause by clause. I have, however, pointed out what conduct on the
part of the defendants is excluded from the operation of this order, and
I think that it is fair to all the parties to this suit who are
concerned in the maintenance of the restraining order to explain, at
least in a general way, what conduct is included within its prohibition.
This can be most conveniently done by making plain the most important
principles embodied in the order—principles which practically have been
developed by the courts of this country and England during the last five
or ten years.

The injunction in strike and boycott cases is of very recent use.
Already a wide difference of opinion has been developed among judges in
regard to the liability of a combination of workmen to actions at law
for damages and suits in equity for an injunction.

It is only very recently, I think, that one of the most important rights
which now are vindicated by the injunction in a strike case has been
differentiated; in many cases it has been apparently half recognized or
indirectly enforced.

That the interest of an employer or an employe in a contract for
services is property is conceded. Where defendants, in combination or
individually, undertake to interfere with and disrupt existing contract
relations between the employer and the employe, it is plain that a
property right is directly invaded. The effect is the same whether the
means employed to cause the workman to break his contract, and thus
injure the employer, are violence or threats of violence against the
employe or mere molestation, annoyance, or persuasions. In all these
cases, whatever the means may be, they constitute the cause of the
breaking of a contract, and consequently they constitute the natural and
proximate cause of damage. The intentional doing of anything by a third
party which is the natural and proximate cause of the disruption of a
contract relation, to the injury of one of the contracting parties, is
now very generally recognized as actionable, in the absence of a
sufficient justification, and the question, in every case, seems to turn
upon justification alone.

Where the tangible property of an employer is seized or directly injured
by violence, with intent to interfere with the carrying on of his
business, the case, also is free from embarrassment.

In the case of Frank _v._ Herold, 18 Dick. Ch. Rep. 443, Vice-Chancellor
Pitney amply discussed the whole subject of the unlawfulness of
molestation and annoyance of employes, with intent and with the effect
to induce them to abandon their employment, to the injury of their
employer’s business.

But the difficult case presents itself when the workmen in combination
undertake to interfere with the freedom of action on the part of other
workmen who naturally would seek employment where they (the workmen in
combination) desire and intend that no man shall be employed excepting
upon their terms.

The difficulty is in perceiving how molestation and annoyance, not of
the employes of a complainant, but of persons who are merely looking for
work and may become employes of the complainant, can be erected into a
legal or equitable grievance on the part of the complainant. But the
difficulty is still further increased where the possible employes make
no complaint to any court for protection, and the conduct of the
molesting party does not afford a basis which the ancient common law
recognized as sufficient to support an action of tort on their behalf,
such as for an assault and battery or a slander. Abusive language is not
necessarily actionable at the common law. If to call a man a “scab” in
the street or to follow him back and forth from his home to his place of
employment was formerly not actionable on behalf of the victim of this
petty annoyance, the problem is to understand how one who is merely the
victim’s possible employer can complain, either at law or in equity,
there being no actual contract for service, but only a potential one,
interfered with.

It is easier, I think, to obtain a correct idea of the legal and
equitable right which underlies many of the injunctions which have been
granted in these strike cases restraining combinations of workmen from
interfering with the natural supply of labor to an employer, by means of
molestation and personal annoyance, if we exclude from consideration the
conduct of the defendants as a cause of action on behalf of the
immediate victims of their molestation—_i. e._, of the workman or
workmen whom the combination are seeking to deter from entering into the
employment which is offered to them, and which they, if let alone, would
wish to accept. I say this, although I firmly believe that the molested
workman, seeking employment and unreasonably interfered with in this
effort by a combination, has an action for damages at common law, and,
where the molestation is repeated and persistent, has the same right to
an injunction, in equity, which, under the same circumstances, is
accorded to his contemplated employer.

The underlying right in this particular case under consideration, which
seems to be coming into general recognition as the subject of protection
by courts of equity, through the instrumentality of an injunction,
appears to be the right to enjoy a certain free and natural condition of
the labor market, which, in a recent case in the House of Lords, was
referred to, in the language of Lord Ellenborough, as a “probable
expectancy.” This underlying right has otherwise been broadly defined or
described as the right which every man has to earn his living, or to
pursue his trade or business, without undue interference, and might
otherwise be described as the right which every man has, whether
employer or employe, of absolute freedom to employ or to be employed.
The peculiar element of this perhaps newly-recognized right is that it
is an interest which one man has in the freedom of another. In the case
before this court the Jersey City Printing Company claims the right, not
only to be free in employing labor, but also the right that labor shall
be free to be employed by it, the Jersey City Printing Company.

A large part of what is most valuable in modern life seems to depend
more or less directly upon “probable expectancies.” When they fail,
civilization, as at present organized, may go down. As social and
industrial life develops and grows more complex these “probable
expectancies” are bound to increase. It would seem to be inevitable that
courts of law, as our system of jurisprudence is evolved to meet the
growing wants of an increasingly complex social order, will discover,
define and protect from undue interference more of these “probable
expectancies.”

In undertaking to ascertain and define the rights and remedies of
employers and employes, in respect of their “probable expectancies” in
relation to the labor market, it is well not to lose sight altogether of
any other analogous rights and remedies which are based upon similar
“probable expectancies.” It will probably be found in the end, I think,
that the natural expectancy of employers in relation to the labor market
and the natural expectancy of merchants in respect to the merchandise
market must be recognized to the same extent by courts of law and courts
of equity and protected by substantially the same rules.

It is freedom in the market, freedom in the purchase and sale of all
things, including both goods and labor, that our modern law is
endeavoring to insure to every dealer on either side of the market. The
valuable thing to merchant and to customer, to employer and to employe,
manifestly is freedom on both sides of the market. The merchant, with
his fortune invested in goods and with perfect freedom to sell, might be
ruined if his customers were deprived of their freedom to buy; the
purchaser, a householder, seeking supplies for his family, with money in
his pocket and free to buy, might find his liberty of no value and might
suffer from lack of food and clothing if the shopmen who deal in these
articles were so terrorized by a powerful combination as to be coerced
into refusing to sell either food or clothing to him.

It is, however, the right of the employer and employe to a free labor
market that is the particular thing under consideration in this case.

A man establishes a large factory where working people reside, taking
the risk of his being able to conduct his industry and offer these
working people employment which they will be willing to accept. He takes
the risk of destructive competition and a large number of other risks,
out of which, at any time, may come his financial ruin and the
suspension of his manufacturing works. But our law, in its recent
development, undertakes to insure to him, not only that he may employ
whom he pleases, but that all who wish to be employed by him may enter
into and remain in such employment freely, without threats of harm,
without unreasonable molestation and annoyance from the words, actions
or other conduct of any other persons _acting in combination_. What is
the measure or test by which the conduct of a combination of persons
must be judged in order to determine whether or not it is an unlawful
interference with freedom of employment in the labor market, and as such
injurious to an employer of labor in respect of his “probable
expectancies,” has not as yet been clearly defined. Perhaps no better
definition could be suggested than that which may be framed by
conveniently using that important legal fictitious person who has taken
such a large part in the development of our law during the last fifty
years—the reasonably prudent, reasonably courageous and not unreasonably
sensitive man. Precisely this same standard is employed throughout the
law of nuisance in determining what degree of annoyance on the part of
one’s neighbor one must submit to, and what degree of such annoyance is
excessive and the subject of an action for damages or a suit for an
injunction.

A man may not be liable to an action for slander for calling a workman a
“scab” in the street, but if a hundred men combine to have this workman
denounced as a “scab” in the street, or followed in the streets to and
from his home, so as to attract public attention to him and place him in
an annoyingly conspicuous position, such conduct, the result of such
combination, is held to be an invasion of the “probable expectancy” of
his employer or contemplated employer, an invasion of this employer’s
_right to have labor flow freely to him_. Without any regard to the
rights and remedies which the molested workman may have, the injunction
goes at the suit of the employer to protect his “probable expectancy”—to
secure freedom in the labor market to employ and to be employed, upon
which the continuance of his entire industry may depend.

I think it is safe to say that all through this development of strike
law, during the last decade, no principle becomes established which does
not operate equally upon both employer and employe. The rights of both
classes are absolutely equal in respect of all these “probable
expectancies.” An operator upon printing machines has the right to offer
his labor freely to any of the printing shops in Jersey City. These
shops may all combine to refuse to employ him on account of his race, or
membership in a labor union, or for any other reason, or for no reason,
precisely as twenty employes in one printing shop may combine and
arbitrarily refuse to be further employed unless the business is
conducted in accordance with their views. But in the case of the
operative seeking employment, he has a right to have the action of the
masters of the printing shops, in reference to employing him, left
absolutely free. If, after obtaining, or seeking to obtain, employment
in a shop, the master of that shop should be subjected to annoyances and
molestation, instigated by the proprietors of other printing shops, who
combine to compel by such molestation and annoyance, this one master
printer, against his will and wish, to exclude the operative from
employment, this operative, in my judgment, would have a right to an
action at law for damages, and would have a right to an injunction if
his case presented the other ordinary conditions upon which injunctions
issue. But the common law courts have not had time to speak distinctly
on this subject as yet, and it is necessary to be cautious in dealing
with a subject in which both courts of law and courts of equity as yet
are feeling their way.

I think that the leading principle enforced in the restraining order in
this case is not inconsistent with any authorities which control this
court. This principle is that a combination of employers, or a
combination of employes, the object of which is to interfere with the
freedom of the employer to employ, or of the employe to be employed (in
either of which cases there is an interference with the enjoyment of a
“probable expectancy,” which the law recognizes as something in the
nature of property), by means of such molestation or personal annoyance
as would be liable to coerce the person upon whom it was inflicted,
assuming that he is reasonably courageous and not unreasonably
sensitive, to refrain from employing or being employed, is illegal and
founds an action for damages on the part of any person knowingly injured
in respect of his “probable expectancy” by such interference, and also,
when the other necessary conditions exist, affords the basis of an
injunction from a court of equity.

The doctrine which supports that portion of the restraining order in
this case which undertakes to interdict the defendants from molesting
applicants for employment as an invasion of a right of the complainant,
is applicable to a situation presenting either an employer or an employe
as complainant, and containing the following elements:

_First._ Some person or persons desiring to exercise the right of
employing labor, or the right of being employed to labor.

_Second._ A combination of persons to interfere with that right, by
molestation or annoyance, of the employers who would employ, or of the
employes who would be employed, in the absence of such molestation.

How far the element of combination of a number of persons will finally
be found necessary, in order to make out the invasion of a legal or
equitable right in this class of cases, need not be discussed. We are
dealing with cases where powerful combinations of large numbers, in
fact, exist.

_Third._ Such a degree of molestation as might constrain a person having
reasonable fortitude, and not being unreasonably sensitive, to abandon
his intention to employ or to be employed, in order to escape such
molestation.

_Fourth._ As the result of the foregoing conditions, an actual pecuniary
loss to the complaining party, by the interference with his enjoyment of
his “probable expectancies” in respect of the labor market.

I do not think that the constraining force brought to bear upon the
employer or employe which the law can interdict can ever include the
power of public opinion or even of class opinion. Every man, whether an
employer or an employe, constitutes a part of a great industrial system,
and his conduct is open to the criticism of the members of his own
class. While, therefore, a combination of union men have no right to cry
“scab” in the streets to non-union employes, or follow them in the
street in a body to and from their homes, or do many other things _in
combination_, which, if done once by a single individual, would not
found an action of tort, such combinations, I think, have left a fairly
wide field of effort towards the creation and application of public
opinion as a constraining force upon conduct of any kind which they wish
to discourage.

I have endeavored to explain, in a general way, my own view of the most
important and least understood principle embodied in the restraining
order in this case, in order that the defendants, and, in fact, all
parties interested, may have all possible light in construing and
applying the exact terms of the order. What I have said may be found to
be subject to modifications, without subjecting the terms of the order
to any change. All generalizations on such a subject—such a novel
subject as the one under consideration—are dangerous. There may be
conduct on the part of a combination of employers, or of employes, which
would seem to come within the general definition or description of
illegal and prohibited conduct, which I have attempted to frame, but
which conduct, nevertheless, might be justified, and hence could not be
adjudged illegal. Molestation and personal annoyance, however, the terms
which I have employed, do not seem to be inclusive of any justifiable
conduct, especially if no one is allowed to complain that he is molested
or annoyed by being subjected peaceably to the judgment and criticism of
public opinion.

* * * * *

The vice-chancellor then discussed at length the effect of the answer of
the defendants and the affidavits annexed thereto, which denied all the
charges of interference with existing labor contracts or molestation
practiced to prevent new workmen from being employed. The conclusion was
that, notwithstanding such denials, even when sustained by the greater
weight of evidence, the restraining order should be held in force as to
those defendants who stood fairly charged, under oath, with the
interdicted misconduct, and should be vacated as to any other defendants
not so charged; that the sole issue appeared to be one of fact, viz.,
whether the defendants had done, and were threatening to do, the acts
complained of or not, and that such an issue could not properly be tried
on _ex parte_ affidavits, but should be reserved for the final hearing;
that in a case like this, where the defendants were the only persons in
sight apparently interested in having the unlawful conduct complained of
continued, and were therefore subjected to a temptation to cause such
conduct to be continued, an injunction which merely prevented them from
doing acts which they disclaimed any right to do, and denied that they
had done or threatened to do, should be retained until the final
hearing.

THE MOGUL STEAMSHIP COMPANY LIMITED _v._ McGREGOR & COMPANY
IN THE COURT OF APPEAL, JULY 13, 1889.
_Reported in Law Reports, 23 Queen’s Bench Division, 598._

BOWEN, L. J.[580] We are presented in this case with an apparent
conflict or antinomy between two rights that are equally regarded by the
law—the right of the plaintiffs to be protected in the legitimate
exercise of their trade, and the right of the defendants to carry on
their business as seems best to them, provided they commit no wrong to
others. The plaintiffs complain that the defendants have crossed the
line which the common law permits; and inasmuch as, for the purposes of
the present case, we are to assume some possible damage to the
plaintiffs, the real question to be decided is whether, on such an
assumption, the defendants in the conduct of their commercial affairs
have done anything that is unjustifiable in law. The defendants are a
number of shipowners who formed themselves into a league or conference
for the purpose of ultimately keeping in their own hands the control of
the tea carriage from certain Chinese ports, and for the purpose of
driving the plaintiffs and other competitors from the field. In order to
succeed in this object, and to discourage the plaintiffs’ vessels from
resorting to those ports, the defendants during the “tea harvest” of
1885 combined to offer to the local shippers very low freights, with a
view of generally reducing or “smashing” rates, and thus rendering it
unprofitable for the plaintiffs to send their ships thither. They
offered, moreover, a rebate of five per cent to all local shippers and
agents who would deal exclusively with vessels belonging to the
Conference, and any agent who broke the condition was to forfeit the
entire rebate on all shipments made on behalf of any and every one of
his principals during the whole year—a forfeiture of rebate or allowance
which was denominated as “penal” by the plaintiffs’ counsel. It must,
however, be taken as established that the rebate was one which the
defendants need never have allowed at all to their customers. It must
also be taken that the defendants had no personal ill-will to the
plaintiffs, nor any desire to harm them except such as is involved in
the wish and intention to discourage by such measures the plaintiffs
from sending rival vessels to such ports. The acts of which the
plaintiffs particularly complained were as follows:—First, a circular of
May 10, 1885, by which the defendants offered to the local shippers and
their agents a benefit by way of rebate if they would not deal with the
plaintiffs, which was to be lost if this condition was not fulfilled.
Secondly, the sending of special ships to Hankow in order by competition
to deprive the plaintiffs’ vessels of profitable freight. Thirdly, the
offer at Hankow of freights at a level which would not repay a shipowner
for his adventure, in order to “smash” freights and frighten the
plaintiffs from the field. Fourthly, pressure put on the defendants’ own
agents to induce them to ship only by the defendants’ vessels, and not
by those of the plaintiffs. It is to be observed with regard to all
these acts of which complaint is made that they were acts that in
themselves could not be said to be illegal unless made so by the object
with which, or the combination in the course of which, they were done;
and that in reality what is complained of is the pursuing of trade
competition to a length which the plaintiffs consider oppressive and
prejudicial to themselves. We were invited by the plaintiffs’ counsel to
accept the position from which their argument started—that an action
will lie if a man maliciously and wrongfully conducts himself so as to
injure another in that other’s trade. Obscurity resides in the language
used to state this proposition. The terms “maliciously,” “wrongfully,”
and “injure” are words all of which have accurate meanings, well known
to the law, but which also have a popular and less precise
signification, into which it is necessary to see that the argument does
not imperceptibly slide. An intent to “injure” in strictness means more
than an intent to harm. It connotes an intent to do wrongful harm.
“Maliciously,” in like manner, means and implies an intention to do an
act which is wrongful, to the detriment of another. The term “wrongful”
imports in its turn the infringement of some right. The ambiguous
proposition to which we were invited by the plaintiffs’ counsel still,
therefore, leaves unsolved the question of what, as between the
plaintiffs and defendants, are the rights of trade. For the purpose of
clearness, I desire, as far as possible, to avoid terms in their popular
use so slippery, and to translate them into less fallacious language
wherever possible.

The English law, which in its earlier stages began with but an imperfect
line of demarcation between torts and breaches of contract, presents us
with no scientific analysis of the degree to which the intent to harm,
or, in the language of the civil law, the _animus vicino nocendi_, may
enter into or affect the conception of a personal wrong; see Chasemore
_v._ Richards, 7 H. L. C. 349, at p. 388. All personal wrong means the
infringement of some personal right. “It is essential to an action in
tort,” say the Privy Council in Rogers _v._ Rajendro Dutt, 13 Moore, P.
C. 209, “that the act complained of should under the circumstances be
legally wrongful as regards the party complaining; that is, it must
prejudicially affect him in some legal right; merely that it will,
however directly, do a man harm in his interests, is not enough.” What,
then, were the rights of the plaintiffs as traders as against the
defendants? The plaintiffs had a right to be protected against certain
kind of conduct; and we have to consider what conduct would pass this
legal line or boundary. Now, intentionally to do that which is
calculated in the ordinary course of events to damage, and which does,
in fact, damage another in that other person’s property or trade, is
actionable if done without just cause or excuse. Such intentional action
when done without just cause or excuse is what the law calls a malicious
wrong (see Bromage _v._ Prosser; Capital and Counties Bank _v._ Henty,
_per_ Lord Blackburn, 7 App. Cas. 741, at p. 772). The acts of the
defendants which are complained of here were intentional, and were also
calculated, no doubt, to do the plaintiffs damage in their trade. But in
order to see whether they were wrongful we have still to discuss the
question whether they were done without any just cause or excuse. Such
just cause or excuse the defendants on their side assert to be found in
their own positive right (subject to certain limitations) to carry on
their own trade freely in the mode and manner that best suits them, and
which they think best calculated to secure their own advantage.

What, then, are the limitations which the law imposes on a trader in the
conduct of his business as between himself and other traders? There seem
to be no burdens or restrictions in law upon a trader which arise merely
from the fact that he is a trader, and which are not equally laid on all
other subjects of the Crown. His right to trade freely is a right which
the law recognizes and encourages, but it is one which places him at no
special disadvantage as compared with others. No man, whether trader or
not, can, however, justify damaging another in his commercial business
by fraud or misrepresentation. Intimidation, obstruction, and
molestation are forbidden; so is the intentional procurement of a
violation of individual rights, contractual or other, assuming always
that there is no just cause for it. The intentional driving away of
customers by show of violence, Tarleton _v._ M’Gawley, Peake, 205; the
obstruction of actors on the stage by preconcerted hissing, Clifford
_v._ Brandon, 2 Camp. 358, Gregory _v._ Brunswick, 13 L. J. C. P. 34;
the disturbance of wild fowl in decoys by the firing of guns, Carrington
_v._ Taylor, 11 East, 571, and Keeble _v._ Hickeringill, 11 East, 574
note; the impeding or threatening servants or workmen, Garret _v._
Taylor, Cro. Jac. 567; the inducing persons under personal contracts to
break their contracts, Bowen _v._ Hall, Lumley _v._ Gye,—all are
instances of such forbidden acts. But the defendants have been guilty of
none of these acts. They have done nothing more against the plaintiffs
than pursue to the bitter end a war of competition waged in the interest
of their own trade. To the argument that a competition so pursued ceases
to have a just cause or excuse when there is ill-will or a personal
intention to harm, it is sufficient to reply (as I have already pointed
out) that there was here no personal intention to do any other or
greater harm to the plaintiffs than such as was necessarily involved in
the desire to attract to the defendants’ ships the entire tea freights
of the ports, a portion of which would otherwise have fallen to the
plaintiffs’ share. I can find no authority for the doctrine that such a
commercial motive deprives of “just cause or excuse” acts done in the
course of trade which would but for such a motive be justifiable. So to
hold would be to convert into an illegal motive the instinct of
self-advancement and self-protection, which is the very incentive to all
trade. To say that a man is to trade freely, but that he is to stop
short at any act which is calculated to harm other tradesmen, and which
is designed to attract business to his own shop, would be a strange and
impossible counsel of perfection. But we were told that competition
ceases to be the lawful exercise of trade, and so to be a lawful excuse
for what will harm another, if carried to a length which is not fair or
reasonable. The offering of reduced rates by the defendants in the
present case is said to have been “unfair.” This seems to assume that,
apart from fraud, intimidation, molestation, or obstruction, of some
other personal right _in rem_ or _in personam_, there is some natural
standard of “fairness” or “reasonableness” (to be determined by the
internal consciousness of judges and juries) beyond which competition
ought not in law to go. There seems to be no authority, and I think,
with submission, that there is no sufficient reason, for such a
proposition. It would impose a novel fetter upon trade. The defendants,
we are told by the plaintiffs’ counsel, might lawfully lower rates
provided they did not lower them beyond a “fair freight,” whatever that
may mean. But where is it established that there is any such restriction
upon commerce? And what is to be the definition of a “fair freight?” It
is said that it ought to be a normal rate of freight, such as is
reasonably remunerative to the shipowner. But over what period of time
is the average of this reasonable remunerativeness to be calculated? All
commercial men with capital are acquainted with the ordinary expedient
of sowing one year a crop of apparently unfruitful prices, in order by
driving competition away to reap a fuller harvest of profit in the
future; and until the present argument at the bar it may be doubted
whether shipowners or merchants were ever deemed to be bound by law to
conform to some imaginary “normal” standard of freights or prices, or
that law courts had a right to say to them in respect of their
competitive tariffs, “Thus far shalt thou go, and no further.” To
attempt to limit English competition in this way would probably be as
hopeless an endeavor as the experiment of King Canute. But on ordinary
principles of law no such fetter on freedom of trade can in my opinion
be warranted. A man is bound not to use his property so as to infringe
upon another’s right. _Sic utere tuo ut alienum non lædas._ If engaged
in actions which may involve danger to others, he ought, speaking
generally, to take reasonable care to avoid endangering them. But there
is surely no doctrine of law which compels him to use his property in a
way that judges and juries may consider reasonable: see Chasemore _v._
Richards, 7 H. L. C. 349. If there is no such fetter upon the use of
property known to the English law, why should there be any such a fetter
upon trade?

It is urged, however, on the part of the plaintiffs, that even if the
acts complained of would not be wrongful had they been committed by a
single individual, they become actionable when they are the result of
concerted action among several. In other words, the plaintiffs, it is
contended, have been injured by an illegal conspiracy. Of the general
proposition, that certain kinds of conduct not criminal in any one
individual may become criminal if done by combination among several,
there can be no doubt. The distinction is based on sound reason, for a
combination may make oppressive or dangerous that which if it proceeded
only from a single person would be otherwise, and the very fact of the
combination may show that the object is simply to do harm, and not to
exercise one’s own just rights. In the application of this undoubted
principle it is necessary to be very careful not to press the doctrine
of illegal conspiracy beyond that which is necessary for the protection
of individuals or of the public; and it may be observed in passing that
as a rule it is the damage wrongfully done, and not the conspiracy, that
is the gist of actions on the case for conspiracy: see Skinner _v._
Gunton, 1 Wms. Saund. 229; Hutchins _v._ Hutchins, 7 Hill, 104. But what
is the definition of an illegal combination? It is an agreement by one
or more to do an unlawful act, or to do a lawful act by unlawful means:
O’Connell _v._ The Queen, 11 Cl. & F. 155; Reg. _v._ Parnell, 14 Cox,
Criminal Cases, 508; and the question to be solved is whether there has
been any such agreement here. Have the defendants combined to do an
unlawful act? Have they combined to do a lawful act by unlawful means? A
moment’s consideration will be sufficient to show that this new inquiry
only drives us back to the circle of definitions and legal propositions
which I have already traversed in the previous part of this judgment.
The unlawful act agreed to, if any, between the defendants must have
been the intentional doing of some act to the detriment of the
plaintiffs’ business without just cause or excuse. Whether there was any
such justification or excuse for the defendants, is the old question
over again, which, so far as regards an individual trader, has been
already solved. The only differentia that can exist must arise, if at
all, out of the fact that the acts done are the joint acts of several
capitalists, and not of one capitalist only. The next point is whether
the means adopted were unlawful. The means adopted were competition
carried to a bitter end. Whether such means were unlawful is in like
manner nothing but the old discussion which I have gone through, and
which is now revived under a second head of inquiry, except so far as a
combination of capitalists differentiates the case of acts jointly done
by them from similar acts done by a single man of capital. But I find it
impossible myself to acquiesce in the view that the English law places
any such restriction on the combination of capital as would be involved
in the recognition of such a distinction. If so, one rich capitalist may
innocently carry competition to a length which would become unlawful in
the case of a syndicate with a joint capital no larger than his own, and
one individual merchant may lawfully do that which a firm or a
partnership may not. What limits, on such a theory, would be imposed by
law on the competitive action of a joint-stock company limited, is a
problem which might well puzzle a casuist. The truth is, that the
combination of capital for purposes of trade and competition is a very
different thing from such a combination of several persons against one,
with a view to harm him, as falls under the head of an indictable
conspiracy. There is no just cause or excuse in the latter class of
cases. There is such a just cause or excuse in the former. There are
cases in which the very fact of a combination is evidence of a design to
do that which is hurtful without just cause—is evidence—to use a
technical expression—of malice. But it is perfectly legitimate, as it
seems to me, to combine capital for all the mere purposes of trade for
which capital may, apart from combination, be legitimately used in
trade. To limit combinations of capital, when used for purposes of
competition, in the manner proposed by the argument of the plaintiffs,
would, in the present day, be impossible—would be only another method of
attempting to set boundaries to the tides. Legal puzzles which might
well distract a theorist may easily be conceived of imaginary conflicts
between the selfishness of a group of individuals and the obvious
well-being of other members of the community. Would it be an indictable
conspiracy to agree to drink up all the water from a common spring in a
time of drought; to buy up by preconcerted action all the provisions in
a market or district in times of scarcity: see Rex _v._ Waddington, 1
East, 143; to combine to purchase all the shares of a company against a
coming settling-day; or to agree to give away articles of trade gratis
in order to withdraw custom from a trader? May two itinerant
match-vendors combine to sell matches below their value in order by
competition to drive a third match-vendor from the street? In cases like
these, where the elements of intimidation, molestation, or the other
kinds of illegality to which I have alluded are not present, the
question must be decided by the application of the test I have
indicated. Assume that what is done is intentional, and that it is
calculated to do harm to others. Then comes the question, Was it done
with or without “just cause or excuse?” If it was _bona fide_ done in
the use of a man’s own property, in the exercise of a man’s own trade,
such legal justification would, I think, exist not the less because what
was done might seem to others to be selfish or unreasonable: see the
summing-up of Erle, J., and the judgment of the Queen’s Bench in Reg.
_v._ Rowlands, 17 Q. B. 671. But such legal justification would not
exist when the act was merely done with the intention of causing
temporal harm, without reference to one’s own lawful gain, or the lawful
enjoyment of one’s own rights. The good sense of the tribunal which had
to decide would have to analyze the circumstances and to discover on
which side of the line each case fell. But if the real object were to
enjoy what was one’s own, or to acquire for one’s self some advantage in
one’s property or trade, and what was done was done honestly, peaceably,
and without any of the illegal acts above referred to, it could not, in
my opinion, properly be said that it was done without just cause or
excuse. One may with advantage borrow for the benefit of traders what
was said by Erle, J., in Reg. _v._ Rowlands, 17 Q. B. 671, at p. 687,
n., of workmen and of masters: “The intention of the law is at present
to allow either of them to follow the dictates of their own will, with
respect to their own actions, and their own property; and either, I
believe, has a right to study to promote his own advantage, or to
combine with others to promote their mutual advantage.”

Lastly, we are asked to hold the defendants’ Conference or association
illegal, as being in restraint of trade. The term “illegal” here is a
misleading one. Contracts, as they are called, in restraint of trade,
are not, in my opinion, illegal in any sense, except that the law will
not enforce them. It does not prohibit the making of such contracts; it
merely declines, after they have been made, to recognize their validity.
The law considers the disadvantage so imposed upon the contract a
sufficient shelter to the public. The language of Crompton, J., in
Hilton _v._ Eckersley, 6 E. & B. 47, is, I think, not to be supported.
No action at common law will lie or ever has lain against any individual
or individuals for entering into a contract merely because it is in
restraint of trade. Lord Eldon’s equity decision in Cousins _v._ Smith,
13 Ves. 542, is not very intelligible, even if it be not open to the
somewhat personal criticism passed on it by Lord Campbell in his “Lives
of the Chancellors.” If indeed it could be plainly proved that the mere
formation of “conferences,” “trusts,” or “associations” such as these
were always necessarily injurious to the public—a view which involves,
perhaps, the disputable assumption that, in a country of free trade, and
one which is not under the iron _régime_ of statutory monopolies, such
confederations can ever be really successful—and if the evil of them
were not sufficiently dealt with by the common law rule, which held such
agreements to be void as distinct from holding them to be criminal,
there might be some reason for thinking that the common law ought to
discover within its arsenal of sound commonsense principles some further
remedy commensurate with the mischief. Neither of these assumptions are,
to my mind, at all evident, nor is it the province of judges to mould
and stretch the law of conspiracy in order to keep pace with the
calculations of political economy. If peaceable and honest combinations
of capital for purposes of trade competition are to be struck at, it
must, I think, be by legislation, for I do not see that they are under
the ban of the common law.

In the result, I agree with Lord Coleridge, C. J., and differ, with
regret, from the Master of the Rolls. The substance of my view is this,
that competition, however severe and egotistical, if unattended by
circumstances of dishonesty, intimidation, molestation, or such
illegalities as I have above referred to, gives rise to no cause of
action at common law. I myself should deem it to be a misfortune if we
were to attempt to prescribe to the business world how honest and
peaceable trade was to be carried on in a case where no such illegal
elements as I have mentioned exist, or were to adopt some standard of
judicial “reasonableness,” or of “normal” prices, or “fair freights,” to
which commercial adventurers, otherwise innocent, were bound to conform.

In my opinion, accordingly, this appeal ought to be dismissed with
costs.

_Appeal dismissed._[581]

PASSAIC PRINT WORKS _v._ ELY & WALKER DRY GOODS COMPANY
UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, NOVEMBER 14,
1900.
_Reported in 44 U. S. Circuit Court of Appeals Reports, 426_, S. C. _105
Federal Reporter, 163._

In U. S. Circuit Court of Appeals, Eighth Circuit. Before CALDWELL,
SANBORN, and THAYER, Circuit Judges.[582]

In error to U. S. Circuit Court for Eastern District of Missouri.

This case was determined below on a demurrer to the plaintiff’s
petition, which was sustained; and a final judgment was entered against
the Passaic Print Works, the plaintiff below, it having declined to
plead further.

The plaintiff’s petition contained, in substance, the following
allegations (_inter alia_):—

Plaintiff is a corporation engaged in the manufacture of prints or
calicoes which it sells to jobbers or wholesale dealers in St. Louis and
elsewhere, who in turn sell the same to the retail trade. In 1899 it had
fixed on certain prices for certain specified brands of calicoes; and it
had, prior to Feb. 25, 1899, received from several wholesale dealers in
St. Louis orders for large amounts of said brands at the prices
specified. On February 25, 1899, the defendant company, combining and
conspiring among themselves and with others to the plaintiff unknown,
and maliciously intending to injure the business of the said plaintiff,
and to cause it great loss in money, and to break up and ruin the
plaintiff’s trade among the jobbers in St. Louis, maliciously caused a
circular, in the name of the said defendant corporation, to be issued
and sent out to the retail trade tributary to St. Louis. In the circular
defendant company offered for sale several brands of calicoes
manufactured by plaintiff at prices lower than those fixed by plaintiff.
The brands were offered “as long as they last” at these reduced prices:
“Prices for all items subject to change without notice, and orders
accepted only for stock on hand.” Plaintiff further alleged that it was
informed and believed that defendant had but a small quantity of such
goods to sell, and for that reason qualified its offer as above stated.

The petition further averred, that the effect of issuing this circular
was to compel jobbers to whom plaintiff had already sold either to
cancel their orders or to compel plaintiff to make a rebate on price,
and to thereby break up the trade of plaintiff in St. Louis and the
adjacent country, and to make the other jobbers in St. Louis afraid to
deal in said brands except at greatly reduced prices and then in
comparatively small quantities; and upon information and belief the
plaintiff alleged “that the quotations of this plaintiff’s said goods in
the said circular were made by the said defendants with the end and
object in this paragraph stated, and not for any legitimate trade
purpose.”

THAYER, Circuit Judge, [after stating the case] delivered the opinion of
the court.

The complaint filed in the lower court, the substance of which has been
stated, shows by necessary intendment that when the circular of the
defendant company was issued it had in stock a limited quantity of the
four brands of calico of the plaintiff’s manufacture which are therein
described. The circular stated, in substance, that the defendant had
such calicoes in stock, and the complaint did not deny that fact, but
admitted it by averring that “the defendant corporation had but a small
quantity of such goods to sell, and for that reason qualified its offer
to sell by inserting in the circular after the name of the goods the
words ‘as long as they last.’” Moreover, the owner of property, real or
personal, has an undoubted right to sell it and to offer it for sale at
whatever price he deems proper, although the effect of such offer may be
to depreciate the market value of the commodity which he thus offers,
and incidentally to occasion loss to third parties who have the same
kind or species of property for sale. The right to offer property for
sale, and to fix the price at which it may be bought, is incident to the
ownership of property, and the loss which a third party sustains in
consequence of the exercise of that right is _damnum absque injuria_. We
are thus confronted with the inquiry whether the motive which influenced
the defendant company to offer for sale such calicoes of the plaintiff’s
manufacture as they had in stock at the price named in its circular,
conceding such motive to have been as alleged in the complaint, changed
the complexion of the act, and rendered the same unlawful, when, but for
the motive of the actor, it would have been clearly lawful. It is common
learning that a bad motive—such as an intent to hinder, delay, and
defraud creditors, by virtue of St. 13 Eliz. c. 5, and possibly by the
rules of the common law—will render a conveyance or transfer of property
void which, but for the bad motive, would have been valid. So, also, one
who sets the machinery of the law in motion without probable cause, and
for the sole purpose of injuring the reputation of another, or
subjecting him to loss and expense, is guilty of an unlawful act which
would have been lawful but for the improper motive. And one who, by
virtue of his situation, has a qualified privilege to make defamatory
statements concerning another, may be deprived of the benefit of that
privilege by proof that it was not exercised in good faith, but in
pursuance of a malicious intent to injure the person concerning whom the
defamatory statement or statements were made. Poll. Torts (Webb’s Ed.)
pp. 331–335, and cases there cited. There is also some authority for
saying that one who maliciously (that is, with intent to obtain some
personal benefit at another’s loss or expense) induces another to break
his contract with a third party thereby commits an actionable wrong if
special damage is disclosed, although the act done would have been
lawful if the wrongful motive had been absent. Lumley _v._ Gye, 2 El. &
Bl. 216; Bowen _v._ Hall, 6 Q. B. Div. 333; Walker _v._ Cronin, 107
Mass. 555. And see Poll. Torts (Webb’s Ed.) pp. 668–673. Aside from
cases of the latter kind, it is a general rule that the bad motive which
inspires an act will not change its complexion, and render it unlawful,
if otherwise the act was done in the exercise of an undoubted right. Or,
as has sometimes been said, “when an act done is, apart from the
feelings which prompted it, legal, the civil law ought to take no
cognizance of its motive.” The question as to how far and under what
circumstances a bad purpose will render an act actionable which,
considered by itself, and without reference to the purpose which
prompted it, is lawful, has been so much discussed since the decision in
Allen _v._ Flood, [1898] 1 App. Cas. 1, that it would be profitless to
indulge in further comment. It has been well observed that it would be
dangerous to the peace of society to admit the doctrine that any lawful
act can be transformed _prima facie_ into an actionable wrong by a
simple allegation that the act was inspired by malice or ill will, or by
an improper motive. It is wiser, therefore, to exclude any inquiry into
the motives of men when their actions are lawful, except in those cases
where it is well established that malice is an essential ingredient of
the cause of action, or in those cases where, the act done being
wrongful, proof of a bad motive will serve to exaggerate the damages.

The case at bar falls within neither of the exceptions to the general
rule above stated,—that, if an act is done in the exercise of an
undoubted right, and is lawful, the motive of the actor is immaterial.
No one can dispute the right of the defendant company to offer for sale
goods that it owned and were in its possession, whether the quantity was
great or small, for such a price as it deemed proper. This was the
outward visible act of which complaint is made, and, being lawful, the
law will not hold it to be otherwise because of a secret purpose
entertained by the defendant company to inflict loss on the plaintiff by
compelling it to reduce the cost of a certain kind of its prints or
calicoes.

Nor is the complaint aided in any respect by reference to the law of
conspiracy, since the only object that the defendants had in view which
the law will consider was the disposition or sale of certain goods which
the defendant corporation had the right to sell; and the means employed
to accomplish that end, namely, placing them on the market at a reduced
cost, were also lawful.

In the brief filed in behalf of the plaintiff in error it is suggested
finally that the complaint may be sustained on the ground that it states
a good cause of action for maliciously causing certain persons to break
or cancel their contracts with the plaintiff, but we think it quite
obvious that the complaint was not framed with a view of stating a cause
of action of that nature, and that it is insufficient for that purpose.
It does not give the name of any person or corporation with whom the
plaintiff had a contract for the sale of its prints which was
subsequently broken in consequence of the wrongful acts of the
defendant. Neither does it show that it had accepted any orders for
goods which the jobber was not privileged to cancel at his pleasure. Nor
does it allege any special damage incident to the breach of any
particular contract. In view of all the allegations which the complaint
contains it is manifest, we think, that it was framed with a view of
recovering on the broad ground that the issuance of the circular was
unlawful and actionable, provided the motive of the defendant company in
issuing it was to occasion loss or inconvenience to the plaintiff.

We are of opinion that the complaint did not state a cause of action, as
the trial court held, and the judgment below is therefore affirmed.

SANBORN, Circuit Judge (dissenting). I cannot concur in the opinion of
the majority in this case because the petition alleges that the
defendants by their advertisement of the goods manufactured by
plaintiff, without any legitimate trade purpose, prevented jobbers from
purchasing goods of the plaintiff, and caused those who had agreed to
purchase from it to cancel their orders unless the plaintiff would make
them a rebate, so that the plaintiff sustained damage in the sum of
$19,000. In my opinion, the gravamen of this cause of action is not the
malicious intent or purpose of the defendants, but it is their wrongful
act of interfering with the plaintiff’s business, of preventing sales
that it would have made, and of causing the cancellation of orders to,
or contracts of purchase from, the plaintiff already made. This act,
without any allegation or averment of intent or purpose, was itself
wrongful, unless it was done for a justifiable purpose. The act of
interfering with and injuring the trade or business of the plaintiff
without justifiable cause entitled the plaintiff to damages. It is
conceded that, if the defendants had advertised these prints for any
legitimate trade purpose, for the purpose of selling them for gain for
themselves, for the purpose of converting them into money because they
preferred their advertised price to the goods, or for the purpose of
competing in trade with the plaintiff, they would have had a justifiable
cause for inflicting upon it the damages of which it complains, and
these damages would then have been _damnum absque injuria_. But, if they
had advertised them for any of these purposes, this case would have
constituted an exception to the general rule of law. The general rule is
that whenever one injures a man’s business, profession, or occupation he
is liable for the damages he inflicts. The exception is that, where the
injury is caused by competition in trade or the lawful exercise of a
right which the inflictor has, then the injury is justifiable, and no
damages can be recovered. But, where such an injury is inflicted, the
presumption always is that the rule, and not the exception, applies,
and, if the inflictor would justify, he must show that he falls within
the exception. The question in this case, therefore, is not whether or
not the motive or intent of the defendants will make acts unlawful which
were otherwise lawful, but whether or not the intent and purpose of the
defendants will justify an otherwise unlawful act, and excuse them from
the payment of damages for which, under the general rule of law, they
are liable to the plaintiff. It is whether or not the petition shows
that they advertised the goods for legitimate trade purposes, so that
their acts fell within the exception, which justifies the infliction of
damages, and not under the general rule, which requires them to
compensate the plaintiff for the injury they have caused. The opinion of
the majority assumes that the defendants advertised the prints for a
legitimate trade purpose, so that their acts fell within the exception
to the general rule. It overlooks the legal presumption that injury to
one’s business entitles him to compensatory damages, and the plain
averment of the petition that the acts of the defendants were not done
for any justifiable cause, but were committed for the sole purpose of
inflicting upon the plaintiff the injury they caused.

[After quoting from the averments in the petition.]

Now, no one will dispute the rules of law that the plaintiff in this
action had the right to conduct its business of manufacturing and
selling prints without the injurious interference of strangers, and that
the defendants were subject to the universal rule that they must so use
their own property and rights as to inflict no unnecessary injury upon
their neighbors. The averments of this petition are that they were not
using any of their property or exercising any of their rights for any
legitimate trade purpose, but that they were using them for the express
purpose of inflicting injury upon the plaintiff, and that they succeeded
in imposing the infliction. These allegations seem to me to bring this
case under the general rule of law, and to clearly negative the claim
that it falls within the exception. They seem to state a good cause of
action.

[The learned Judge here cited, and quoted from, various authorities.]

The proposition is sustained by respectable authority; it is just, and I
believe it is sound,—that an action will lie for depriving a man of
custom (that is, of possible contracts), when the result is effected by
persuasion as well as when it is accomplished by fraud or force, if the
harm is inflicted without justifiable cause, such as competition in
trade. Walker _v._ Cronin, 107 Mass. 555, 565; Morasse _v._ Brochu, 151
Mass. 567, 25 N. E. 74, 8 L. R. A. 524; Hartnett _v._ Association, 169
Mass. 229, 235, 47 N. E. 1002, 38 L. R. A. 194; Delz _v._ Winfree, 80
Tex. 400, 405, 16 S. W. 111; Doremus _v._ Hennessy, 62 Ill. App. 391,
403; Van Horn _v._ Van Horn, 52 N. J. Law, 284, 20 Atl. 485; Temperton
_v._ Russell, 62 Law J. (Q. B. Div. 1893) 412, 419.

Under the legal principles to which reference has been made, and under
the authorities which have been cited, the petition in this case states
a good cause of action for interference with and injury to the business
of the plaintiff by preventing it from obtaining custom it would
otherwise have obtained, without any justifiable cause or excuse, and
for this reason the demurrer should have been overruled, and the case
sent to trial.

There is another reason why the judgment below should be reversed. It is
that the petition sufficiently states a cause of action for maliciously
interfering with contracts between jobbers in St. Louis and the
plaintiff, and inducing the former to break their contracts to the
injury of the latter.

* * * * *

For the reasons which have now been briefly stated, the judgment below
should, in my opinion, be reversed, and the defendants should be
required to answer the petition.[583]

TUTTLE _v._ BUCK
SUPREME COURT, MINNESOTA, FEBRUARY 19, 1909.
_Reported in 107 Minnesota Reports, 145._

Action in the District Court for Wright County to recover $10,000
damages. Defendant demurred to the complaint on the ground it did not
state a cause of action. From an order, Buckham, J., overruling the
demurrer, defendant appealed. Affirmed.

This appeal was from an order overruling a general demurrer to a
complaint in which the plaintiff alleged:—

That for more than ten years last past he has been and still is a barber
by trade, and engaged in business as such in the village of Howard Lake,
Minnesota, where he resides, owning and operating a shop for the purpose
of his said trade. That until the injury hereinafter complained of his
said business was prosperous, and plaintiff was enabled thereby to
comfortably maintain himself and family out of the income and profits
thereof, and also to save a considerable sum per annum, to wit, about
$800. That the defendant, during the period of about twelve months last
past, has wrongfully, unlawfully, and maliciously endeavored to destroy
plaintiff’s said business, and compel plaintiff to abandon the same.
That to that end he has persistently and systematically sought, by false
and malicious reports and accusations of and concerning the plaintiff,
by personally soliciting and urging plaintiff’s patrons no longer to
employ plaintiff, by threats of his personal displeasure, and by various
other unlawful means and devices, to induce, and has thereby induced,
many of said patrons to withhold from plaintiff the employment by them
formerly given. That defendant is possessed of large means, and is
engaged in the business of a banker in said village of Howard Lake, at
Dassel, Minnesota, and at divers other places, and is nowise interested
in the occupation of a barber; yet in the pursuance of the wicked,
malicious, and unlawful purpose aforesaid, and for the sole and only
purpose of injuring the trade of the plaintiff, and of accomplishing his
purpose and threats of ruining the plaintiff’s said business and driving
him out of said village, the defendant fitted up and furnished a barber
shop in said village for conducting the trade of barbering. That failing
to induce any barber to occupy said shop on his own account, though
offered at nominal rental, said defendant, with the wrongful and
malicious purpose aforesaid, and not otherwise, has during the time
herein stated hired two barbers in succession for a stated salary, paid
by him, to occupy said shop, and to serve so many of plaintiff’s patrons
as said defendant has been or may be able by the means aforesaid to
direct from plaintiff’s shop. That at the present time a barber so
employed and paid by the defendant is occupying and nominally conducting
the shop thus fitted and furnished by the defendant, without paying any
rent therefor, and under an agreement with defendant whereby the income
of said shop is required to be paid to defendant, and is so paid in
partial return for his wages. That all of said things were and are done
by defendant with the sole design of injuring the plaintiff, and of
destroying his said business, and not for the purpose of serving any
legitimate interest of his own. That by reason of the great wealth and
prominence of the defendant, and the personal and financial influence
consequent thereon, he has by the means aforesaid, and through other
unlawful means and devices by him employed, materially injured the
business of the plaintiff, has largely reduced the income and profits
thereof, and intends and threatens to destroy the same altogether, to
plaintiff’s damage in the sum of $10,000.[584]

ELLIOTT, J. (after stating the facts as above).

In has been said that the law deals only with externals, and that a
lawful act cannot be made the foundation of an action because it was
done with an evil motive. In Allen _v._ Flood, [1898] A. C. 1, 151, Lord
Watson said that, except with regard to crimes, the law does not take
into account motives as constituting an element of civil wrong. In Mayor
_v._ Pickles, [1895] A. C. 587, Lord Halsbury stated that if the act was
lawful, “however ill the motive might be, he had a right to do it.” In
Raycroft _v._ Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am.
St. 882, the court said that, “when one exercises a legal right only,
the motive which actuates him is immaterial.” In Jenkins _v._ Fowler, 24
Pa. St. 308, Mr. Justice Black said that “malicious motives make a bad
act worse, but they cannot make that wrong which, in its own essence, is
lawful.” This language was quoted in Bohn Mnfg. Co. _v._ Hollis, 54
Minn. 223, 233, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 319, and in
substance in Ertz _v._ Produce Exchange, 79 Minn. 140, 143, 81 N. W.
737, 48 L. R. A. 90, 79 Am. St. 433. See also 2 Cooley, Torts (3d Ed.)
1505; Auburn _v._ Douglass, 9 N. Y. 444.

Such generalizations are of little value in determining concrete cases.
They may state the truth, but not the whole truth. Each word and phrase
used therein may require definition and limitation. Thus, before we can
apply Judge Black’s language to a particular case, we must determine
what act is “in its own essence lawful.” What did Lord Halsbury mean by
the words “lawful act”? What is meant by “exercising a legal right”? It
is not at all correct to say that the motive with which an act is done
is always immaterial, providing the act itself is not unlawful. Numerous
illustrations of the contrary will be found in the civil as well as the
criminal law.

We do not intend to enter upon an elaborate discussion of the subject,
or become entangled in the subtleties connected with the words “malice”
and “malicious.” We are not able to accept without limitations the
doctrine above referred to, but at this time content ourselves with a
brief reference to some general principles.

It must be remembered that the common law is the result of growth, and
that its development has been determined by the social needs of the
community which it governs. It is the resultant of conflicting social
forces, and those forces which are for the time dominant leave their
impress upon the law. It is of judicial origin, and seeks to establish
doctrines and rules for the determination, protection, and enforcement
of legal rights. Manifestly it must change as society changes and new
rights are recognized. To be an efficient instrument, and not a mere
abstraction, it must gradually adapt itself to changed conditions.
Necessarily its form and substance have been greatly affected by
prevalent economic theories.

For generations there has been a practical agreement upon the
proposition that competition in trade and business is desirable, and
this idea has found expression in the decisions of the courts as well as
in statutes. But it has led to grievous and manifold wrongs to
individuals, and many courts have manifested an earnest desire to
protect the individual from the evils which result from unrestrained
business competition. The problem has been to so adjust matters as to
preserve the principle of competition and yet guard against its abuse to
the unnecessary injury to the individual. So the principle that a man
may use his own property according to his own needs and desires, while
true in the abstract, is subject to many limitations in the concrete.
Men cannot always, in civilized society, be allowed to use their own
property as their interests or desires may dictate without reference to
the fact that they have neighbors whose rights are as sacred as their
own. The existence and well-being of society require that each and every
person shall conduct himself consistently with the fact that he is a
social and reasonable person. The purpose for which a man is using his
own property may thus sometimes determine his rights; and applications
of this idea are found in Stillwater Water Co. _v._ Farmer, 89 Minn. 58,
93 N. W. 907, 60 L. R. A. 875, 99 Am. St. 541, Id., 92 Minn. 230, 99 N.
W. 882, and Barclay _v._ Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R.
A. 255, 100 Am. St. 365.

Many of the restrictions which should be recognized and enforced result
from a tacit recognition of principles which are not often stated in the
decisions in express terms. Sir Frederick Pollock notes that not many
years ago it was difficult to find any definite authority for stating as
a general proposition of English law that it is wrong to do a wilful
wrong to one’s neighbor without lawful justification or excuse. But
neither is there any express authority for the general proposition that
men must perform their contracts. Both principles, in this generality of
form and conception, are modern, and there was a time when neither was
true. After developing the idea that law begins, not with authentic
general principles, but with the enumeration of particular remedies, the
learned writer continues: “If there exists, then, a positive duty to
avoid harm, much more must there exist the negative duty of not doing
wilful harm, subject, as all general duties must be subject, to the
necessary exceptions. The three main heads of duty with which the law of
torts is concerned, namely, to abstain from wilful injury, to respect
the property of others, and to use due diligence to avoid causing harm
to others, are all alike of a comprehensive nature.” Pollock, Torts (8th
Ed.), p. 21. He then quotes with approval the statement of Lord Bowen
that “at common law there was a cause of action whenever one person did
damage to another, wilfully and intentionally, without just cause or
excuse.”

In Plant _v._ Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79
Am. St. 330, Mr. Justice Hammond said: “It is said also that, where one
has the lawful right to do a thing, the motive by which he is actuated
is immaterial. One form of this statement appears in the first head-note
in Allen _v._ Flood, as reported in [1898] A. C. 1, as follows: ‘An act
lawful in itself is not converted by a malicious or bad motive into an
unlawful act so as to make the doer of the act liable to a civil
action.’ If the meaning of this and similar expressions is that where a
person has the lawful right to do a thing irrespective of his motive,
his motive is immaterial, the proposition is a mere truism. If, however,
the meaning is that where a person, if actuated by one kind of a motive,
has a lawful right to do a thing, the act is lawful when done under any
conceivable motive, or that an act lawful under one set of circumstances
is therefore lawful under every conceivable set of circumstances, the
proposition does not commend itself to us as either logically or legally
accurate.”

Similar language was used by Mr. Justice Wells in Walker _v._ Cronin,
107 Mass. 555; by Lord Coleridge in Mogul Steamship Co. _v._ McGregor,
21 Q. B. Div. 544–553; by Lord Justice Bowen in the same case, 23 Q. B.
Div. 593; by Mr. Justice Holmes in Aikens _v._ Wisconsin, 195 U. S. 194,
204, 25 Sup. Ct. 3, 49 L. Ed. 154; by Chief Justice McSherry, in Klingel
_v._ Sharp, 104 Md. 233, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 118 Am.
St. 399; and by Judge Sanborn in his dissenting opinion in Passaic Print
Works _v._ Ely & Walker Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426, 62
L. R. A. 673. Numerous cases will be found referred to in the note to
this case in 62 L. R. A. 673, and in an article in 18 Harvard Law Rev.
411.

It is freely conceded that there are many decisions contrary to this
view; but, when carried to the extent contended for by the appellant, we
think they are unsafe, unsound, and illy adapted to modern conditions.
To divert to one’s self the customers of a business rival by the offer
of goods at lower prices is in general a legitimate mode of serving
one’s own interest, and justifiable as fair competition. But when a man
starts an opposition place of business, not for the sake of profit to
himself, but regardless of loss to himself, and for the sole purpose of
driving his competitor out of business, and with the intention of
himself retiring upon the accomplishment of his malevolent purpose, he
is guilty of a wanton wrong and an actionable tort. In such a case he
would not be exercising his legal right, or doing an act which can be
judged separately from the motive which actuated him. To call such
conduct competition is a perversion of terms. It is simply the
application of force without legal justification, which in its moral
quality may be no better than highway robbery.

Nevertheless, in the opinion of the writer this complaint is
insufficient. It is not claimed that it states a cause of action for
slander. No question of conspiracy or combination is involved. Stripped
of the adjectives and the statement that what was done was for the sole
purpose of injuring the plaintiff, and not for the purpose of serving a
legitimate purpose of the defendant, the complaint states facts which in
themselves amount only to an ordinary every day business transaction.
There is no allegation that the defendant was intentionally running the
business at a financial loss to himself, or that after driving the
plaintiff out of business the defendant closed up or intended to close
up his shop. From all that appears from the complaint he may have opened
the barber shop, energetically sought business from his acquaintances
and the customers of the plaintiff, and as a result of his enterprise
and command of capital obtained it, with the result that the plaintiff,
from want of capital, acquaintance, or enterprise, was unable to stand
the competition and was thus driven out of business. The facts thus
alleged do not, in my opinion, in themselves, without reference to the
way in which they are characterized by the pleader, tend to show a
malicious and wanton wrong to the plaintiff.

A majority of the justices, however, are of the opinion that, on the
principle declared in the foregoing opinion, the complaint states a
cause of action, and the order is therefore affirmed.

Affirmed.

JAGGARD, J., dissents.[585]

WEAVER, J., IN DUNSHEE _v._ STANDARD OIL COMPANY
(1911) _152 Iowa Reports, 618._

As we understand appellants’ contention, it is that their conduct did
not transgress the bounds of legitimate competition, and that so long
as they kept within this limitation the question of the alleged malice
or motive inspiring their acts is wholly immaterial. Cases involving
the question thus suggested have frequently arisen, both in this
country and in England, and there is much in harmony in the
expressions of judicial opinion thereon. Many authorities may be found
holding without apparent qualification or exception, that the law
takes no account whatever of motives as constituting an element of
civil wrong. In other words, if a man do a thing which is otherwise
lawful, the fact that he does it maliciously and for the express
purpose of injuring his neighbor affords the latter no remedy at law.
Such is the net effect of Raycroft _v._ Tayntor, 68 Vt. 219, 35 Atl.
53, 33 L. R. A. 225, 54 Am. St. Rep. 882; Jenkins _v._ Fowler, 24 Pa.
308, and others of that class. If this be the correct view of the law,
a man may excavate the earth near the boundary of his own land for the
mere purpose of seeing the foundation of the house of his neighbor
slide into the pit thus prepared for it; he may dig through his own
soil to the subterranean sources of his neighbor’s spring or well and
divert the water into a ditch, where it will serve no purpose of use
or profit to himself or any one else; if a banker or merchant, he may
punish the blacksmith who refuses to patronize him by temporarily
establishing a shop on the next lot and hiring men to shoe horses
without money and without price, until he has driven the offending
smith to come to his terms or to go out of business; and if a farmer,
dependent upon a subterranean supply of water for the irrigation of
his soil or watering of his live stock, he may contrive to ruin his
competing neighbor by wasting the surplus not reasonably required for
his own use. The laws of competition in business are harsh enough at
best; but if the rule here suggested were to be carried to its logical
and seemingly unavoidable extreme there is no practical limit to the
wrongs which may be justified upon the theory that “it is business.”
Fortunately, we think, there has for many years been a distinct and
growing tendency of the courts to look beneath the letter of the law
and give some effect to its beneficent spirit, thereby preventing the
perversion of the rules intended for the protection of human rights
into engines of oppression and wrong. It is doubtless true that under
many circumstances an act is legally right and defensible without
regard to the motive which induces or characterizes it; but there is
abundance of authority for saying that this is by no means the
universal rule, and that an act which is legally right when done
without malice may become legally wrong when done maliciously,
wantonly, or without reasonable cause. In Panton _v._ Holland, 17
Johns. (N. Y.) 92, 8 Am. Dec. 369, it is stated as a general rule
that, “In the exercise of a lawful right, a party may become liable to
an action where it appears that the act was done maliciously.” See
also, Greenleaf _v._ Francis, 18 Pick. (Mass.) 117; Chesley _v._ King,
74 Me. 164, 43 Am. Rep. 569; Flaherty _v._ Moran, 81 Mich. 52, 45 N.
W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510; Sankey _v._ St. Marys, 8
Mont. 265, 21 Pac. 23; Harbison _v._ White, 46 Conn. 106; Stillwater
_v._ Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St.
Rep. 541; Ohio Oil Company _v._ Indiana, 150 Ind. 698, 50 N. E. 1124;
Barclay _v._ Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255,
100 Am. St. Rep. 365. The same principle has been frequently applied
in the decision of trade and labor controversies, though not without
other instances in which it has been repudiated. See People _v._
Petheram, 64 Mich. 252, 31 N. W. 188; Walker _v._ Cronin, 107 Mass.
555; Van Horn _v._ Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R.
A. 184; Hawarden _v._ Coal Co., 111 Wis. 545, 87 N. W. 472, 55 L. R.
A. 828; Graham _v._ Railroad Co., 47 La. Ann. 214, 16 South. 806, 27
L. R. A. 416, 49 Am. St. Rep. 366; Tuttle _v._ Buck, 107 Minn. 145,
119 N. W. 946, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446; Plant
_v._ Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St.
Rep. 330; Barr _v._ Council, 53 N. J. Eq. 101, 30 Atl. 881; Toledo,
&c. Ry. Co. _v._ Penn. Co., (C. C.) 54 Fed. 730, 19 L. R. A. 387;
Stevens _v._ Kelly, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813; Purington
_v._ Hinchcliffe, 219 Ill. 159, 76 N. E. 47, 2 L. R. A. (N. S.) 824,
109 Am. St. Rep. 322. In the Van Horn Case, _supra_, the court says:
“While a trader may engage in the sharpest competition with those in
like business by holding out extraordinary inducements, ... yet, when
he oversteps that line and commits an act with the malicious intent of
inflicting injury upon his rival’s business, his conduct is illegal,
and if damage results from it the injured party is entitled to
redress. Nor does it matter whether the wrong-doer effects his object
by persuasion or by false representation. The court looks through the
instrumentality or means used to the wrong perpetrated with the
malicious intent and bases the right of action on that.” Quoting this
language in Barr _v._ Council, _supra_, the same court adds: “The
right of action depends, then, not so much upon the nature of the act,
as upon the intent with which it is done, always assuming that injury
has attended the doing of it.” In Parkinson _v._ Council, 154 Cal.
581, 98 Pac. 1027, 21 L. R. A. (N. S.) 550, the court, while reaching
the opposite conclusion generally, concedes it to be the law that:
“Any injury to a lawful business, whether the result of conspiracy or
not, is _prima facie_ actionable, but may be defended on the ground
that it was merely a lawful effort of the defendants to promote their
own welfare. To defeat this plea of justification, the plaintiff may
offer evidence that the acts of the defendants were inspired by
express malice, and were done for the purpose of injuring the
plaintiff, and not to benefit themselves.”

Dealing with the perplexities arising in the effort to sustain, on the
one hand, the widest practicable liberty of men to engage in any and
every line of business, and, on the other, to protect the business of
each from wrongful encroachment or interference by others, the New
Hampshire court after reference to many of the decided cases, has
lately said: “The more recent authorities reason that, as the right to
deal or not to deal with others is inherent in the idea of Anglo-Saxon
liberty, _prima facie_ a man may demand an open market, and, since
this is so, one who interferes with this open market must justify his
acts, or respond in damages. Thus far these authorities are uniform,
but when they proceed to the determination of what amounts to a
justification they differ widely. The cause is not far to seek. The
rule they apply is that of reasonable conduct; yet they decide each
case as though it involved only a question of law. In reality, the
issue is largely one of fact, and the result is what would be
expected. Judges are men, and their decisions upon complex facts must
vary as those of juries might on the same facts. Calling one
determination an opinion and the other a verdict does not alter human
nature, nor make that uniform and certain which from its nature must
remain variable and uncertain. While these cases go too far in what
they decide as questions of law, yet the test they constantly declare
they are applying is the true one. The standard is reasonable conduct
under all the circumstances of the case.” Huskie _v._ Griffin, 75 N.
H. 345, 74 Atl. 595, 27 L. R. A. (N. S.) 966. See, also, Doremus _v._
Hennesy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797,
802, 68 Am. St. Rep. 203; Horan _v._ Burns, 72 N. H. 93, 54 Atl. 945,
62 L. R. A. 602, 101 Am. St. Rep. 670; Ertz _v._ Produce Exchange, 79
Minn. 140, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433. As
suggested in the foregoing quotation, no definition or standard of
reasonable cause can be stated which will insure absolute uniformity
or even consistency in the decision of such cases, because the issue
presented is in its essence one of fact, and the same facts and
circumstances will not always appeal with like effect to the minds of
all jurors or of all judges. It is for this reason that, save in those
exceptional cases where the case of the plaintiff or the defendant is
so clear and undisputable that all fair-minded persons are forced to
the same conclusion, controversies of this nature, in a trial at law,
are for the jury, and not for the court.

Coming to the case in hand, we may concede to the appellants the
undoubted right to establish a retail oil business in Des Moines, to
employ agents and drivers, and send them out over the same routes and
make sales to the same people with whom the Crystal Oil Company was
dealing; but in so doing it was bound to conduct such business with
reasonable regard and consideration for the equal right of the Crystal
Company to continue supplying oil to such of its customers as desired
to remain with it. If, however, there was no real purpose or desire to
establish a competing business, but, under the guise or pretence of
competition, to accomplish a malicious purpose to ruin the Crystal
Company or drive it out of business, intending themselves to retire
therefrom when their end had been secured, then they can claim no
immunity under the rules of law which recognize and protect
competition between dealers in the same line of business seeking in
good faith the patronage of the same people. And if, under such
pretence of competition, defendants maliciously interfered with the
business of the Crystal Oil Company, in the manner charged, and injury
to the latter was thereby inflicted, a right of action exists for the
recovery of damages. It may be conceded that authorities are not
wanting to sustain the position that, even though the Standard Oil
Company had no intention of becoming a retail dealer in oil in Des
Moines, but entered the business of selling oil in this manner
temporarily, for the sole purpose of driving the Crystal Company out,
it is a matter into which the courts will not inquire; but we think
such precedents are out of harmony with fundamental principles of
justice, which, as we have said, underlie the law, as well as out of
harmony with the later and better-considered cases. True the Standard
Company, as a wholesale dealer, would violate no law in offering its
product for sale at retail at half price in the territory supplied by
the Crystal Company, but such fact, if proven, would have a distinct
bearing upon the reasonableness of its methods employed in diverting
trade from said company, as well as upon the charge that in
interfering between the Crystal Company and its customers the Standard
Company was actuated by malice or spirit of wanton assault upon the
business of another, who had given it offence.[586]

KUZNIAK _v._ KOZMINSKI
SUPREME COURT, MICHIGAN, DECEMBER 17, 1895.
_Reported in 107 Michigan Reports, 444._

Bill by John Kuzniak against Jacob Kozminski and Frances Kozminski to
abate an alleged nuisance. From a decree for complainant, defendants
appeal. Reversed.

LONG, J. The parties to this cause own adjoining lots in the city of
Grand Rapids. Defendants’ lot is on the southeasterly corner of Eleventh
and Muskegon streets, and upon which is a large tenement house facing
both streets. The complainant owns the lot immediately south and
adjoining the defendants’, and upon which he has a dwelling house facing
Muskegon street, and also a tenement house about 60 feet back from
Muskegon street, and within 22 inches of the north line, being the line
of defendants’ lot. At the time this tenement house was erected,
defendants had upon their lot what was called a “chicken shed”; and,
after complainant’s tenement house was erected, defendants moved this
chicken shed upon a part of their lot directly opposite complainant’s
tenement house, and within 24 inches of the lot line, and converted it
into a coal and wood house for the use of their tenants, who occupied
the dwelling on said lot. This bill was filed by complainant for the
purpose of having this coal and wood house of defendants declared a
nuisance, and to compel them to remove the same. The claim made by the
bill is that the defendants removed the building to that place through
spite and from a malicious motive, and not because it was needed for any
useful purpose. Defendants answered the bill, denying that they were
actuated by malice in putting the building there, and averred that it
was so placed for the use of their tenants for wood and coal. The
testimony was taken in open court, and the court found that the building
was a nuisance, and a decree was entered directing the defendants to
remove the building within 60 days from the date of the decree, and
that, in default of such removal, the sheriff of the county remove the
same, at the cost and expense of defendants. The complainant was awarded
the costs of the suit. Defendants appeal.

It was held in Flaherty _v._ Moran, 81 Mich. 52, that a fence erected
maliciously, and with no other purpose than to shut out the light and
air from a neighbor’s window, was a nuisance, and the decree of the
court below ordering its removal was affirmed; but that decision was
placed on the ground that the fence served no useful purpose, and was
erected solely from a malicious motive. In the present case the building
erected by the defendants was for a useful purpose; and, while there may
have been some malice displayed in putting it so near the complainant’s
house as to shut off some of the light, that would not be a sufficient
reason upon which to found a right in complainant to have the building
removed. Defendants had a right to erect a building upon their own
premises, and the decisions have been quite uniform to the effect that
the motives of a party in doing a legal act cannot form the basis upon
which to found a remedy. In Allen _v._ Kinyon, 41 Mich. 282, it was held
that the motive is of no consequence when the party does not violate the
rights of another. In Hawkins _v._ Sanders, 45 Mich. 491, it was held
that there was no right of prospect which would prevent the erection of
an awning on a neighboring lot. The case does not fall within the rule
of Flaherty _v._ Moran, _supra_, and the court below was in error in
directing the removal of the building. That decree must be reversed, and
a decree entered here dismissing complainant’s bill, with costs of both
courts to the defendants.

The other Justices concurred.[587]

HORAN _v._ BYRNES
SUPREME COURT, NEW HAMPSHIRE, APRIL 7, 1903.
_Reported in 72 New Hampshire Reports, 93._

Case, under sections 28 and 29, chapter 143, Public Statutes, for
maintaining a structure in the nature of a fence, in violation of the
statute.

Upon the trial, defendant moved for a nonsuit, on the ground that the
statute is unconstitutional. The motion was denied, and defendant
excepted.

Verdict for the plaintiff.[588]

PARSONS, C. J. “Any fence or other structure in the nature of a fence,
unnecessarily exceeding five feet in height, erected or maintained for
the purpose of annoying the owners or occupants of adjoining property,
shall be deemed a private nuisance.

“Any owner or occupant, injured either in his comfort or the enjoyment
of his estate by such nuisance, may have an action of tort for the
damage sustained thereby.

“If the plaintiff recovers judgment in the action, the defendant shall
cause the removal of the nuisance within thirty days from the date of
the judgment, and for each day he shall permit the nuisance to remain
after the expiration of said thirty days he shall incur a penalty of ten
dollars for the use of the party injured.” P. S. c. 143, ss. 28, 29, 30.

The act forbids the use by one landowner of his land for the unnecessary
erection of a fence exceeding five feet in height, when the purpose of
such unnecessary height is the annoyance of the adjoining owner or
occupant, if such unnecessary height injures the adjoining owner in his
comfort or the enjoyment of his estate. The claim of the defendant in
support of his motion for a nonsuit, that the statute is
unconstitutional, raises the question whether the statutory prohibition
is an interference with the defendant’s “natural, essential, and
inherent” right of “acquiring, possessing, and protecting property,” or
deprives him of that protection in its enjoyment, which is the right of
“every member of the community.” Bill of Rights, arts. 2, 12.

* * * * *

The constitutional objection made to the present statute raises the
question, if it appears that the statute is an interference with the
defendant’s property right, whether the interference is or not one which
the legislature might properly make as a regulation of the use of
property. The constitutionality of similar statutes has been upheld upon
the latter ground, as being merely a small limitation of existing rights
incident to property, which under the police power may be imposed for
the sake of preventing a manifest evil. “It is hard,” it has been said,
“to imagine a more insignificant curtailment of the rights of property.”
Rideout _v._ Knox, 148 Mass. 368, 372, 373; Karasek _v._ Peier, 22 Wash.
419; Western &c. Co. _v._ Knickerbocker, 103 Cal. 111. Similar statutes
in Maine, Vermont, and Connecticut have been before the courts, but it
has not been suggested that the power of the legislature to adopt them
has been attacked in those states. Lord _v._ Langdon, 91 Me. 221;
Harbison _v._ White, 46 Conn. 106; Gallagher _v._ Dodge, 48 Conn. 387,
40 L. R. A. 181–183, note.

The present statute was passed in 1887. Laws 1887, c. 91. In Hunt _v._
Coggin, 66 N. H. 140, the verdict was for the defendant; and in Horan
_v._ Byrnes, 70 N. H. 531, the defendant waived any objection to the
statute upon this ground. In Lovell _v._ Noyes, 69 N. H. 263, the
question was whether a building was within the terms of the statute. The
constitutional question is now presented for the first time.

It is objected in answer to the argument that statutes like the present
are within the constitutional exercise of the police power, involving
for the general good some slight limitation of existing property rights,
that if one incident of the property right in real estate is the right
to use it maliciously for the sole purpose of injuring another, it is as
much an invasion of the right to take it from a small portion as from
the whole of one’s property; and that the matter in question concerns
private individuals and not the public in general, and hence does not
come within the police power. State _v._ White, 64 N. H. 48, 50. It may
be thought these objections are successfully answered in the cases
cited, or that, if not there answered, a satisfactory answer can be
found. But a discussion of these objections does not reach the
fundamental question in the case.

“The statute was designed to prevent an act the sole effect of which
would be to annoy or injure another.” Lovell _v._ Noyes, 69 N. H. 263.
The primary question, therefore, is whether one’s right to use property
solely to injure another is a part of his property right in real estate,
which is so protected by the constitution that the prohibition of such
use is not within the general power of legislation “for the benefit and
welfare of this state and for the governing and ordering thereof.”
Const. art. 5. Upon the question whether a fence on or near the division
line between adjoining landowners, maliciously built to an unreasonable
height for the sole purpose of annoying and injuring the adjoining owner
or occupant, is a nuisance which can in the absence of statutory
authority be abated by an injunction, the courts are in conflict. Letts
_v._ Kessler, 54 Ohio St. 73, answers the question in the negative,
while an opposite conclusion is reached in Michigan. Burke _v._ Smith,
69 Mich. 380; Flaherty _v._ Moran, 81 Mich. 52; Kirkwood _v._ Finegan,
95 Mich. 543. In Rideout _v._ Knox, 148 Mass. 368, and Karasek _v._
Peier, 22 Wash. 419, cases in which the power of the legislature to
enact a statute similar to that under consideration is attacked and
upheld, it is conceded “that to a large extent the power to use one’s
property malevolently, in any way which would be lawful for other ends,
is an incident of property which cannot be taken away even by
legislation.” Rideout _v._ Knox, _supra_, 372.

The conclusion that a landowner’s property right in real estate includes
the right to use it solely for the injury and annoyance of his neighbor,
without intending to subserve any useful purpose of his own, is “based
upon a narrow view of the effect of the land titles,” and is reached “by
the strict enforcement of a technical rule of ownership briefly
expressed in an ancient maxim,” _cujus est solum, ejus est usque ad
coelum_. The courts of this state have had in some respects, at least, a
different understanding of the elements of land-ownership. As to the use
of land in the control of surface water, the enjoyment of water
percolating beneath the surface, and the use generally that may be
rightfully made of real estate by the owner or occupant, the test has
been considered to be not merely whether the act was an exercise of
dominion on the land regardless of the injury to other land, but the
reasonableness of the use under all the circumstances, including the
necessity and advantage to one and the unavoidable injury to the other.
Franklin _v._ Durgee, 71 N. H. 186; Ladd _v._ Brick Co., 68 N. H. 185;
Swett _v._ Cutts, 50 N. H. 439; Bassett _v._ Company, 43 N. H. 569, 577.
It has been said that the rule of absolute dominion is easier of
application. Chase _v._ Silverstone, 62 Me. 175, 183. This view,
however, does not seem to be upheld by the difficulties met in its
application in reference to surface waters. See Franklin _v._ Durgee, 71
N. H. 186, 189. But however that may be, difficulty in administration is
not a sufficient reason for the denial of justice. Cases like Chatfield
_v._ Wilson, 28 Vt. 49, and Phelps _v._ Nowlen, 72 N. Y. 39, in which
the principle of the maxim relied upon is applied to waters in the soil,
are not authority here, where a contrary view is entertained. Franklin
_v._ Durgee and Bassett _v._ Company, _supra_.

Aside from the authorities in cases in which the control of waters was
in question, the leading case appears to be Mahan _v._ Brown, 13 Wend.
261. Here, although the plaintiff alleged that the fence complained of
was erected solely to injure her, the decision is upon the ground that
by the erection of the fence the plaintiff is deprived of no right, but
is merely prevented from acquiring a right. If by enjoyment of light and
air across his neighbor’s land for the prescriptive period a landowner
could acquire a right to such enjoyment, the building of a fence as an
assertion of a contrary right and to prevent the acquiring of such
easement would be a building for a necessary and useful purpose, and not
for the sole purpose of annoying another. The case standing upon a view
of the effect of non-user of a right to build, now generally abandoned
in this country (Wash. Ease. 490, 497, 498), is not of value in the
present discussion. The argument generally is, that the motive with
which one does an act otherwise lawful is immaterial; and hence, as it
must be conceded that a landowner has the right to build on his land as
he conceives may best subserve his interests, the act lawful for a
useful purpose is not made unlawful and a nuisance merely by the intent
accompanying it.

Whether the first proposition is entirely true may perhaps be doubted.
Cases cited to support the proposition (Walker _v._ Cronin, 107 Mass.
555; Phelps _v._ Nowlen, 72 N. Y. 39) do not support it in its entirety.
See Chesley _v._ King, 74 Me. 164. In Houston _v._ Laffee, 46 N. H. 505,
which was trespass for cutting an aqueduct pipe maintained by the
plaintiff upon the defendant’s land by a parol license, it was held that
if the cutting of the pipe was done simply for the purpose of putting an
end to the license, and without any malice or intentional wrong, the
defendant would not be liable; but if the pipe was cut “wantonly,
unnecessarily, maliciously, and with a view ... to injure the
plaintiff,” the defendant would be liable. It is true that an act which
one has the right to do under all circumstances, like the bringing of a
suit upon a valid claim (Friel _v._ Plumer, 69 N. H. 498), cannot be
made actionable by the motive which accompanies it. But as applied to
the use of real estate the argument begs the question which is whether
the enjoyment of real estate includes the right to use it solely to
injure another. Because when employed for a useful purpose such use may
rightfully injure another, it does not follow that the same use for a
wrongful purpose may also rightfully injure another, except upon the
theory of absolute dominion, for the character of the use is an element
of the right.

“As a general proposition, it is safe to say that the owner of land has
a right to make a reasonable use of his property; and that right extends
as well to an unlimited distance above the earth’s surface as to an
unlimited distance below. He may not only dig for a foundation and a
cellar as deep as he pleases, but he may erect his building as high as
he pleases into the air, subject all the time, of course, to a proper
application of the doctrine contained in the maxim, _sic utere tuo ut
alienum non lædas_. The erection and maintenance of buildings for
habitation or business is a customary and reasonable use of land. Of
course the landowner, in making such erections, must be held to the
exercise of all due care against infringing the legal rights of others,
to be determined by the nature of the rights and interests to be
affected, and all the circumstances of each particular case.” Ladd, J.,
in Garland _v._ Towne, 55 N. H. 55, 58.

“Property in land must be considered, for many purposes, not as an
absolute, unrestricted dominion, but as an aggregation of qualified
privileges, the limits of which are prescribed by the equality of rights
and the correlation of rights and obligations necessary for the highest
enjoyment of land by the entire community of proprietors.... The soil is
often called property, and this use of language is sufficiently accurate
for some purposes. But the proposition that the soil is property conveys
a very imperfect idea of the numerous and variously limited rights
comprised in landed estate; and it is sometimes necessary to remember
that the name of property belongs to some of the essential proprietary
rights vested in the person called the owner of the soil.... So these
proprietary rights, which are the only valuable ingredients of a
landowner’s property, may be taken from him, without an asportation or
adverse personal occupation of that portion of the earth which is his in
the limited sense of being the subject of certain legally recognized
proprietary rights which he may exercise for a short time.... One of
Eaton’s proprietary rights was the correlative of R.’s duty of
abstaining from such a use of air and water, and from such an
interference with their quality and circulation, as would be
unreasonable and injurious to the enjoyment of Eaton’s farm.” Thompson
_v._ Androscoggin Co., 54 N. H. 545, 551, 552, 554. “Excavations
maliciously made in one’s own land, with a view to destroy a spring or
well in his neighbor’s land, could not be regarded as reasonable.” Swett
_v._ Cutts, 50 N. H. 439, 447.

“If a man has no right to dig a hole upon his premises, not for any
benefit to himself or his premises, but for the express purpose of
destroying his neighbor’s spring, why can he be permitted to shut out
light and air from his neighbor’s windows maliciously, and without
profit or benefit to himself? By analogy, it seems to me that the same
principle applies in both cases, and that the law will interpose and
prevent the wanton injury in both cases.... It must be remembered that
no man has a legal right to make a malicious use of his property ... for
the avowed purpose of damaging his neighbor. To hold otherwise would
make the law a convenient engine in cases like the present to injure and
destroy the peace and comfort, and to damage the property, of one’s
neighbor, for no other than a wicked purpose, which in itself is or
ought to be unlawful. The right to do this cannot, in an enlightened
country, exist either in the use of property or in any way or manner....
The right to breathe the air, and to enjoy the sunshine, is a natural
one; and no man can pollute the atmosphere, or shut out the light of
heaven, for no better reason than that the situation of his property is
such that he is given the opportunity of so doing, and wishes to gratify
his spite and malice towards his neighbor.” Morse, J., in Burke _v._
Smith, 69 Mich. 380, approved and unanimously adopted in Flaherty _v._
Moran, 81 Mich. 52, above cited.

“While one may in general put his property to any use he pleases not in
itself unlawful, his neighbor has the same right to the undisturbed
enjoyment of his adjoining property.... What standard does the law
provide?... Whatever may be the law in other jurisdictions, it must be
regarded as settled in this state that the test is the reasonableness or
unreasonableness of the business in question under all the
circumstances.” Ladd _v._ Brick Co., 68 N. H. 185,186. “The common-law
right of the ownership of land, in its relationship to the control of
surface water, as understood by the courts of this state for many years,
does not sanction or authorize practical injustice to one landowner by
the arbitrary and unreasonable exercise of the right of dominion by
another” (Franklin _v._ Durgee, _supra_), but makes the test of the
right the reasonableness of the use under all the circumstances. In such
case the purpose of the use, whether understood by the landowner to be
necessary or useful to himself, or merely intended to harm another, may
be decisive upon the question of right. It cannot be justly contended
that a purely malicious use is a reasonable use. The question of
reasonableness depends upon all the circumstances—the advantage and
profit to one of the use attacked, and the unavoidable injury to the
other. Where the only advantage to one is the pleasure of injuring
another, there remains no foundation upon which it can be determined
that the disturbance of the other in the lawful enjoyment of his estate
is reasonable or necessary. There is no sound ground upon which a
distinction can be made against the plaintiff’s right to use his land
for the enjoyment of the air and light which naturally come upon it, in
favor of his right to use it to enjoy the waters which naturally flow
upon or under it, except the fact that the use of land for buildings
necessarily cuts off air and light from the adjoining estate. The fact
that the improvement of real estate in this way for a useful purpose,
universally conceded to be reasonable, may affect the adjoining owner’s
enjoyment of his estate to the same extent as a like act done solely to
injure the other, is not a sufficient reason for distinguishing the
right to build upon the surface from the right to dig below it or to
control the surface itself. Jurisdictions which reject the doctrine of
reasonable necessity, reasonable care, and reasonable use, which
“prevail in this state in a liberal form, on a broad basis of general
principle” (Haley _v._ Colcord, 59 N. H. 7), as applied to the ownership
of real estate, in favor of the principle of absolute dominion, may
properly consider a malicious motive immaterial upon the rightfulness of
a particular use; but in this state, to do so would be to reject the
principle announced in Bassett _v._ Company, 43 N. H. 569, and
repeatedly reaffirmed during the last forty years.

It is to be conceded that the maxim _sic utere tuo ut alienum non lædas_
is to be applied as forbidding injury, not merely to the property, but
to the right of another. Ladd _v._ Brick Co., 68 N. H. 185; Pittsburg,
&c. R’y _v._ Bingham, 29 Ohio St. 364; Letts _v._ Kessler, 54 Ohio St.
73; Bonomi _v._ Backhouse, E. B. & E. 622, 643; Jeffries _v._ Williams,
5 Exch. 792. But the landowner’s right in the enjoyment of his estate
being that of reasonable use merely, there attaches at once to each the
correlative right not to be disturbed by the malicious, and hence
unreasonable, use made by another. To hold that a right is infringed
because, by the noxious use made by another, the air coming upon a
landowner’s premises is made more or less injurious, and to deny the
invasion of a right by an unreasonable use which shuts off air and light
entirely, is an attempt to bound a right inherent and essential to the
common enjoyment of property by the limitations of an ancient form of
action. An unreasonable use of one estate may constitute a nuisance by
its diminution of the right of enjoyment of another, without furnishing
all the elements necessary to maintain an action _quare clausum fregit_;
though in particular cases it may be said that no right is invaded
unless something comes from the one lot to the other. Lane _v._ Concord,
70 N. H. 485, 488, 489; Thompson _v._ Androscoggin Co., 54 N. H. 545,
552; Wood, Nuis., s. 611. As, therefore, the statute does not deprive
the plaintiff of any right to reasonable use, it does not deprive him of
any property right. Hence it is not necessary to inquire whether, as an
invasion of property rights, the limitation of the statute is one which
might properly be made for the general good.

* * * * *

The objection based upon the unconstitutionality of the statute is not
sustained, and the exception to the denial of the motions for a nonsuit
and to direct a verdict upon that ground is overruled.

[The verdict was set aside on account of an erroneous ruling as to the
admission of evidence][589]

KEEBLE _v._ HICKERINGILL
IN THE QUEEN’S BENCH, TRINITY TERM, 1706.
_Reported in 11 East, 574, note._

Action upon the case. Plaintiff declares that he was, 8th November in
the second year of the Queen, lawfully possessed of a close of land
called Minott’s Meadow, _et de quodam vivario, vocato_ a decoy pond, to
which divers wild fowl used to resort and come; and the plaintiff had at
his own costs and charges prepared and procured divers decoy ducks,
nets, machines, and other engines for the decoying and taking of the
wild fowl, and enjoyed the benefit in taking them: the defendant knowing
which, and intending to damnify the plaintiff in his vivary, and to
fright and drive away the wild fowl used to resort thither, and deprive
him of his profit, did, on the 8th of November, resort to the head of
the said pond and vivary, and did discharge six guns laden with
gunpowder, and with the noise and stink of the gunpowder did drive away
the wild fowl then being in the pond: and on the 11th and 12th days of
November the defendant, with design to damnify the plaintiff, and fright
away the wild fowl, did place himself with a gun near the vivary, and
there did discharge the said gun several times that was then charged
with the gunpowder against the said decoy pond, whereby the wild fowl
were frighted away, and did forsake the said pond. Upon not guilty
pleaded, a verdict was found for the plaintiff and £20 damages.

HOLT, C. J. I am of opinion that this action doth lie. It seems to be
new in its instance, but is not new in the reason or principle of it.
For, first, this using or making a decoy is lawful. Secondly, this
employment of his ground to that use is profitable to the plaintiff, as
is the skill and management of that employment. As to the first, every
man that hath a property may employ it for his pleasure and profit, as
for alluring and procuring decoy ducks to come to his pond. To learn the
trade of seducing other ducks to come there in order to be taken is not
prohibited either by the law of the land or the moral law; but it is as
lawful to use art to seduce them, to catch them, and destroy them for
the use of mankind, as to kill and destroy wild fowl or tame cattle.
Then when a man useth his art or his skill to take them, to sell and
dispose of for his profit; this is his trade; and he that hinders
another in his trade or livelihood is liable to an action for so
hindering him. Why otherwise are scandalous words spoken of a man in his
profession actionable, when without his profession they are not so?
Though they do not affect any damage, yet are they mischievous in
themselves; and therefore in their own nature productive of damage; and
therefore an action lies against him. Such are all words that are spoken
of a man to disparage him in his trade, that may bring damage to him;
though they do not charge him with any crime that may make him obnoxious
to punishment; as to say a merchant is broken, or that he is failing, or
is not able to pay his debts, 1 Roll. 60, 1; all the cases there put.
How much more, when the defendant doth an actual and real damage to
another when he is in the very act of receiving profit by his
employment. Now there are two sorts of acts for doing damage to a man’s
employment, for which an action lies; the one is in respect of a man’s
privilege; the other is in respect of his property. In that of a man’s
franchise or privilege whereby he hath a fair, market, or ferry, if
another shall use the like liberty, though out of his limits, he shall
be liable to an action; though by grant from the King. But therein is
the difference to be taken between a liberty in which the public hath a
benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15.
The other is where a violent or malicious act is done to a man’s
occupation, profession, or way of getting a livelihood; there an action
lies in all cases. But if a man doth him damage by using the same
employment; as if Mr. Hickeringill had set up another decoy on his own
ground near the plaintiff’s, and that had spoiled the custom of the
plaintiff, no action would lie, because he had as much liberty to make
and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47.
One schoolmaster sets up a new school to the damage of an ancient
school, and thereby the scholars are allured from the old school to come
to his new. (The action there was held not to lie.) But suppose Mr.
Hickeringill should lie in the way with his guns, and fright the boys
from going to school, and their parents would not let them go thither;
sure that schoolmaster might have an action for the loss of his
scholars. 29 E. 3, 18. A man hath a market, to which he hath toll for
horses sold: a man is bringing his horse to market to sell: a stranger
hinders and obstructs him from going thither to the market: an action
lies, because it imports damage. Action upon the case lies against one
that shall by threats fright away his tenants at will. 9 H. 7, 8; 21 H.
6, 31; 9 H. 7, 7; 14 Ed. 4, 7; Vide Rastal. 662; 2 Cro. 423. Trespass
was brought for beating his servant, whereby he was hindered from taking
his toll; the obstruction is a damage, though not the loss of his
service.[590]

IBOTTSON _v._ PEAT
IN THE EXCHEQUER, MAY 1, 1865.
_Reported in 3 Hurlstone & Coltman, 644._

BRAMWELL, B.[591] I am also of opinion that the plaintiff is entitled to
judgment. The declaration states that the plaintiff being possessed of
certain land, the defendant unlawfully and with intent to drive and
frighten away game then being on the land of the plaintiff, and to
prevent him from shooting them, fired rockets and combustibles close to
and over the land of the plaintiff, so as to be a nuisance to him. The
defendant by his plea admits that the matter alleged is true, but sets
up a right to do what is complained of for the purpose attributed to the
defendant in the declaration, viz., to prevent him from shooting the
game. Then what is the reason given? It is this:—“The game which I
frightened was game which you enticed away from the Duke of Rutland’s
land, by placing corn and other food for them on your land; and
therefore I, as the servant of the Duke, in order to prevent you from
shooting the game, and from continuing to entice them, did the acts
complained of.” In my opinion that is a bad plea. There is nothing in
point of law to prevent the plaintiff from doing that which the plea
alleges he has done. I say “in point of law,” because it cannot be
contended for a moment that any action would lie against the plaintiff.
As to the propriety of such conduct between gentlemen and neighbors I
say nothing. Where a person’s game is attracted from his land, he ought
to offer them stronger inducements to return to it. It is like the case
I referred to in the course of the argument, Chasemore _v._ Richards, 2
H. & N. 168, 7 H. L. 349, which shows that if a man has the misfortune
to lose his spring by his neighbor digging a well, he must dig his own
well deeper.

_Judgment for the plaintiff._

FISHER _v._ FEIGE
SUPREME COURT, CALIFORNIA, JULY 14, 1902.
_Reported in 137 California Reports, 39._

Appeal by defendants from a judgment in favor of plaintiff.

Plaintiff is a lower riparian proprietor on a certain watercourse, and
defendants are upper riparian proprietors thereon. The action was
brought to recover damages in the sum of five thousand dollars for
certain alleged interferences by defendants with the flow of the water
in the stream, and for a perpetual injunction restraining defendants
from their repetition of the alleged wrongs.[592]

It is averred that along and adjacent to the stream as it flows through
defendants’ land there is a heavy growth of timber, which, before the
alleged wrongful acts of defendants, protected the waters of the stream
from evaporation by drying winds and the rays of the sun, and that the
defendants have cut and felled a large number of trees, and thus let in
the sun and the wind and caused the waters to be diminished by
evaporation, so that not as much flowed down on to plaintiff’s land as
formerly; and that they threatened to fell more of said trees in the
future.

It is also averred, and found by the court, that said acts were done by
defendants “solely for the purpose of injuring the plaintiff and
damaging his said property, and out of spite and ill-will towards the
plaintiff.”

The court found that plaintiff was damaged in the sum of one cent by the
alleged wrongs, for which amount judgment was rendered. By the judgment
the defendants were also “perpetually enjoined” ... “from cutting or
felling the timbers and trees growing in the channel and upon the
immediate banks of said stream at any point above the said lands of the
plaintiff, whereby the said stream will be exposed to the rays of the
sun and the waters thereof lost or materially diminished by
evaporation.”

Defendants appealed from the judgment.

MCFARLAND, J. [After discussing the question of motive.]

... Under the facts found we cannot see how the lawfulness of the acts
enjoined can depend upon the motives by which they were done, or may be
done in the future.

It is found that the defendants did fell trees on their lands, and
threatened to fell more, the effect of which was, and would be, to let
in the sun and winds, and thus increase evaporation.

* * * * *

It is quite apparent that cutting trees upon one’s own land is a lawful
act, which cannot be restrained because it “lets in the sun” and causes
more evaporation; any incidental damage which might come to a lower
riparian owner from such lawful act would clearly be _damnum absque
injuria_.

* * * * *

_Judgement reversed._

TEMPLE, J., and HENSHAW, J., concurred.

ALLEN _v._ FLOOD
IN THE HOUSE OF LORDS, DECEMBER 14, 1897.
_Reported in [1898] Appeal Cases, 1._

The plaintiffs (now the respondents), Flood and Taylor, are members of
the Shipwrights’ Provident Union.[593] The defendant (now the
appellant), Allen, is a member and the London delegate of the
Independent Society of Boilermakers and Iron and Steel Shipbuilders.
The latter society restricts the labor of its members to ironwork. The
society of shipwrights permits its members to work either in wood or
iron. The members of the boilermakers’ society are accustomed to claim
that the proper business of shipwrights is to work in wood only, and
that shipwrights who work in iron are trespassing on the trade of the
boilermakers’ union.[594]

In April, 1894, about forty men of the boilermakers’ society were
engaged at the Regent Dock, Millwall, in repairing an iron ship, on
the employment of the Glengall Iron Company. Flood and Taylor were at
the same time employed by the Glengall Company to execute repairs upon
the woodwork of the vessel. By the terms of their employment they were
entitled to leave at the close of any day; and the Glengall Company
might, at the close of any day cease to employ them further. The
ironworkers were employed on similar terms.[595]

The boilermakers, on discovering that Flood and Taylor had shortly
before been employed by another firm (Mills & Knight) on the Thames in
doing ironwork on a ship, became much excited, and began to talk of
leaving their employment. One of them telegraphed for Allen, their
London delegate. Allen came, dissuaded them from leaving work at
dinner-time, and told them that they must wait and see how things were
settled. Allen then had an interview with Halkett, the Glengall
Company’s manager. As to what took place at this interview, the
testimony at the subsequent trial was conflicting. The version most
favorable to the plaintiffs was substantially as follows:—

Allen told Halkett that he (Allen) had been sent for because Flood and
Taylor were known to have done ironwork in Mills & Knight’s yard, and
that unless Flood and Taylor were discharged all the members of the
boilermakers’ society would be “called out” or “knock off” work that
day; that Halkett had no option; that there was no ill-feeling towards
the Glengall Company or towards Flood and Taylor personally,[596] but
that the iron-men were doing their best to put an end to the practice
of Shipwrights doing ironwork, and that wherever these men were
employed, or other shipwrights who had done ironwork, the boilermakers
would cease work,—in every yard on the Thames.

If the boilermakers had been called out, it would have stopped the
Glengall Company’s business. For fear that the threat would be carried
out, Halkett discharged Flood and Taylor at the close of the day.

An action was then brought by Flood and Taylor against three persons,
viz., Allen, the London delegate; Jackson, the chairman; and Knight,
the general secretary of the Boilermakers’ Society.[597] The
plaintiffs’ allegations were: that the defendants, maliciously and
wrongfully and with intent to injure the plaintiffs, procured and
induced the Glengall Company to break their contract with the
plaintiffs and not to enter into new contracts with them; and also,
maliciously, etc., intimidated and coerced the Glengall Company to
break their contract with plaintiffs and not to enter into new
contracts, and also unlawfully and maliciously conspired with others
to do the above acts.

The case was tried by jury before KENNEDY, J.

The learned judge ruled that there was not “a shred of evidence of any
conspiracy at all;” that there was “no evidence of anything amounting
to intimidation or coercion in any legal sense of the term;”[598] and
that there was no breach of contract.

The following questions, among others, were put to the jury:—

1. Did the defendant Allen maliciously induce the Glengall Iron
Company to discharge the plaintiffs or either of them from their
employment?

2. Did the defendant Allen maliciously induce the Glengall Iron
Company not to engage the plaintiffs or either of them?

In putting these questions to the jury, KENNEDY, J., gave some
explanations, portions of which are, in substance, as follows:[599]
“The word ‘malice’ is a word of art in law, and it does not mean in
this case a personal dislike, a personal feeling of resentment against
the two plaintiffs. It is clear from the evidence of the men and of
their employers that there was no such personal feeling in this case.
The question that I want you to answer is, that, if you find he
induced the Glengall Iron Company, by the threat which is suggested by
the plaintiffs of calling out all the men on strike, did he do that
with the malicious intention which I have endeavored to explain, that
is, merely, not for the purpose of forwarding that which he believed
to be his interest as a delegate of his union in the fair
consideration of that interest but for the purpose of injuring these
plaintiffs, and preventing them doing that which they were each of
them entitled to do. ‘Maliciously’ means, connected with the word
‘induce,’ this,—that it was not for the mere purpose of forwarding
fairly Allen’s own interests, but from the indirect motive of doing a
mischief to the plaintiffs in their lawful business.”

The jury answered both questions in the affirmative; and also found
that each plaintiff had suffered 20_l._ damages.

After consideration, KENNEDY, J., entered judgment for the plaintiffs
against Allen for 40_l._ This decision was affirmed by the Court of
Appeal (LORD ESHER, M. R., LOPES and RIGBY, L.JJ.); L. R. (1895) 2 Q.
B. 21.

Against these decisions, Allen brought the present appeal to the House
of Lords. The appeal was first argued in December, 1895. Their
Lordships having required further argument, the appeal was reargued in
March and April, 1897. The following Judges were summoned to
attend[600] at the second argument: HAWKINS, MATHEW, CAVE, NORTH,
WILLS, GRANTHAM, LAWRENCE, and WRIGHT, JJ.

At the close of the arguments, the following question was propounded
to the Judges: Assuming the evidence given by the plaintiffs’
witnesses to be correct, was there any evidence of a cause of action
fit to be left to the jury?

MATHEW, J., and WRIGHT, J., answered the question in the negative; and
the other six Judges in the affirmative.

After the delivery of the opinions of the Judges, the House took time
for consideration.

Dec. 14, 1897. LORD HALSBURY, L. C.... The first objection made to the
plaintiff’s right to recover for the loss which they thus undoubtedly
suffered is that no right of the plaintiffs was infringed, and that
the right contended for on their behalf is not a right recognized by
law, or, at all events, only such a right as every one else is
entitled to deprive them of if they stop short of physical violence or
obstruction. I think the right to employ their labor as they will is a
right both recognized by the law and sufficiently guarded by its
provisions to make any undue interference with that right an
actionable wrong.

Very early authorities in the law have recognized the right; and, in
my view, no authority can be found which questions or qualifies it.
The schoolmaster who complained that his scholars were being assaulted
and brought an action, the quarry owner who complained that his
servants were being menaced and molested, were both held to have a
right of action. And it appears to me that the importance of those
cases, and the principle established by them, have not been
sufficiently considered. It is said that threats of violence or actual
violence were unlawful means: the lawfulness of the means I will
discuss hereafter. But the point on which these cases are important is
the existence of the right. It was not the schoolmaster who was
assaulted; it was not the quarry owner who was assaulted or
threatened; but, nevertheless, the schoolmaster was held entitled to
bring an action in respect of the loss of scholars attending his
school, and the quarry owner in respect of the loss of workmen to his
quarry. They were third persons; no violence or threats were applied
to them, and the cause of action, which they had a right to insist on,
was the indirect effect upon themselves of violence and threats
applied to others.

My Lords, in my view these are binding authorities to show that the
preliminary question, namely, whether there was any right of the
plaintiffs to pursue their calling unmolested, must be answered in the
affirmative. The question of what is the right invaded would seem to
be reasonably answered, and the universality of the right to all Her
Majesty’s subjects seems to me to be no argument against its
existence. It is, indeed, part of that freedom from restraint, that
liberty of action, which, in my view, may be found running through the
principles of our law.

* * * * *

First it is said that the company were acting within their legal
rights in discharging the plaintiffs. So they were; but does that
affect the question of the responsibility of the person who caused
them so to act by the means he used? The scholars who went away from
the school were entitled to do so. The miners were entitled to cease
working at the quarry. The natives were entitled to avoid running the
risk of being shot; but the question is, What was the cause of their
thus exercising their legal right?

The question must be whether what was done in fact, and what did in
fact procure the dismissal of the plaintiff, was an actionable wrong
or not. I have never heard that a man who was dismissed from his
service by reason of some slander could not maintain an action against
the slanderer because the master had a legal right to discharge him.

* * * * *

It will be observed that Kennedy, J., draws a distinction between the
conduct which he assumes to be lawful on Allen’s part to do what he
did do if it were merely for the purpose of forwarding that which he
believed to be his interest as a delegate of his union in fair
consideration of that interest on the one hand, and on the other hand
his conduct if what he did was done for the purpose of injuring these
plaintiffs.

My Lords, it appears to me that that is a direction of which the
defendants cannot complain, since it puts what is to my mind an
alternative more favorable to them. In my view, his belief that what
he was doing was for his interest as a delegate of his union would not
justify the doing of what he did do. It is alleged, and to my mind and
to the mind of the jury proved, that the employers were compelled
under pressure of the threats that he used to discharge the
plaintiffs.

* * * * *

But the objection made by the defendants appears to be that the word
“malicious” adds nothing; that if the thing was lawful it was lawful
absolutely; if it was not lawful it was unlawful,—the addition of the
word “malicious” can make no difference. The fallacy appears to me to
reside in the assumption that everything must be absolutely lawful or
absolutely unlawful. There are many things which may become lawful or
unlawful according to circumstances.

In a decision of this House it has undoubtedly been held that whatever
a man’s motives may be, he may dig into his own land and divert
subterranean water which but for his so treating his own land might
have reached his neighbor’s land. But that is because the neighbor had
no right to the flow of the subterranean water in that direction, and
he had an absolute right to do what he would with his own property.
But what analogy has such a case with the intentional inflicting of
injury upon another person’s property, reputation, or lawful
occupation? To dig into one’s own land under the circumstances stated
requires no cause or excuse. He may act from mere caprice, but his
right on his own land is absolute, so long as he does not interfere
with the rights of others.

But, referring to Bowen, L. J.’s observation, which to my mind is
exactly accurate, “in order to justify the intentional doing of that
which is calculated in the ordinary course of events to damage, and
which does, in fact, damage another in that other person’s property or
trade,” you must have some just cause or excuse.

Now, the word “malicious” appears to me to negative just cause or
excuse; and without attempting an exhaustive exposition of the word
itself, it appears to me that, if I apply the language of Bowen, L.
J., it is enough to show that this was within the meaning of the law
“malicious.”

It appears to me that no better illustration can be given of the
distinction on which I am insisting between an act which can be
legally done and an act which cannot be so done because tainted with
malice, than such a colloquy between the representative of the master
and the representative of the men as might have been held on the
occasion which has given rise to this action. If the representative of
the men had in good faith and without indirect motive pointed out the
inconvenience that might result from having two sets of men working
together on the same ship, whose views upon the particular question
were so diverse that it would be inexpedient to bring them together,
no one could have complained; but if his object was to punish the men
belonging to another union because on some former occasion they had
worked on an iron ship, it seems to me that the difference of motive
may make the whole difference between the lawfulness or unlawfulness
of what he did.

I see it is suggested by one of your Lordships that the action for
malicious prosecution is supposed to be an exception. I am not quite
certain that I understand what is the proposition to which it is an
exception. If it means that there is no other form of procedure known
to the law wherein malice may make the distinction between a lawful
and an unlawful act, I am unable to agree. Maliciously procuring a
person to be made a bankrupt, maliciously and without reasonable or
probable cause presenting a petition to wind up a company, or
maliciously procuring an arrest, are equally cases wherein the state
of mind of the person procuring the arrest may affect the question of
the lawfulness or unlawfulness of the act done.

Again, in slander or libel the right to preserve one’s character or
business from attack appears to me quite as vague and general a right
as it is suggested is the right to pursue one’s occupation unmolested;
and it cannot be denied that in both these cases the lawfulness or
unlawfulness of what is said or written may depend upon the absence or
presence of malice.

Doubtless there are cases in which the mere presence of malice in an
act done will not necessarily give a right of action, since no damage
may result; and in this case, however malicious Allen’s intervention
may have been, if the employers had defied Allen’s threats instead of
yielding to them, the plaintiffs could not have succeeded in an
action, because they would not have been injured: see Quartz Hill Co.
_v._ Eyre, 11 Q. B. D. 674; Gibbs _v._ Pike, 9 M. & W. 351; Jenings
_v._ Florence, (1857) 2 C. B. (N. S.) 467.

* * * * *

LORD WATSON.... There is no expression in the verdict which can be
held, either directly or by implication, to impeach the legality of
the company’s conduct in discharging the respondents. The mere fact of
an employer discharging or refusing to engage a workman does not imply
or even suggest the absence of his legal right to do either as he may
choose. It is true that the company is not a party to this suit; but
it is also obvious that the character of the act induced, whether
legal or illegal, may have a bearing upon the liability in law of the
person who procured it. The whole pith of the verdict, in so far as it
directly concerns the appellant, is contained in the word
“maliciously,”—a word which is susceptible of many different meanings.
The expression “maliciously induce,” as it occurs upon the face of the
verdict, is ambiguous: it is capable of signifying that the appellant
knowingly induced an act which of itself constituted a civil wrong, or
it may simply mean that the appellant procured, with intent to injure
the respondents, an act which, apart from motive, would not have
amounted to a civil wrong; and it is, in my opinion, material to
ascertain in which of these senses it was used by the jury.

Although the rule may be otherwise with regard to crimes, the law of
England does not, according to my apprehension, take into account
motive as constituting an element of civil wrong. Any invasion of the
civil rights of another person is in itself a legal wrong, carrying
with it liability to repair its necessary or natural consequences, in
so far as these are injurious to the person whose right is infringed,
whether the motive which prompted it be good, bad, or indifferent. But
the existence of a bad motive, in the case of an act which is not in
itself illegal, will not convert that act into a civil wrong for which
reparation is due. A wrongful act, done knowingly and with a view to
its injurious consequences, may, in the sense of law, be malicious;
but such malice derives its essential character from the circumstance
that the act done constitutes a violation of the law. There is a class
of cases which have sometimes been referred to as evidencing that a
bad motive may be an element in the composition of civil wrong; but in
these cases the wrong must have its root in an act which the law
generally regards as illegal, but excuses its perpetration in certain
exceptional circumstances from considerations of public policy. These
are well known as cases of privilege, in which the protection which
the law gives to an individual who is within the scope of these
considerations consists in this,—that he may with immunity commit an
act which is a legal wrong and but for his privilege would afford a
good cause of action against him, all that is required in order to
raise the privilege and entitle him to protection being that he shall
act honestly in the discharge of some duty which the law recognizes,
and shall not be prompted by a desire to injure the person who is
affected by his act. Accordingly, in a suit brought by that person, it
is usual for him to allege and necessary for him to prove an intent to
injure in order to destroy the privilege of the defendant. But none of
these cases tend to establish that an act which does not amount to a
legal wrong, and therefore needs no protection, can have privilege
attached to it; and still less that an act in itself lawful is
converted into a legal wrong if it was done from a bad motive.

[After quoting from BOWEN, L. J., in Mogul Steamship Co. _v._
McGregor, and BAYLEY, J., in Bromage _v._ Prosser.]

The root of the principle is that, in any legal question, malice
depends, not upon evil motive which influenced the mind of the actor,
but upon the illegal character of the act which he contemplated and
committed. In my opinion it is alike consistent with reason and common
sense that when the act done is, apart from the feelings which
prompted it, legal, the civil law ought to take no cognizance of its
motive.

It does not appear to me to admit of doubt that the jury, in finding
the action of the company to have been maliciously induced by the
appellant, simply meant to affirm that the appellant was influenced by
a bad motive, namely, an intention to injure the respondents in their
trade or calling of shipwrights.

* * * * *

There are, in my opinion, two grounds only upon which a person who
procures the act of another can be made legally responsible for its
consequences. In the first place, he will incur liability if he
knowingly and for his own ends induces that other person to commit an
actionable wrong. In the second place, when the act induced is within
the right of the immediate actor, and is therefore not wrongful in so
far as he is concerned, it may yet be to the detriment of a third
party; and in that case, according to the law laid down by the
majority in Lumley _v._ Gye, 2 E. & B. 216, the inducer may be held
liable if he can be shown to have procured his object by the use of
illegal means directed against that third party.

* * * * *

Assuming that the Glengall Iron Company, in dispensing with the
further services of the respondents, were guilty of no wrong, I am
willing to take it that any person who procured their act might incur
responsibility to those who were injuriously affected by it, if he
employed unlawful means of inducement directed against them. According
to the decision of the majority in Lumley _v._ Gye, 2 E. & B. 216,
already referred to, a person who by illegal means, that is, means
which in themselves are in the nature of civil wrongs, procures the
lawful act of another, which act is calculated to injure, and does
injure, a third party, commits a wrong for which he may be made
answerable. So long as the word “means” is understood in its natural
and proper sense, that rule appears to me to be intelligible; but I am
altogether unable to appreciate the loose logic which confounds
internal feeling with outward acts, and treats the motive of the actor
as one of the means employed by him.

It has been maintained, and some of the learned judges who lent their
assistance to the House have favored the argument, that the appellant
used coercion as a means of compelling the Glengall Iron Company to
terminate their connection with the respondents; but that conclusion
does not appear to me to be the fair result of the evidence. If
coercion, in the only legal sense of the term, was employed, it was a
wrong done as much to the Glengall Iron Company, who are the parties
said to have been coerced, as to the respondents. Its result might be
prejudicial to the respondents, but its efficacy wholly depended upon
its being directed against and operating upon the company. It must be
kept in view that the question of what amounts to wrongful coercion in
a legal sense involves the same considerations which I have discussed
in relation to the elements of a civil wrong as committed by the
immediate actor. According to my opinion, coercion, whatever be its
nature, must, in order to infer the legal liability of the person who
employs it, be intrinsically and irrespectively of its motive a
wrongful act. According to the doctrine ventilated in Temperton _v._
Russell, [1893] 1 Q. B. 715, and the present case it need not amount
to a wrong, but will become wrongful if it was prompted by a bad
motive.

* * * * *

I have already indicated that, in my opinion, no light is thrown upon
the decision of the present question by Pitt _v._ Donovan, 1 M. & S.
639, and other cases of that class. The defendant had in that case
represented, contrary to the fact, that the plaintiff was insane at
the time when he executed a particular deed. The communication was
made to a person to whom the defendant was under a legal duty to make
the disclosure if it had been true; and the defendant was in law
absolved from the ordinary consequences of his having circulated a
libel which was false and injurious, if he honestly believed it to be
true. The law applicable in cases of that description is, I apprehend,
beyond all doubt; but the rule by which the law in certain exceptional
cases excuses the perpetration of a wrong, by reason of the absence of
evil motive, is insufficient to establish or to support the converse
and very different proposition, that the presence of an evil motive
will convert a legal act into a legal wrong.

* * * * *

[The opinions of LORD ASHBOURNE, and LORD MORRIS, concurring with LORD
HALSBURY, are omitted.]

LORD HERSCHELL.

* * * * *

Great stress was laid at the bar on the circumstance that in an action
for maliciously and without reasonable and probable cause putting in
motion legal process an evil motive is an essential ingredient. I have
always understood and I think that has been the general understanding,
that this was an exceptional case. The person against whom proceedings
have been initiated without reasonable and probable cause is _prima
facie_ wronged. It might well have been held that an action always lay
for thus putting the law in motion. But I apprehend that the person
taking proceedings was saved from liability if he acted in good faith
because it was thought that men might otherwise be too much deterred
from enforcing the law, and that this would be disadvantageous to the
public. Some of the learned judges cite actions of libel and slander
as instances in which the legal liability depends on the presence or
absence of malice. I think this is a mistake. The man who defames
another by false allegations is liable to an action, however good his
motive, and however honestly he believed in the statement he made. It
is true that in a limited class of cases the law, under certain
circumstances, regards the occasion as privileged, and exonerates the
person who has made false defamatory statements from liability if he
has made them in good faith. But if there be not that duty or interest
which in law creates the privilege, then, though the person making the
statements may have acted from the best of motives, and felt it his
duty to make them, he is none the less liable. The gist of the action
is that the statement was false and defamatory. Because in a strictly
limited class of cases the law allows the defence that the statements
were made in good faith, it seems to me, with all deference, illogical
to affirm that malice constitutes one of the elements of the torts
known to the law as libel and slander. But even if it could be
established that in cases falling within certain well-defined
categories, it is settled law that an evil motive renders actionable
acts otherwise innocent, that is surely far from showing that such a
motive always makes actionable acts prejudicial to another which are
otherwise lawful, or that it does so in cases like the present utterly
dissimilar from those within the categories referred to.

* * * * *

If the fact be that malice is the gist of the action for inducing or
procuring an act to be done to the prejudice of another, and not that
the act induced or procured is an unlawful one as being a breach of
contract or otherwise, I can see no possible ground for confining the
action to cases in which the thing induced is the not entering into a
contract. It seems to me that it must equally lie in the case of every
lawful act which one man induces another to do where his purpose is to
injure his neighbor or to benefit himself at his expense. I cannot
hold that such a proposition is tenable in principle, and no authority
is to be found for it. I should be the last to suggest that the fact
that there was no precedent was in all cases conclusive against the
right to maintain an action. It is the function of the Courts to apply
established legal principles to the changing circumstances and
conditions of human life. But the motive of injuring one’s neighbor or
of benefiting one’s self at his expense is as old as human nature. It
must for centuries have moved men in countless instances to persuade
others to do or to refrain from doing particular acts. The fact that
under such circumstances no authority for an action founded on these
elements has been discovered does go far to show that such an action
cannot be maintained.

* * * * *

I now proceed to consider on principle the proposition advanced by the
respondents, the alleged authorities for which I have been discussing.
I do not doubt that every one has a right to pursue his trade or
employment without “molestation” or “obstruction,” if those terms are
used to imply some act in itself wrongful. This is only a branch of a
much wider proposition, namely, that every one has a right to do any
lawful act he pleases without molestation or obstruction. If it be
intended to assert that an act not otherwise wrongful always becomes
so if it interferes with another’s trade or employment, and needs to
be excused or justified, I say that such a proposition in my opinion
has no solid foundation in reason to rest upon. A man’s right not to
work or not to pursue a particular trade or calling, or to determine
when or where or with whom he will work, is in law a right of
precisely the same nature, and entitled to just the same protection as
a man’s right to trade or work. They are but examples of that wider
right of which I have already spoken. That wider right embraces also
the right of free speech. A man has a right to say what he pleases, to
induce, to advise, to exhort, to command, provided he does not slander
or deceive or commit any other of the wrongs known to the law of which
speech may be the medium. Unless he is thus shown to have abused his
right, why is he to be called upon to excuse or justify himself
because his words may interfere with some one else in his calling?

* * * * *

[After stating the case of Mogul Steamship Co. _v._ McGregor.]

It was said that this was held lawful because the law sanctions acts
which are done in furtherance of trade competition. I do not think the
decision rests on so narrow a basis, but rather on this, that the acts
by which the competition was pursued were all lawful acts, that they
were acts not in themselves wrongful, but a mere exercise of the right
to contract with whom, and when, and under what circumstances and upon
what conditions they pleased. I am aware of no ground for saying that
competition is regarded with special favor by the law; at all events,
I see no reason why it should be so regarded. It may often press as
hardly on individuals as the defendant’s acts are alleged to have done
in the present case. But if the alleged exception could be
established, why is not the present case within it? What was the
object of the defendant, and the workmen he represented, but to assist
themselves in their competition with the shipwrights? A man is
entitled to take steps to compete to the best advantage in the
employment of his labor, and to shut out, if he can, what he regards
as unfair competition, just as much as if he was carrying on the
business of a shipowner. The inducement the appellant used to further
his end was the prospect that the members of his union would not work
in company with what they deemed unfair rivals in their calling. What
is the difference between this case and that of a union of shipowners
who induce merchants not to enter into contracts with the plaintiffs,
by the prospect that if at any time they employ the plaintiffs’ ships
they will suffer the penalty of being made to pay higher charges than
their neighbors at the time when the defendants’ ships alone visit the
ports? In my opinion there is no difference in principle between the
two cases.

* * * * *

LORD MACNAGHTEN. My Lords, I am sorry to say that I must begin by
recapitulating the facts of the case. For the findings of the jury,
taken by themselves, do not convey to my mind any definite meaning.
The jury have found that the appellant Allen “maliciously induced” the
Glengall Iron Company to discharge the respondents from their service,
and they have awarded damages in consequence. I do not know what the
jury meant by the word “induced;” I am not sure that I know what they
meant by the word “maliciously.” Sometimes, indeed, I rather doubt
whether I quite understand that unhappy expression myself. I am
therefore compelled to turn for help to the evidence at the trial,
accepting, as I suppose the jury must have accepted, the account given
by the respondents in preference to that offered by the appellant
wherever there may be any shadow of difference between them.

[After a full statement of the evidence.]

Now before I proceed to consider the legal grounds on which Kennedy,
J., and the Court of Appeal decided the case against Allen, I should
like to ask what there was wrong in Allen’s conduct. He had nothing to
do with the origin of the ill-feeling against Flood and Taylor. He did
nothing to increase it. He went to the dock simply because he was sent
for by one of the men of his union. It seems to be considered the duty
of a district delegate to listen to the grievances of the members of
his union within his district, and to settle the difficulty if
possible. The jury found that the settlement of this dispute was a
matter within Allen’s discretion. The only way in which he could
settle it was by going and seeing the manager. There was surely
nothing wrong in that. There was nothing wrong in his telling the
manager that the iron-men would leave their work unless the two
shipwrights against whom they had a grudge were dismissed, if he
really believed that that was what his men intended to do. As far as
their employers were concerned, the iron-men were perfectly free to
leave their work for any reason, or for no reason, or even for a bad
reason; any one of them might have gone singly to the manager, or they
might have gone to him all together (if they went quietly and
peaceably), and told him that they would not stay any longer with
Flood and Taylor at work among them.

If so, it is difficult to see why fault should be found with Allen for
going in their place and on their behalf and saying what they would
have said themselves.

* * * * *

As regards the meaning of the word “induce,” I do not think the jury
got much assistance. I rather gather from the summing-up that the jury
were given to understand that if they thought that Allen merely
represented the state of things as it was—and the feeling of the
iron-men at the Regent’s Dock—they would be at liberty to answer the
questions put to them about Allen in the negative. But the answer must
be the other way if they thought that Allen went further, and assumed
to represent the union, and to speak as if he had the power of the
union at his back; that would be a threat and would amount to
“inducing.” Now, I must say that I do not think it can be said that
Allen did “induce” the company to discharge the plaintiffs. Certainly
it cannot be truly said that he procured them to be discharged. It was
not his act that prevented the company from continuing to employ them.
If the whole story had been a fiction and an invention on his part I
could have understood the finding of the jury. But I do not think
there was any misrepresentation on Allen’s part. I do not think there
was any exaggeration. Nor, indeed, was any such point made at the
trial.

* * * * *

So we see now, I think, what the findings of the jury come to, if they
are to be treated as being in accordance with the evidence. They must
mean that Allen induced the company to discharge the plaintiffs, by
representing to the manager, not otherwise than in accordance with the
truth, the state of feeling in the yard, and the intentions of the
workmen, and that he did so “maliciously,” because he must have known
what the issue of his communication to the manager would be, and
naturally perhaps he was not sorry to see an example made of persons
obnoxious to his union. But is his conduct actionable? It would be
very singular if it were. No action would lie against the company for
discharging the two shipwrights. No action would lie against the
iron-men for striking against them. No action would lie against the
officers of the union for sanctioning such a strike. But if the
respondents are right the person to answer in damages is the man who
happened to be the medium of communication between the iron-men and
the company,—the most innocent of the three parties concerned, for he
neither set the “agitation” on foot, nor did he do anything to
increase it, nor was his the order that put an end to the connection
between employer and employed. It seems to me that the result would
have been just the same if Edmonds had told Mr. Halkett what was going
on in the yard, or if Mr. Halkett had learned it from Flood and Taylor
themselves.

Even if I am wrong in my view of the evidence and the verdict, if the
verdict amounts to a finding that Allen’s conduct was malicious in
every sense of the word, and that he procured the dismissal of Flood
and Taylor, that is, that it was his act and conduct alone which
caused their dismissal, and if such a verdict were warranted by the
evidence, I should still be of opinion that judgment was wrongly
entered for the respondents. I do not think that there is any
foundation in good sense or in authority for the proposition that a
person who suffers loss by reason of another doing or not doing some
act which that other is entitled to do or to abstain from doing at his
own will and pleasure, whatever his real motive may be, has a remedy
against a third person who, by persuasion or some other means not in
itself unlawful, has brought about the act or omission from which the
loss comes, even though it could be proved that such person was
actuated by malice towards the plaintiff, and that his conduct, if it
could be inquired into, was without justification or excuse.

The case may be different where the act itself to which the loss is
traceable involves some breach of contract or some breach of duty, and
amounts to an interference with legal rights. There the immediate
agent is liable, and it may well be that the person in the background
who pulls the strings is liable too, though it is not necessary in the
present case to express any opinion on that point.

But if the immediate agent cannot be made liable, though he knows what
he is about, and what the consequences of his action will be, it is
difficult to see on what principle a person less directly connected
with the affair can be made responsible unless malice has the effect
of converting an act not in itself illegal or improper into an
actionable wrong. But if that is the effect of malice, why is the
immediate agent to escape? Above all, why is he to escape when there
is no one else to blame and no one else answerable? And yet many cases
may be put of harm done out of malice without any remedy being
available at law. Suppose a man takes a transfer of a debt with which
he has no concern for the purpose of ruining the debtor, and then
makes him bankrupt out of spite, and so intentionally causes him to
lose some benefit under a will or settlement,—suppose a man declines
to give a servant a character because he is offended with the servant
for leaving,—suppose a person of position takes away his custom from a
country tradesman in a small village merely to injure him on account
of some fancied grievance not connected with their dealings in the way
of buying and selling,—no one, I think, would suggest that there could
be any remedy at law in any of those cases. But suppose a customer,
not content with taking away his own custom, says something not
slanderous or otherwise actionable or even improper in itself to
induce a friend of his not to employ the tradesman any more. Neither
the one nor the other is liable for taking away his own custom. Is it
possible that the one can be made liable for inducing the other not to
employ the person against whom he has a grudge? If so, a fashionable
dressmaker might now and then, I fancy, be plaintiff in a very
interesting suit. The truth is, that questions of this sort belong to
the province of morals rather than to the province of law. Against
spite and malice the best safeguards are to be found in self-interest
and public opinion. Much more harm than good would be done by
encouraging or permitting inquiries into motives when the immediate
act alleged to have caused the loss for which redress is sought is in
itself innocent or neutral in character, and one which anybody may do
or leave undone without fear of legal consequences. Such an
inquisition would, I think, be intolerable, to say nothing of the
probability of injustice being done by juries in a class of cases in
which there would be ample room for speculation and wide scope for
prejudice.

In order to prevent any possible misconstruction of the language I
have used, I should like to add that in my opinion the decision of
this case can have no bearing on any case which involves the element
of oppressive combination. The vice of that form of terrorism commonly
known by the name of “boycotting,” and other forms of oppressive
combination, seems to me to depend on considerations which are, I
think, in the present case, conspicuously absent.

* * * * *

LORD SHAND.... The case was one of competition in labor, which, in my
opinion, is in all essentials analogous to competition in trade, and
to which the same principles must apply; and I ask myself what would
be the thought of the application of the word “malicious” to the
conduct of a tradesman who induces the customer of another tradesman
to cease making purchases from one with whom he had long dealt, and
instead to deal with him, a rival in trade. The case before the jury
was, in my view, in no way different, except that in the one case
there was competition in labor,—in the other there would be
competition in trade.

Some of the learned consulted judges speak of Allen’s conduct as
having been caused by a desire to inflict “punishment” on the
shipwrights for past acts, and indicate that, if the shipwrights had
been actually working at ironwork on the vessel at the time, the case
would have been different.[601]

I cannot agree in any such view. “Punishment” in a wide and popular
sense may possibly be used, though incorrectly, to describe the
boilermakers’ action; but it is quite clear that what they were
resolved to do, and really did, was, while marking their sense of the
injury which they thought (rightly or wrongly is not the question) the
shipwrights were doing to them in trenching on their proper lines of
business, to take a practical measure in their own defence. Their
object was to benefit themselves in their own business as working
boilermakers, and to prevent a recurrence in the future of what they
considered an improper invasion on their special department of work.
How this could possibly be regarded as “malicious,” even in any
secondary sense that can reasonably be attributed to that term, I
cannot see.

* * * * *

Coming now directly to the merits of the question in controversy in
the case, the argument of the plaintiffs and the reasons for the
opinions of the majority of the consulted judges seem to me to fail,
because, although it is no doubt true that the plaintiffs were
entitled to pursue their trade as workmen “without hindrance,” their
right to do so was qualified by an equal right, and indeed the same
right, on the part of other workmen. The hindrance must not be of an
unlawful character. It must not be by unlawful action. Amongst the
rights of all workmen is the right of competition. In the like manner
and to the same extent as a workman has a right to pursue his work or
labor without hindrance, a trader has a right to trade without
hindrance. That right is subject to the right of others to trade also,
and to subject him to competition,—competition which is in itself
lawful, and which cannot be complained of where no unlawful means (in
the sense I have already explained) have been employed. The matter has
been settled in so far as competition in trade is concerned by the
judgment of this House in the Mogul Steamship Co. Case, [1892] A. C.
25. I can see no reason for saying that a different principle should
apply to competition in labor. In the course of such competition, and
with a view to secure an advantage to himself, I can find no reason
for saying that a workman is not within his legal rights in resolving
that he will decline to work in the same employment with certain other
persons, and in intimating that resolution to his employers.

* * * * *

[The opinions of LORD DAVEY and LORD JAMES OF HEREFORD, in favor of
reversing the order of the Court of Appeal are omitted.]

_Order of the Court of Appeal reversed and judgment entered
for the appellant with costs here and below including the
costs of the trial: cause remitted to the Queen’s Bench
Division._[602]

LEATHEM _v._ CRAIG
QUEEN’S BENCH DIVISION, IRELAND, NOVEMBER 22, 1898.
COURT OF APPEAL, IRELAND, MAY 2, 1899.
_Reported in [1899] 2 Irish Reports, 667, 744_.

QUINN _v._ LEATHEM
IN THE HOUSE OF LORDS, AUGUST 5, 1901.
_Reported in [1901] Appeal Cases, 495._[603]

This was an action tried before FitzGibbon, L. J., at the Belfast Summer
Assizes, 1896, brought against the defendants for damages for
maliciously and wrongfully procuring certain persons to break contracts
into which they had entered with the plaintiff, and not to enter into
other contracts with the plaintiff; and for maliciously and wrongfully
enticing and procuring certain workmen in the employment of such persons
to leave the service of their employers and to break their contracts of
service, with intent to injure the plaintiff, and to prevent such
persons from carrying out their contracts with the plaintiff, and from
entering into other contracts with the plaintiff; and for maliciously
and wrongfully intimidating such persons, and coercing them to break
their contracts with the plaintiff; and intimidating such servants in
their employ, and coercing them to leave the service of their employers,
to the injury of the plaintiff; and for unlawfully conspiring, together
with other persons, to do the acts aforesaid, with intent to injure the
plaintiff.

There was also a paragraph in the statement of claim, claiming damages
for the publication of the plaintiff’s name in a “black list,” issued by
the defendants, and a prayer for an injunction to prevent the
continuance and repetition of the acts complained of.

The following facts were proved. The plaintiff was a butcher at Lisburn,
in the county of Antrim, about eight miles from Belfast, where he had
carried on business for a number of years. He had in his employment one
Robert Dickie, his foreman, who had been with him for ten years. The
plaintiff had been in the habit of sending large quantities of meat to
Andrew Munce, a butcher in Belfast, and had been doing so for some
twenty years. There was no contract in writing between them; but,
whatever amount the plaintiff sent, Munce took and paid for—the amount
being, on an average, of the value of £30 a week.

The defendants John Craig, John Davey, and Joseph Quinn were butchers’
assistants in Belfast; and the defendants, Henry Dornan and Robert Shaw,
butchers’ assistants in Lisburn. In the spring of 1895 these defendants
and several others in the same occupation formed themselves into an
association, which was duly registered under the Trade Union Acts, 1871
and 1876, under the title of “The Belfast Journeymen Butchers’
Assistants’ Association,” of which the defendant Davey became the
Secretary. The plaintiff’s men were not members of the association. At
the commencement of July, 1895, the defendants’ association required the
plaintiff to dismiss Robert Dickie from his employment, which he refused
to do. Upon that the defendants’ society threatened to withdraw the
plaintiff’s men from his service. A deputation was sent down to meet the
plaintiff at Lisburn, and a meeting was held in Magill’s public-house,
Lisburn, on the 9th July, at which the defendants Craig, Quinn, Dornan,
and Shaw were present—Craig being in the chair. The plaintiff stated
that he had come on behalf of his men, and was ready to pay all fines
and demands against them, and asked to have them admitted into the
society. The defendant Shaw objected, and said that the plaintiff’s men
should be punished, and should be put out to walk the streets for twelve
months. The plaintiff objected to this, as Dickie was a married man with
a family. Shaw moved, and Morgan seconded a resolution that the
plaintiff’s assistants should be called out, and it was carried. The
defendants stated that they could pick out plenty of men to work for the
plaintiff from their list; the plaintiff replied that they were not
suitable for his business, and refused to put his own men out. Craig
then said that the plaintiff’s meat would be stopped at Munce’s, if the
plaintiff would not comply with their wishes. The plaintiff still
refused. The defendants then called out some of the plaintiff’s
employees. Edward Dickie, a servant of the plaintiff, was brought to a
meeting of the defendants’ society, held over Dornan’s shop in Lisburn,
and was ordered to leave the plaintiff, the society undertaking to pay
him the same wages as he had been receiving from the plaintiff. Dickie,
yielding to this order, left the plaintiff without notice. “Black lists”
were issued by the society upon which the names of persons were posted
who had offended against the society’s rules. Leathem’s name was posted,
and also the name of John M’Bride, a flesher in Lisburn, who was dealing
with the plaintiff. Subsequently, however, Dornan and others of the
defendants came to M’Bride; and on his undertaking not to deal any more
with Leathem, his name was struck out.

On the 6th September, 1895, the defendant Davey wrote to the plaintiff
the following letter:—

“I have been instructed to write you if you would be kind enough to
reply on or before Tuesday, 10th, whether you have made up your mind to
continue to employ non-union labour. If you continue as at present, our
society will be obliged to adopt extreme measures in your case. Trusting
that you will see the wisdom of acceding to our views at once, I
remain,” &c.

On the 13th September, Davey wrote to Munce:—

“A deputation has been appointed to wait on you, or your responsible
representative, on Monday evening, the 16th inst., at 6.30 p. m., to
come to a decision in regard to this case of Leathem & Sons, as we are
anxious to have a settlement at once.”

To this Munce replied:—

“In reply to your letter _re_ Leathem & Sons, I cannot see my way to
attend any deputation of the sort, as it is quite out of my province to
interfere with the liberty of any man. But why refer to me in this
matter? I do not think it fair for you to come at me in the matter,
seeing it appears to be the Messrs. Leathem that you wish to interfere
with.”

On the 16th September a deputation of the defendants’ society went to
Munce’s establishment, and had an interview with W. F. Munce, the son of
Andrew Munce, and asked him to put pressure on his father to stop
dealing with the plaintiff. W. F. Munce replied by letter on the 17th
September:—

“A deputation of the Journeymen Butchers’ Association waited at Corn
Market yesterday evening, with reference to the case of the purchase of
meat from Henry Leathem, Lisburn. In accordance with promise, I placed
the views of the deputation before Mr. Munce, and in reply he wishes to
state he could not interfere to bring pressure to bear on Mr. Leathem to
employ none but society men, by refusing to purchase meat from him, as
that would be outside his province, and would be interfering with the
liberty of another man; but at the same time he will strongly recommend
Mr. Leathem to adopt the views of the Journeymen Butchers’ Association,
and employ men belonging to the society.”

On the 18th September Davey wrote to Andrew Munce:—

“Have submitted your letter to committee. They are of opinion that in
the main it is unsatisfactory, but thanking you kindly for your
recommendation to Mr. Leathem, with whom we have endeavoured to make a
satisfactory arrangement, but have failed; so therefore have no other
alternative but to instruct your employees to cease work immediately
Leathem’s beef arrives.”

On the 19th September Munce telegraphed to Leathem:—

“Unless you arrange with society you need not send any beef this week,
as men are ordered to quit work.”

Munce ceased to deal with the plaintiff, and the plaintiff was obliged
to sell off the meat he had on hand at a heavy loss at any price he
could get. In consequence of these transactions the plaintiff’s business
was ruined.

The case was tried before FitzGibbon, L. J., at the Summer Assizes of
1896, at Belfast. The defendants did not offer any evidence, their
counsel asking for a direction on the grounds: 1, that to sustain the
action a contract made with Leathem must be proved to have been made and
broken through the acts of the defendants, and that there was no
evidence of such contract or breach; 2, that there was no evidence of
pecuniary damage to the plaintiff through the acts of the defendants; 3,
that the ends of the defendants and the means taken by them to promote
those ends as appearing in evidence were legitimate, and there was no
evidence of actual damage to the plaintiff.

The learned Lord Justice declined to withdraw the case from the jury,
and left to them the following questions:—

1. Did the defendants, or any of them, wrongfully and maliciously induce
the customers or servants of the plaintiff named in the evidence to
refuse to deal with the plaintiff? _Answer_: Yes.

2. Did the defendants, or any two or more of them maliciously conspire
to induce the plaintiff’s customers or servants named in the evidence,
or any of them, not to deal with the plaintiff or not to continue in his
employment; and were such persons so induced not so to do? _Answer_:
Yes.

3. Did the defendants Davey, Dornan, and Shaw, or any of them, publish
the “black lists” with intent to injure the plaintiff in his business;
and, if so, did the publication so injure him? _Answer_. Yes.

FitzGibbon, L. J., in summing up, told the jury that pecuniary loss,
directly caused by the conduct of the defendants, must be proved in
order to establish a cause of action; and he advised them to require to
be satisfied that such loss to a substantial amount had been proved by
the plaintiff. He declined to tell them that, if actual and substantial
pecuniary loss was proved to have been directly caused to the plaintiff
by the wrongful acts of the defendants, they were bound to limit the
amount of damages to the precise sum so proved. He told them that, if
the plaintiff gave the proof of actual and substantial loss necessary to
maintain the action, they were at liberty in assessing damages to take
all the circumstances of the case, including the conduct of the
defendants, reasonably into account. The Lord Justice did not tell the
jury that the liability of the defendants depended on any question of
law. He told them that the questions left to them were questions of fact
to be determined on the evidence; but that they included questions as to
the intent of the defendants, and, in particular, their intent to injure
the plaintiff in his trade as distinguished from the intent of
legitimately advancing their own interests. The Lord Justice did not
tell the jury that the defendants could be directly asked what their own
intention was, but he did tell them that their intention was to be
inferred from their acts and conduct as proved, and that, in acting upon
the evidence given by the plaintiff, they were at liberty to have regard
to the fact that the defendants, who might have given the best evidence
on the subject, had not been produced to explain, qualify, or contradict
any of the evidence given for the plaintiff as to their own acts. Upon
the meaning of the words “wrongfully and maliciously” in the questions,
the Lord Justice told the jury that they had to consider whether the
intent and actions of the defendants went beyond the limits which would
not be actionable, namely, securing or advancing their own interests, or
those of their trade, by reasonable means, including lawful combination,
or whether their acts, as proved, were intended and calculated to injure
the plaintiff in his trade, through a combination and with a common
purpose, to prevent the free action of his customers and servants in
dealing with him, with the effect of actually injuring him, as
distinguished from acts legitimately done to secure or advance their own
interests. Finally, he told the jury that acts done with the object of
increasing the profits or raising the wages of any combination of
persons such as the society to which the defendants belonged, whether
employers or employed, by reasonable and legitimate means, were
perfectly lawful and were not actionable so long as no wrongful act was
maliciously—that is intentionally—done to injure a third party. To
constitute such a wrongful act for the purposes of this case, the Lord
Justice told the jury that they must be satisfied that there had been a
conspiracy, a common intention, and a combination, on the part of the
defendants to injure the plaintiff in his business; and that acts must
be proved to have been done by the defendants in furtherance of that
intention which had inflicted actual money loss upon the plaintiff in
his trade; and that whether the acts of the defendants were or were not
in that sense actionable, was the question which the jury had to try
upon the evidence.

The jury found for the plaintiff with £250 damages, of which £50 was
separately assessed for damages on the cause of action relating to the
“black list,” and £200 for damages on the other causes of action and
judgment was thereupon entered for the plaintiff for £250 damages and
costs.

The defendants now moved to set aside the verdict and judgment so had,
and that judgment should be entered for them on the ground of
misdirection; or for a new trial, on the ground that the damages were
excessive, and that the jury were allowed to take the “black lists” into
account.

WILLIAM O’BRIEN, J....

The right infringed is the right to live by labor.

* * * * *

Physical hindrances, or prevention of labor by physical means, it was
conceded, would be the invasion of a right, and that would certainly be
the case whether the restraint was applied to the employer or to the
workman.

* * * * *

If temporal loss were not coercion, it could be used to the degree of a
person being starved. The proposition on which the judgment of the
majority (in Allen _v._ Flood) was founded in this respect is opposed to
the whole analogy of the law that makes duress of property, or menace of
temporal loss, as effectual as physical violence to avoid all kinds of
acts.

* * * * *

In The Mogul Steamship Company _v._ M’Gregor, [1892] A. C. 25, the trade
of the defendants was the primary object, and the injury to the
plaintiffs was the result of the means taken to advance that object.
There, as in Allen _v._ Flood, [1898] A. C. 1, the injury to others was
the thing intended, as the means of carrying out another object.

* * * * *

There is an observation which appears to me to gather up several of the
fallacies which are scattered through the arguments in the judgments of
the majority in Allen _v._ Flood, [1898] A. C. 1. The case is put by
Lord Watson as if it were a question whether a person could be made
liable for doing, from a malicious motive, what, without such motive he
could do lawfully. In fact there are cases in law in which the malice
makes the distinction of what is lawful or unlawful, as in malicious
prosecution, or takes away the right that otherwise exists, as in the
instance of privileged communication. But that is not the present case
at all, as it was not that of Allen _v._ Flood, [1898] A. C. 1. The
defendant, who maliciously instigated the thing, is not the person who
possessed the power of dismissal. Therefore the supposed constitutional
objection, that the law could not enter into a man’s mind, has no place.
The same point meets the case of the butler and the cook that was put in
the argument. The butler tells his master he will leave unless the cook
is dismissed. Lord Herschell snatched at the admission of counsel, that
the cook could bring an action, as being the logical conclusion from his
argument. With great respect, it is neither logical nor the law. The
servant is the master of his own actions. He can choose his own company,
though even for that object he cannot use threats. But in this case it
was another person that assumed to choose his company for him. Allen was
not a boiler-maker, as Craig was not a butcher, who wished to leave.
Each was a member of a trade organization, and had no duty or interest
of his own to interfere. What relation could such a position assume but
that of intimidation?

* * * * *

... a confusion of relations, in applying the proposition that a person
cannot be made liable for maliciously exercising a right which he
possesses. The action here is for maliciously causing another person to
exercise a right which that other person possessed. In one case, the
right may be said to absorb the malice, though there are exceptions to
the rule in the common law. But how can it absorb another man’s malice?

* * * * *

What wrong can be conceived more cruel and grievous than wilfully
depriving men of their employment? There must be a right, correlative to
the wrong. What right can be more sacred than the right to live by a
man’s labor? But then, it is said, the wrong and the right are subject
to the legal power of another person. That is the case in many
instances, in which the law nevertheless gives a remedy for wrong that
requires the exercise of another person’s will. That is the case of a
person who is defamed; the damage comes from those who hear. That is the
case of malicious prosecution; the agency is that of the law. The
servant who is enticed away from his master, leaves of his own will. The
woman who left her husband, in Winsmore _v._ Greenbank, Willes, 577, did
so with her own consent; the actress who broke her engagement, in Lumley
_v._ Gye, 2 E. & B. 216, could have performed, if she liked. That is the
case of tenants leaving their holdings on account of threats, which is
put in 1 Rolle’s Abridgment, 108; Action sur Case, (N.) pl. 21.

Many other examples could be given where the law allows a remedy, though
the wrongful act requires the concurrence of another person’s will. The
rule is the same as to crimes. The law does not excuse instigation to
crime because the other person need not commit the crime, or for the
reason that it is impossible to separate the effect of the instigation
and natural pravity of will, which was the ground erroneously assigned
by Coleridge, J., for his opinion in Lumley _v._ Gye, 2 E. & B. 216. In
fact the law makes no distinction between moral and physical agency, or
the degrees of the influence, when the cause is attached to the
consequence by the verdict of the jury.

* * * * *

The law of conspiracy, which is traced down, in Comyn’s Digest, and
after him in the notes to Saunders’ Reports, and in several English
judgments as well as in the judgment in Kearney _v._ Lloyd, 26 L. R. Ir.
268, from the obsolete writ of conspiracy, through the action on the
case in the nature of conspiracy, with their several distinctions, and
which was originally confined to false accusations of crime, has widened
out by the expansion of social conditions and the increase of
wickedness, until it embraces in its modern extent every kind of wrong
committed by several against another, and has been applied in a
multitude of instances where the law gives no remedy against an
individual, which was the utmost that was determined by Allen _v._
Flood, [1898] A. C. 1.

* * * * *

... a malicious design to deprive a person of his livelihood, the malice
being compounded both of the object, and the want of any just motive of
personal right. For no one contended at any time that the object of
drawing all persons into the pen of a trade union, was a ground of
privilege like that which excused the act in The Mogul Steamship Co.
_v._ M’Gregor, [1892] A. C. 25, where the defendants merely waged a war
of rivalry in their trade. However, if “civil wrong” be understood in
the sense of actionable wrong, the rule, so confined, is contrary to a
multitude of cases, in which the action was adopted, and in which
nevertheless it is most certain there was no legal remedy against a
single defendant, even before the decision of Allen _v._ Flood, [1898]
A. C. 1. Indeed, that is the express and special use of the action of
conspiracy, without which it would find no real place in practice,
though it is not impossible such an action could be maintained for what
is actionable also in the case of an individual.

* * * * *

There was in this case a direct design to injure the plaintiff. That was
malice alone. The act was not done in exercise of any right the
defendants possessed. It was done through the agency of another person
by improperly influencing his will; and that will was moved solely by
their act, and would not otherwise have been exercised. It was done by
numbers, to which the law attaches a new and altered quality of more
formidable wrong—the foundation of conspiracy—which is a difference in
things themselves that can never be taken out of the law, civil or
criminal, whilst there is a difference between a man and an army.
Lastly, there was the damage which was so unjust as itself to make the
act malicious.

* * * * *

For the case put, of a person maliciously digging on his own land, and
draining the well, of his neighbor, is no exception, and demonstrates
the weakness of the argument which is founded on it. In that case the
act could not be prohibited without interfering with the inherent right
of property; and the right of the neighbor was subject to the right of
the contiguous owner. The two rights were equal. The right absorbed the
malice, and could not otherwise coexist with it. Here the defendants
possessed no right which they could not otherwise exercise; and the
right of the plaintiff to carry on his trade was not subject to any
right in them. No right of interference with others, which the law could
recognize, could attach to the aggressions of a trade union—to their
plans for the revision of the relations between employers and
employed—to proceedings conducting, by inevitable sequence, to what was
lately expressed, with no less energy than the weight attaching to the
author, as “the destructive demands of a class upon the fundamental laws
on which civil order rests.”

SIR P. O’BRIEN, L. C. J., and ANDREWS, J., delivered opinions in favor
of denying defendants’ motion.

PALLES, C. B., dissented, because he felt himself “coerced by the
judgment of the House of Lords in Allen _v._ Flood....”

The defendants’ motion was refused with costs.

The case was then carried to the Irish Court of Appeal. In accordance
with the opinions there delivered by LORD ASHBOURNE, CHANCELLOR, PORTER,
M. R., WALKER, L. J., and HOLMES, L. J., the decision below, as to the
verdict and judgment for £200, was affirmed with costs; the judgment for
the plaintiff being amended by omitting the part as to the recovery of
£50 damages which was separately assessed on account of the “black
list.”

HOLMES, L. J., said: “The ‘black list’ was only an overt act of the
conspiracy, and the sum awarded for it is included in the £200.”

One of the defendants, Quinn, appealed to the House of Lords.

LORD CHANCELLOR HALSBURY, LORDS MACNAGHTEN, SHAND, BRAMPTON, ROBERTSON,
and LINDLEY delivered opinions in favor of dismissing the appeal.

EARL OF HALSBURY, L. C.

* * * * *

[As to the effect of the decision in Allen _v._ Flood.]

Now the hypothesis of fact upon which Allen _v._ Flood was decided by a
majority in this House was that the defendant there neither uttered nor
carried into effect any threat at all: he simply warned the plaintiff’s
employers of what the men themselves, without his persuasion or
influence, had determined to do, and it was certainly proved that no
resolution of the trade union had been arrived at at all, and that the
trade union official had no authority himself to call out the men, which
in that case was argued to be the threat which coerced the employers to
discharge the plaintiff. It was further an element in the decision that
there was no case of conspiracy or even combination. What was alleged to
be done was only the independent and single action of the defendant,
actuated in what he did by the desire to express his own views in favor
of his fellow-members. It is true that I personally did not believe that
was the true view of the facts, but, as I have said, we must look at the
hypothesis of fact upon which the case was decided by the majority of
those who took part in the decision.

* * * * *

LORD MACNAGHTEN.

* * * * *

I do not think that the acts done by the defendants were done “in
contemplation or furtherance of a trade dispute between employers and
workmen.” So far as I can see, there was no trade dispute at all.
Leathem had no difference with his men. They had no quarrel with him.
For his part he was quite willing that all his men should join the
union. He offered to pay their fines and entrance moneys. What he
objected to was a cruel punishment proposed to be inflicted on some of
his men for not having joined the union sooner. There was certainly no
trade dispute in the case of Munce. But the defendants conspired to do
harm to Munce in order to compel him to do harm to Leathem, and so
enable them to wreak their vengeance on Leathem’s servants who were not
members of the union.

* * * * *

LORD LINDLEY.[604] My Lords, the case of Allen _v._ Flood, [1898] A. C.
1, has so important a bearing on the present appeal that it is necessary
to ascertain exactly what this House really decided in that celebrated
case. It was an action by two workmen of an iron company against three
members of a trade union, namely, Allen and two others, for maliciously,
wrongfully, and with intent to injure the plaintiffs, procuring and
inducing the iron company to discharge the plaintiffs.[605] The action
was tried before Kennedy, J., who ruled that there was no evidence to go
to the jury of conspiracy, intimidation, coercion, or breach of
contract. The result of the trial was that the plaintiffs obtained a
verdict and judgment against Allen alone. He appealed, and the only
question which this House had to determine was whether what he had done
entitled the plaintiffs to maintain their action against him. What the
jury found that he had done was, that he had maliciously induced the
employers of the plaintiffs to discharge them, whereby the plaintiffs
suffered damage. Different views were taken by the noble Lords who heard
the appeal as to Allen’s authority to call out the members of the union,
and also as to the means used by Allen to induce the employers of the
plaintiffs to discharge them; but, in the opinion of the noble Lords who
formed the majority of Your Lordships’ House, all that Allen did was to
inform the employers of the plaintiffs that most of their workmen would
leave them if they did not discharge the plaintiffs.[606] There being no
question of conspiracy, intimidation, coercion, or breach of contract,
for consideration by the House, and the majority of their Lordships
having come to the conclusion that Allen had done no more than I have
stated, the majority of the noble Lords held that the action against
Allen would not lie; that he had infringed no right of the plaintiffs;
that he had done nothing which he had no legal right to do, and that the
fact that he had acted maliciously and with intent to injure the
plaintiffs did not, without more, entitle the plaintiffs to maintain the
action.

My Lords, this decision, as I understand it, establishes two
propositions: one a far-reaching and extremely important proposition of
law, and the other a comparatively unimportant proposition of mixed law
and fact, useful as a guide, but of a very different character from the
first.

The first and important proposition is that an act otherwise lawful,
although harmful, does not become actionable by being done maliciously
in the sense of proceeding from a bad motive, and with intent to annoy
or harm another. This is a legal doctrine not new or laid down for the
first time in Allen _v._ Flood, [1898] A. C. 1; it had been gaining
ground for some time, but it was never before so fully and
authoritatively expounded as in that case. In applying this proposition
care, however, must be taken to bear in mind, first, that in Allen _v._
Flood, [1898] A. C. 1, criminal responsibility had not to be considered.
It would revolutionize criminal law to say that the criminal
responsibility for conduct never depends on intention. Secondly, it must
be borne in mind that even in considering a person’s liability to civil
proceedings the proposition in question only applies to “acts otherwise
lawful,” i. e., to acts involving no breach of duty, or, in other words,
no wrong to any one. I shall refer to this matter later on.

The second proposition is that what Allen did infringed no right of the
plaintiffs, even although he acted maliciously and with a view to injure
them. I have already stated what he did, and all that he did, in the
opinion of the majority of the noble Lords. If their view of the facts
was correct, their conclusion that Allen infringed no right of the
plaintiffs is perfectly intelligible, and indeed unavoidable. Truly, to
inform a person that others will annoy or injure him unless he acts in a
particular way cannot of itself be actionable, whatever the motive or
intention of the informant may have been.

My Lords, the questions whether Allen had more power over the men than
some of their Lordships thought, and whether Allen did more than they
thought, are mere questions of fact. Neither of these questions is a
question of law, and no court or jury, is bound as a matter of law to
draw from the facts before it inferences of fact similar to those drawn
by noble Lords from the evidence relating to Allen in the case before
them.

I will pass now to the facts of this case, and consider (1) what the
plaintiff’s rights were; (2) what the defendants’ conduct was; (3),
whether that conduct infringed the plaintiff’s rights. For the sake of
clearness it will be convenient to consider these questions in the first
place apart from the statute which legalizes strikes, and in the next
place with reference to that statute.

1. As to the plaintiff’s rights. He had the ordinary rights of a British
subject. He was at liberty to earn his own living in his own way,
provided he did not violate some special law prohibiting him from so
doing, and provided he did not infringe the rights of other people. This
liberty involved liberty to deal with other persons who were willing to
deal with him. This liberty is a right recognized by law; its
correlative is the general duty of every one not to prevent the free
exercise of this liberty, except so far as his own liberty of action may
justify him in so doing. But a person’s liberty or right to deal with
others is nugatory, unless they are at liberty to deal with him if they
choose to do so. Any interference with their liberty to deal with him
affects him. If such interference is justifiable in point of law, he has
no redress. Again, if such interference is wrongful, the only person who
can sue in respect of it is, as a rule, the person immediately affected
by it; another who suffers by it has usually no redress; the damage to
him is too remote, and it would be obviously practically impossible and
highly inconvenient to give legal redress to all who suffered from such
wrongs. But if the interference is wrongful and is intended to damage a
third person, and he is damaged in fact—in other words, if he is
wrongfully and intentionally struck at through others, and is thereby
damnified—the whole aspect of the case is changed: the wrong done to
others reaches him, his rights are infringed although indirectly, and
damage to him is not remote or unforeseen, but is the direct consequence
of what has been done. Our law, as I understand it, is not so defective
as to refuse him a remedy by an action under such circumstances. The
cases collected in the old books on actions on the case, and the
illustrations given by the late Bowen, L. J., in his admirable judgment
in the Mogul Steamship Company’s Case, 23 Q. B. D. 613, 614, may be
referred to in support of the foregoing conclusion, and I do not
understand the decision in Allen _v._ Flood, [1898] A. C. 1, to be
opposed to it.

If the above reasoning is correct, Lumley _v._ Gye, 2 E. & B. 216, was
rightly decided, as I am of opinion it clearly was. Further, the
principle involved in it cannot be confined to inducements to break
contracts of service, nor indeed to inducements to break any contracts.
The principle which underlies the decision reaches all wrongful acts
done intentionally to damage a particular individual and actually
damaging him. Temperton _v._ Russell, [1893] 1 Q. B. 715, ought to have
been decided and may be upheld on this principle. That case was much
criticised in Allen _v._ Flood, [1898] A. C. 1, and not without reason;
for, according to the judgment of Lord Esher, the defendants’ liability
depended on motive or intention alone, whether anything wrong was done
or not. This went too far, as was pointed out in Allen _v._ Flood,
[1898] A. C. 1. But in Temperton _v._ Russell, [1893] 1 Q. B. 715, there
was a wrongful act, namely, conspiracy and unjustifiable interference
with Brentano, who dealt with the plaintiff. This wrongful act warranted
the decision, which I think was right.

2. I pass on to consider what the defendants did. The appellant and two
of the other defendants were the officers of a trade union, and the jury
have found that the defendants wrongfully and maliciously induced the
customers of the plaintiff to refuse to deal with him, and maliciously
conspired to induce them not to deal with him. There were similar
findings as to inducing servants of the plaintiff to leave him. What the
defendants did was to threaten to call out the union workmen of the
plaintiff and of his customers if he would not discharge some non-union
men in his employ. In other words, in order to compel the plaintiff to
discharge some of his men, the defendants threatened to put the
plaintiff and his customers, and persons lawfully working for them, to
all the inconvenience they could without using violence. The defendants’
conduct was the more reprehensible because the plaintiff offered to pay
the fees necessary to enable his non-union men to become members of the
defendants’ union; but this would not satisfy the defendants. The facts
of this case are entirely different from those which this House had to
consider in Allen _v._ Flood, [1898] A. C. 1. In the present case there
was no dispute between the plaintiff and his men. None of them wanted to
leave his employ. Nor was there any dispute between the plaintiff’s
customers and their own men, nor between the plaintiff and his
customers, nor between the men they respectively employed. The
defendants called no witnesses, and there was no evidence to justify or
excuse the conduct of the defendants. That they acted as they did in
furtherance of what they considered the interests of union men may
probably be fairly assumed in their favor, although they did not come
forward and say so themselves; but that is all that can be said for
them. No one can, I think, say that the verdict was not amply warranted
by the evidence. I have purposely said nothing about the black list, as
the learned judge who tried the case considered that the evidence did
not connect the appellant with that list. But the black list was, in my
opinion, a very important feature in the case.

3. The remaining question is whether such conduct infringed the
plaintiff’s rights so as to give him a cause of action. In my opinion,
it plainly did. The defendants were doing a great deal more than
exercising their own rights: they were dictating to the plaintiff and
his customers and servants what they were to do. The defendants were
violating their duty to the plaintiff and his customers and servants,
which was to leave them in the undisturbed enjoyment of their liberty of
action as already explained. What is the legal justification or excuse
for such conduct? None is alleged and none can be found. This violation
of duty by the defendants resulted in damage to the plaintiff—not
remote, but immediate and intended. The intention to injure the
plaintiff negatives all excuses and disposes of any question of
remoteness of damage. Your lordships have to deal with a case, not of
_damnum absque injuria_, but of _damnum cum injuria_.

Every element necessary to give a cause of action on ordinary principles
of law is present in this case. As regards authorities, they were all
exhaustively examined in the Mogul Steamship Co. _v._ MacGregor, [1892]
A. C. 25, and Allen _v._ Flood, [1898] A. C. 1, and it is unnecessary to
dwell upon them again. I have examined all those which are important,
and I venture to say that there is not a single decision anterior to
Allen _v._ Flood, [1898] A. C. 1, in favor of the appellant. His sheet
anchor is Allen _v._ Flood, [1898] A. C. 1, which is far from covering
this case, and which can only be made to cover it by greatly extending
its operation.

It was contended at the bar that if what was done in this case had been
done by one person only, his conduct would not have been actionable, and
that the fact that what was done was affected by many acting in concert
makes no difference. My Lords, one man without others behind him who
would obey his orders could not have done what these defendants did. One
man exercising the same control over others as these defendants had
could have acted as they did, and, if he had done so, I conceive that he
would have committed a wrong towards the plaintiff for which the
plaintiff could have maintained an action. I am aware that in Allen _v._
Flood, [1898] A. C. 1, Lord Herschell, [1898] A. C. at pp. 128, 138,
expressed his opinion to be that it was immaterial whether Allen said he
would call the men out or not. This may have been so in that particular
case, as there was evidence that Allen had no power to call out the men,
and the men had determined to strike before Allen had anything to do
with the matter. But if Lord Herschell meant to say that as a matter of
law there is no difference between giving information that men will
strike, and making them strike, or threatening to make them strike, by
calling them out when they do not want to strike, I am unable to concur
with him. It is all very well to talk about peaceable persuasion. It may
be that in Allen _v._ Flood, [1898] A. C. 1, there was nothing more; but
here there was very much more. What may begin as peaceable persuasion
may easily become, and in trades union disputes generally does become,
peremptory ordering, with threats open or covert of very unpleasant
consequences to those who are not persuaded. Calling workmen out
involves very serious consequences to such of them as do not obey. Black
lists are real instruments of coercion, as every man whose name is on
one soon discovers to his cost. A combination not to work is one thing,
and is lawful. A combination to prevent others from working by annoying
them if they do is a very different thing, and is _prima facie_
unlawful. Again, not to work oneself is lawful so long as one keeps off
the poor-rates, but to order men not to work when they are willing to
work is another thing. A threat to call men out given by a trade union
official to an employer of men belonging to the union and willing to
work with him is a form of coercion, intimidation, molestation, or
annoyance to them and to him very difficult to resist, and, to say the
least, requiring justification. None was offered in this case.

My Lords, it is said that conduct which is not actionable on the part of
one person cannot be actionable if it is that of several acting in
concert. This may be so where many do no more than one is supposed to
do. But numbers may annoy and coerce where one may not. Annoyance and
coercion by many may be so intolerable as to become actionable, and
produce a result which one alone could not produce. I am aware of the
difficulties which surround the law of conspiracy both in its criminal
and civil aspects; and older views have been greatly and, if I may say
so, most beneficially modified by the discussions and decisions in
America and this country. Amongst the American cases, I would refer
especially to Vegelahn _v._ Guntner, 167 Mass. 92, where coercion by
other means than violence, or threats of it, was held unlawful. In this
country it is now settled by the decision of this House in the case of
the Mogul Steamship Co., [1892] A. C. 25; 23 Q. B. D. 598, that no
action for a conspiracy lies against persons who act in concert to
damage another and do damage him, but who at the same time merely
exercise their own rights and who infringe no rights of other people.
Allen _v._ Flood, [1898] A. C. 1, emphasizes the same doctrine. The
principle was strikingly illustrated in the Scottish Coöperative Society
_v._ Glasgow Fleshers’ Association, 35 Sc. L. R. 645, which was referred
to in the course of the argument. In this case some butchers induced
some salesmen not to sell meat to the plaintiffs. The means employed
were to threaten the salesmen that if they continued to sell meat to the
plaintiffs, they, the butchers, would not buy from the salesmen. There
was nothing unlawful in this, and the learned judge held that the
plaintiffs showed no cause of action, although the butchers’ object was
to prevent the plaintiffs from buying for coöperative societies in
competition with themselves, and the defendants were acting in concert.

The cardinal point of distinction between such cases and the present is
that in them, although damage was intentionally inflicted on the
plaintiffs, no one’s right was infringed—no wrongful act was committed;
whilst in the present case the coercion of the plaintiff’s customers and
servants, and of the plaintiff through them, was an infringement of
their liberty as well as his, and was wrongful both to them and also to
him, as I have already endeavored to show.

Intentional damage which arises from the mere exercise of the rights of
many is not, I apprehend, actionable by our law as now settled. To hold
the contrary would be unduly to restrict the liberty of one set of
persons in order to uphold the liberty of another set. According to our
law, competition, with all its drawbacks, not only between individuals,
but between associations, and between them and individuals, is
permissible, provided nobody’s rights are infringed. The law is the same
for all persons, whatever their callings: it applies to masters as well
as to men; the proviso, however, is all-important, and it also applies
to both, and limits the rights of those who combine to lock-out as well
as the rights of those who strike. But coercion by threats, open or
disguised, not only of bodily harm but of serious annoyance and damage,
is _prima facie_, at all events, a wrong inflicted on the persons
coerced; and in considering whether coercion has been applied or not,
numbers cannot be disregarded.

* * * * *

I conclude this part of the case by saying that, in my opinion, the
direction given to the jury by the learned judge who tried the case was
correct, so far as the liability of the defendants turns on principles
of common law, and that the objection taken to it by the counsel for the
appellant is untenable. I mean the objection that the learned judge did
not distinguish between coercion to break contracts of service, and
coercion to break contracts of other kinds, and coercion not to enter
into contracts.

I pass now to consider the effect of the statute 38 & 39 Vict. c. 86.

[The opinion on this point is omitted.]

My Lords, I will detain your Lordships no longer. Allen _v._ Flood,
[1898] A. C. 1, is in many respects a very valuable decision, but it may
be easily misunderstood and carried too far.

Your Lordships are asked to extend it and to destroy that individual
liberty which our laws so anxiously guard. The appellant seeks by means
of Allen _v._ Flood, [1898] A. C. 1, and by logical reasoning based upon
some passages in the judgments given by the noble Lords who decided it,
to drive your Lordships to hold that boycotting by trades unions in one
of its most objectionable forms is lawful, and gives no cause of action
to its victims although they may be pecuniarily ruined thereby.

My Lords, so to hold would, in my opinion, be contrary to well-settled
principles of English law, and would be to do what is not yet authorized
by any statute or legal decision.

In my opinion this appeal ought to be dismissed with costs.

_Order appealed from affirmed, and appeal dismissed with costs._[607]

VEGELAHN _v._ GUNTNER
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 26, 1896.
_Reported in 167 Massachusetts Reports, 92._

Bill in equity against fourteen individual defendants and two trades
unions.[608]

* * * * *

The following decree was entered at a preliminary hearing upon the bill:
“This cause came on to be heard upon the plaintiff’s motion for a
temporary injunction; and after due hearing, at which the several
defendants, were represented by counsel, it is ordered, adjudged, and
decreed that an injunction issue _pendente lite_, to remain in force
until the further order of this court, or of some justice thereof,
restraining the respondents and each and every of them, their agents and
servants, from interfering with the plaintiff’s business by patrolling
the sidewalk or street in front or in the vicinity of the premises
occupied by him, for the purpose of preventing any person or persons who
now are or may hereafter be in his employment, or desirous of entering
the same, from entering it, or continuing in it; or by obstructing or
interfering with such persons, or any others, in entering or leaving the
plaintiff’s said premises; or by intimidating, by threats or otherwise,
any person or persons who now are or may hereafter be in the employment
of the plaintiff, or desirous of entering the same, from entering it, or
continuing in it; or by any scheme or conspiracy among themselves or
with others, organized for the purpose of annoying, hindering,
interfering with, or preventing any person or persons who now are or may
hereafter be in the employment of the plaintiff, or desirous of entering
the same, from entering it, or from continuing therein.”

Hearing upon the bill and answers before Holmes, J., who reported the
case for the consideration of the full court, as follows:—

“The facts admitted or proved are that, following upon a strike of the
plaintiff’s workmen, the defendants have conspired to prevent the
plaintiff from getting workmen, and thereby to prevent him from carrying
on his business unless and until he will adopt a schedule of prices
which has been exhibited to him, and for the purpose of compelling him
to accede to that schedule, but for no other purpose. If he adopts that
schedule he will not be interfered with further. The means adopted for
preventing the plaintiff from getting workmen are, (1) in the first
place, persuasion and social pressure. And these means are sufficient to
affect the plaintiff disadvantageously, although it does not appear, if
that be material, that they are sufficient to crush him. I ruled that
the employment of these means for the said purpose was lawful, and for
that reason refused an injunction against the employment of them. If the
ruling was wrong, I find that an injunction ought to be granted.

“(2) I find also, that, as a further means for accomplishing the desired
end, threats of personal injury or unlawful harm were conveyed to
persons seeking employment or employed, although no actual violence was
used beyond a technical battery, and although the threats were a good
deal disguised, and express words were avoided. It appeared to me that
there was danger of similar acts in the future. I ruled that conduct of
this kind should be enjoined.

“The defendants established a patrol of two men in front of the
plaintiff’s factory, as one of the instrumentalities of their plan. The
patrol was changed every hour, and continued from half-past six in the
morning until half-past five in the afternoon, on one of the busy
streets of Boston. The number of men was greater at times, and at times
showed some little inclination to stop the plaintiff’s door, which was
not serious, but seemed to me proper to be enjoined. The patrol proper
at times went further than simple advice, not obtruded beyond the point
where the other person was willing to listen, and conduct of that sort
is covered by (2) above, but its main purpose was in aid of the plan
held lawful in (1) above. I was satisfied that there was probability of
the patrol being continued if not enjoined. I ruled that the patrol, so
far as it confined itself to persuasion and giving notice of the strike,
was not unlawful, and limited the injunction accordingly.

“There was some evidence of persuasion to break existing contracts. I
ruled that this was unlawful, and should be enjoined.

“I made the final decree appended hereto. If, on the foregoing facts, it
ought to be reversed or modified, such decree is to be entered as the
full court may think proper; otherwise, the decree is to stand.”

The final decree was as follows: “This cause came on to be heard, and
was argued by counsel; and thereupon, on consideration thereof, it is
ordered, adjudged, and decreed that the defendants, and each and every
of them, their agents and servants, be restrained and enjoined from
interfering with the plaintiff’s business by obstructing or physically
interfering with any persons in entering or leaving the plaintiff’s
premises numbered 141, 143, 145, 147 North Street in said Boston, or by
intimidating, by threats, express or implied, of violence or physical
harm to body or property, any person or persons who now are or hereafter
may be in the employment of the plaintiff, or desirous of entering the
same, from entering or continuing in it, or by in any way hindering,
interfering with, or preventing any person or persons who now are in the
employment of the plaintiff from continuing therein, so long as they may
be bound so to do by lawful contract.”

ALLEN, J. The principal question in this case is whether the defendants
should be enjoined against maintaining the patrol. The report shows
that, following upon a strike of the plaintiff’s workmen, the defendants
conspired to prevent him from getting workmen, and thereby to prevent
him from carrying on his business, unless and until he should adopt a
certain schedule of prices. The means adopted were persuasion and social
pressure, threats of personal injury or unlawful harm conveyed to
persons employed or seeking employment, and a patrol of two men in front
of the plaintiff’s factory, maintained from half-past six in the morning
till half-past five in the afternoon, on one of the busiest streets of
Boston. The number of men was greater at times, and at times showed some
little disposition to stop the plaintiff’s door. The patrol proper at
times went further than simple advice, not obtruded beyond the point
where the other person was willing to listen; and it was found that the
patrol would probably be continued, if not enjoined. There was also some
evidence of persuasion to break existing contracts.

The patrol was maintained as one of the means of carrying out the
defendants’ plan, and it was used in combination with social pressure,
threats of personal injury or unlawful harm, and persuasion to break
existing contracts. It was thus one means of intimidation indirectly to
the plaintiff, and directly to persons actually employed, or seeking to
be employed, by the plaintiff, and of rendering such employment
unpleasant or intolerable to such persons. Such an act is an unlawful
interference with the rights both of employer and of employed. An
employer has a right to engage all persons who are willing to work for
him, at such prices as may be mutually agreed upon; and persons employed
or seeking employment have a corresponding right to enter into or remain
in the employment of any person or corporation willing to employ them.
These rights are secured by the Constitution itself. Commonwealth _v._
Perry, 155 Mass. 117; People _v._ Gillson, 109 N. Y. 389; Braceville
Coal Co. _v._ People, 147 Ill. 66, 71; Ritchie _v._ People, 155 Ill. 98;
Low _v._ Rees Printing Co., 41 Neb. 127. No one can lawfully interfere
by force or intimidation to prevent employers or persons employed or
wishing to be employed from the exercise of these rights. In
Massachusetts, as in some other States, it is even made a criminal
offence for one by intimidation or force to prevent or seek to prevent a
person from entering into or continuing in the employment of a person or
corporation. Pub. Sts. c. 74, § 2. Intimidation is not limited to
threats of violence or of physical injury to person or property. It has
a broader signification, and there also may be a moral intimidation
which is illegal. Patrolling or picketing, under the circumstances
stated in the report, has elements of intimidation like those which were
found to exist in Sherry _v._ Perkins, 147 Mass. 212. It was declared to
be unlawful in Regina _v._ Druitt, 10 Cox C. C. 592; Regina _v._
Hibbert, 13 Cox C. C. 82; and Regina _v._ Bauld, 13 Cox C. C. 282. It
was assumed to be unlawful in Trollope _v._ London Building Trades
Federation, 11 T. L. R. 228, though in that case the pickets were
withdrawn before the bringing of the bill. The patrol was an unlawful
interference both with the plaintiff and with the workmen, within the
principle of many cases, and, when instituted for the purpose of
interfering with his business, it became a private nuisance. See Carew
_v._ Rutherford, 106 Mass. 1; Walker _v._ Cronin, 107 Mass. 555; Barr
_v._ Essex Trades Council, 8 Dick. 101; Murdock _v._ Walker, 152 Penn.
St. 595; Wick China Co. _v._ Brown, 164 Penn. St. 449; Cœur d’Alene
Consolidated & Mining Co. _v._ Miners’ Union, 51 Fed. Rep. 260;
Temperton _v._ Russell, [1893] 1 Q. B. 715; Flood _v._ Jackson, 11 T. L.
R. 276; Wright _v._ Hennessey, a case before Baron Pollock, 52 Alb. L.
J. 104; Judge _v._ Bennett, 36 W. R. 103; Lyons _v._ Wilkins, [1896] 1
Ch. 811.

The defendants contend that these acts were justifiable, because they
were only seeking to secure better wages for themselves by compelling
the plaintiff to accept their schedule of wages. This motive or purpose
does not justify maintaining a patrol in front of the plaintiff’s
premises, as a means of carrying out their conspiracy. A combination
among persons merely to regulate their own conduct is within allowable
competition, and is lawful, although others may be indirectly affected
thereby. But a combination to do injurious acts expressly directed to
another, by way of intimidation or constraint either of himself or of
persons employed or seeking to be employed by him, is outside of
allowable competition, and is unlawful. Various decided cases fall
within the former class, for example: Worthington _v._ Waring, 157 Mass.
421; Snow _v._ Wheeler, 113 Mass. 179; Bowen _v._ Matheson, 14 Allen,
499; Commonwealth _v._ Hunt, 4 Met. 111; Heywood _v._ Tillson, 75 Maine,
225; Cote _v._ Murphy, 159 Penn. St. 420; Bohn Manuf. Co. _v._ Hollis,
54 Minn. 223; Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Curran
_v._ Treleaven, [1891] 2 Q. B. 545, 561. The present case falls within
the latter class.

Nor does the fact that the defendants’ acts might subject them to an
indictment prevent a court of equity from issuing an injunction. It is
true that ordinarily a court of equity will decline to issue an
injunction to restrain the commission of a crime; but a continuing
injury to property or business may be enjoined, although it may also be
punishable as a nuisance or other crime. Sherry _v._ Perkins, 147 Mass.
212; _In re_ Debs, 158 U. S. 564, 593, 599; Baltimore & Potomac Railroad
_v._ Fifth Baptist Church, 108 U. S. 317, 329; Cranford _v._ Tyrell, 128
N. Y. 341, 344; Gilbert _v._ Mickle, 4 Sandf. Ch. 357; Mobile _v._
Louisville & Nashville Railroad, 84 Ala. 115, 126; Arthur _v._ Oakes, 63
Fed. Rep. 310; Toledo, Ann Arbor, & North Michigan Railway _v._
Pennsylvania Co., 54 Fed. Rep. 730, 744; Emperor of Austria _v._ Day, 3
DeG., F. & J. 217, 239, 240, 253; Hermann Loog _v._ Bean, 26 Ch. D. 306,
314, 316, 317; Monson _v._ Tussaud, [1894] 1 Q. B. 671, 689, 690, 698.

A question is also presented whether the court should enjoin such
interference with persons in the employment of the plaintiff who are not
bound by contract to remain with him, or with persons who are not under
any existing contract, but who are seeking or intending to enter into
his employment. A conspiracy to interfere with the plaintiff’s business
by means of threats and intimidation, and by maintaining a patrol in
front of his premises in order to prevent persons from entering his
employment, or in order to prevent persons who are in his employment
from continuing therein, is unlawful, even though such persons are not
bound by contract to enter into or to continue in his employment; and
the injunction should not be so limited as to relate only to persons who
are bound by existing contracts. Walker _v._ Cronin, 107 Mass. 555, 565;
Carew _v._ Rutherford, 106 Mass. 1; Sherry _v._ Perkins, 147 Mass. 212;
Temperton _v._ Russell, [1893] 1 Q. B. 715, 728, 731; Flood _v._
Jackson, 11 L. T. R. 276.

In the opinion of a majority of the court the injunction should be in
the form originally issued.

_So ordered._

[The opinion of FIELD, C. J., is omitted. His conclusion was, “that the
decree entered by Mr. Justice Holmes should be affirmed without
modification.”]

HOLMES, J. In a case like the present, it seems to me that, whatever the
true result may be, it will be of advantage to sound thinking to have
the less popular view of the law stated, and therefore, although when I
have been unable to bring my brethren to share my convictions my almost
invariable practice is to defer to them in silence, I depart from that
practice in this case, notwithstanding my unwillingness to do so in
support of an already rendered judgment of my own.

In the first place, a word or two should be said as to the meaning of
the report. I assume that my brethren construe it as I meant it to be
construed, and that, if they were not prepared to do so, they would give
an opportunity to the defendants to have it amended in accordance with
what I state my meaning to be. There was no proof of any threat or
danger of a patrol exceeding two men, and as of course an injunction is
not granted except with reference to what there is reason to expect in
its absence, the question on that point is whether a patrol of two men
should be enjoined. Again, the defendants are enjoined by the final
decree from intimidating by threats, express or implied, of physical
harm to body or property, any person who may be desirous of entering
into the employment of the plaintiff so far as to prevent him from
entering the same. In order to test the correctness of the refusal to go
further, it must be assumed that the defendants obey the express
prohibition of the decree. If they do not, they fall within the
injunction as it now stands, and are liable to summary punishment. The
important difference between the preliminary and the final injunction is
that the former goes further, and forbids the defendants to interfere
with the plaintiff’s business “by any scheme ... organized for the
purpose of ... preventing any person or persons who now are or may
hereafter be ... desirous of entering the [plaintiff’s employment] from
entering it.” I quote only a part, and the part which seems to me most
objectionable. This includes refusal of social intercourse, and even
organized persuasion or argument, although free from any threat of
violence, either express or implied. And this is with reference to
persons who have a legal right to contract or not to contract with the
plaintiff, as they may see fit. Interference with existing contracts is
forbidden by the final decree. I wish to insist a little that the only
point of difference which involves a difference of principle between the
final decree and the preliminary injunction which it is proposed to
restore, is what I have mentioned, in order that it may be seen exactly
what we are to discuss. It appears to me that the judgment of the
majority turns in part on the assumption that the patrol necessarily
carries with it a threat of bodily harm. That assumption I think
unwarranted, for the reasons which I have given. Furthermore, it cannot
be said, I think, that two men walking together up and down a sidewalk
and speaking to those who enter a certain shop do necessarily and always
thereby convey a threat of force. I do not think it possible to
discriminate and to say that two workmen, or even two representatives of
an organization of workmen, do,—especially when they are, and are known
to be, under the injunction of this court not to do so. See Stimson,
Handbook to Labor Law, § 60, esp. pp. 290, 298, 299, 300; Regina _v._
Shepherd, 11 Cox C. C. 325. I may add, that I think the more intelligent
workingmen believe as fully as I do that they no more can be permitted
to usurp the State’s prerogative of force than can their opponents in
their controversies. But if I am wrong, then the decree as it stands
reaches the patrol, since it applies to all threats of force. With this
I pass to the real difference between the interlocutory and the final
decree.

I agree, whatever may be the law in the case of a single defendant, Rice
_v._ Albee, 164 Mass. 88, that when a plaintiff proves that several
persons have combined and conspired to injure his business, and have
done acts producing that effect, he shows temporal damage and a cause of
action, unless the facts disclose, or the defendants prove, some ground
of excuse or justification. And I take it to be settled, and rightly
settled, that doing that damage by combined persuasion is actionable, as
well as doing it by falsehood or by force. Walker _v._ Cronin, 107 Mass.
555; Morasse _v._ Brochu, 151 Mass. 567; Tasker _v._ Stanley, 153 Mass.
148.

Nevertheless, in numberless instances the law warrants the intentional
infliction of temporal damage because it regards it as justified. It is
on the question of what shall amount to a justification, and more
especially on the nature of the considerations which really determine or
ought to determine the answer to that question, that judicial reasoning
seems to me often to be inadequate. The true grounds of decision are
considerations of policy and of social advantage, and it is vain to
suppose that solutions can be attained merely by logic and the general
propositions of law which nobody disputes. Propositions as to public
policy rarely are unanimously accepted, and still more rarely, if ever,
are capable of unanswerable proof. They require a special training to
enable any one even to form an intelligent opinion about them. In the
early stages of law, at least, they generally are acted on rather as
inarticulate instincts than as definite ideas for which a rational
defence is ready.

To illustrate what I have said in the last paragraph, it has been the
law for centuries that a man may set up a business in a country town too
small to support more than one, although he expects and intends thereby
to ruin some one already there, and succeeds in his intent. In such a
case he is not held to act “unlawfully and without justifiable cause,”
as was alleged in Walker _v._ Cronin and Rice _v._ Albee. The reason, of
course, is that the doctrine generally has been accepted that free
competition is worth more to society than it costs, and that on this
ground the infliction of the damage is privileged. Commonwealth _v._
Hunt, 4 Met. 111, 134. Yet even this proposition nowadays is disputed by
a considerable body of persons, including many whose intelligence is not
to be denied, little as we may agree with them.

I have chosen this illustration partly with reference to what I have to
say next. It shows without the need of further authority that the policy
of allowing free competition justifies the intentional inflicting of
temporal damage, including the damage of interference with a man’s
business, by some means, when the damage is done not for its own sake,
but as an instrumentality in reaching the end of victory in the battle
of trade. In such a case it cannot matter whether the plaintiff is the
only rival of the defendant, and so is aimed at specifically, or is one
of a class all of whom are hit. The only debatable ground is the nature
of the means by which such damage may be inflicted. We all agree that it
cannot be done by force or threats of force. We all agree, I presume,
that it may be done by persuasion to leave a rival’s shop and come to
the defendant’s. It may be done by the refusal or withdrawal of various
pecuniary advantages which, apart from this consequence, are within the
defendant’s lawful control. It may be done by the withdrawal, or threat
to withdraw, such advantages from third persons who have a right to deal
or not to deal with the plaintiff, as a means of inducing them not to
deal with him either as customers or servants. Commonwealth _v._ Hunt, 4
Met. 111, 132, 133; Bowen _v._ Matheson, 14 Allen, 499; Heywood _v._
Tillson, 75 Maine, 225; Mogul Steamship Co. _v._ McGregor, [1892] A. C.
25.

I pause here to remark that the word “threats” often is used as if when
it appeared that threats had been made, it appeared that unlawful
conduct had begun. But it depends on what you threaten. As a general
rule, even if subject to some exceptions, what you may do in a certain
event you may threaten to do,[609] that is, give warning of your
intention to do in that event, and thus allow the other person the
chance of avoiding the consequences. So as to “compulsion,” it depends
on how you “compel.” Commonwealth _v._ Hunt, 4 Met. 111, 133. So as to
“annoyance” or “intimidation.” Connor _v._ Kent, Curran _v._ Treleaven,
17 Cox C. C. 354, 367, 368, 370. In Sherry _v._ Perkins, 147 Mass. 212,
it was found as a fact that the display of banners which was enjoined
was part of a scheme to prevent workmen from entering or remaining in
the plaintiff’s employment, “by threats and intimidation.” The context
showed that the words as there used meant threats of personal violence,
and intimidation by causing fear of it.

I have seen the suggestion made that the conflict between employers and
employed is not competition. But I venture to assume that none of my
brethren would rely on that suggestion. If the policy on which our law
is founded is too narrowly expressed in the term free competition, we
may substitute free struggle for life. Certainly the policy is not
limited to struggles between persons of the same class competing for the
same end. It applies to all conflicts of temporal interests.

So far, I suppose, we are agreed. But there is a notion which latterly
has been insisted on a good deal, that a combination of persons to do
what any one of them lawfully might do by himself will make the
otherwise lawful conduct unlawful. It would be rash to say that some as
yet unformulated truth may not be hidden under this proposition. But in
the general form in which it has been presented and accepted by many
courts, I think it plainly untrue, both on authority and on
principle.[610] Commonwealth _v._ Hunt, 4 Met. 111; Randall _v._
Hazelton, 12 Allen, 412, 414. There was combination of the most flagrant
and dominant kind in Bowen _v._ Matheson and in the Mogul Steamship
Company’s case, and combination was essential to the success achieved.
But it is not necessary to cite cases; it is plain from the slightest
consideration of practical affairs, or the most superficial reading of
industrial history, that free competition means combination, and that
the organization of the world, now going on so fast, means an ever
increasing might and scope of combination. It seems to me futile to set
our faces against this tendency. Whether beneficial on the whole, as I
think it, or detrimental, it is inevitable, unless the fundamental
axioms of society, and even the fundamental conditions of life, are to
be changed.

One of the eternal conflicts out of which life is made up is that
between the effort of every man to get the most he can for his services,
and that of society, disguised under the name of capital, to get his
services for the least possible return. Combination on the one side is
patent and powerful. Combination on the other is the necessary and
desirable counterpart, if the battle is to be carried on in a fair and
equal way. I am unable to reconcile Temperton _v._ Russell, [1893] 1 Q.
B. 715, and the cases which follow it, with the Mogul Steamship Company
case. But Temperton _v._ Russell is not a binding authority here, and
therefore I do not think it necessary to discuss it.

If it be true that workingmen may combine with a view, among other
things, to getting as much as they can for their labor, just as capital
may combine with a view to getting the greatest possible return, it must
be true that when combined they have the same liberty that combined
capital has to support their interests by argument, persuasion, and the
bestowal or refusal of those advantages which they otherwise lawfully
control. I can remember when many people thought that, apart from
violence or breach of contract, strikes were wicked, as organized
refusals to work. I suppose that intelligent economists and legislators
have given up that notion to-day. I feel pretty confident that they
equally will abandon the idea that an organized refusal by workmen of
social intercourse with a man who shall enter their antagonist’s employ
is wrong, if it is dissociated from any threat of violence, and is made
for the sole object of prevailing if possible in a contest with their
employer about the rate of wages. The fact, that the immediate object of
the act by which the benefit to themselves is to be gained is to injure
their antagonist, does not necessarily make it unlawful, any more than
when a great house lowers the price of certain goods for the purpose,
and with the effect, of driving a smaller antagonist from the business.
Indeed, the question seems to me to have been decided as long ago as
1842 by the good sense of Chief Justice Shaw, in Commonwealth _v._ Hunt,
4 Met. 111. I repeat at the end, as I said at the beginning, that this
is the point of difference in principle, and the only one, between the
interlocutory and the final decree. See Regina _v._ Shepherd, 11 Cox C.
C. 325; Connor _v._ Kent, Gibson _v._ Lawson, Curran _v._ Treleaven, 17
Cox C. C. 354.

The general question of the propriety of dealing with this kind of case
by injunction I say nothing about, because I understand that the
defendants have no objection to the final decree if it goes no further,
and that both parties wish a decision upon the matters which I have
discussed.[611]

PLANT _v._ WOODS
SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER 5, 1900.
_Reported in 176 Massachusetts Reports, 492._

Bill in equity filed in the Superior Court, by the officers and members
“of the voluntary association known as Union 257, Painters and
Decorators of America of Springfield, Massachusetts, which Union is
affiliated with a national organization of the same name, with
headquarters at Lafayette in the State of Indiana,” against the officers
and members “of the voluntary association known as Union 257, Painters
and Decorators of America, which Union is affiliated with a national
organization of the same name, with headquarters at Baltimore in the
State of Maryland,” to restrain the defendants from any acts or the use
of any methods tending to prevent the members of the plaintiff
association from securing employment or continuing in their employment.
Hearing before Dewey, J., who entered the following decree:

“The cause came on to be heard, and was argued by counsel; and
thereupon, on consideration thereof, it is ordered adjudged and decreed
that the defendant association, the defendants, and each and every of
them, their committees, agents, and servants, be restrained and strictly
enjoined from interfering and from combining, conspiring, or attempting
to interfere, with the employment of members of the plaintiffs’ said
association, by representing or causing to be represented in express or
implied terms to any employer of said members of plaintiffs’
association, or to any person or persons or corporation who might become
employers of any of the plaintiffs, that such employers will suffer or
are likely to suffer some loss or trouble in their business for
employing or continuing to employ said members of plaintiffs’ said
association; or by representing, directly or indirectly, for the purpose
of interfering with the employment of members of the plaintiffs’ said
association, to any who have contracts or may have contracts for
services to be performed by employers of members of plaintiffs’ said
association that such persons will or are likely to suffer some loss or
trouble in their business for allowing such employers of members of
plaintiffs’ said association (and because they are such employers) to
obtain or perform such contracts; or by intimidating or attempting to
intimidate, by threats, direct or indirect, express or implied, of loss
or trouble in business, or otherwise, any person or persons or
corporation who now are employing or may hereafter employ or desire to
employ any of the members of the plaintiffs’ said association; or by
attempting by any scheme or conspiracy, among themselves or with others,
to annoy, hinder, or interfere with, or prevent any person or persons or
corporation from employing or continuing to employ a member or members
of plaintiffs’ said association; or by causing, or attempting to cause,
any person to discriminate against any employer of members of
plaintiffs’ said association (because he is such employer) in giving or
allowing the performance of contracts to or by such employer; and from
any and all acts, or the use of any methods, which by putting or
attempting to put any person or persons or corporation in fear of loss
or trouble, will tend to hinder, impede, or obstruct members, or any
member, of the plaintiffs’ said association from securing employment or
continuing in employment. And that the plaintiffs recover their costs,
taxed as in an action of law.”

The case was reported, at the request of both parties, for the
determination of this court. The facts appear in the opinion.

HAMMOND, J. This case arises out of a contest for supremacy between two
labor unions of the same craft, having substantially the same
constitution and by-laws. The chief difference between them is that the
plaintiff union is affiliated with a national organization having its
headquarters in Lafayette in the State of Indiana, while the defendant
union is affiliated with a similar organization having its headquarters
in Baltimore in the State of Maryland. The plaintiff union was composed
of workmen who in 1897 withdrew from the defendant union.

There does not appear to be anything illegal in the object of either
union as expressed in its constitution and by-laws. The defendant union
is also represented by delegates in the Central Labor Union, which is an
organization composed of five delegates from each trade union in the
city of Springfield, and had in its constitution a provision for levying
a boycott upon a complaint made by any union.

The case is before us upon a report after a final decree in favor of the
plaintiffs, based upon the findings stated in the report of the master.

The contest became active early in the fall of 1898. In September of
that year, the members of the defendant union declared “all painters not
affiliated with the Baltimore headquarters to be non-union men,” and
voted to “notify the bosses” of that declaration. The manifest object of
the defendants was to have all the members of the craft subjected to the
rules and discipline of their particular union, in order that they might
have better control over the whole business, and to that end they
combined and conspired to get the plaintiffs and each of them to join
the defendant association, peaceably if possible but by threat and
intimidation if necessary. Accordingly, on October 7, they voted that
“if our demands are not complied with, all men working in shops where
Lafayette people are employed refuse to go to work.” The plaintiffs
resisting whatever persuasive measures, if any, were used by the
defendants, the latter proceeded to carry out their plan in the manner
fully set forth in the master’s report. Without rehearsing the
circumstances in detail it is sufficient to say here that the general
method of operations was substantially as follows:—

A duly authorized agent of the defendants would visit a shop where one
or more of the plaintiffs were at work and inform the employer of the
action of the defendant union with reference to the plaintiffs, and ask
him to induce such of the plaintiffs as were in his employ to sign
application for reinstatement in the defendant union. As to the general
nature of these interviews the master finds that the defendants have
been courteous in manner, have made no threats of personal violence,
have referred to the plaintiffs as non-union men, but have not otherwise
represented them as men lacking good standing in their craft; that they
have not asked that the Lafayette men be discharged, and in some cases
have expressly stated that they did not wish to have them discharged,
but only that they sign the blanks for reinstatement in the defendant
union. The master, however, further finds, from all the circumstances
under which those requests were made, that the defendants intended that
employers of Lafayette men should fear trouble in their business if they
continued to employ such men, and that employers to whom these requests
were made were justified in believing that a failure on the part of
their employees who were Lafayette men to sign such reinstatement
blanks, and a failure on the part of the employers to discharge them for
not doing so, would lead to trouble in the business of the employers in
the nature of strikes or a boycott, and the employers to whom these
requests were made did believe that such results would follow, and did
suggest their belief to the defendants, and the defendants did not deny
that such results might occur; that the strikes which did occur appear
to have been steps taken by the defendants to obtain the discharge of
such employees as were Lafayette men who declined to sign application
blanks for reinstatement; that these defendants did not in all cases
threaten a boycott of the employers’ business, but did threaten that the
place of business of at least one such employer would be left off from a
so-called “fair list” to be published by the Baltimore Union. The master
also found that, from all the evidence presented, the object which the
Baltimore men and the defendant association sought to accomplish in all
the acts which were testified to was to compel the members of the
Lafayette Union to join the Baltimore Union, and as a means to this end
they caused strikes to be instituted in the shops where strikes would
seriously interfere with the business of the shops, and in all other
shops they made such representations as would lead the proprietors
thereof to expect trouble in their business.

We have, therefore, a case where the defendants have conspired to compel
the members of the plaintiff union to join the defendant union, and to
carry out their purpose have resolved upon such coercion and
intimidation as naturally may be caused by threats of loss of property
by strikes and boycotts, to induce the employers either to get the
plaintiffs to ask for reinstatement in the defendant union, or, that
failing, then to discharge them. It matters not that this request to
discharge has not been expressly made. There can be no doubt, upon the
findings of the master and the facts stated in his report, that the
compulsory discharge of the plaintiffs in case of non-compliance with
the demands of the defendant union is one of the prominent features of
the plan agreed upon.

It is well to see what is the meaning of this threat to strike, when
taken in connection with the intimation that the employer may “expect
trouble in his business.” It means more than that the strikers will
cease to work. That is only the preliminary skirmish. It means that
those who have ceased to work will, by strong, persistent, and organized
persuasion and social pressure of every description, do all they can to
prevent the employer from procuring workmen to take their places. It
means much more. It means that, if these peaceful measures fail, the
employer may reasonably expect that unlawful physical injury may be done
to his property; that attempts in all the ways practised by organized
labor will be made to injure him in his business, even to his ruin, if
possible; and that, by the use of vile and opprobrious epithets and
other annoying conduct, and actual and threatened personal violence,
attempts will be made to intimidate those who enter or desire to enter
his employ; and that whether or not all this be done by the strikers or
only by their sympathizers, or with the open sanction and approval of
the former, he will have no help from them in his efforts to protect
himself.

However mild the language or suave the manner in which the threat to
strike is made under such circumstances as are disclosed in this case,
the employer knows that he is in danger of passing through such an
ordeal as that above described, and those who make the threat know that
as well as he does. Even if the intent of the strikers, so far as
respects their own conduct and influence, be to discountenance all
actual or threatened injury to person or property or business, except
that which is the direct necessary result of the interruption of the
work, and even if their connection with the injurious and violent
conduct of the turbulent among them or of their sympathizers be not such
as to make them liable criminally or even answerable civilly in damages
to those who suffer, still with full knowledge of what is to be expected
they give the signal, and in so doing must be held to avail themselves
of the degree of fear and dread which the knowledge of such consequences
will cause in the mind of those—whether their employer or fellow
workmen—against whom the strike is directed; and the measure of coercion
and intimidation imposed upon those against whom the strike is
threatened or directed is not fully realized until all those probable
consequences are considered.

Such is the nature of the threat, and such the degree of coercion and
intimidation involved in it.

If the defendants can lawfully perform the acts complained of in the
city of Springfield, they can pursue the plaintiffs all over the State
in the same manner, and compel them to abandon their trade or bow to the
behests of their pursuers.

It is to be observed that this is not a case between the employer and
employed, or, to use a hackneyed expression, between capital and labor,
but between laborers all of the same craft, and each having the same
right as any one of the others to pursue his calling. In this, as in
every other case of equal rights, the right of each individual is to be
exercised with due regard to the similar right of all others, and the
right of one be said to end where that of another begins.

The right involved is the right to dispose of one’s labor with full
freedom. This is a legal right, and it is entitled to legal protection.
Sir William Erle in his book on Trade Unions, page 12, has stated this
in the following language, which has been several times quoted with
approval by judges in England: “Every person has a right under the law,
as between him and his fellow subjects, to full freedom in disposing of
his own labor or his own capital according to his own will. It follows
that every other person is subject to the correlative duty arising
therefrom, and is prohibited from any obstruction to the fullest
exercise of this right which can be made compatible with the exercise of
similar rights by others. Every act causing an obstruction to another in
the exercise of the right comprised within this description—done, not in
the exercise of the actor’s own right, but for the purpose of
obstruction—would if damage should be caused thereby to the party
obstructed, be a violation of this prohibition.”

The same rule is stated with care and discrimination by Wells, J., in
Walker _v._ Cronin, 107 Mass. 555, 564: “Every one has a right to enjoy
the fruits and advantages of his own enterprise, industry, skill, and
credit. He has no right to be protected against competition; but he has
a right to be free from malicious and wanton interference, disturbance,
or annoyance. If disturbance or loss come as a result of competition, or
the exercise of like rights by others, it is _damnum absque injuria_,
unless some superior right by contract or otherwise is interfered with.
But if it come from the merely wanton or malicious acts of others,
without the justification of competition or the service of any interest
or lawful purpose, it then stands upon a different footing.”

In this case the acts complained of were calculated to cause damage to
the plaintiffs, and did actually cause such damage; and they were
intentionally done for that purpose. Unless, therefore, there was
justifiable cause, the acts were malicious and unlawful. Walker _v._
Cronin, _ubi supra_, Carew _v._ Rutherford, 106 Mass. 1, and cases cited
therein.

The defendants contend that they have done nothing unlawful, and, in
support of that contention, they say that a person may work for whom he
pleases; and, in the absence of any contract to the contrary, may cease
to work when he pleases, and for any reason whatever, whether the same
be good or bad; that he may give notice of his intention in advance,
with or without stating the reason; that what one man may do several men
acting in concert may do, and may agree beforehand that they will do,
and may give notice of the agreement; and that all this may be lawfully
done notwithstanding such concerted action may, by reason of the
consequent interruption of the work, result in great loss to the
employer and his other employees, and that such a result was intended.
In a general sense, and without reference to exceptions arising out of
conflicting public and private interests, all this may be true.

It is said also that, where one has the lawful right to do a thing, the
motive by which he is actuated is immaterial. One form of this statement
appears in the first head-note in Allen _v._ Flood, as reported in
[1898] A. C. 1, as follows: “An act lawful in itself is not converted by
a malicious or bad motive into an unlawful act so as to make the doer of
the act liable to a civil action.” If the meaning of this and similar
expressions is that where a person has the lawful right to do a thing
irrespective of his motive, his motive is immaterial the proposition is
a mere truism. If, however, the meaning is that where a person, if
actuated by one kind of a motive, has a lawful right to do a thing, the
act is lawful when done under any conceivable motive; or that an act
lawful under one set of circumstances is therefore lawful under every
conceivable set of circumstances, the proposition does not commend
itself to us as either logically or legally accurate.

In so far as a right is lawful, it is lawful, and in many cases the
right is so far absolute as to be lawful whatever may be the motive of
the actor, as where one digs upon his own land for water (Greenleaf _v._
Francis, 18 Pick. 117), or makes a written lease of his land for the
purpose of terminating a tenancy at will (Groustra _v._ Bourges, 141
Mass. 7), but in many cases the lawfulness of an act which causes damage
to another may depend upon whether the act is for justifiable cause; and
this justification may be found sometimes in the circumstances under
which it is done irrespective of motive, sometimes in the motive alone,
and sometimes in the circumstances and motive combined.

This principle is of very general application in criminal law, and also
is illustrated in many branches of the civil law, as in cases of libel
and of procuring a wife to leave her husband. Tasker _v._ Stanley, 153
Mass. 148, and cases therein cited. Indeed the principle is a prominent
feature underlying the whole doctrine of privilege, malice, and intent.
See on this an instructive article in 8 Harvard Law Review, 1, where the
subject is considered at some length.

It is manifest that not much progress is made by such general statements
as those quoted above from Allen _v._ Flood, whatever may be their
meaning.

Still standing for solution is the question, Under what circumstances,
including the motive of the actor, is the act complained of lawful, and
to what extent?

In cases somewhat akin to the one at bar this court has had occasion to
consider the question how far acts, manifestly coercive and intimidating
in their nature, which cause damage and injury to the business or
property of another, and are done with intent to cause such injury and
partly in reliance upon such coercion, are justifiable.

In Bowen _v._ Matheson, 14 Allen, 499, it was held to be lawful for
persons engaged in the business of shipping seamen to combine together
into a society for the purpose of competing with other persons engaged
in the same business, and it was held lawful for them, in pursuance of
that purpose, to take men out of a ship, if men shipped by a non-member
were in that ship; to refuse to furnish seamen through a non-member; to
notify the public that they had combined against non-members, and had
“laid the plaintiff on the shelf”; to notify the plaintiff’s customers
and friends that the plaintiff could not ship seamen for them; and to
interfere in all these ways with the business of the plaintiff as a
shipping agent, and compel him to abandon the same. The justification
for these acts, so injurious to the business of the plaintiff and so
intimidating in their nature, is to be found in the law of competition.
No legal right of the plaintiff was infringed upon, and, as stated by
Chapman, J., in giving the opinion of the court (p. 503), “if their
effect is to destroy the business of shipping-masters who are not
members of the association, it is such a result as in the competition of
business often follows from a course of proceeding that the law
permits.” The primary object of the defendants was to build up their own
business, and this they might lawfully do to the extent disclosed in
that case, even to the injury of their rivals.

Similar decisions have been made in other courts where acts somewhat
coercive in their nature and effect have been held justifiable under the
law of competition. Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25;
Bohn Manuf. Co. _v._ Hollis, 54 Minn. 223; Macauley _v._ Tierney, 19 R.
I. 255.

On the other hand, it was held in Carew _v._ Rutherford, 106 Mass. 1,
that a conspiracy against a mechanic,—who is under the necessity of
employing workmen in order to carry on his business,—to obtain a sum of
money from him which he is under no legal obligation to pay, by inducing
his workmen to leave him or by deterring others from entering into his
employ, or by threatening to do this so that he is induced to pay the
money demanded, under a reasonable apprehension that he cannot carry on
his business without yielding to the demands, is an illegal, if not a
criminal conspiracy; that the acts done under it are illegal, and that
the money thus obtained may be recovered back. Chapman, C. J., speaking
for the court, says that there is no doubt that, if the parties under
such circumstances succeed in injuring the business of the mechanic,
they are liable to pay all the damages done to him.

That case bears a close analogy to the one at bar. The acts there
threatened were like those in this case, and the purpose was, in
substance, to force the plaintiff to give his work to the defendants,
and to extort from him a fine because he had given some of his work to
other persons.

Without now indicating to what extent workmen may combine and in
pursuance of an agreement may act by means of strikes and boycotts to
get the hours of labor reduced or their wages increased, or to procure
from their employers any other concession directly and immediately
affecting their own interests, or to help themselves in competition with
their fellow-workmen, we think this case must be governed by the
principles laid down in Carew _v._ Rutherford, _ubi supra_. The purpose
of these defendants was to force the plaintiffs to join the defendant
association, and to that end they injured the plaintiffs in their
business, and molested and disturbed them in their efforts to work at
their trade. It is true they committed no acts of personal violence, or
of physical injury to property, although they threatened to do something
which might reasonably be expected to lead to such results. In their
threat, however, there was plainly that which was coercive in its effect
upon the will. It is not necessary that the liberty of the body should
be restrained. Restraint of the mind, provided it would be such as would
be likely to force a man against his will to grant the thing demanded,
and actually has that effect, is sufficient in cases like this. As
stated by Lord Bramwell in Regina _v._ Druitt, 10 Cox C. C. 592, 600,
“No right of property, or capital, ... was so sacred, or so carefully
guarded by the law of this land, as that of personal liberty.... That
liberty was not liberty of the body only. It was also a liberty of the
mind and will; and the liberty of a man’s mind and will, to say how he
should bestow himself and his means, his talents, and his industry, was
as much a subject of the law’s protection as was that of his body.”

It was not the intention of the defendants to give fairly to the
employer the option to employ them or the plaintiffs, but to compel the
latter against their will to join the association, and to that end to
molest and interfere with them in their efforts to procure work by acts
and threats well calculated by their coercive and intimidating nature to
overcome the will.

The defendants might make such lawful rules as they please for the
regulation of their own conduct, but they had no right to force other
persons to join them.

The necessity that the plaintiffs should join this association is not so
great, nor is its relation to the rights of the defendants, as compared
with the right of the plaintiffs to be free from molestation, such as to
bring the acts of the defendants under the shelter of the principles of
trade competition. Such acts are without justification, and therefore
are malicious and unlawful, and the conspiracy thus to force the
plaintiffs was unlawful. Such conduct is intolerable, and inconsistent
with the spirit of our laws.

The language used by this court in Carew _v._ Rutherford, 106 Mass. 1,
15, may be repeated here with emphasis, as applicable to this case: “The
acts alleged and proved in this case are peculiarly offensive to the
free principles which prevail in this country; and if such practices
could enjoy impunity, they would tend to establish a tyranny of
irresponsible persons over labor and mechanical business which would be
extremely injurious to both.” See, in addition to the authorities above
cited, Commonwealth _v._ Hunt, 4 Met. 111; Sherry _v._ Perkins, 147
Mass. 212, 214; Vegelahn _v._ Guntner, 167 Mass. 92, 97; St. 1894, c.
508, § 2;[612] State _v._ Donaldson, 3 Vroom, 151; State _v._ Stewart,
59 Vt. 273; State _v._ Glidden, 55 Conn. 46; State _v._ Dyer, 67 Vt.
690; Lucke _v._ Clothing Cutters & Trimmers’ Assembly, 77 Md. 396.

As the plaintiffs have been injured by these acts, and there is reason
to believe that the defendants contemplate further proceedings of the
same kind which will be likely still more to injure the plaintiffs, a
bill in equity lies to enjoin the defendants. Vegelahn _v._ Guntner,
_ubi supra_.

Some phases of the labor question have recently been discussed in the
very elaborately considered case of Allen _v._ Flood, _ubi supra_.
Whether or not the decision made therein is inconsistent with the
propositions upon which we base our decision in this case, we are not
disposed, in view of the circumstances under which that decision was
made, to follow it. We prefer the view expressed by the dissenting
judges, which view, it may be remarked, was entertained not only by
three of the nine lords who sat in the case, but also by the great
majority of the common law judges who had occasion officially to express
an opinion.

There must be, therefore, a decree for the plaintiffs. We think,
however, that the clause, “or by causing or attempting to cause, any
person to discriminate against any employer of members of plaintiffs’
said association (because he is such employer) in giving or allowing the
performance of contracts to or by such employer,” is too broad and
indefinite, inasmuch as it might seem to include mere lawful persuasion
and other similar and peaceful acts; and for that reason, and also
because so far as respects unlawful acts it seems to cover only such
acts as are prohibited by other parts of the decree, we think it should
be omitted.

Inasmuch as the association of the defendants is not a corporation, an
injunction cannot be issued against it as such, but only against its
members, their agents and servants.

As thus modified, in the opinion of the majority of the court, the
decree should stand.

_Decree accordingly._

* * * * *

HOLMES, C. J. When a question has been decided by the court, I think it
proper, as a general rule, that a dissenting judge, however strong his
convictions may be, should thereafter accept the law from the majority
and leave the remedy to the Legislature, if that body sees fit to
interfere. If the decision in the present case simply had relied upon
Vegelahn _v._ Guntner, 167 Mass. 92, I should have hesitated to say
anything, although I might have stated that my personal opinion had not
been weakened by the substantial agreement with my views to be found in
the judgments of the majority of the House of Lords in Allen _v._ Flood,
[1898] A. C. 1. But much to my satisfaction, if I may say so, the court
has seen fit to adopt the mode of approaching the question which I
believe to be the correct one, and to open an issue which otherwise I
might have thought closed. The difference between my brethren and me now
seems to be a difference of degree, and the line of reasoning followed
makes it proper for me to explain where the difference lies.

I agree that the conduct of the defendants is actionable unless
justified. May _v._ Wood, 172 Mass. 11, 14, and cases cited. I agree
that the presence or absence of justification may depend upon the object
of their conduct, that is, upon the motive with which they acted.
Vegelahn _v._ Guntner, 167 Mass. 92, 105, 106. I agree, for instance,
that if a boycott or a strike is intended to override the jurisdiction
of the courts by the action of a private association, it may be illegal.
Weston _v._ Barnicoat, 175 Mass. 454. On the other hand, I infer that a
majority of my brethren would admit that a boycott or strike intended to
raise wages directly might be lawful, if it did not embrace in its
scheme or intent violence, breach of contract, or other conduct unlawful
on grounds independent of the mere fact that the action of the
defendants was combined. A sensible workingman would not contend that
the courts should sanction a combination for the purpose of inflicting
or threatening violence or the infraction of admitted rights. To come
directly to the point, the issue is narrowed to the question whether,
assuming that some purposes would be a justification, the purpose in
this case of the threatened boycotts and strikes was such as to justify
the threats. That purpose was not directly concerned with wages. It was
one degree more remote. The immediate object and motive was to
strengthen the defendants’ society as a preliminary and means to enable
it to make a better fight on questions of wages or other matters of
clashing interests. I differ from my brethren in thinking that the
threats were as lawful for this preliminary purpose as for the final one
to which strengthening the union was a means. I think that unity of
organization is necessary to make the contest of labor effectual, and
that societies of laborers lawfully may employ in their preparation the
means which they might use in the final contest.

Although this is not the place for extended economic discussion, and
although the law may not always reach ultimate economic conceptions, I
think it well to add that I cherish no illusions as to the meaning and
effect of strikes. While I think the strike a lawful instrument in the
universal struggle of life, I think it pure phantasy to suppose that
there is a body of capital of which labor as a whole secures a larger
share by that means. The annual product, subject to an infinitesimal
deduction for the luxuries of the few, is directed to consumption by the
multitude, and is consumed by the multitude always. Organization and
strikes may get a larger share for the members of an organization, but,
if they do, they get it at the expense of the less organized and less
powerful portion of the laboring mass. They do not create something out
of nothing. It is only by divesting our minds of questions of ownership
and other machinery of distribution, and by looking solely at the
question of consumption,—asking ourselves what is the annual product,
who consumes it, and what changes would or could we make,—that we can
keep in the world of realities. But, subject to the qualifications which
I have expressed, I think it lawful for a body of workmen to try by
combination to get more than they now are getting, although they do it
at the expense of their fellows, and to that end to strengthen their
union by the boycott and the strike.[613]

MARTELL _v._ WHITE
SUPREME JUDICIAL COURT, MASSACHUSETTS, MARCH 1, 1904.
_Reported in 185 Massachusetts Reports, 255._

Tort for alleged conspiracy to injure plaintiffs business. In the
Superior Court, Bishop, J., ordered a verdict for defendants, and
plaintiff excepted.

HAMMOND, J. The evidence warranted the finding of the following facts,
many of which were not in dispute. The plaintiff was engaged in a
profitable business in quarrying granite and selling the same to granite
workers in Quincy and vicinity. About January, 1899, his customers left
him, and his business was ruined through the action of the defendants
and their associates.

The defendants were all members of a voluntary association known as the
Granite Manufacturers’ Association of Quincy, Mass., and some of them
were on the executive committee. The association was composed of “such
individuals, firms, or corporations as are, or are about to become
manufacturers, quarriers, or polishers of granite.” There was no
constitution, and, while there were by-laws, still, except as
hereinafter stated, there was in them no statement of the objects for
which the association was formed. The by-laws provided among other
things for the admission, suspension and expulsion of members, the
election of officers, including an executive committee, and defined the
respective powers and duties of the officers. One of the by-laws read as
follows: “For the purpose of defraying in part the expense of the
maintenance of this organization, any member thereof having business
transactions with any party or concern in Quincy or its vicinity, not
members hereof, and in any way relating to the cutting, quarrying,
polishing, buying or selling of granite (hand polishers excepted), shall
for each of said transactions contribute at least $1 and not more than
$500. The amount to be fixed by the association upon its determining the
amount and nature of said transaction.”

Acting under the by-laws, the association investigated charges which
were made against several of its members that they had purchased granite
from a party “not a member” of the association. The charges were proved,
and under the section above quoted it was voted that the offending
parties “should respectively contribute to the funds of the association”
the sums named in the votes. These sums ranged from $10 to $100. Only
the contribution of $100 has been paid, but it is a fair inference that
the proceedings to collect the others have been delayed only by reason
of this suit. The party “not a member” was the present plaintiff, and
the members of the association knew it. Most of the customers of the
plaintiff were members of the association, and after these proceedings
they declined to deal with him. This action on their part was due to the
course of the association in compelling them to contribute as above
stated, and to their fear that a similar vote for contribution would be
passed should they continue to trade with the plaintiff.

The jury might properly have found also that the euphemistic expression
“shall contribute to the funds of the association” contained an idea
which could be more tersely and accurately expressed by the phrase
“shall pay a fine,” or, in other words, that the plain intent of the
section was to provide for the imposition upon those who came within its
provisions of a penalty in the nature of a substantial fine. The bill of
exceptions recites that “there was no evidence of threats or
intimidation practiced upon the plaintiff himself, and the acts
complained of were confined to the action of the society upon its own
members.” We understand this statement to mean simply that the acts of
the association concerned only such of the plaintiff’s customers as were
members, and that no pressure was brought to bear upon the plaintiff
except such as fairly resulted from action upon his customers. While it
is true that the by-law was not directed expressly against the plaintiff
by name, still he belonged to the class whose business it was intended
to affect, and the proceedings actually taken were based upon
transactions with him alone, and in that way were directed against his
business alone. It was the intention of the defendants to withdraw his
customers from him, if possible, by the imposition of fines upon them,
with the knowledge that the result would be a great loss to the
plaintiff. The defendants must be presumed to have intended the natural
result of their acts.

Here, then, is a clear and deliberate interference with the business of
a person with the intention of causing damage to him and ending in that
result. The defendants combined and conspired together to ruin the
plaintiff in his business, and they accomplished their purpose. In all
this have they kept within lawful bounds? It is elemental that the
unlawfulness of a conspiracy may be found either in the end sought or
the means to be used. If either is unlawful within the meaning of the
term as applied to the subject, then the conspiracy is unlawful. It
becomes necessary, therefore, to examine into the nature of the
conspiracy in this case, both as to the object sought and the means
used.

The case presents one phase of a general subject which gravely concerns
the interests of the business world and indeed those of all organized
society, and which in recent years has demanded and received great
consideration in the courts and elsewhere. Much remains to be done to
clear the atmosphere, but some things at least appear to have been
settled, and certainly at this stage of the judicial inquiry it cannot
be necessary to enter upon a course of reasoning or to cite authorities
in support of the proposition that while a person must submit to
competition he has the right to be protected from malicious interference
with his business. The rule is well stated in Walker _v._ Cronin, 107
Mass. 555, 564, in the following language: “Every one has a right to
enjoy the fruits and advantages of his own enterprise, industry, skill
and credit. He has no right to be protected against competition; but he
has a right to be free from malicious and wanton interference,
disturbance or annoyance. If disturbance or loss come as a result of
competition, or the exercise of like rights by others, it is _damnum
absque injuria_, unless some superior right by contract or otherwise is
interfered with. But if it come from the merely wanton or malicious acts
of others, without the justification of competition or the service of
any interest or lawful purpose, it then stands upon a different
footing.”

In a case like this, where the injury is intentionally inflicted, the
crucial question is whether there is justifiable cause for the act. If
the injury be inflicted without just cause or excuse, then it is
actionable. Bowen, L. J., in Mogul Steamship Co. _v._ McGregor, 23 Q. B.
D. 598, 613; Plant _v._ Woods, 176 Mass. 492. The justification must be
as broad as the act and must cover not only the motive and the purpose,
or in other words the object sought, but also the means used.

The defendants contend that both as to object and means they are
justified by the law applicable to business competition. In considering
this defence it is to be remembered, as was said by Bowen, L. J., in
Mogul Steamship Co. _v._ McGregor, L. R. 23 Q. B. D. 598, 611, that
there is presented “an apparent conflict or antimony between two rights
that are equally regarded by the law—the right of the plaintiff to be
protected in the legitimate exercise of his trade and the right of the
defendants to carry on their business as seems best to them, provided
they commit no wrong to others.” Here, as in most cases where there is a
conflict between two important principles, either of which is sound and
to be sustained within proper bounds, but each of which must finally
yield to some extent to the other, it frequently is not possible by a
general formula to mark out the dividing line with reference to every
conceivable case, and it is not wise to attempt it. The best and only
practicable course is to consider the cases as they arise, and, bearing
in mind the grounds upon which the soundness of each principle is
supposed to rest, by a process of elimination and comparison to
establish points through which at least the line must run and beyond
which the party charged with trespass shall not be allowed to go.

While the purpose to injure the plaintiff appears clearly enough, the
object or motive is left somewhat obscure upon the evidence. The
association had no written constitution, and the by-laws do not
expressly set forth its objects. It is true that from the by-laws it
appears that none but persons engaged in the granite business can be
members, and that a member transacting any business of this kind with a
person not a member is liable to a fine; from which it may be inferred
that it is the idea of the members that for the protection of their
business it would be well to confine it to transactions among
themselves, and that one at least of the objects of the association is
to advance the interests of the members in that way. The oral testimony
tends to show that one object of the association is to see that
agreements made between its members and their employees and between this
association and similar associations in the same line of business be
kept and “lived up to.” Whether this failure to set out fully in writing
the objects is due to any reluctance to have them clearly appear or to
some other cause, is of course not material to this case. The result,
however, is that its objects do not so clearly appear as might be
desired; but in view of the conclusion to which we have come as to the
means used, it is not necessary to inquire more closely as to the
objects. It may be assumed that one of the objects was to enable the
members to compete more successfully with others in the same business,
and that the acts of which the plaintiff complains were done for the
ultimate protection and advancement of their own business interests,
with no intention or desire to injure the plaintiff except so far as
such injury was the necessary result of measures taken for their own
interests. If that was true, then so far as respects the end sought the
conspiracy does not seem to have been illegal.

The next question is whether there is anything unlawful or wrongful in
the means used as applied to the acts in question. Nothing need be said
in support of the general right to compete. To what extent combination
may be allowed in competition is a matter about which there is as yet
much conflict, but it is possible that in a more advanced stage of the
discussion the day may come when it will be more clearly seen and will
more distinctly appear in the adjudication of the courts than as yet has
been the case; that the proposition that what one man lawfully can do
any number of men acting together by combined agreement lawfully may do,
is to be received with newly disclosed qualifications arising out of the
changed conditions of civilized life and of the increased facility and
power of organized combination, and that the difference between the
power of individuals acting each according to his own preference and
that of an organized and extensive combination may be so great in its
effect upon public and private interests as to cease to be simply one of
degree and to reach the dignity of a difference in kind. Indeed, in the
language of Bowen, L. J., in the Mogul Steamship case, _ubi supra_, page
616: “Of the general proposition that certain kinds of conduct not
criminal in one individual may become criminal if done by combination
among several, there can be no doubt. The distinction is based on sound
reason, for a combination may make oppressive or dangerous that which if
it proceeded only from a single person would be otherwise, and the very
fact of the combination may show that the object is simply to do harm,
and not to exercise one’s own just rights.” See also opinion of
Stirling, L. J., in Giblan _v._ National Amalgamated Laborers’ Union,
[1903] 2 K. B. 600, 621. Speaking generally, however, competition in
business is permitted, although frequently disastrous to those engaged
in it. It is always selfish, often sharp, and sometimes deadly.
Conspicuous illustrations of the destructive extent to which it may be
carried are to be found in the Mogul Steamship case above cited, and in
Bowen _v._ Matheson, 14 Allen, 499. The fact therefore that the
plaintiff was vanquished is not enough, provided that the contest was
carried on within the rules allowable in such warfare.

It is a right, however, which is to be exercised with reference to the
existence of a similar right on the part of others. The trader has not a
free lance. He may fight, but as a soldier, not as a guerilla. The right
of competition rests upon the doctrine that the interests of the great
public are best subserved by permitting the general and natural laws of
business to have their full and free operation, and that this end is
best attained when the trader is allowed in his business to make free
use of these laws. He may praise his wares, may offer more advantageous
terms than his rival, may sell at less than cost, or, in the words of
Bowen, L. J., in the Mogul Steamship case, _ubi supra_, may adopt “the
expedient of sowing one year a crop of apparently unfruitful prices in
order by driving competition away to realize a fuller harvest of profit
in the future.” In these and many other obvious ways he may secure the
customers of his rival, and build up his own business to the destruction
of that of others, and so long as he keeps within the operation of the
laws of trade his justification is complete.

But from the very nature of the case it is manifest that the right of
competition furnishes no justification for an act done by the use of
means which in their nature are in violation of the principle upon which
it rests. The weapons used by the trader who relies upon this right for
justification must be those furnished by the laws of trade, or at least
must not be inconsistent with their free operation. No man can justify
an interference with another man’s business through fraud or
misrepresentation, nor by intimidation, obstruction or molestation. In
the case before us the members of the association were to be held to the
policy of refusing to trade with the plaintiff by the imposition of
heavy fines, or in other words they were coerced by actual or threatened
injury to their property. It is true that one may leave the association
if he desires, but if he stays in it he is subjected to the coercive
effect of a fine to be determined and enforced by the majority. This
method of procedure is arbitrary and artificial, and is based in no
respect upon the grounds upon which competition in business is
permitted, but on the contrary it creates a motive for business action
inconsistent with that freedom of choice out of which springs the
benefit of competition to the public, and has no natural or logical
relation to the grounds upon which the right to compete is based. Such a
method of influencing a person may be coercive and illegal. Carew _v._
Rutherford, 106 Mass. 1.

Nor is the nature of the coercion changed by the fact that the persons
fined were members of the association. The words of Munson, J., in
Boutwell _v._ Marr, 71 Vt. 1, 9, are applicable here: “The law cannot be
compelled by any initial agreement of an associate member to treat him
as one having no choice but that of the majority, nor as a willing
participant in whatever action may be taken. The voluntary acceptance of
by-laws providing for the imposition of coercive fines does not make
them legal and collectible, and the standing threat of their imposition
may properly be classed with the ordinary threats of suits upon
groundless claims. The fact that the relations and processes deemed
essential to a recovery are brought within the membership and
proceedings of an organized body cannot change the result. The law sees
in the membership of an association of this character both the authors
of its coercive system and the victim of its unlawful pressure. If this
were not so, men could deprive their fellows of established rights, and
evade the duty of compensation, simply by working through an
association.”

In view of the considerations upon which the right of competition is
based, we are of opinion that as against the plaintiff the defendants
have failed to show that the coercion or intimidation of the plaintiff’s
customers by means of a fine is justified by the law of competition. The
ground of the justification is not broad enough to cover the acts of
interference in their entirety, and the interference being injurious and
unjustifiable is unlawful.

We do not mean to be understood as saying that a fine is of itself
necessarily or even generally an illegal implement. In many cases it is
so slight as not to be coercive in its nature; in many it serves a
useful purpose to call the attention of a member of an organization to
the fact of the infraction of some innocent regulation; and in many it
serves as an extra incentive to the performance of some absolute duty or
the assertion of some absolute right. But where, as in the case before
us, the fine is so large as to amount to moral intimidation or coercion,
and is used as a means to enforce a right not absolute in its nature but
conditional, and is inconsistent with those conditions upon which the
right rests, then the coercion becomes unjustifiable and taints with
illegality the act.

The defendants strongly rely upon Bowen _v._ Matheson, 14 Allen, 499;
Mogul Steamship Co. _v._ McGregor, [1892] A. C. 25; Bohn Mfg. Co. _v._
Hollis, 54 Minn. 223; Macauley Bros. _v._ Tierney, 19 R. I. 255, and
Cote _v._ Murphy, 159 Penn. St. 420. In none of these cases was there
any coercion by means of fines upon those who traded with the plaintiff.
Inducements were held out, but they were such as are naturally incident
to competition, for instance, more advantageous terms in the way of
discounts, increased trade, and otherwise. In the Minnesota case there
was among the rules of the association a clause requiring the plaintiff
to pay 10 per cent, but the propriety or the legality of that provision
was not involved. In Bowen _v._ Matheson, it is true that the by-laws
provided for a fine, but the declaration did not charge that any
coercion by means of a fine had been used. A demurrer to the declaration
was sustained upon the ground that there was no sufficient allegation of
an illegal act. The only allegation which need be noticed here was that
the defendants “did prevent men from shipping with” the plaintiff, and
as to this the court said: “This might be done in many ways which are
legal and proper, and as no illegal methods are stated the allegation is
bad.” This comes far short of sustaining the defendants in their course
of coercion by means of fines. As to the other cases cited by the
defendant it may be said that, while bearing upon the general subject of
which the present case presents one phase, they are not inconsistent
with the conclusion to which we have come. Among the authorities bearing
upon the general subject and having some relation to the questions
involved in this case, see, in addition to those hereinbefore cited,
Slaughter-House Cases, 16 Wall. 116; United States _v._ Addystone, 175
U. S. 211; Doremus _v._ Hennessy, 176 Ill. 608; Inter-Ocean Pub. Co.
_v._ Associated Press, 184 Ill. 438; State _v._ Stewart, 59 Vt. 273;
Olive _v._ Van Patten, 7 Tex. Civ. App. 630; Barr _v._ Essex Trades
Council, 53 N. J. Eq. 101; Jackson _v._ Stanfield, 137 Ind. 592; Bailey
_v._ Master Plumbers, 103 Tenn. 99; Brown _v._ Jacobs Pharmacy Co., 115
Ga. 429; Mogul Steamship Co. _v._ McGregor, 15 Q. B. D. 476; s. c. 21 Q.
B. D. 544; S. C. 23 Q. B. D. 598; S. C. [1892] A. C. 25.

For the reasons above stated a majority of the court are of opinion that
the case should have been submitted to the jury.

_Exceptions sustained._[614]

PICKETT _v._ WALSH
SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 16, 1906.
_Reported in 192 Massachusetts Reports, 572._

The plaintiffs were brick and stone “pointers.” The defendants were
officers and members of bricklayers’ unions and stonemasons’
unions.[615]

One ground of complaint was that the defendants prevented the
employment of the plaintiffs as “pointers” by notifying contractors
that they would not lay the bricks or do the mason work on any
building unless they were also employed to do the pointing of the
brick and stone masonry. “The defendants in effect say we want the
work of pointing the brick and stone laid by us, and you must give us
all or none of the work.”[616] The court held that this conduct,
although disastrous to the plaintiffs and damaging to the building
contractors, was justifiable. “... it was within the rights of these
unions to compete for the work of doing the pointing, and, in the
exercise of their right of competition, to refuse to lay bricks and
set stone unless they were given the work of pointing them when
laid.”[617]

The other ground of action in Pickett _v._ Walsh was quite distinct
from the foregoing. The firm of L. P. Soule & Son Company were the
general contractors for the erection of the Ford building; but they
had nothing to do with the employment of “pointers.” The pointing of
that building was being done under a contract between the owners of
the building and Pickett, a pointer who was one of the plaintiffs.
Other buildings were being erected for other owners, on which the
Soule Company were the general contractors, and as to which no
complaint existed in reference to the pointing. The bricklaying and
masonry on these other buildings were being done by members of the
defendants’ union. The defendant officials induced all the bricklayers
and masons to quit working for the Soule Company on these other
buildings, because that company “was doing work on another building
[the Ford building] in which work was being done by pointers, employed
not by the L. P. Soule & Son Company but [by] the owners of the
building.” The evident purpose was to thus induce the Soule Company to
exert pressure on the owners of the Ford building to discontinue the
employment of the pointers (Pickett _et als._). The court held that
this conduct was not justifiable. The decision is not based on the
ground that the defendants were intentionally inducing, or attempting
to induce, a breach of contract; but on the broad ground that the
forcing a neutral third person to exert a pressure on the plaintiff’s
employer was not a lawful means of competition.

LORING, J.[618]

That strike has an element in it like that in a sympathetic strike, in
a boycott, and in a blacklisting, namely: It is a refusal to work for
A, with whom the strikers have no dispute, for the purpose of forcing
A to force B to yield to the strikers’ demands. In the case at bar the
strike on the L. P. Soule & Son Company was a strike on that
contractor to force it to force the owner of the Ford building to give
the work of pointing to the defendant unions. That passes beyond a
case of competition where the owner of the Ford building is left to
choose between the two competitors. Such a strike is in effect
compelling the L. P. Soule & Son Company to join in a boycott on the
owner of the Ford building. It is a combination by the union to obtain
a decision in their favor by forcing third persons who have no
interest in the dispute to force the employer to decide the dispute in
their (the defendant union’s) favor. Such a strike is not a
justifiable interference with the right of the plaintiffs to pursue
their calling as they think best. In our opinion organized labor’s
right of coercion and compulsion is limited to strikes on persons with
whom the organization has a trade dispute; or to put it in another
way, we are of the opinion that a strike on A, with whom the striker
has no trade dispute, to compel A to force B to yield to the strikers’
demands, is an unjustifiable interference with the right of A to
pursue his calling as he thinks best.[619]

BARR _v._ THE ESSEX TRADES COUNCIL
COURT OF CHANCERY, NEW JERSEY, OCTOBER TERM, 1894.
_Reported in 53 New Jersey Equity Reports, 101._

On order to show cause why injunction should not issue.[620]

The original complainant was the sole proprietor and publisher of a
daily morning newspaper called the “Newark Times.”

The defendants are eighteen bodies known as “labor unions,” embracing
many trades in the city of Newark, affiliated in a society or
representative body known as “Essex Trades Council.”

The Essex Trades Council is a voluntary association, composed of
delegates chosen thereto by each of the eighteen defendant unions.
Meetings are held weekly. Every organization represented in the council
is required to make a monthly report of union purchases, and failing to
do so for two consecutive months, its products are not to be considered
as “fair.”

A circular, issued by the Council in 1893, addressed to the public,
states:—

“The Essex Trades Council has for some time past been concentrating the
trade of its members and those whom these could influence, upon the
goods made and recommended by organized fair labor, and the stores and
places where these goods are sold. The regular system of purchase
reports from individual consumers, transmitted through their
organization, places the council in a position to announce that it is
already turning thousands of dollars of trade every week away from those
indifferent to the welfare of the worker, and into the pockets of
labor’s proven friends. That these friends may receive greater support
by being made more readily known to organized working men and their many
sympathizers among lovers of justice, together forming the great bulk of
the consuming public, the Essex Trades Council will shortly issue a
series of cards for free display in all business establishments
especially deserving the patronage of organized fair consumers, their
families, associates and friends.”

The plan of operation, as developed by the papers and exhibits filed in
the cause, is that each individual member of the different unions is
required at stated periods to fill out a blank slip furnished for that
purpose, stating the amount expended by him in purchase, the character
of the articles bought, and the names of the tradesmen with whom he has
dealt. These cards, when filled in, are returned by the members to their
own union, and by the union reported to the council. A failure by a
union to so report for two consecutive months, places its products under
the ban of organized labor as represented in the council. These reports
place the trades council in possession of data as to the amount of
purchases by the members of the unions, and the tradesmen with whom
their dealing is carried on, from which its officers are enabled to
estimate, with some degree of accuracy, the volume of purchases by the
members of the several organizations within a stated period of time.

The next step is an agreement in writing purporting to be made between
the Essex Trades Council and a tradesman, by which the latter, “in
return for the patronage of united fair consumers,” promises and agrees
to buy as consumer, engage as employer, keep as dealer, as exclusively
as he can, such labor and goods as may be announced as fair by a
particular union and endorsed by the council of consumers of the Essex
Trades Council.

Cards are then issued to the tradesmen, under the seal of the trades
council, addressed “to all fair consumers,” each certifying that the
person to whom it is issued “is a fair consuming dealer,” and is
entitled to their fraternal support until a specified date. Coupons are
annexed for certification by particular industries. These cards are of
such size, color and appearance that, if publicly displayed in stores or
places of business, they will attract attention.

There was issued, under date of March 31, 1894, “by the Essex Trades
Council and auxiliary circle bodies,” a small pamphlet of convenient
size to be carried in the pocket, which is entitled “The Fair List of
Newark, N. J.,” and to be “for the information of people who buy service
or product and who have enterprise enough to seek to place their money
where it will do them most good.” It contains names and addresses of
tradesmen and persons in business, including lawyers, interspersed with
items of information and advice.

* * * * *

The plaintiff Barr determined to employ “plate matter” in making up part
of his daily paper. (This consists of reading matter edited, set up and
stereotyped in New York.) All plaintiff’s employees were members of the
local typographical union. This union had declared against the use of
plate matter in the city of Newark, which fact was known to Mr. Barr.
Through his foreman, he sought to have this resolution of the union
relaxed in favor of his paper, but on its refusal so to do adhered to
his determination, and, by letter dated March 13, 1894, informed his
foreman that he would use plate matter on and after March 17th, saying
further, that, not desiring to lose any of the men in his department,
the union scale of wages would be maintained, and that he would gladly
retain the services of such as might be willing to stay. Some of the
employees determined to remain, others, however, left in consequence of
his disregard of the union’s determination, and the union withdrew its
endorsement of the newspaper. The union thereupon, through its
delegates, informed the Essex Trades Council of this fact and requested
its assistance. In response, the council appointed a committee in
reference to the controversy, and, on March 30, 1894, issued a circular
addressed to the public, which, after giving its version of the dispute,
concludes with this appeal:—

“Friends, one and all, leave this council-boycotting ‘Newark Times’
alone. Cease buying it! Cease handling it! Cease advertising in it! Keep
the money of fair men moving only among fair men. Boycott the boycotter
of organized fair labor.”

This circular was distributed in the city of Newark.

In April, 1894, the trades council issued a small four-page sheet
entitled “The Union Buyer. Official bulletin of united fair custom of
Newark and vicinity. Issued by the Essex Trades Council.” It is
impressed at the heading with the union label. It purports to be volume
I, number 1, issued at Newark, N. J., April, 1894. Its first
announcement is as follows:—

“Our mission—To support the supporters and boycott the boycotters of
organized fair labor. To promote the public welfare by the diffusion of
common cents, urging all to carry these in trade only to those who will
return them to the people in the shape of living wages.”

The whole paper is devoted to the controversy between the unions and the
“Newark Times,” no other object being considered. It refers throughout
to that paper either by reversing the letters of the name “Times” as
“Semit,” or by turning the type bottom side up. The first article after
the declaration of its mission is a statement from Typographical Union
No. 103, under the heading of “‘The Times’ Trouble.” The only grievance
stated against the “Times” grows out of the use of plate matter, and
ends with “workingmen and advertisers, remember that plate matter means
forty-five cents a day, and understand why the ‘Newark Times’ is an
unfair office.” Then follow five columns of “Notes and Comments.” These
are all directed to the controversy, and are in vigorous and
denunciatory language, and conclude as follows:—

“In conclusion, the council desires to state that the issue between it
and the ‘Semit’ is now wide open. It is a fight between the ‘Semit’ and
its supporters and the council and its supporters. We give the great
public absolute freedom in the choice of its side, but not a single cent
of our money will be knowingly let pass to any one who buys the ‘Semit,’
keeps the ‘Semit,’ advertises in the ‘Semit,’ or in any other way leads
us to believe that a portion of our honestly-earned money may find its
way into the pockets to furnish support to the unfair management of the
‘Semit’ or any of those who have so foully betrayed the cause of
organized fair labor.”

At the foot of this document is placed, in large type, the request,
“When through reading, please pass to your neighbor.”

This paper was circulated in Newark. There were other publications, but
the defendants deny any responsibility for them, and there is no
evidence to connect them with their issue or circulation.

Various labor unions represented in the trades council then passed a
prepared set of resolutions, which were printed and distributed in
Newark. One of these requested all enterprising business houses to
abstain from advertising in the “Times” until the trouble had been
adjusted, stating that hundreds of their friends had refused to buy and
read the “Times,” and that its circulation had become considerably
reduced because of its alleged unfair stand. Another asked such
advertisers as had made contracts with the “Times” for definite periods,
to consider whether it would not be far more advantageous for them in
the end to take out their advertisements, leave their space entirely
blank and pay the few cents their contracts called for, than to
jeopardize thousands of dollars of trade that fair labor would be
“compelled to withhold so long as such advertisements appeared, and for
an indefinite period thereafter,” adding that “those who now continue to
advertise in the ‘Times’ merely succeed in making themselves conspicuous
as persons to carefully and studiously keep away from.”

These resolutions found their way into the hands of the advertisers in
the “Times.”

The various trades unions, affiliated in the council, represent, as is
claimed by them, a purchasing power amounting to over $400,000 in each
and every week. Owing to the issue and distribution of the aforesaid
circular and resolutions, the individual members of the union, and their
friends and sympathizers, withheld their patronage from the “Newark
Times.” The circulation of the paper was thereby considerably reduced.

The issue and distribution of said circular and resolutions caused
certain persons, who had theretofore advertised in the “Times,” to cease
advertising in that paper.

GREEN, V. C.

* * * * *

[After stating the testimony of Mr. Beckmeyer, secretary of the Essex
Trades Council, as to the signification of the word “boycott,” as used
in the circular and publications.]

From which it is to be gathered that the use of the word “boycott” in
the publications, as applied to the “Times,” would be regarded by the
members of the various unions to mean only that they should refrain from
trading or dealing with the complainant, and with those who oppose the
organizations in their actions and doings with reference to the
complainant.

I do not see that this changes the character of the injury, but even if
it does, so far as the members of the organizations are concerned, the
difficulty is that these communications were addressed to the public and
indiscriminately circulated. They were not intended only for members of
the order by whom a technical signification would be given to the word
“boycott,” but to the general public who would read them and give the
word its accepted meaning.

[After quoting various definitions of “boycott”] Mr. Justice Taft, in
Toledo Co. _v._ Penn. Co., 54 Fed. Rep. 746, says: “As usually
understood a boycott is a combination of many to cause a loss to one
person by coercing others against their will, to withdraw from him their
beneficial business intercourse, through threats that, unless those
others do so, the many will cause similar loss to them.”

But the defendants insist, and counsel vigorously urge, that this
particular boycott is not open to such adverse criticism, because “there
was no violence, intimidation, coercion or threats used, and that
everything was done in a peaceful and orderly manner.” How far is this
claim borne out by the facts? It is true, there was no public
disturbance, no physical injury, no direct threats of personal violence
or of actual attack on or destruction of tangible property as a means of
intimidation or coercion. Force and violence, however, while they may
enter largely into the question in a criminal prosecution, are not
necessary factors in the right to a civil remedy. But even in criminal
law, I do not understand that intimidation, even when a statutory
ingredient of crime, necessarily presupposes personal injury or the fear
thereof. The clear weight of authority undoubtedly is that a man may be
intimidated into doing, or refraining from doing, by fear of loss of
business, property or reputation, as well as by dread of loss of life,
or injury to health or limb; and the extent of this fear need not be
abject, but only such as to overcome his judgment, or induce him not to
do, or to do, that which otherwise he would have done or have left
undone.

There can be no reasonable dispute that the whole proceeding or boycott
in this controversy is to force Mr. Barr, by fear of loss of business,
to conduct that business, not according to his own judgment, but in
accordance with the determination of the typographical union, and, so
far as he is concerned, it is an attempt to intimidate and coerce.

Next as to the members of the various labor unions. According to Mr.
Beckmeyer, all the organizations represented in the trades council and
the individual members thereof, in strict conformity with the purpose
and object for which the said council was organized, withheld their
patronage from the said newspaper on the mere announcement by the
typographical union to the trades council that that union had withdrawn
its endorsement from the “Times.” Why? It is said that it was only the
exercise by each person of his right to spend his money as his own will
dictated. The fallacy of this is apparent. It loses sight of the
combination, the whole strength of which lies in the fact that each
individual has surrendered his own discretion and will to the direction
of the accredited representative of all the organizations. He no longer
uses his own judgment, but, by entering into the combination, agrees to
be bound by its decree. As is said in Templeton _v._ Russell, _supra_,
“those men had bound themselves to obey, and they knew they had done so,
and that if they did not obey they would be fined, or expelled from the
union to which they belonged.” It is common knowledge, if indeed it does
not amply so appear by the papers in this case, that a member of a labor
organization who does not submit to the edict of his union asserts his
independence of judgment and action at the risk, if not the absolute
sacrifice, of all association with his fellow-members. They will not
eat, drink, live or work in his company. Branded by the peculiarly
offensive epithets adopted, he must exist ostracized, socially and
industrially, so far as his former associates are concerned. Freedom of
will under such circumstances cannot be expected.

Next as to the advertising public. Tradesmen advertise in newspapers for
the sole purpose of drawing customers to their stores. An authoritative
announcement, not from one, but from many sources, that the body of
organized labor in the city or county representing a purchasing power of
$400,000 a week would cease to deal with those whose advertisements
appeared in the newspaper, would have a much more deterrent effect than
any threat of violence. To say that this is only advice, or an
intimation, to the advertiser for his guidance if he sees fit to accept
it, is trifling with the language. Advice, behind which lurks the threat
of the withdrawal of such a volume of business, could have no other
effect than to intimidate and coerce, as it did in fact make several
change their judgment, which had previously led them to advertise in the
paper. The claim that this boycott was attempted to be enforced without
intimidation or coercion will not bear the light of examination.

A legal excuse for the action of the defendants is next sought in the
claim that the Essex Trades Council is a business institution, and that
what it has done has been in prosecution of such business, seeking, I
suppose, to bring the case within the rule of Mogul Steamship Co. _v._
McGregor, 15 Q. B. Div. 476; 23 Q. B. Div. 598. That case proceeded on
the doctrine of a lawful competition in business, both parties being
engaged in carrying on the same character of business, and the acts
complained of having been adopted for the advancement of the defendant’s
own trade, viz., carrying goods on a steamship line, although thereby
damage to the other party necessarily ensued.

I see no similarity in the business of these parties. That of the
complainant is the publisher of a newspaper. Members of the
typographical union, and stereotypers’ and pressmen’s union, are skilled
workmen, whose services might be employed in such business, but they are
not carrying on any enterprise in competition with that of the
complainant. So far as the other unions are concerned, the most, if not
all of them, have no connection with such trade.

Neither does the claim of the Essex Trades Council, that it is a
business institution, stand on any firmer ground. The only element of
business which it is engaged in would appear from the facts to be the
furnishing to tradesmen of printed cards, certifying that they are
proper persons for the members of trades unions to deal with, suitable
to be displayed in conspicuous places in such tradesmen’s places of
business. This was supplemented by the issue, under date of March 31,
1894, of the small pocket pamphlet entitled “The Fair List of Newark, N.
J.,” containing the names and addresses of tradesmen and persons in
business in Newark, with items of information and advice. Why this is
called a business does not appear. It is not stated that any
compensation is either required or received by the trades council from
the tradespeople for granting or continuing those endorsements, but
whether this is so or not, it is in no sense a competing business with
the publication of a daily newspaper, and therefore does not come within
the principle of the case referred to.

The order to show cause, as far as relates to [eight specified
organizations], they having all disclaimed any participation in the acts
complained of, must be discharged, with costs. The said order to show
cause, so far as relates to the other defendants, must be made absolute,
with costs, and an injunction may issue against them, restraining them
from distributing or circulating any circulars, printed resolutions,
bulletins, or other publications containing appeals or threats against
the “Newark Times,” or the complainants, its publishers, with the design
and tending to interfere with their business in publishing said paper,
and from making any threats or using any intimidation to the dealers or
advertisers in such newspaper tending to cause them to withdraw their
business from such newspaper.[621]

PIERCE _v._ THE STABLEMEN’S UNION LOCAL NO. 8760
SUPREME COURT, CALIFORNIA, JULY 6, 1909.
_Reported in 156 California Reports, 70._

HENSHAW, J. The plaintiff went into equity seeking an injunction to
restrain the defendants from illegal interference with its business.
Plaintiff conducted a livery, board and feed stable in the city and
county of San Francisco. The officers and representatives of defendant
made request of him to “unionize” his stable by discharging his
non-union employees and employing union men in their places. Upon his
refusal, a strike of the union men was declared. Following the strike, a
boycott was decreed. A patrol about plaintiffs place of business was
established, and, under the findings, these representatives of the
defendants, the pickets, “called forth in loud, threatening, and
menacing tones to the patrons and customers of plaintiffs not to
patronize plaintiffs in their said business; defendant, the Stablemen’s
Union, through its agents and representatives, has stated to and
threatened patrons and customers and other persons dealing with
plaintiffs that if said patrons and customers and other persons
continued to patronize and do business with plaintiffs, said Stablemen’s
Union would cause them respectively to be boycotted in their business.”
Menacing terms and threatening language were made use of by the agents,
representatives, and pickets of the union toward the employees of the
plaintiffs, such as: “Unfair stable; union men locked out and non-union
men put in; look at this stable, the only unfair stable on Market
Street; the stable that always was and always will be unfair. This is a
scab stable. When we catch you outside, we will finish you. We will get
you yet. It is a scab stable, full of scabs. We will fix you yet. It is
a matter of time when we will get you all right. You will never get out
of the stable alive. We will break you in half. We will beat you to
death. When we catch you outside, we will finish you.” A judgment for an
injunction followed upon these findings, and that judgment by its terms
commanded the defendant, its agents and employees, to desist and refrain
“from in any wise interfering with, or harassing, or annoying, or
obstructing plaintiff in the conduct of the business of their stable,
known as the Nevada Stables and situated at number 1350 Market Street,
in the city and county of San Francisco; or from in any wise molesting,
interfering with, threatening, intimidating, or harassing any employee
or employees of plaintiffs; or from intimidating, harassing, or
interfering with any customer or customers, patron or patrons of
plaintiffs in connection with the business of plaintiffs, either by
boycott or by threats of boycott, or by any other threats; or by any
kind of force, violence, or intimidation, or by other unlawful means,
seeking to induce any employee or employees of plaintiffs to withdraw
from the service of plaintiffs; or by any kind of violence, threats, or
intimidation inducing, or seeking to induce, any customer or customers,
patron or patrons, of plaintiffs to withdraw their patronage or business
from them, or from stationing or placing in front of said plaintiffs’
place of business any picket, or pickets, for the purpose of injuring,
obstructing, or in any wise interfering with, the business of
plaintiffs, or for the purpose of preventing any customer or customers,
patron or patrons, of plaintiffs from doing business with them; or from
in any other way molesting, intimidating, or coercing, or attempt to
molest or intimidate or coerce any customer, patron, or employee of
plaintiffs now or hereafter dealing with, or any employee now or
hereafter employed by, or working for plaintiffs in their said
business.”

This appeal is from the judgment. The findings are not attacked. Certain
objections to the complaint are presented upon demurrer, and these may
be briefly disposed of. The complaint is sufficient to invoke the
interposition of a court of equity. It is in this respect similar to the
complaint considered in Goldberg-Bowen Co. _v._ Stablemen’s Union, 149
Cal. 429. The complaint alleges specific acts calling for preventive
relief, and is not confined to mere generalities, as was the case in
Davitt _v._ American Bakers’ Union, 124 Cal. 99. The fact that certain
of the acts charged amount to crimes or threatened crimes, does not
offer reason why equity will refuse to restrain them. While equity will
not attempt to restrain the commission of a crime as such, the fact that
an act threatening irreparable injury to property rights, is of itself
criminal, does not deprive a court of equity of its right and power to
enjoin its commission. (_In re_ Debs, 158 U. S. 564; Sherry _v._
Perkins, 144 Mass. 212; Vegelahn _v._ Guntner, 167 Mass. 92.) In like
manner, while equity will not enjoin against a trespass as such, yet
when the acts committed and threatened are in the nature of a continuing
trespass, working irreparable injury, they will be enjoined. (Boston R.
R. _v._ Sullivan, 177 Mass. 230; Lembeck _v._ Nye, 47 Ohio, 336.)

Appellants’ principal contentions upon the appeal, however, are the
following: First, that, as the controversy between these parties arises
from and over a trade dispute, the court is powerless to grant any
injunction under the language of “An act to limit the meaning of the
word ‘conspiracy’ and also the use of restraining orders and injunctions
as applied to disputes between employers and employees in the State of
California, approved March 20, 1903” (Pen. Code, page 581); second, that
the boycott is a legal weapon in a trade dispute and, therefore, an
injunction should not issue to restrain its use or threatened use;
third, that “picketing” as an adjunct to the boycott is itself legal and
may not be forbidden.

1. As to the first of these contentions, this court had occasion in
Goldberg, etc., Co. _v._ Stablemen’s Union, 149 Cal. 429, to consider
the statute above referred to and relied upon by appellants, and
declared that if the construction there contended for (and here
contended for) was the proper construction, this provision of the court
was void. Not only would it be void as violative of one’s constitutional
right to acquire, possess, enjoy, and protect property, but as well
would it be obnoxious to the constitution in creating arbitrarily and
without reason a class above and beyond the law which is applicable to
all other individuals and classes. It would legalize a combination in
restraint of trade or commerce, entered into by a trades union, which
would be illegal if entered into by any other persons or associations.
It would exempt trades unions from the operation of the general laws of
the land, under circumstances where the same laws would operate against
all other individuals, combinations, or associations. It is thus not
only special legislation, obnoxious to the constitution (Art. IV, sec.
25, subds. 3 and 33), but it still further violates the constitution in
attempting to grant privileges and immunities to certain citizens or
classes of citizens which, upon the same terms, have not been granted to
all citizens (Art. I, sec. 21).

2. In considering the second proposition, whether or not a court of
equity may enjoin a boycott, the meaning of the word is of primary
importance. It is defined in 4 Am. & Eng. Enc. of Law, 2d ed., page 85,
as follows: “The boycott is a conspiracy, the direct object of which is
to occasion loss to the party or parties against whom the conspiracy is
directed, and the means commonly used is the inducing of others to
withdraw from such party or parties their patronage and business
intercourse by threats that, unless they so withdraw, the members of the
combination will cause, directly or indirectly, loss of a similar
character to them.” Appellants announce their willingness to accept this
definition, substituting the word “confederacy” or “combination” for
“conspiracy.” But the definition, even as so amended, it will be noted
is not complete. The “means commonly used” are specified, but other
means may be and frequently are employed. A boycott may adopt illegal
means and thus become a “conspiracy,” a word which imports illegality;
or a boycott may employ legal means and methods, and thus be merely a
legitimate combination by a number of men to accomplish, within the law,
a legal result. The crux of the question and the strain in every case
turns, then, upon the means employed. We think that to-day no court
would question the right of an organized union of employes, by concerted
action, to cease their employment (no contractual obligation standing in
the way), and this action constitutes a “strike.” We think, moreover,
that no court questions the right of those same men to cease dealing by
concerted action, either socially or by way of business, with their
former employer, and this latter act, in its essence, constitutes the
“primary boycott.” But what acts organized labor may do, and what means
it may adopt to accomplish its end, without violation of the law, have
presented questions of much nicety, over which the courts have stood,
and still stand, widely divided. It would not be profitable to discuss
and analyze these widely divergent cases. It is sufficient to formulate
briefly the principles adopted in this state, many of which have
recently found elaborate expression in the case of Parkinson _v._
Building & Trades Council of Santa Clara, 36 Cal. Dec. 445. The right of
united labor to strike, in furtherance of their trade interests (no
contractual obligation standing in the way) is fully recognized. The
reason for the strike may be based upon the refusal to comply with the
employees’ demand for the betterment of wages, conditions, hours of
labor, the discharge of one employee, the engagement of another—any one
of the multifarious ends which in good faith may be believed to tend
toward the advancement of the employees. After striking, the employees
may engage in a boycott, as that word is here employed. As here employed
it means not only the concerted right to the withdrawal of social and
business intercourse, but the right by all legitimate means of fair
publication, and fair oral or written persuasion, to induce others
interested in or sympathetic with their cause, to withdraw their social
intercourse and business patronage from the employer. They may go even
further than this, and request of another that he withdraw his patronage
from the employer, and may use the moral intimidation and coercion of
threatening a like boycott against him if he refuse so to do. This last
proposition necessarily involves the bringing into a labor dispute
between A and B, C who has no difference with either. It contemplates
that C, upon the demand of B, and under the moral intimidation lest B
boycott him, may thus be constrained to withdraw his patronage from A,
with whom he has no controversy. This is the “secondary boycott,” the
legality of which is vigorously denied by the English courts, the
federal courts, and by the courts of many of the states of this nation.
Without presenting the authorities, which are multitudinous, suffice it
to state the other view in language of the President of the United
States but recently uttered: “A body of workmen are dissatisfied with
the terms of their employment. They seek to compel their employer to
come to their terms by striking. They may legally do so. The loss and
inconvenience he suffers he cannot complain of. But when they seek to
compel third persons, who have no quarrel with their employer, to
withdraw from all association with him by threats that, unless such
third persons do so, the workmen will inflict similar injury on such
third persons, the combination is oppressive, involves duress, and if
injury results, it is actionable.” (President Taft, McClure’s Magazine,
June, 1909, page 204.) Notwithstanding the great dignity which attaches
to an utterance such as this, which, as has been said, is but the
expression of numerous courts upon the subject-matter, this court, after
great deliberation, took what it believed to be the truer and more
advanced ground above indicated and fully set forth in Parkinson _v._
Building & Trades Council, etc., _supra_. In this respect this court
recognizes no substantial distinction between the so-called primary and
secondary boycott. Each rests upon the right of the union to withdraw
its patronage from its employer and to induce by fair means any and all
other persons to do the same, and in the exercise of those means, as the
unions would have the unquestioned right to withhold their patronage
from a third person who continued to deal with their employer, so they
have the unquestioned right to notify such third person that they will
withdraw their patronage if he continues so to deal. However opposed to
the weight of federal authority the views of this court are, that they
are not unique may be noted by reading National Protective Association
_v._ Cumming, 170 N. Y. 315; Lindsay _v._ Montana Federation of Labor,
(Mont.) 18 L. R. A. (N. S.) 707, where the highest courts of those
states formulate and adopt like principles.

It has been said that it is important to any correct understanding of or
adjudication upon such questions that a definition of the word “boycott”
should be first stated. Thus, to say that a boycott is a “conspiracy”
immediately implies illegality, and puts the conduct of the boycotters
under the ban of the law. So also does the definition which describes
boycotting as “illegal coercion” designed to accomplish a certain end.
As we have undertaken to define boycott, it is an organized effort to
persuade or coerce, which may be legal or illegal, according to the
means employed. In other jurisdictions where a definition is given to a
boycott which imports illegality the injunction will of course lie
against boycotting as such. In this state the injunction will issue,
depending upon the circumstances whether the means employed, or
threatened to be employed, are legal or illegal.

3. We are thus brought to consider the method of “picketing,” the use of
which appellants contend is a legal weapon in their hands. So far in
this discussion we have dealt exclusively with the respective rights of
the employer and of the employee. There are other parties, however,
whose rights are entitled to equal consideration, and whose rights
always become involved and imperilled when picketing is adopted as a
coercive measure in aid of a boycott.

If the strikers have the right, as above indicated, to withdraw
patronage themselves and by fair publication, written and oral
persuasion to induce others to join in their cause, and finally by
threat of like boycott to coerce others into so doing, their rights go
no further than this. It is the equal right of the employer to insist
before the law that his business shall be subject at the hands of the
strikers to no other detriment than that which follows as a consequence
of the legal acts of the strikers so above set forth. It is not to be
forgotten that when the employees have struck, they occupy no
contractual relationship whatsoever to their former employer, and have
no right to coerce him or attempt to coerce him by the employment of any
other means than those which are equally open to any other individual or
association of individuals. No sanctity attaches to a trades union which
puts it above the law, or which confers upon it rights not enjoyed by
any other individual or association. The two classes of persons to whom
we have adverted and whose rights necessarily become involved where a
picket or patrol is established, are, first, the rights of those
employed or seeking employment in the place of the striking laborers,
and, second, the rights of the general public. It is the absolute,
unqualified right of every employee, as well as of every other person,
to go about his legal business unmolested and unobstructed and free from
intimidation, force, or duress. The right of a labor association to
strike is no higher than the right of a non-union workman to take
employment in place of the strikers. Under the assurance and shield of
the Constitution and of the laws, the non-union laborer may go to and
from his labor and remain at his place of labor in absolute security
from unlawful molestations, and wherever the laws fail to accord such
protection, in so far is their execution to be blamed. In this country a
man’s constitutional liberty means far more than his mere personal
freedom. It means that, among other rights, his is the right freely to
labor and to own the fruits of his toil. (_Ex parte_ Jentzsch, 112 Cal.
468.) Any act of boycotting, therefore, which tends to impair this
constitutional right freely to labor, by means passing beyond moral
suasion, and playing by intimidation upon the physical fears, is
unlawful.

The inconvenience which the public may suffer by reason of a boycott
lawfully conducted is in no sense a legal injury. But the public’s
rights are invaded the moment the means employed are such as are
calculated to and naturally do incite to crowds, riots, and disturbances
of the peace.

A picket, in its very nature, tends to accomplish, and is designed to
accomplish, these very things. It tends to and is designed, by physical
intimidation, to deter other men from seeking employment in the places
vacated by the strikers. It tends, and is designed, to drive business
away from the boycotted place, not by the legitimate methods of
persuasion, but by the illegitimate means of physical intimidation and
fear. Crowds naturally collect; disturbances of the peace are always
imminent and of frequent occurrence. Many peaceful citizens, men and
women, are always deterred by physical trepidation from entering places
of business so under a boycott patrol. It is idle to split hairs upon so
plain a proposition, and to say that the picket may consist of nothing
more than a single individual peacefully endeavoring by persuasion to
prevent customers from entering the boycotted place. The plain facts are
always at variance with such refinements of reason. Says Chief Justice
Shaw in Commonwealth _v._ Hunt, 4 Met. 111: “The law is not to be
hoodwinked by colorable pretences; it looks at truth and reality through
whatever disguise it may assume.” If it be said that neither threats nor
intimidations are used, no man can fail to see that there may be
threats, and there may be intimidations, and there may be molesting, and
there may be obstructing, without there being any express words used by
which a man should show violent threats toward another, or any express
intimidation. We think it plain that the very end to be attained by
picketing, however artful may be the means to accomplish that end, is
the injury of the boycotted business through physical molestation and
physical fear caused to the employer, to those whom he may have employed
or who may seek employment from him, and to the general public. The
boycott, having employed these means for this unquestioned purpose, is
illegal, and a court will not seek by over-niceties and refinements to
legalize the use of this unquestionably illegal instrument. (Vegelahn
_v._ Guntner, _supra_, Crump _v._ Commonwealth, 84 Va. 927; Union
Pacific _v._ Ruef, 120 Fed. Rep. 124; 18 Ency. of Law, 2d ed., page 85.)

In conclusion, then, and applying these principles to the injunction
here under consideration, it appears that, while the injunction was
properly granted, it was broader in its terms than the law warrants. It
was, for example, too broad in restraining defendants from “in any wise
interfering with” plaintiff’s business, since the interference which we
have discussed, of publication, reasonable persuasion, and threat to
withdraw patronage, is legal and such as defendants could employ. So,
also, was the injunction too broad in restraining defendants from
“intimidating any customer by boycott or threat of boycott,” since, as
has been said, the secondary boycott is likewise a legal weapon. In all
other respects, however, the injunction was proper.

The trial court is directed to modify its injunction in the particulars
here specified, and in all other respects the judgment will stand
affirmed.

We concur: LORIGAN, J.; BEATTY, C. J.; MELVIN, J.

SHAW, J. I agree with all that is said by Justice Henshaw in his
opinion, except the part relating to the so-called “secondary boycott”
and the attempt to draw a distinction between the compulsion of third
persons caused by picketing, and the compulsion of third persons
produced by a boycott. My views concerning the “secondary boycott” are
expressed in my dissenting opinion in Parkinson _v._ Building Trades
Council, (Cal.) 98 Pac. 1040. The means employed for the coercion or
intimidation of a third person in a “secondary boycott” are unlawful
whenever they are such as are calculated to, and actually do, destroy
his free will and cause him to act contrary to his own volition in his
own business, to the detriment of the person toward whom the main
boycott or strike is directed; in other words, whenever the means used
constitute duress, menace, or undue influence. Whether this coercion or
compulsion comes from fear of physical violence, as in the case of
picketing, or from fear of financial loss, as in the secondary boycott,
or from fear of any other infliction, is, in my opinion, immaterial, so
long as the fear is sufficiently potent to control the action of those
upon whom it is cast. I can see no logical or just reason for the
distinction thus sought to be made. There is no such distinction in
cases where contracts or wills are declared void, because procured by
duress, menace, or undue influence. There should be none where actual
injury is produced or threatened through such means acting upon third
persons. Nor do I believe any well-considered case authorizes any such
distinction. The opinions in the case of National Protective Association
_v._ Cummings, 170 N. Y. 315, are devoted to a discussion of the right
to strike and the limitations of that right and not to a discussion of
the “secondary boycott.” A close analysis of the cases on the subject
will, as I believe, show that this court stands alone on this point.

For these reasons I do not agree to that part of the judgment directing
a modification of the injunction. I believe that it should stand in the
form as given by the court below.

ANGELLOTTI, J., and SLOSS, J.

We concur in the judgment. The modification of the judgment is in line
with the views announced in the Parkinson case. So far as “picketing” is
concerned, while we are not prepared to hold that there may not be acts
coming within that term as it is accepted and understood in labor
disputes, that are entirely lawful and should not be enjoined, we
believe that as to such “picketing” as is described in both findings and
judgment in this case, the views expressed in the opinion of the court
are correct.[622]

INDEX

ABANDONMENT,
of action, if voluntary, equivalent to termination in defendant’s
favor, 629.
of action, by way of compromise, not equivalent to termination in
defendant’s favor, 629.

ABSTRACTER OF TITLE,
liability to third party injured by mistake or omission, 262 n.

ABUSE OF PROCESS,
malicious, 653.

ACCIDENT,
without negligence, excuses trespass to person, 29, 30, 35, 40.
excuses trespass to personalty, 42.
through negligence, no excuse for a trespass, 29, 30, 35.

ACTION (see MALICIOUS INSTITUTION OF CIVIL ACTION).

ADVERTISING,
blind, interference with, 838.

ADVICE,
of counsel, probable cause for prosecution of plaintiff, 634.

ADVOCATE,
statements by, when privileged, 697, 709.

ANIMALS,
trespass on land by cattle, 404, 406.
trespass on land by dog, 406 n., 445.
trespass on land by chickens, 406 n.
liability of owner for trespass by cattle driven on highway, 406, 409
n.
statutes as to trespassing animals, 409, 410 n.
common law as to trespassing, how far applicable in U. S., 410, 414
n.
liability where cattle turned on another’s unenclosed lands, 414 n.
liability of owner of unenclosed lands for injury to trespassing
cattle, 409, 415.
whether a right of pasturage on unenclosed lands, 415, 419 n.
liability for injuries by wild, 419, 421, 422.
liability for injuries by vicious domestic, 421, 421 n.
classification of animals with respect to liability for injuries by,
423, 427 n.
liability for injuries by bees, 425 n.
what are wild, 424, 425.
injury through fright at sight of wild animal, 427.
interference with wild, bars recovery for injury, 430.
contributory negligence of person injured by, 432 n.
injury by domestic, scienter necessary, 433, 434 n.
injury to trespasser by domestic, 434 n.
vicious dog killed by trespassing dog, 434 n.
what constitutes scienter, 434 n.
liability for injury by vicious, where neither scienter nor
negligence, 434, 436 n.
what is dangerous propensity, 437.
injury by horse running at large on highway, 438, 440.
injury to person by trespassing, 441, 448, 451 n.
injury to person by trespassing hen, 450.
injury to person by trespassing animal, normally harmless, 450.
escape of wild or vicious, through _vis major_, 471.
escape of wild or vicious, through act of third person, 436 n.
injury by vicious, when excited by third person, 436 n.

ARREST (see MALICIOUS INSTITUTION OF CIVIL ACTION),
what is, 19, 20, 21.

ARTICLES OF PEACE,
malicious exhibition of, 626.

ASSAULT,
what is, 1, 2, 4, 6, 7, 10.
what is not, 2, 3, 11.
complete without contact, 1.
aiming unloaded gun, 7, 9 n.
firing revolver in plaintiff’s presence, but not at him, 7 n.
act of preparation for, 2 n.
intention of defendant, 7, 10 n.
present ability to injure, 7, 9 n.
aggravation of, 11.
insulting words, looks, and gestures, no, 11, 11 n., 12 n.

ASSUMPTION OF RISK,
by trespasser, 157, 160.
by licensee, 177, 179.
by servant, 201.
by interference with wild animal, 430.
of another’s negligence, 345, 351 n.

ATTACHMENT,
action lies for maliciously causing, 629 n., 646.

ATTORNEY (see COUNSEL).

AUTOMOBILES,
operation of, by unlicensed person, 402 n.
unlicensed, status of in highway, 398, 400 n., 402 n.

BAILEE,
standard of care, 82 n.

BANKRUPTCY,
malicious institution of proceedings in, 644.
imputation of, to a business man, 690.

BATTERY,
what is, 12, 16.
what is not, 12, 13.
hostile touching, 12 n.
touching _contra bonos mores_, 12 n.
unauthorized surgical operation, 12 n.
defendant must be actor to make, 13.
touching plaintiff to attract his attention, when a, 13.
by striking a horse when driven, 15.
whether indictment for, will support action of malicious prosecution,
624.
injury to clothes on plaintiff’s person, 16 n.
cutting rope connecting plaintiff with his slave, 16 n.
injury in course of “friendly scuffle,” 18 n.

BEES,
liability of owner of, for injuries, 425 n.

BLASTING,
injuries by, 40 n.

BOYCOTT (see COMPETITION, MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING
CONDUCT OF ANOTHER),
secondary, 998, 1004.
for the purpose of strengthening union, 978, 987.
for the purpose of gaining control of labor market, 989 n.
for the purpose of forcing third person to bring pressure on
employer, 997.

BREACH OF STATUTORY DUTY (see PUBLIC WRONG),
how far ground of private action, 510, 512 n., 513, 515, 516.
to repair street or sidewalk, 513 n.
toward third person, 516, 520 n.
liability to trespasser or licensee in case of, 520 n.

BUSINESS,
slander of one in his (see DEFAMATION).

CANDIDATE,
discussion of qualifications of, 755.

CARRIER,
may be sued either upon contract or tort, 125, 126 n.

CLERGYMAN,
imputation of misconduct to, 689 n.
not liable for public refusal of communion, 757.

COMBINATION,
whether members of, liable for acts which would be lawful if done by
a single individual, 910, 976, 977 n.

COMMENT,
fair, on public matters, not actionable, 726, 769.
aspersion of motives not fair, 766, 775.
false charge of specific acts not fair, 775 n., 785 n., 792.
fair, distinguished from privileged occasion, 760, 779, 795 n.
violent attacks and insulting words not, 786 n.

COMMERCIAL AGENCY,
statements by, when privileged, 739 n.

COMPETITION,
conflict between employers and employed is, 976.
mere rivalry is fair, 936.
puffing is fair, 826.
combination to smash rates is fair, 906.
reducing prices, 913.
sending our rival’s business card in injurious manner, not fair, 831.
bad motive, 913, 918, 923, 939.
inducing servant at will to leave master, whether fair, 873 n.
inducing servant to leave at expiration of term, 872 n.
influencing third person by fraud, not fair, 827, 828 n., 907 (but
see 858).
misleading use of one’s own name, 829 n.
influencing third persons by force or threats of physical injury, not
fair, 864, 935, 937, 907.
boycotting by threats of pecuniary damage, not fair, 952, 978, 989,
996, 998, 1004.
inducing third person to break contract, not fair, 907, 908.

CONSENT (see LEAVE AND LICENSE).

CONSPIRACY (see COMBINATION),
to defraud creditors, 846.
to suborn witnesses, 710.
to alter provisions of will, 852.

CONTRACT,
causing breach of, a tort, 874, 884, 887, 908.

CONTRIBUTORY NEGLIGENCE (see PUBLIC WRONG),
an affirmative defence, 264 n.
must be negatived by plaintiff, 264, 264 n.
a bar to recovery, 263, 266 n., 274.
must be a proximate cause of the injury, 265, 294, 296 n.
doctrine of comparative negligence, 267, 269, 269 n.
apportionment of loss, 269, 273 n.
doctrine of last clear chance, 275, 278, 279, 281, 282, 283, 288,
295, 296, 299, 301, 302, 308, 317, 320, 321, 322, 324, 337.
of child, 327, 328, 329.
humanitarian doctrine, 330.
no bar in case of wilful or intentional injury, 334, 337.
exposure of property to danger from negligence of another, 345, 351
n.
of carrier not imputable to passenger, 352, 368 n.
of driver of vehicle, when imputed, 359, 360 n., 361, 364.
of participant in joint enterprise, 362.
of agent or servant imputed, 362 n.
of husband whether imputed to wife, 362 n.
as between fellow servants, 362 n.
of bailee whether bars bailor, 362 n.
of parent or custodian of child whether imputed to child, 366, 370
n., 370.
of beneficiary under Lord Campbell’s Act whether bar to recovery,
371, 374, 374 n., 377 n.
in case of injury by animals, 432 n.

COUNSEL,
statements by, when privileged, 697, 709 n.
advice of, probable cause for prosecution, 634.

CREDITORS,
conspiracy in fraud of (see CONSPIRACY).

CRITICISM (see COMMENT).

DAMAGE,
whether action for deceit without, 525, 529, 595.
measure of, in action for deceit, 604, 605, 606 n.
caused by repetition of slander by third person too remote, 809.
slander actionable by reason of special, 807, 808, 809, 811.
loss of society of friends and consequent illness not special, 808.
loss of hospitality is special, 810.
loss of performance of gratuitous promise is special, 811.
loss of performance of promise to marry is special, 884 n.
loss of performance of contract where performance reasonably assured
is special, 887 n.
malicious but not defamatory words, whether actionable, if special,
812.
no action for slander of title without special, 816.
special, what is, 819 n., 847 n., 856, 859 n., 884 n.
special, not necessary where one passes off his product as another’s,
829 n.
special, not necessary in action for malicious injury to business,
854.

DANGEROUS USE OF LAND,
for reservoir, 452, 482 n.
“non natural use,” 463, 463 n.
what is, 463 n., 466 n.
tank of petroleum, 466 n., 482 n.
stored nitroglycerin, 466 n.
hydraulic mains, 467 n.
customary or statutory authority to make, 467 n.
no liability for, in case of _vis major_, 468.
no liability in case of interference by third person, 475.
steam boiler, 477.
explosives, 482 n., 498, 502.
doctrine of, considered, 477, 482.
water pipes in building whether, 492.
gas in pipes, 493 n.
allowing land to go to weeds not, 493.
maintaining fire, 496.
fires set by locomotives, 497 n.

DAUGHTER,
no action for marrying one’s, 869 n.

DECEIT,
requisites of action for, 521, 530.
whether action for, without damage, 529, 531, 595, 596 n.
fraudulently procuring wife to refuse to live with husband, 533.
sufficient if false statement one motive of plaintiff’s action, 535,
536 n.
representation of intention, 537, 539, 541 n., 542, 547 n.
purchase on credit with present intention not to pay, 542, 548.
promissory representation, 550.
known impossible prophecy, 551 n.
statement of vendor as to price, 551, 553 n.
statement of opinion, 551, 553, 555.
statement as to value, 553 n.
statement as to value of promissory note, 557.
statement of value, whether opinion or fact, 551, 553, 555, 559, 560
n.
statement as to matter within special knowledge of defendant, 556,
560, 616.
concealment of material fact, 561, 562 n.
statement must be known to be false or made recklessly, 563, 569 n.
statement made recklessly without knowledge of facts, 573 n.
liability for innocent or negligent misrepresentation, 572, 573 n.,
574, 576.
statement by fiduciary, 578.
estoppel to deny truth of statement, 580, 582 n.
duty to make representation good, 581.
duty to know whether statement true, 583, 584 n.
statement of belief as if fact, 584.
statement without reasonable ground for belief, 588 n.
reliance on statement where defendant obviously without personal
knowledge, 588 n.
not necessary that defendant profit by, 588.
statement expected to be passed on to others, 592, 595 n.
statement not expected to be passed on to others, 595.
procuring plaintiff to incur liability, 597, 598.
procuring plaintiff to refrain from selling property, 599, 601.
whether plaintiff must use diligence to guard against, 606, 607 n.,
608, 612 n., 616, 617 n.
execution of instrument without reading, 608 n.
reliance on representation where equal means of knowledge, 608 n.,
612.
reliance on friendship, 608 n.
reliance on representation where plaintiff informed of truth by
another, 612 n.
reliance on assertion of title, 612 n.
reliance on statement as to boundary, 612 n.
reliance on representation as to quantity of land, 612, 613.
refusal of defendant to put representation in writing, 612 n.
representation as to law, 616 n.
stipulations against liability for, 617.
measure of damage in action for, 604, 605, 606 n.

DEFAMATION,
_Publication_,
communication to plaintiff alone not a, 657, 659.
communication to plaintiff’s wife, 658.
communication by defamer to his own wife, 658 n.
communication to business partner, 658 n.
communication to plaintiff’s attorney, 659 n.
mailing of post card, whether a, 660 n.
in ignorance of the libel, 660 n.
must be of and concerning plaintiff, 665.
of and concerning plaintiff, what is, 669, 672, 676.
reading letter to third person a, 658.
reading letter by third person a, 659.
_Libel_,
what is, 679.
defamatory statement that describes two different persons, 671.
defamatory statements partially describing each of two different
persons, 672.
words injurious to plaintiff in the eyes of part of the community,
673, 674 n.
use of plaintiff’s name to describe fictitious person, 674.
_Slander_,
words imputing crime, 661, 682, 683.
words imputing unchastity to a woman, 683, 685.
words disparaging one in his calling, 687, 690, 691.
imputation of misconduct to clergyman, 689 n.
imputation of misconduct to teacher, 689 n.
imputation of drunkenness to officer, 689 n.
imputation of insolvency to tradesman, 690.
imputation of cheating to tradesman, 691 n.
imputation of ignorance to physician, 692.
imputation of misconduct in office of honor not of profit, 693 n.
words imputing a loathsome disease, 694, 695.
imputation of insanity, 694, 695 n.
defamatory words causing special damage, 807, 808, 809, 811.
words to be taken in natural sense, 661.
_Justification_,
truth a, 695.
belief in truth not, 676, 771 n.
repetition not a, 677.
_Absolutely Privileged Occasions_,
statements in legislative proceedings, 697 n., 710 n.
in course of acts of state, 697 n.
official statements of administrative officers, 710 n.
statements in judicial proceedings, by judge, 695; by witness, 703,
707;
by counsel, 697, 702 n.
what are judicial proceedings, 702 n., 710 n.
irrelevant statements in judicial proceedings, 696, 703, 707, 709
n.
what statements are irrelevant, 704, 709 n., 710 n.
_Conditionally Privileged Occasions_,
reports of legislative proceedings, 720.
reports of judicial proceedings, 714.
reports of ex parte judicial proceedings, 716.
reports of quasi judicial proceedings, 729, 729 n.
report of proceedings of church commission, 730 n.
petition or memorial for removal of public officer, 768 n.
fair abstracts of judicial proceedings, 731.
reports of public meetings in general, whether, 727, 728 n.
publication of reports of administrative officers, 729 n.
reports of news by newspapers not, 732.
statements in common interest of maker and receiver, 734, 736 n.
statements by person immediately interested to protect his own
interest, 737 n.
statement of suspicions in course of investigation of crime, 736.
statement in course of dispute as to property, 738 n.
solicited statements in interest of receiver, 738.
statement by commercial agency, 739 n.
statement by attorney to client, 740 n.
statement in course of business duty, 740 n.
statement by member of family as to character of suitor, 740 n.
statement as to character of candidate for admission to society,
740 n.
solicited statements as to character of servant, 738.
solicited statements as to credit of tradesman, 739 n.
statements by a fiduciary to his principal, 740 n.
volunteered statements in interest of receiver, when, 740, 746 n.,
747, 749.
publication of, in presence of stranger, 750, 753, 754 n.
general publication as to candidate for local office, 754 n.
publication of matter of public interest in the community, 755.
statements in public meetings, 756 n.
published reply to defamatory statements, 756 n.
publication to representative of interested receiver, 763.
publication of, on post card, not justifiable, 754.
publication of, to type-writer, whether justifiable, 758, 761 n.
publication of, to wrong person, by mistake, whether excused, 761
n.
malice destroys immunity in, 761.
_Fair Comment_,
upon public matters not actionable, 726, 769, 771 n.
what are public matters, 771 n., 795 n.
distinguished from privilege, 770, 779, 795 n.
criticism of published writings when, 772, 775, 782.
aspersion of motives not, 769, 775.
false charges of specific acts, 775 n., 785 n., 792.
violent attacks and insulting statements, not, 786 n.
_Malice_,
in fact and law, 662.
what is, 749, 771 n.
burden is on plaintiff to show, 790 n.
publication _prima facie_ evidence of, 663.
express, must be proved, if occasion is privileged, 790.
a question of _bona fides_ not of reasonableness, 763.
a question of reasonableness as well as _bona fides_, 766.

DISPARAGEMENT OF PROPERTY, 815 n.
of title (see SLANDER OF TITLE).
of goods, 819, 823 n., 861.

DOGS (see ANIMALS),
trespass on land by, 406 n., 445.

DRUNKENNESS,
no excuse for tort, 662 n.

EMPLOYER AND EMPLOYEE (see MASTER AND SERVANT),
right of employer “to have labor flow freely to him,” 903.
inducing breach of contract by employees, 884, 887.
inducing employer to discharge employee because not a member of trade
union, 939, 978 (see MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING
CONDUCT OF ANOTHER).
boycotting, 950, 952, 978, 988, 989 n., 997, 998, 1004.
picketing, 978 n.

ENTICING,
servant, 864, 868.

FALSE IMPRISONMENT (see IMPRISONMENT).

FENCE,
malicious erection of, 928.

FRIGHT (see MENTAL OR NERVOUS SHOCK).

HUMANITARIAN DOCTRINE (see CONTRIBUTORY NEGLIGENCE).

IMPRISONMENT (see ARREST),
what is, 18, 20, 21, 21 n., 23, 23 n., 28 n.
contact not necessary, 19, 21, 23.
what is not, 19, 20, 24.
mere words without submission to restraint not an, 19, 20.
partial obstruction not an, 24.
shadowing by detectives, 23 n.

IMPUTED NEGLIGENCE (see CONTRIBUTORY NEGLIGENCE).

INEVITABLE ACCIDENT (see ACCIDENT).

INFANT,
liable for torts, 96, 97 n.
negligence of, 88, 88 n., 90, 93, 93 n.

INJUNCTION,
maliciously obtaining, 648 n.

INSANE PERSON,
liable for torts, 29, 29 n., 662 n.

INSULT,
gestures no assault, 11, 11 n., 12 n.
looks no assault, 11, 11 n., 12 n.
words no assault, 11, 11 n., 12 n.
action lies for written or spoken, by statute in Va., 657 n.
insulting statements not fair comment, 786 n.

INVITEE (see OCCUPIER OF PREMISES).

JUDGE,
statements by, absolutely privileged, 695.

JUDICIAL PROCEEDINGS,
statements in, absolutely privileged, 695, 697, 703, 707, 709 n.
reports of, conditionally privileged, 714, 716, 720, 731, 761.
reports of quasi, conditionally privileged, 729.

JURY,
malice in action for malicious prosecution a question for, 638.
malice in fact in defamation a question for, 662, 752, 763, 790.

JUSTICE OF THE PEACE,
advice of, when probable cause for prosecution, 635 n.

LABORERS, STATUTE OF,
actress not a servant within, 879.

LAND (see MALICIOUS USE OF ONE’S OWN LAND; DANGEROUS USE OF LAND).

LANDLORD AND TENANT,
liability of landlord for defect in premises, 220, 222 n.

LAST CLEAR CHANCE (see CONTRIBUTORY NEGLIGENCE).

LEAVE AND LICENSE,
no bar to action for injury received in prize fight, 18.
procuring abortion with plaintiff’s consent, 19 n.
injury in course of illegal charivari party, 18 n.

LEGISLATIVE PROCEEDINGS,
statements in absolutely privileged, 720.
reports of conditionally privileged, 720.

LIABILITY WITHOUT FAULT (see ANIMALS; DANGEROUS USE OF LAND),
constitutionality of legislation imposing, 482 n., 494 n.

LIBEL (see DEFAMATION).

LIQUIDATION,
malicious proceedings in, against company, 645 n.

LORD CAMPBELL’S ACT, 372 n.

LUNACY,
malicious proceedings in, 645 n.

LUNATIC (see INSANE PERSON).

MALICIOUS CONSPIRACY (see CONSPIRACY).

MALICIOUS EXHIBITING OF ARTICLES OF THE PEACE,
actionable, 625.

MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER,
enticing servant to leave master, 864.
debauching servant of another, 866.
inducing breach of contract, 874, 884, 887.
inducing breach of contract by laborers, 884, 887, 979 n.
suborning witness to commit perjury, 710.
helping debtor to make assignment in fraud of creditors, 846.
slander of title, 813, 816.
disparagement of goods, 819.
fraudulent imitation of trade-mark, 827.
use of envelopes marked telegram leading patrons of telegraph company
to believe latter imposing on them, 837 n.
fraudulent statement that plaintiff had gone out of business, 854,
859.
fraudulent sending out of plaintiff’s business card under injurious
circumstances, 831.
false though not defamatory imputation upon plaintiff, 812.
slander of plaintiff’s wife resulting in injury to business, 837 n.
fraudulently inducing testator to revoke bequest to plaintiff, 847,
849.
false statement to mortgagee procuring foreclosure in breach of
gratuitous promise to mortgagor, 849 n.
fraudulently procuring third person to sell to defendant in breach of
oral contract with plaintiff within statute of frauds, 852 n.
fraudulently altering and defacing will leaving legacy to plaintiff,
852.
loosening horse’s shoe to discredit blacksmith, 829.
inducing servant at will to leave master, 868.
frightening wild fowl from resorting to plaintiff’s land, 935, 937.
threats of physical injury to plaintiff’s customers, 863, 864, 897,
935, 968.
threats of pecuniary loss to plaintiff’s customers, 952, 996.
threat of physical injury to plaintiff’s workmen, 863, 978 n.
threat of vexatious suits against customers, 863 n.
annoyance of workmen resorting to plaintiff, 979 n.
threat to sell adjoining property to colored family, 923 n.
threat by association of retail dealers to cease dealing with
manufacturer or wholesale dealer, 997 n.
threats, what may lawfully be threatened, 975, 975 n.
refusal to insure ship if plaintiff employed as master, 836 n.
sermon warning congregation against physician, 837 n.
interference with blind advertisement, 838.
inducing one not to contract with plaintiff, 906, 978, 989, 996, 998,
1004.
boycotting, 952, 987, 989 n., 997, 997 n., 998, 1004, 1012 n.
strike to strengthen union, 978, 988;
to gain control of labor market, 989 n.;
to bring pressure on third person, 997, 998, 1009;
to procure discharge of plaintiff as means towards better
conditions in shop, 998 n.;
to get rid of objectionable foreman, 998 n.
inducing employer to discharge employee because not a member of trade
union, 939, 978.
inducing employer to break contracts with laborers, 979 n.
“smashing” rates, 906, 913.
conspiracy, 910, 971.
inciting pauper to sue plaintiff, 651.

MALICIOUS INJURY TO PLAINTIFF BY TORT TO ANOTHER,
destruction of husband’s house by wife to injure insurer, 841.

MALICIOUS INSTITUTION OF CIVIL ACTION,
actionable, 650 n.
not actionable, 649.
voluntary abandonment of former action is failure, 629 n.
abandonment by way of compromise not failure, 629 n.
attachment vacated evidence of want of probable cause, 634 n.
by instigating another to sue, 651.
in name of another, 655.
prosecution of unfounded claim for patent, 645 n.

MALICIOUS PROCEEDINGS,
in bankruptcy, 644.
in lunacy, 645 n.
for removal of officer, 645 n.
levy on execution under fraudulent judgment, 648 n.
procurement of execution of search warrant, 648 n.
attachment, 646.
arrest on civil process, 648 n.
holding to bail, 648 n.
replevin, 648 n.
garnishment, 648 n.
procurement of injunction, 648 n.
excessive attachment, 652 n.
for winding up company, 645 n.

MALICIOUS PROSECUTION,
_Institution of Criminal Proceedings_, 620.
application for warrant but none issued, 624 n.
arrest without warrant, no further prosecution, 624 n.
search warrant issued, no arrest or seizure of property, 624 n.
warrant issued, plaintiff leaves jurisdiction to avoid arrest, 620.
_Nature of Criminal Charge_, 624.
prosecution under unconstitutional statute, 624 n.
prosecution in court without jurisdiction, 624 n.
_Failure of Prosecution_,
generally essential, 627.
when not necessary, 625.
_nolle prosequi_ is, 627.
indictment quashed is, when, 629 n.
striking from docket because in wrong court, when, 629 n.
_Abandonment of Prosecution_,
if voluntary equivalent to termination in defendant’s favor, 627.
by way of compromise not equivalent to termination in defendant’s
favor, 629 n.
otherwise where settlement obtained by duress, 630 n.
_Reasonable or Probable Cause_,
essential, 630.
definition of, 631 n.
a question for court, 632, 637.
conviction, though reversed, _prima facie_ evidence of, 632, 633 n.
conviction, though reversed, conclusive evidence of, 627.
commitment for grand jury, evidence of, 632, 633 n.
finding of indictment evidence of, 632, 633 n.
advice of counsel is, 634.
advice of justice of the peace, whether, 635 n.
advice of layman not, 635 n.
what must be stated to counsel, 636 n.
defendant’s belief in plaintiff’s innocence negatives, 639.
failure of prosecution, whether evidence of want of, 633 n., 641.
want of, not to be inferred from malice, 643 n.
if not, still no action for, if plaintiff was in fact guilty, 644.
_Malice_,
meaning of, 637, 638 n., 642.
question of fact for jury, 637.
not a necessary inference from want of probable cause, 636, 641,
643 n.
of no moment, if probable cause exists, 630.
_Damage_, 624.

MALICIOUS USE OF ONE’S OWN LAND,
general discussion of doctrine of, 923, 939, 952 n.
by erecting fence to annoy neighbors, 927 n., 928.
by erecting building annoying to neighbor, 926.
by diverting percolating water, 928 n.
malice must be dominant motive, 935 n.
by frightening wild fowl from resorting to plaintiff’s land, 935,
937.
by cutting trees causing evaporation from stream to injury of
plaintiff’s water right, 938.

MALICIOUS WORDS (see DEFAMATION; MALICIOUS INJURY TO PLAINTIFF BY
INFLUENCING CONDUCT OF ANOTHER; SLANDER OF TITLE).

MANUFACTURER,
liability of, for defects, 228, 233, 235, 251.

MARRIAGE,
loss of, is special damage, 807.
loss of performance of promise to marry, is special damage, 884 n.
fraudulent, of plaintiff’s daughter, 869.

MASTER AND SERVANT,
seduction of servant of another, 866.
enticing servant of another, 864.
threat of physical injury to servant of another, 863.
inducing servant at will to leave master, 873 n.

MENTAL OR NERVOUS SHOCK,
action for causing, 45, 49 n., 50, 57 n., 58, 61.

MISFEASANCE (see NEGLIGENCE).

MISTAKE,
in addressing a privileged communication, 761 n.
defamation by, 761 n.

MORAL DUTY,
assumption of performance of, 129, 141.
in absence of relation between parties, 131.
where relation between parties, 134, 137 n.

MOTIVE (see MALICE),
aspersion of, of public man, not fair comment, 769, 775.

NEGLIGENCE (see CONTRIBUTORY NEGLIGENCE; OCCUPIER OF PREMISES;
TRESPASSERS; PUBLIC WRONG),
without damage, no liability, 41.
must be proximate cause of injury, 42.
standard of care, 63, 66 n., 67, 76.
ordinary care, definition of, 70.
standard in case of physical disability, 71, 73.
degrees of, 77, 79, 79 n., 82 n., 83, 85 n.
statutory degrees of, 86.
of infant, 88, 88 n., 90, 92 n., 93.
proof of, 98, 102, 106, 111, 113, 115.
duty of care, 120, 125.
definition of, 156.
requirement of duty of care toward person injured, 156.
in performance of gratuitous undertaking, 184 n.
liability for, of maker or vendor of chattel, 228, 233, 235, 246,
251.
comparative negligence, 267, 268 n., 269.
difference between gross negligence and wanton or reckless conduct,
340, 342 n., 343.
as ground of recovery for injury by vicious animal, 434.
breach of rules of a private corporation, whether, 508 n.
violation of ordinance, whether, 508 n.
breach of statutory duty, whether, 391, 400 n., 504, 506, 506 n.
liability for negligent language, 573 n.

NERVOUS SHOCK (see MENTAL OR NERVOUS SHOCK).

NEWSPAPER,
has no peculiar privilege in defamation, 732.

NOLLE PROSEQUI (see MALICIOUS PROSECUTION).

NONFEASANCE, 127, 129, 131, 134, 137, 142 n.

NUISANCE (see DANGEROUS USE OF LAND),
“attractive” 165, 170 n., 170, 173, 176 n.; age to which doctrine
applicable, 171 n.
allowing land to go to weeds not, 493.
trees shading another’s land not, 495.
stored explosives, 498, 502.

OCCUPIER OF PREMISES (see TRESPASS; NUISANCE “attractive”; LANDLORD AND
TENANT),
liability to trespassers, 147, 149 n.
liability to known trespassers, 149.
liability to anticipated trespassers, 150, 154, 156 n.
liability to trespassers prohibited by statute, 153 n.
duty to look out for trespassers, 156 n.
liability to licensee, 177, 179, 183, 183 n., 186, 191.
injury to licensee by “trap,” 179.
liability to children licensees, 183 n.
liability where known permissive use by public, 183 n.
liability in case of gratuitous carriage, 183 n.
liability to licensee for negligent operation of active force, 186,
190 n.
duty to notify of withdrawal of license, 191.
liability to invitee, 194, 199 n.
duty to child accompanying invitee, 200 n.
liability to children invitees, 200 n.
duty to invitee of licensee, 200 n.
liability where plaintiff exceeds invitation, 200 n.
liability where notice habitually disregarded, 201.
not an insurer of safety of invitees, 203.
duty toward invitees to ascertain condition of premises, 202.
liability for injury to invitees by third persons, 204.
who are invitees, 207, 214, 220 n.
liability to social guest, 222, 225 n.
liability in case of license conferred by law, 225, 227 n.
liability to trespasser or licensee in case of breach of statutory
duty, 520.

PARTY,
statements by, privileged, 709 n.

PEACE,
malicious exhibition of articles of, 626.

PHYSICAL IMPACT,
necessity of, 45, 50, 58, 62 n.

PHYSICIAN,
slander of, 691.

PICKETING, 897, 968, 978 n., 1005, 1010.

POSTAL CARD,
whether mailing is publication, 660 n.
sending privileged communication by, 754.

PRIVACY,
interference with, 797.

PRIVILEGE (see DEFAMATION).

PRIZE FIGHT,
each party to, liable to other, 18.

PROBABLE CAUSE (see MALICIOUS PROSECUTION).

PROFESSION (see DEFAMATION).

PROMISE,
loss of performance of gratuitous, is special damage, 811.

PUBLIC MEETINGS,
reports of, whether privileged, 727, 728 n.

PUBLIC WRONG,
plaintiff’s participation in, no bar where wilful injury, 377.
violation of Sunday law, whether bar to action for negligence, 379,
381, 388 n.
violation of ordinance, whether bar to action for negligence, 388,
391.
violation of licensing or registration law, whether bar to action for
negligence, 398, 400 n.
unlicensed automobile, status of, in highway, 398, 401 n., 402 n.
injury by dog unmuzzled in violation of ordinance, 434 n.
injuries by animals running at large contrary to statute, 441 n.
breach of statutory duty, whether negligence, 391, 400 n., 504, 506,
506 n.
violation of ordinance, whether negligence, 508 n.

PUBLICATION (see DEFAMATION).

REASONABLE AND PROBABLE CAUSE (see MALICIOUS PROSECUTION).

REPETITION,
of slander, actionable, 677.

REPORTS,
of legislative and judicial proceedings, privileged (see DEFAMATION).

RES IPSA LOQUITUR,
inference of negligence, 98, 102, 102 n., 105 n., 106.
necessary allegation, 105 n.
doctrine applies only in absence of explanation, 105 n.
in actions by servant against master, 107, 107 n.
elements of the doctrine, 110 n.
burden of proof not shifted, merely burden of going forward, 111 n.
other inferences must be excluded, 113 n.
simply a rule of evidence, 115 n.

SCIENTER (see ANIMALS).

SEARCH WARRANT,
malicious procurement of execution of, 648 n.

SEDUCTION,
of daughter, 866.
of plaintiff’s fiancée, 884 n.
action by woman for, 16.
statutory action for, 17 n.
by guardian, 17 n.

SERVICE, LOSS OF,
by enticing servant, 864.
by seducing daughter or female servant, 866.

SLANDER (see DEFAMATION).

SLANDER OF TITLE (see DISPARAGEMENT OF PROPERTY),
differs from slander of person, 813.
what is, 815 n.
action for, survives as injury to property, 813.
special damage essential, 816.
whether malice required, 816 n.
what is special damage, 819 n., 847 n., 855, 859 n., 883 n., 884 n.

SMASHING RATES,
is fair competition, 906, 913.

SPECIAL DAMAGE (see DAMAGE).

SUBORNATION OF WITNESS,
action for, 710.

SUNDAY LAWS (see PUBLIC WRONG).

TELEGRAM,
sending privileged communication by, 753.

THREATS (see MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF
ANOTHER).

TRADE,
competition in (see COMPETITION).
slander of one in (see DEFAMATION).

TRADE DISPUTES ACT (English), 897 n., 967 n.

TRADE-MARK,
fraudulent imitation of, 827.

TRESPASSER (see NUISANCE “attractive”),
takes risk of condition of premises, 157.
negligent injury of, 147, 149, 150.
wilful, negligent injury to, 149 n.
child, duty to, 150 n., 160.
occupier may assume, will look out for himself, 156 n.
child, takes risk of condition of premises, 160.
setting traps for, 160 n., 176 n.

TRUTH,
justification in action for defamation, 695.

TURN TABLE CASES (see NUISANCE “attractive”).

TYPEWRITER,
communication to, a publication, 758.
communication to, not privileged, 758.
communication to, privileged, 761 n.

VENDOR OF CHATTEL,
liability of, to third persons for defects, 228, 233, 235, 251.

VOLENTI NON FIT INJURIA (see LEAVE AND LICENSE).

WATER COMPANY,
liability in tort for failure to provide water, 262 n.

WEEDS (see DANGEROUS USE OF LAND).

WITNESS,
no action against, for perjury, 712.
action for subornation of, 710.
statements of, privileged (see DEFAMATION)

WORDS,
insulting, no assault, 11, 11 n., 12 n.
malicious (see MALICIOUS WORDS).
construction of, in defamation, 661.

-----

Footnote 1:

Smith _v._ Newsam, 1 Vent. 256; Tombs _v._ Painter, 13 East, 1; Lewis
_v._ Hoover, 3 Blackf. 407; Handy _v._ Johnson, 5 Md. 450; People _v._
Carlson, 160 Mich. 426; Saunders _v._ Gilbert, 156 N. C. 463; Leach
_v._ Leach, 11 Tex. Civ. App. 699 _Accord_.

Footnote 2:

The report of the same case in 2 Keble, 545, adds: “The defendant
pleaded the plaintiff began first, and the stroke he received, whereby
he lost his eye, was on his own assault, and in defense of the
defendant.”

Footnote 3:

Blake _v._ Barnard, 9 Car. & P. 626; State _v._ Crow, 1 Ired. 375;
Commonwealth _v._ Eyre, 1 S. & R. 347; Biggins _v._ Gulf R. Co., 102
Tex. 417 _Accord_. Compare Handy _v._ Johnson, 5 Md. 450.

Similarly, a mere preparation for a possible assault, but without any
act indicating a present intention to do personal violence to another,
is not an assault. Lawson _v._ State, 30 Ala. 14; Godwin _v._ Collins,
67 Fla. 197; Penny _v._ State, 114 Ga. 77; Gober _v._ State, 7 Ga.
App. 206; Haupt _v._ Swenson, 125 Ia. 694; State _v._ Painter, 67 Mo.
84; State _v._ Milsaps, 82 N. C. 549. But compare State _v._ Hampton,
63 N. C. 13.

Footnote 4:

Townsdin _v._ Nutt, 19 Kan. 282; Handy _v._ Johnson, 5 Md. 450;
Fairme’s Case, 5 City Hall Rec. 95; Brister _v._ State, 40 Tex. Cr.
505; Western T. Co. _v._ Bowdoin, (Tex. Civ. App.) 168 S. W. 1
_Accord_. Jones _v._ State, 89 Ark. 213 (_semble_) _Contra_.

Compare Cobbett _v._ Grey, 4 Ex. 744, _per_ Pollock, C. B.; Burton
_v._ State, 8 Ala. App. 295; Wells _v._ State, 108 Ark. 312; People
_v._ Lilley, 43 Mich. 521; Grimes _v._ State, 99 Miss. 232;
Commonwealth _v._ Roman, 52 Pa. Super. Ct. 64; Trimble _v._ State, 57
Tex. Cr. 439.

In Mortin _v._ Shoppee, 3 Car. & P. 373, defendant rode up to
plaintiff’s gate, plaintiff being in his garden about three yards off,
and, shaking his whip, said, “Come out, and I will lick you before
your own servants.” Compare People _v._ Yslas, 27 Cal. 630; State _v._
Shipman, 81 N. C. 513.

Footnote 5:

Only so much of the case is given as relates to the question of
assault.

Footnote 6:

United States _v._ Kiernan, 3 Cranch, C. C. 435; Plonty _v._ Murphy,
82 Minn. 268; People _v._ Lee, 1 Wheeler, Crim. Cas. 364; State _v._
Davis, 1 Ired. 125; Alexander _v._ Blodgett, 44 Vt. 476; Newell _v._
Whitcher, 53 Vt. 589; Bishop _v._ Ranney, 59 Vt. 316; Barnes _v._
Martin, 15 Wis. 240; Keep _v._ Quallman, 68 Wis. 451 _Accord_.

Footnote 7:

United States _v._ Myers, 1 Cranch, C. C. 310; Keefe _v._ State, 19
Ark. 190; Hixson _v._ Slocum, 156 Ky. 487; State _v._ Dooley, 121 Mo.
591; State _v._ Herron, 12 Mont. 230; State _v._ Morgan, 3 Ired. 186;
State _v._ Cherry, 11 Ired. 475; State _v._ Church, 63 N. C. 15;
Bishop _v._ Ranney, 59 Vt. 316; French _v._ Ware, 65 Vt. 338 _Accord_.

Footnote 8:

State _v._ Church, 63 N. C. 15 _Accord_.

Firing a revolver in plaintiff’s presence but not at him, intending to
frighten him but not to do him any bodily harm, was held not to be an
assault. Degenhardt _v._ Heller, 93 Wis. 662. Compare Nelson _v._
Crawford, 122 Mich. 466.

Footnote 9:

The argument for the plaintiff is omitted.

Footnote 10:

In Chapman _v._ State, 78 Ala. 463; State _v._ Yturaspe, 22 Idaho,
360; State _v._ Sears, 86 Mo. 169; State _v._ Godfrey, 17 Or. 300;
McKay _v._ State, 44 Tex. 43, it was decided that a defendant who
aimed an unloaded pistol at another, although perhaps liable for a
civil assault, was not guilty of a criminal assault. See also 2 Green,
Cr. Cas. 271 n.; Territory _v._ Gomez, 14 Ariz. 139; People _v._
Sylva, 143 Cal. 62. Such conduct was held to be a criminal assault in
State _v._ Shepard, 10 Ia. 126; Commonwealth _v._ White, 110 Mass.
407; State _v._ Barry, 45 Mont. 598; Clark _v._ State, (Okl. Cr.) 106
Pac. 803; State _v._ Smith, 2 Humph. 457; Richels _v._ State, 1 Sneed,
606 (_semble_); Morison’s Case, 1 Brown, Just. R. (Scotch) 394. In
Commonwealth _v._ White, _supra_, Wells, J., said: “It is not the
secret intent of the assaulting party, nor the undisclosed fact of his
ability or inability to commit a battery, that is material, but what
his conduct and the attending circumstances denote at the time to the
party assaulted.” Cf. Howell _v._ Winters, 58 Wash. 436.

Footnote 11:

Only so much of the case is printed as relates to this count.

Footnote 12:

State _v._ Daniel, 136 N. C. 571; Degenhardt _v._ Heller, 93 Wis. 662
_Accord_. Wood _v._ Young, 20 Ky. L. Rep. 1931 _Contra_. It is not an
assault to make the kissing sign to another. Fuller _v._ State, 44
Tex. Cr. 463.

Mere words, looks, or gestures, however violent or insulting, do not
amount to an assault. State _v._ Borrelli, 24 Del. 349;
Reimenschneider _v._ Neusis, 175 Ill. App. 172; Harvey _v._ Harvey,
124 La. 595; Bouillon _v._ La Clede Gas Light Co., 148 Mo. App. 462;
State _v._ Daniel, 136 N. C. 571; Lewis _v._ Fountain, 168 N. C. 277.
A _fortiori_ violent language over the telephone is no assault. Kramer
_v._ Ricksmeier, 159 Ia. 48.

No action lies for the shame and insult to a woman from inviting her
to illicit intercourse. Davis _v._ Richardson, 76 Ark. 348; Reed _v._
Maley, 115 Ky. 816; State _v._ White, 52 Mo. App. 285. _Aliter_ where
accompanied by acts that put her in fear. Johnson _v._ Hohn, 168 Ia.
147; Jeppsen _v._ Jensen, 47 Utah, 536; Newell _v._ Whitcher, 53 Vt.
589. And a common carrier is liable, as a public service company, for
insults to a passenger by its employees. Knoxville Co. _v._ Lane, 103
Tenn. 376.

“Injury is committed not only when a man is struck with the fist or
beaten with a stick or lashed, but also when abusive language is
publicly addressed to any one, or when ... some one ... has followed
about a married woman or a young boy or girl, or when some person’s
modesty may be said to have been assailed.” Institutes of Justinian,
iv, 4, 1.

“Likewise it is an injury of this kind when one person, without
actually striking another, keeps raising his hand menacingly and
creates in the other the fear that he will be struck.... Likewise if
he mocks another with indecent or indecorous gestures; or if by means
of gesticulations he indicates things of such a kind that if they were
expressed in spoken words or in writing they would convey an injury.”
Voet, Commentary on the Pandects, xlvii, 10, § 7.

“Ignominious treatment is an injury only when it is an infringement of
one of the absolute rights of personality: a right that is recognized
by the law of the State as included amongst the natural rights of
every freeman. Such an infringement of another’s right may be regarded
as offensive to good morals (_contra bonos mores_); hence the
definition of _injuria_ as ‘an insult offered to any person against
good morals’ (_contumelia contra bonos mores alicui illata_).” De
Villiers, Roman and Roman-Dutch Law of Injuries, 22.

Footnote 13:

Meader _v._ Stone, 7 Met. (Mass.) 147 _Accord_.

See Rex _v._ Smith, 2 Car. & P. 449; Preiser _v._ Wielandt, 48 App.
Div. 569.

Footnote 14:

Hostile touching or in anger. Singer Co. _v._ Methvin, 184 Ala. 554;
McGlone _v._ Hanger, 56 Ind. App. 243; Booher _v._ Trainer, 172 Mo.
App. 376; Hough _v._ Iderhoff, 69 Or. 568; Raefeldt _v._ Koenig, 152
Wis. 459 _Accord_.

Touching _contra bonos mores_ but with no hostile intent. Richmond
_v._ Fisk, 160 Mass. 34. Taking liberties with a woman. Hatchett _v._
Blacketer, 162 Ky. 266; Timmons _v._ Kenrick, 53 Ind. App. 490.
Unauthorized surgical operation. Pratt _v._ Davis, 224 Ill. 300; Mohr
_v._ Williams, 95 Minn. 261; Schloendorff _v._ Society, 211 N. Y. 125;
Rolater _v._ Strain, 39 Okl. 572. But see Bennan _v._ Parsonnet, 83 N.
J. Law, 20. _Aliter_ where authorized by a minor. Bakker _v._ Welsh,
144 Mich. 632.

Footnote 15:

Kerifford’s Case, Clayt. 22 pl. 38 _Accord_. See, also, Steinman _v._
Baltimore Laundry Co., 109 Md. 62; Courtney _v._ Kneib, 131 Mo. App.
204.

Footnote 16:

The statement of the case has been abridged.

Footnote 17:

Courtney _v._ Kneib, 131 Mo. App. 204 _Accord_. Compare Reynolds _v._
Pierson, 29 Ind. App. 273.

Footnote 18:

A part of the case, relating to a point of practice, is omitted.

Footnote 19:

Dodwell _v._ Burford, 1 Mod. 24; Hopper _v._ Reeve, 7 Taunt. 698;
Spear _v._ Chapman, 8 Ir. L. R. 461; Reynolds _v._ Pierson, 29 Ind.
App. 273; Burdick _v._ Worrall, 4 Barb. 596 (_semble_); Bull _v._
Colton, 22 Barb. 94; Clark _v._ Downing, 55 Vt. 259 _Accord_. But see
Kirland _v._ State, 43 Ind. 146.

An injury to the clothes on one’s back is a trespass on the person,
Regina _v._ Day, 1 Cox, C. C. 207. So is the removal of an ulster from
the plaintiff, Geraty _v._ Stern, 30 Hun, 426; or seizing anything in
the plaintiff’s hand, Scott _v._ State, 118 Ala. 115; Dyk _v._ De
Young, 35 Ill. App. 138; Steinman _v._ Baltimore Laundry Co., 109 Md.
62 (_semble_); Respublica _v._ De Longchamps, 1 Dall. 111; or cutting
a rope connecting the plaintiff with his slave, State _v._ Davis, 1
Hill (S. C.) 46.

Footnote 20:

The statement of the pleadings and the arguments of counsel are
omitted.

Footnote 21:

Berry _v._ Da Costa, L. R. 1 C. P. 331; Collins _v._ Mack, 31 Ark.
684; Hattin _v._ Chapman, 46 Conn. 607; Graves _v._ Rivers, 123 Ga.
224; Tubbs _v._ Van Kleek, 12 Ill. 446; Tyler _v._ Salley, 82 Me. 128;
Sauer _v._ Schulenberg, 33 Md. 288; Sherman _v._ Rawson, 102 Mass.
395; Kelley _v._ Riley, 106 Mass. 339; Bennett _v._ Beam, 42 Mich.
346; Schmidt _v._ Durnham, 46 Minn. 227; Green _v._ Spencer, 3 Mo.
318; Musselman _v._ Barker, 26 Neb. 737; Coil _v._ Wallace, 24 N. J.
Law, 291; Kniffen _v._ McConnell, 30 N. Y. 285; Spellings _v._ Parks,
104 Tenn. 351; Daggett _v._ Wallace, 75 Tex. 352; Giese _v._ Schultz,
69 Wis. 521 _Accord_.

Weaver _v._ Bachert, 2 Pa. St. 80; Wrynn _v._ Downey, 27 R. I. 454
_Contra_.

Footnote 22:

But see 4 Blackstone, Commentaries, 65; 1 Bishop, New Criminal Law, §
38.

Footnote 23:

Beseler _v._ Stephani, 71 Ill. 400; Woodward _v._ Anderson, 9 Bush,
624; Paul _v._ Frazier, 3 Mass. 71; Welsund _v._ Schueller, 98 Minn.
475; Robinson _v._ Musser, 78 Mo. 153; Hamilton _v._ Lomax, 26 Barb.
615; Weaver _v._ Bachert, 2 Pa. St. 80; Conn _v._ Wilson, 2 Overt. 233
_Accord_. See Desborough _v._ Homes, 1 F. & F. 6.

An action is allowed by statute in some jurisdictions. Marshall _v._
Taylor, 98 Cal. 55; Swett _v._ Gray, 141 Cal. 83; McIlvain _v._ Emery,
88 Ind. 298; Verwers _v._ Carpenter, 166 Ia. 273; Watson _v._ Watson,
49 Mich. 540; Hood _v._ Sudderth, 111 N. C. 215; Breon _v._ Henkle, 14
Or. 494. The Scotch law is to the same effect. Smith, Law of Damages
in Scotland, 128. Under these statutes it has been held that there
must be a real seduction: “Consent must be procured by some trick or
artifice other than mere solicitation.” Brown _v._ Kingsley, 38 Ia.
220. Compare Breon _v._ Henkle, 14 Or. 494.

Even without a statute a guardian is liable in damages for the
seduction of his ward. Graham _v._ Wallace, 50 App. Div. 101. See also
Smith _v._ Richards, 29 Conn. 232.

Footnote 24:

Boulter _v._ Clarke, Bull. N. P. 16; Reg. _v._ Coney, 8 Q. B. D. 534,
538, 546, 549, 567; Logan _v._ Austin, 1 Stewart (Ala.) 476; Cadwell
_v._ Farrell, 28 Ill. 438; Adams _v._ Waggoner, 33 Ind. 531; Lund _v._
Tyler, 115 Ia. 236; McNeil _v._ Mullin, 70 Kan. 634; Galbraith _v._
Fleming, 60 Mich. 403; Grotton _v._ Glidden, 84 Me. 589; Commonwealth
_v._ Colburg, 119 Mass. 350 (_semble_); Lizana _v._ Lang. 90 Miss.
469; Jones _v._ Gale, 22 Mo. App. 637; Morris _v._ Miller, 83 Neb.
218; Stout _v._ Wren, 1 Hawks (N. C.), 420; Barholt _v._ Wright, 45
Ohio St. 177 (explaining Champer _v._ State, 14 Ohio St. 437); McCue
_v._ Klein, 60 Tex. 168 (_semble_); Willey _v._ Carpenter, 64 Vt. 212;
Shay _v._ Thompson, 59 Wis. 540; Miller _v._ Bayer, 94 Wis. 124
(procuring an abortion with plaintiff’s consent) _Accord_.

Reg. _v._ Coney, 15 Cox, C. C. 46 (_semble_), _per_ HAWKINS J.;
Hegarty _v._ Shine, L. R. 4 Ir. 288, 294 (_semble_); Goldnamer _v._
O’Brien, 98 Ky. 569 (procuring an abortion with plaintiff’s consent);
Lykins _v._ Hamrick, 144 Ky. 80, _Contra_. If the plaintiff is injured
by the defendant, both being engaged in an illegal charivari party, he
cannot recover damages from the defendant. Gilmore _v._ Fuller, 198
Ill. 130.

As to injury in the course of a “friendly scuffle,” see Gibeline _v._
Smith, 106 Mo. App. 545.

Footnote 25:

McNay _v._ Stratton, 9 Ill. App. 215; Price _v._ Bailey, 66 Ill. 48;
Hildebrand _v._ McCrum, 101 Ind. 61; Smith _v._ State, 7 Humph. 43;
Sorenson _v._ Dundas, 50 Wis. 335 _Accord_.

Compare Marshall _v._ Heller, 55 Wis. 392. For recent definitions see
Westberry _v._ Clanton, 136 Ga. 795; Coolahan _v._ Marshall Field &
Co., 159 Ill. App. 466; Efroymson _v._ Smith, 29 Ind. App. 451; Comer
_v._ Knowles, 17 Kan. 436; New York R. Co. _v._ Waldron, 116 Md. 441;
Smith _v._ Clark, 37 Utah, 116, 126.

Footnote 26:

Anon. 1 Vent. 306; Anon. 7 Mod. 8; Whithead _v._ Keyes, 3 All. 495
_Accord_.

Footnote 27:

If the bailiff, who has a process against one, says to him when he is
on horseback or in a coach, “You are my prisoner; I have a writ
against you,” upon which he submits, turns back, or goes with him,
though the bailiff never touched him, yet it is an arrest, because he
submitted to the process; but if, instead of going with the bailiff,
he had gone or fled from him, it could be no arrest, unless the
bailiff laid hold of him. Horner _v._ Battyn, Bull. N. P. 62.

Footnote 28:

Chinn _v._ Morris, 2 Car. & P. 361; Pocock _v._ Moore, Ry. & M. 321;
Peters _v._ Stanway, 6 Car. & P. 737; Granger _v._ Hill, 4 Bing. N.C.
212; Warner _v._ Riddiford, 4 C. B. N. S. 180 (criticizing Arrowsmith
_v._ Le Mesurier, 2 B. & P. N. R. 211); Singleton _v._ Kansas City
Base Ball Co., 172 Mo. App. 299 _Accord_.

To hold a man by the sleeve without professing to arrest him or
leading him to believe he is not free to get away is not an
imprisonment. Macintosh _v._ Cohen, 24 N. Zeal. L. R. 625.

Footnote 29:

Part of the case, not relating to imprisonment, has been omitted.

Footnote 30:

Johnson _v._ Tompkins, Baldw. C. C. 571, 601; Collins _v._ Fowler, 10
Ala. 858; Courtoy _v._ Dozier, 20 Ga. 369; Hawk _v._ Ridgway, 33 Ill.
473; Brushaber _v._ Stegemann, 22 Mich. 266; Josselyn _v._ McAllister,
25 Mich. 45; Moore _v._ Thompson, 92 Mich. 498; Ahern _v._ Collins, 39
Mo. 145; Strout _v._ Gooch, 8 Greenl. 126; Mowry _v._ Chase, 100 Mass.
79; Emery _v._ Chesley, 18 N. H. 198; Browning _v._ Rittenhouse, 40 N.
J. Law, 230; Hebrew _v._ Pulis, 73 N. J. Law, 621; Gold _v._ Bissell,
1 Wend. 210; Van Voorhees _v._ Leonard, 1 Thomp. & C. 148; Searls _v._
Viets, 2 Thomp. & C. 224; Limbeck _v._ Gerry, 15 Misc. 663; Martin
_v._ Houck, 141 N. C. 317; Huntington _v._ Shultz, Harp. 452; Mead
_v._ Young, 2 Dev. & Batt. 521; Haskins _v._ Young, 2 Dev. & Batt.
527; Jones _v._ Jones, 13 Ired. 448; McCracken _v._ Ansley, 4 Strob.
1; Gunderson _v._ Struebing, 125 Wis. 173 _Accord_.

Submission to wrongful detention by conductor of a train in
consequence of his representation of authority to detain plaintiff was
held an imprisonment in Whitman _v._ Atchison R. Co., 85 Kan. 150.

There must be reasonable ground for fear that defendant will use
force. Powell _v._ Champion Fibre Co., 150 N. C. 12.

But compare Cottam _v._ Oregon City, 98 Fed. 570, deciding that a
submission to arrest rather than pay an illegal license fee is not an
imprisonment.

Footnote 31:

A portion of the case, relating to damages, is omitted.

Footnote 32:

As to “shadowing” by detectives, see Chappell _v._ Stewart, 82 Md.
323; People _v._ Weiler, 179 N. Y. 46; Schultz _v._ Ins. Co., 151 Wis.
537.

Footnote 33:

Stat. 13 Ed. I. c. 48.

Footnote 34:

The concurring opinions of Williams and Patteson, JJ., are omitted.

Footnote 35:

Wright _v._ Wilson, 1 Ld. Raym. 739; Crossett _v._ Campbell, 122 La.
659; Balmain Ferry Co. _v._ Robertson, 4 C. L. R. (Australia) 379,
aff’d [1910] A. C. 295; Queen _v._ Macquarie, 13 N. S. W. Sup. Ct. R.
(Law) 264 (_semble_) _Accord_.

See Hawk _v._ Ridgway, 33 Ill. 473; Cullen _v._ Dickenson, 33 S. D.
27.

To order one to leave a boat which was moored to a wharf and, upon his
refusal, to set the boat adrift is an imprisonment. Queen _v._
Macquarie, 13 N. S. W. Sup. Ct. R. (Law) 264.

Compare Herd _v._ Weardale Steel Co. [1913] 3 K. B. 771; Robinson _v._
Ferry Co. [1910] A. C. 295; Whittaker _v._ Sanford, 110 Me. 77;
Talcott _v._ National Exhibition Co., 144 App. Div. 337.

Footnote 36:

Gates _v._ Miles, 3 Conn. 64, 70; McIntyre _v._ Sholty, 121 Ill. 660;
Amick _v._ O’Hara, 6 Blackf. 258, 259; Cross _v._ Kent, 32 Md. 581;
Feld _v._ Borodófski, 87 Miss. 727; Bullock _v._ Babcock, 3 Wend. 391;
Krom _v._ Schoonmaker, 3 Barb. 647. (imprisonment); Ward _v._
Conatser, 4 Baxt. (Tenn.) 64; Brennan _v._ Donaghey, 19 N. Zeal. Gaz.
L. R. 289, affirming s. c. 2 New Zeal. Gaz. L. R. 410 _Accord_.

The rule is the same as to torts in general. Behrens _v._ McKenzie, 23
Ia. 333, 343; Chesapeake R. Co. _v._ Francisco, 149 Ky. 307; Morain
_v._ Devlin, 132 Mass. 87 (nuisance); Gibson _v._ Pollock, 179 Mo.
App. 188; Jewell _v._ Colby, 66 N. H. 399; Re Heller, 3 Paige, 199;
Williams _v._ Hays, 143 N. Y. 442 (compare Williams _v._ Hays, 157 N.
Y. 541); Williams _v._ Cameron, 26 Barb. 172; Lancaster Bank _v._
Moore, 78 Pa. St. 407, 412; Morse _v._ Crawford, 17 Vt. 499
(conversion).

A lunatic has been held liable under a statute giving an action to the
widow and children of one killed by the “careless, wanton, or
malicious” use of firearms. Young _v._ Young, 141 Ky. 76.

In McIntyre _v._ Sholty, _supra_, Magruder, J., said, p. 664: “It is
well settled that, though a lunatic is not punishable criminally, he
is liable in a civil action for any tort he may commit. However justly
this doctrine may have been originally subject to criticism on the
grounds of reason and principle, it is now too firmly supported by the
weight of authority to be disturbed. It is the outcome of the
principle, that, in trespass, the intent is not conclusive. Mr.
Sedgwick, in his work on Damages (margin, p. 456), says that, on
principle, a lunatic should not be held liable for his tortious acts.
Opposed to this view, however, is a majority of the decisions and text
writers.”

“So long as the primitive notion prevailed that the doer of harm was
absolutely responsible therefor, the insanity of the doer could afford
no defence, either to a criminal prosecution or a civil action. 7
Harv. L. Rev. 446. When this notion was so far modified that
misadventure or accident on the part of the doer became a defence, it
would have been entirely logical for the courts to treat the acts or
the omissions of lunatics as involuntary, and consequently not
tortious but accidental.” Burdick, Torts (2d ed.), 60. See also Ames,
Law and Morals, 22 Harv. L. Rev. 97, 99–100; Hornblower, Insanity and
the Law of Negligence, 5 Col. L. Rev. 278.

“827. A person who causes damage to another while in a condition of
unconsciousness or in a condition of morbid disturbance of mental
activity incompatible with the free determination of the will is not
responsible for the damage....”

“829. A person who ... is by virtue of 827 ... not responsible for any
damage caused by him shall nevertheless where compensation cannot be
obtained from a third party charged with the duty of supervision make
compensation for damage in so far as according to the circumstances
(e. g. according to the relative positions of the parties) equity
requires compensation and he is not deprived of the means which he
needs for his own maintenance suitable to his station in life and for
the fulfilment of his statutory duties to furnish maintenance to
others.”—German Civil Code, §§ 827, 829.

Footnote 37:

Underwood v. Hewson, 1 Stra. 596; Welch _v._ Durand, 36 Conn. 182;
Atchison _v._ Dullam, 16 Ill. App. 42; Hodges _v._ Weltberger, 6 Monr.
(Ky.) 337; Louisville R. Co. _v._ Sweeney, 157 Ky. 620; Chataigne _v._
Bergeron, 10 La. An. 699; Sullivan _v._ Murphy, 2 Miles (Pa.) 298;
Castle _v._ Duryee, 2 Keyes, 169; Taylor _v._ Rainbow, 2 Hen. & Mun.
423 _Accord_.

See to the same effect Morgan _v._ Cox, 22 Mo. 373; Dygert _v._
Bradley, 8 Wend. 469; Jennings _v._ Fundeburg, 4 McC. 161; Tally _v._
Ayres, 3 Sneed, 677 (the injury to chattels); Wetzel _v._ Satterwhite,
(Tex. Civ. App.) 125 S. W. 93 (injury to property); Wright _v._ Clark,
50 Vt. 130. Compare Osborne _v._ Van Dyke, 113 Ia. 557.

Footnote 38:

Nitro-Glycerine Case, 15 Wall. 524, 538 (_semble_); Morris _v._ Platt,
32 Conn. 75, 84–90 (defendant in defending himself lawfully against A.
fired a pistol at A., but accidentally hit the plaintiff); Paxton _v._
Boyer, 67 Ill. 132 (facts similar to those in Morris _v._ Platt,
_supra_); Crabtree _v._ Dawson, 119 Ky. 148 _Accord_.

Footnote 39:

Only the opinion of the court is given.

Footnote 40:

Alderson _v._ Waistell, 1 Car. & K. 358; The Virgo, 25 W. R. 397;
Nitro-Glycerine Case, 15 Wall. 524 (_semble_); Strouse _v._
Whittlesey, 41 Conn. 559; Sutton _v._ Bonnett, 114 Ind. 243; Holland
_v._ Bartch, 120 Ind. 46 (see also Bennett _v._ Ford, 47 Ind. 264);
Harvey _v._ Dunlop, Hill & D. 193; Center _v._ Finney, 17 Barb. 94,
Seld. Notes, 80 _Accord_.

But one who by blasting throws rocks upon the plaintiff’s land is
liable in trespass _quare clausum fregit_, irrespective of negligence.
Central Co. _v._ Vandenheuk, 147 Ala. 546; Bessemer Co. _v._ Doak, 152
Ala. 166; Sloss Co. _v._ Salser, 158 Ala. 511; Birmingham Co. _v._
Grover, 159 Ala. 276; Hay _v._ Cohoes Co., 2 N. Y. 159; Tremain _v._
Cohoes Co., 2 N. Y. 163; St. Peter _v._ Denison, 58 N. Y. 416;
Sullivan _v._ Dunham, 161 N. Y. 290; Holland House _v._ Baird, 169 N.
Y. 136, 140. And the same rule has been applied to trespass to the
person by blasting. Sullivan _v._ Dunham, 161 N. Y. 290; Turner _v._
Degnon Co., 99 App. Div. 135.

Footnote 41:

Only so much of the report is given as relates to the first count.

Footnote 42:

See The Mediana, [1900] A. C. 113, 116–118; Columbus Co. _v._ Clowes,
[1903] 1 K. B. 244.

Footnote 43:

Brunsden _v._ Humphrey, 14 Q. B. D. 141, 150 (_semble_); Vogrin _v._
American Steel Co., 179 Ill. App. 245; Muncie Pulp Co. _v._ Davis, 162
Ind. 558; Foster _v._ County, 63 Kan. 43; Stepp _v._ Chicago R. Co.,
85 Mo. 229; Commercial Bank _v._ Ten Eyck, 48 N. Y. 305; McCaffrey
_v._ Twenty-Third St. R. Co., 47 Hun, 404; Washington _v._ Baltimore
R. Co., 17 W. Va. 190 _Accord_.

Compare Clifton _v._ Hooper, 6 Q. B. 468.

Footnote 44:

Statement condensed. Only part of opinion is given.

Footnote 45:

Carlisle Banking Co. _v._ Bragg, [1911] 1 K. B. 489; Jackson _v._
Metropolitan R. Co., 2 C. P. D. 125; Steel Car Co. _v._ Chec, 184 Fed.
868; Louisville R. Co. _v._ Pearce, 142 Ala. 680; Florida R. Co. _v._
Williams, 37 Fla. 406; Perry _v._ Central R., 66 Ga. 746; Cleveland R.
Co. _v._ Lindsay, 109 Ill. App. 533; City _v._ Martin, 74 Ind. 449;
Hart _v._ Brick Co., 154 Ia. 741; Goins _v._ North Coal Co., 140 Ky.
323; County _v._ Collison, 122 Md. 91; Tutein _v._ Hurley, 98 Mass.
211; McNally _v._ Colwell, 91 Mich. 527; Harlan _v._ St. Louis R. Co.,
65 Mo. 22; Wallace _v._ Chicago R. Co., 48 Mont. 427; Brotherton _v._
Manhattan Beach Co., 48 Neb. 563; Koch _v._ Fox, 71 App. Div. 288;
Alexander _v._ City, 165 N. C. 527; St. Louis R. Co. _v._ Hess, 34
Okl. 615; Thubron _v._ Dravo Co., 238 Pa. St. 443; Anderson _v._
Southern R. Co., 70 S. C. 490; Newton _v._ Oregon R. Co., 43 Utah,
219; Sowles _v._ Moore, 65 Vt. 322; Schwartz _v._ Shull, 45 W. Va.
405; Klatt _v._ Foster, 92 Wis. 622 _Accord_.

Footnote 46:

Only so much of the case as relates to this count is given. The
arguments are omitted. The statement was compiled, by Professor
Jeremiah Smith, from the bill of exceptions filed in the Social Law
Library of Boston.

Footnote 47:

Western Co. _v._ Wood, 57 Fed. 471; Kyle _v._ Chicago R. Co., 182 Fed.
613; McCray _v._ Sharpe, 188 Ala. 375; Bachelder _v._ Morgan, 179 Ala.
339; St. Louis Co. _v._ Taylor, 84 Ark. 42; Chicago Co. _v._ Moss, 89
Ark. 187; Green _v._ Southern R. Co., 9 Ga. App. 751; Haas _v._ Metz,
78 Ill. App. 46; Kalen _v._ Terre Haute Co., 18 Ind. App. 202; Zabron
_v._ Cunard Co., 151 Ia. 345; Kentucky Traction Co. _v._ Bain, 161 Ky.
44; Wyman _v._ Leavitt, 71 Me. 227; Wilson _v._ St. Louis R. Co., 160
Mo. App. 649; Arthur _v._ Henry, 157 N. C. 438; Samarra _v._ Allegheny
Co., 238 Pa. St. 469; Folk _v._ Seaboard Co., 99 S. C. 284; Chesapeake
R. Co. _v._ Tinsley, 116 Va. 600; Gulf Co. _v._ Trott, 86 Tex. 412
_Accord_.

Footnote 48:

“Ordinary street cars must be run with reference to ordinary
susceptibilities, and the liability of their proprietors cannot be
increased simply by a passenger’s notifying the conductor that he has
unstable nerves.” Holmes J., in Spade _v._ Lynn R. Co., 172 Mass. 488,
491. But compare Webber _v._ Old Colony R. Co., 210 Mass. 432.

Footnote 49:

Victorian Commissioners _v._ Coultas, 13 App. Cas. 222; Haile _v._
Tex. Co., 60 Fed. 557; St. Louis Co. _v._ Bragg, 69 Ark. 402; Braun
_v._ Craven, 175 Ill. 401 (_semble_); Kansas Co. _v._ Dalton, 65 Kan.
661; Morse _v._ Chesapeake Co., 117 Ky. 11; Reed _v._ Ford, 129 Ky.
471; White _v._ Sander, 168 Mass. 296; Smith _v._ Postal Co., 174
Mass. 576; Homans _v._ Boston Co., 180 Mass. 456 (_semble_); Cameron
_v._ N. E. Co., 182 Mass. 310 (_semble_); Nelson _v._ Crawford, 122
Mich. 466; Crutcher _v._ Cleveland Co., 132 Mo. App. 311; Deming _v._
Chicago Co., 80 Mo. App. 152; Rawlings _v._ Wabash Co., 97 Mo. App.
515; Ward _v._ West Co., 65 N. J. Law, 383; Porter _v._ Del. Co., 73
N. J. Law, 405 (_semble_); Mitchell _v._ Rochester Co., 151 N. Y. 107;
Newton _v._ N. Y. Co., 106 App. Div. 415 (_semble_); Prince _v._
Ridge, 32 Misc. 666, 667 (_semble_); Hutchinson _v._ Stern, 115 App.
Div. 791; Miller _v._ Belt Co., 78 Ohio St. 309; Ewing _v._ Pittsburgh
Co., 147 Pa. St. 40; Linn _v._ Duquesne Co., 204 Pa. St. 551; Huston
_v._ Freemansburg, 212 Pa. St. 548; Hess _v._ American Pipe Co., 221
Pa. St. 67; Morris _v._ Lackawana R. Co., 228 Pa. St. 198; Taylor _v._
Atlantic Co., 78 S. C. 552; Ford _v._ Schliessman, 107 Wis. 479, 483
(_semble_) Accord.

The damages for an admitted tort to the person may be enhanced by
proof of nervous shock caused by fright induced by the defendant’s
misconduct. Eagan _v._ Middlesex R. Co., 212 Fed. 562, 214 Fed. 747;
Birmingham Co. _v._ Martini, 2 Ala. App. 653; Melone _v._ Sierra Co.,
151 Cal. 113; Seger _v._ Barkhamsted, 22 Conn. 290; Masters _v._
Warren, 27 Conn. 293; Garvey _v._ Metropolitan R. Co., 155 Ill. App.
601; Pittsburgh Co. _v._ Sponier, 85 Ind. 165; McClintic _v._ Eckman,
153 Ky. 704; Newport Co. _v._ Gholson, 10 Ky. L. Rep. 938; City Co.
_v._ Robinson, 12 Ky. L. Rep. 555; Green _v._ Shoemaker, 111 Md. 69;
Warren _v._ Boston Co., 163 Mass. 484; Homans _v._ Boston Co., 180
Mass. 456; Cameron _v._ N. E. Co., 182 Mass. 310; Driscoll _v._
Gaffey, 207 Mass. 102; Conley _v._ United Drug Co., 218 Mass. 238;
Smith _v._ St. Paul Co., 30 Minn. 169; Hollingshed _v._ Yazoo R. Co.,
99 Miss. 464; Butts _v._ Nat. Bank, 99 Mo. App. 168; Breen _v._ St.
Louis Co., 102 Mo. App. 479; Heiberger _v._ Missouri Tel. Co., 133 Mo.
App. 452; Lowe _v._ Metropolitan R. Co., 145 Mo. App. 248; Buchanan
_v._ West Co., 52 N. J. Law, 265; Consol. Co. _v._ Lambertson, 59 N.
J. Law, 297; Stokes _v._ Schlacter, 66 N. J. Law, 334; Porter _v._
Del. Co., 73 N. J. Law, 405; Kennell _v._ Gershonovitz, 84 N. J. Law,
577; O’Flaherty _v._ Nassau Co., 34 App. Div. 74 (affirmed 165 N. Y.
624); Cohn _v._ Ansonia Co., 162 App. Div. 791; Pa. Co. _v._ Graham,
63 Pa. St. 290; Scott _v._ Montgomery, 95 Pa. St. 444; Ewing _v._
Pittsburgh Co., 147 Pa. St. 40 (_semble_); Linn _v._ Duquesne Co., 204
Pa. St. 551 (_semble_); Samarra _v._ Allegheny R. Co., 238 Pa. St.
469; Folk _v._ Seaboard Co., 99 S. C. 284; Godeau _v._ Blood, 52 Vt.
251; Nordgren _v._ Lawrence, 74 Wash. 305; Shutz _v._ Chicago Co., 73
Wis. 147; and even though the admitted tort is only an assault as
distinguished from a battery. Kline _v._ Kline, 158 Ind. 602; Williams
_v._ Underhill, 63 App. Div. 223; Leach _v._ Leach, 11 Tex. Civ. App.
699. It must be shown that there was causal connection between the
fright and the shock. Hack _v._ Dady, 142 App. Div. 510.

In Homans _v._ Boston Co., _supra_, the court said, through Holmes, C.
J.: “As has been explained repeatedly, it is an arbitrary exception,
based upon a notion of what is practicable, that prevents a recovery
for visible illness resulting from nervous shock alone. Spade _v._
Lynn Co.; Smith _v._ Postal Co., 174 Mass. 576. But when there has
been a battery and the nervous shock results from the same wrongful
management as the battery, it is at least equally impracticable to go
further and to inquire whether the shock comes through the battery or
along with it. Even were it otherwise, recognizing as we must the
logic in favor of the plaintiff when a remedy is denied because the
only immediate wrong was a shock to the nerves, we think that when the
reality of the cause is guaranteed by proof of a substantial battery
of the person there is no occasion to press further the exception to
general rules.” See also Spade _v._ Lynn Co., 172 Mass. 690, per
Holmes, C. J.

_Liability for frightening an Animal to Death._ The doctrine of the
principal case was carried so far in Lee _v._ Burlington, 113 Ia.,
356, that no recovery was allowed for the death of a horse from fright
caused by the careless conduct of the defendant. But the opposite view
prevailed in Louisville R. Co. _v._ Melton, 158 Ala. 509, and Conklin
_v._ Thompson, 29 Barb. 218.

Footnote 50:

Portions of the statement of facts have been omitted.

Footnote 51:

See to the same effect Phillips _v._ Dickerson, 85 Ill. 11; Cleveland
Co. _v._ Stewart, 24 Ind. App. 374; Gaskins _v._ Runkle, 25 Ind. App.
584; Mahoney _v._ Dankwart, 108 Ia. 321; McGee _v._ Vanover, 148 Ky.
737; Chesapeake R. Co. _v._ Robinett, 151 Ky. 778; Sperier _v._ Ott,
116 La. 1087; Renner _v._ Canfield, 36 Minn. 90; Bucknam _v._ Great
Northern R. Co., 76 Minn. 373; Sanderson _v._ Great Northern R. Co.,
88 Minn. 162; Hutchinson _v._ Stern, 115 App. Div. 791; Gosa _v._
Southern Ry., 67 S. C. 347; Gulf R. Co. _v._ Overton, 101 Tex. 583
(but compare Gulf R. Co. _v._ Coopwood, 16 Tex. Ct. Rep. 354); Taylor
_v._ Spokane R. Co., 72 Wash. 378, rev’g 67 Wash. 96.

Footnote 52:

Pullman Co. _v._ Lutz, 154 Ala. 517; Spearman _v._ McCrary, 4 Ala.
App. 473; Sloane _v._ So. Co., 111 Cal. 668; Watson _v._ Dilts, 116
Ia. 249; Cowan _v._ Tel. Co., 122 Ia. 379, 382 (_semble_); Purcell
_v._ St. Paul Co., 48 Minn. 134, 138; Lesch _v._ Great Northern R.
Co., 97 Minn. 503; Watkins _v._ Kaolin Co., 131 N. C. 536; Taber _v._
Seaboard Co., 81 S. C. 317; Simone _v._ R. I. Co., 28 R. I. 186; Mack
_v._ South Co., 52 S. C. 323; Hill _v._ Kimball, 76 Tex. 210; Gulf Co.
_v._ Hayter, 93 Tex. 239; Yoakum _v._ Kroeger, (Tex. Civ. App.) 27 S.
W. 953; St. Louis Co. _v._ Murdock, 54 Tex. Civ. App. 249; Pankopf
_v._ Hinkley, 141 Wis. 146; Fitzpatrick _v._ Gr. W. Co., 12 Up. Can.
Q. B. 645; Bell _v._ Great Northern R. Co., 26 L. R. Ir. 428; Cooper
_v._ Caledonia Co. (Court of Sess., June 14, 1902), 4. F. 880
_Accord_.

See Bohlen, Right to Recover for Injury Resulting from Negligence
without Impact, 41 Am. L. Reg. & Rev. 141.

_Mental Anguish caused by Negligence in Transmission of Telegrams._ In
a few states the addressee is allowed to recover damages for mental
anguish resulting from the negligent failure of a telegraph company to
make seasonable delivery of a message. Mentzer _v._ Western Co., 93
Ia. 752; Cowan _v._ Western Co., 122 Ia. 379; Hurlburt _v._ Western
Co., 123 Ia. 295; Chapman _v._ Western Co., 90 Ky. 265; Western Co.
_v._ Van Cleave, 107 Ky. 464; Western Co. _v._ Fisher, 107 Ky. 513;
Graham _v._ Western Co., 109 La. 1069; Barnes _v._ Western Co., 27
Nev. 438 (_semble_); Thompson _v._ Western Co., 106 N. C. 549; Young
_v._ Western Co., 107 N. C. 370; Bryan _v._ Western Co., 133 N. C.
603; Woods _v._ Western Co., 148 N. C. 1; Hellams _v._ Western Co., 70
S. C. 83 (_statutory_); Capers _v._ Western Co., 71 S. C. 29;
Wadsworth _v._ Western Co., 86 Tenn. 695; Railroad _v._ Griffin, 92
Tenn. 694; So Relle _v._ Western Co., 55 Tex. 308; Stuart _v._ Western
Co., 66 Tex. 580; Western Co. _v._ Beringer, 84 Tex. 38.

But the weight of authority is against such recovery. Chase _v._
Western Co., 44 Fed. 554; Crawson _v._ Western Co., 47 Fed. 544; Tyler
_v._ Western Co., 54 Fed. 634; Western Co. _v._ Wood, 57 Fed. 471;
Gahan _v._ Western Co., 59 Fed. 433; Stansell _v._ Western Co., 107
Fed. 668; Western Co. _v._ Sklar, 126 Fed. 295; Rowan _v._ Western
Co., 149 Fed. 550; Blount _v._ Western Co., 126 Ala. 105; Western Co.
_v._ Krichbaum, 132 Ala. 535; Western Co. _v._ Blocker, 138 Ala. 484;
Western Co. _v._ Waters, 139 Ala. 652; Peay _v._ Western Co., 64 Ark.
538 (but changed by statute, Western Co. _v._ McMullin, 98 Ark. 346);
Russell _v._ Western Co., 3 Dak. 315; Internat. Co. _v._ Saunders, 32
Fla. 434; Chapman _v._ Western Co., 88 Ga. 763; Giddens _v._ Western
Co., 111 Ga. 824; Western Co. _v._ Haltom, 71 Ill. App. 63; Western
Co. _v._ Ferguson, 157 Ind. 64 (overruling Reese _v._ Western Co., 123
Ind. 294); West _v._ Western Co., 39 Kan. 93 (_semble_); Cole _v._
Gray, 70 Kan. 705; Francis _v._ Western Co., 58 Minn. 252; Western Co.
_v._ Rogers, 68 Miss. 748; Duncan _v._ Western Co., 93 Miss. 500;
Connell _v._ Western Co., 116 Mo. 34; Newman _v._ Western Co., 54 Mo.
App. 434; Curtin _v._ Western Co., 13 App. Div. 253; Morton _v._
Western Co., 53 Ohio St. 431; Butner _v._ Western Co., 2 Okl. 234;
Western Co. _v._ Chouteau, 28 Okl. 664; Lewis _v._ Western Co., 57 S.
C. 325 (law changed by statute in 1900, Capers _v._ Western Co., 71 S.
C. 29); Connelly _v._ Western Co., 100 Va. 51; Corcoran _v._ Postal
Co., 80 Wash. 570; Davis _v._ Western Co., 46 W. Va. 48; Summerfield
_v._ Western Co., 87 Wis. 1; Koerber _v._ Patek, 123 Wis. 453, 464
(_semble_).

Footnote 53:

Only the judgment of the court is printed.

Footnote 54:

Hall _v._ Jackson, 24 Col. App. 225; Dunn _v._ Western Co., 2 Ga. App.
845; Goddard _v._ Watters, 14 Ga. App. 722 (_semble_); Watson _v._
Dilts, 116 Ia. 249, 124 Ia. 249; Lonergan _v._ Small, 81 Kan. 48;
Nelson _v._ Crawford, 122 Mich. 466 (_semble_); Preiser _v._ Wielandt,
48 App. Div. 569; Buchanan _v._ Stout, 123 App. Div. 648 (_semble_);
Miller _v._ R. R. Co., 78 Ohio St. 309, 324 (_semble_); Butler _v._
Western Co., 62 S. C. 222 (_semble_); Western Co. _v._ Watson, 82
Miss. 101 (_semble_); Shellabarger _v._ Morris, 115 Mo. App. 566;
Wilson _v._ St. Louis R. Co., 160 Mo. App. 649; Hill _v._ Kimball, 76
Tex. 210; Davidson _v._ Lee, (Tex. Civ. App.) 139 S. W. 904; Jeppsen
_v._ Jensen, 47 Utah 536 _Accord_.

_Threats not amounting to an Assault._ Threats of bodily harm sent by
letter and causing illness by reason of apprehension of bodily harm
are grounds for an action. Houston _v._ Woolley, 37 Mo. App. 15;
Grimes _v._ Gates, 47 Vt. 594. Compare Stevens _v._ Steadman, 140 Ga.
680; Degenhardt _v._ Heller, 93 Wis. 662.

Footnote 55:

The opinion of Cozens-Hardy, M.R., sustaining the award is omitted.

Footnote 56:

“On principle, the distinction between cases of physical impact or
lesion being necessary as a ground of liability for damage caused
seems to have nothing in its favour—always on the footing that the
causal connection between the injury and the occurrence is
established. If compensation is to be recovered under the statute or
at common law in respect of an occurrence which has caused dislocation
of a limb, on what principle can it be denied if the same occurrence
has caused unhinging of the mind? The personal injury in the latter
case may be infinitely graver than in the former, and to what avail—in
the incidence of justice, or the principle of law—is it to say that
there is a distinction between things physical and mental? This is the
broadest difference of all, and it carries with it no principle of
legal distinction. Indeed it may be suggested that the proposition
that injury so produced to the mind is unaccompanied by physical
affection or change might itself be met by modern physiology or
pathology with instant challenge.” Lord Shaw in Coyle _v._ Watson,
[1915] A. C. 1, 14.

Footnote 57:

Statement abridged.

Footnote 58:

Metropolitan R. Co. _v._ Jackson, 3 App. Cas. 193; Hyman _v._ Nye, 6
Q. B. D. 685; Simkin _v._ London R. Co., 21 Q. B. D. 453; Smith _v._
Browne, 28 L. R. Ir. 1; Bizzell _v._ Booker, 16 Ark. 308; Western R.
Co. _v._ Vaughan, 113 Ga. 354; Chicago R. Co. _v._ Scott, 42 Ill. 132;
City _v._ Cook, 99 Ind. 10; Needham _v._ Louisville R. Co., 85 Ky.
423; Merrill _v._ Bassett, 97 Me. 501; Heinz _v._ Baltimore R. Co.,
113 Md. 582; Chenery _v._ Fitchburg R. Co., 160 Mass. 211; Brick _v._
Bosworth, 162 Mass. 334; Keown _v._ St. Louis R. Co., 141 Mo. 86;
Teepan _v._ Taylor, 141 Mo. App. 282; Brown _v._ Merrimack Bank, 67 N.
H. 549; Nashville R. Co. _v._ Wade, 127 Tenn. 154; Coates _v._ Canaan,
51 Vt. 131; Fowler _v._ Baltimore R. Co., 18 W. Va. 579; Schrunk _v._
St. Joseph, 120 Wis. 223 _Accord_.

“We do not understand that an employer’s liability for the negligent
act of his superintendent can be measured by the latter’s poise of
temperament, nor that the character of a given act of the
superintendent in respect of negligence can be made to depend upon his
excitability or the reverse. It is the duty of a superintendent to do
what an ordinarily careful and prudent man would do under the same
circumstances, and the employer is liable if he fail to do this and
injury results to an employe.” Bessemer Land Co. _v._ Campbell, 121
Ala. 50, 60.

Also it is erroneous to charge the jury that failure to exercise the
care of “an ordinary man under like circumstances” or of “a person
under similar circumstances” or “just such as one of you, similarly
employed, would have exercised under like circumstances” amounts to
negligence. Austin R. Co. _v._ Beatty, 73 Tex. 592; St. Louis R. Co.
_v._ Finley, 79 Tex. 85; Louisville R. Co. _v._ Gower, 85 Tenn. 465.

Footnote 59:

“See Lambert _v._ Bessey, T. Raym. 422; Scott _v._ Shepherd, 3 Wils.
403. Probably an action of trespass might have been brought.”
[Reporter’s note.]

Footnote 60:

Nitro-Glycerine Case, 15 Wall. 524; Thompson _v._ Chicago R. Co., 189
Fed. 723; Fort Smith Co. _v._ Slover, 58 Ark. 168; Richardson _v._
Kier, 34 Cal. 63; Nolan _v._ New York R. Co., 53 Conn. 461; Wolf Mfg.
Co. _v._ Wilson, 152 Ill. 9; Cincinnati R. Co. _v._ Peters, 80 Ind.
168; Galloway _v._ Chicago R. Co., 87 Ia. 458; Schneider _v._ Little,
184 Mich. 315; Lauritsen _v._ Bridge Co., 87 Minn. 518; McGraw _v._
Chicago R. Co., 59 Neb. 397; Roberts _v._ Boston R. Co., 69 N. H. 354;
Drake _v._ Mount, 33 N. J. Law, 441; Chicago R. Co. _v._ Watson, 36
Okl. 1; Ahern _v._ Oregon Co., 24 Or. 276; Houston R. Co. _v._
Alexander, 103 Tex. 594; Washington _v._ Baltimore R. Co., 17 W. Va.
190 _Accord_.

Footnote 61:

Sharp _v._ Powell, L. R. 7. C. P. 253; Pearson _v._ Cox, 2 C. P. D.
369; Gregg _v._ Illinois R. Co., 147 Ill. 550, 560; Missouri R. Co.
_v._ Columbia, 65 Kan. 390, 400; Sutphen _v._ Hedden, 67 N. J. Law,
324; Crutchfield _v._ Richmond R. Co., 76 N. C. 320; Martin _v._
Highland Park Co., 128 N. C. 264; Simpson _v._ Southern R. Co., 154 N.
C. 51; McCauley _v._ Logan, 152 Pa. St. 202; Bradley _v._ Lake Shore
R. Co., 238 Pa. St. 315 (“only an extreme visionary would have
imagined the consequences which followed or that injury could result
to person or property therefrom”); Consumers Brewing Co. _v._ Doyle,
102 Va. 399; Lippert _v._ Brewing Co., 141 Wis. 453 _Accord_.

Footnote 62:

Only that part of the opinion which relates to this instruction is
given.

Footnote 63:

“There is no absolute or intrinsic negligence; it is always relative
to some circumstances of time, place, or person.” Bramwell, B., in
Degg _v._ Midland R. Co., 1 Hurlst. & N. 773, 781. See also Bowen, L.
J., in Thomas _v._ Quartermaine, 18 Q. B. D. 685, 694.

Bizzell _v._ Booker, 16 Ark. 308; Needham _v._ San Francisco R. Co.,
37 Cal. 409; Diamond Iron Co. _v._ Giles, 7 Houst. 557; Atlantic R.
Co. _v._ Moore, 8 Ga. App. 185; Chicago R. Co. _v._ Johnson, 103 Ill.
512; Parks _v._ Yost, 93 Kan. 334; Sheridan _v._ Baltimore R. Co., 101
Md. 50; Kelly _v._ Michigan R. Co., 65 Mich. 186; De Bolt _v._ Kansas
City R. Co., 123 Mo. 496; Garland _v._ Boston R. Co., 76 N. H. 556;
New Jersey Exp. Co. _v._ Nichols, 33 N. J. Law, 434; McGuire _v._
Spence, 91 N. Y. 303; Connell _v._ New York R. Co., 144 App. Div. 664;
Anderson _v._ Atlantic R. Co., 161 N. C. 462; Elster _v._ Springfield,
49 Ohio St. 82; Frankford Co. _v._ Philadelphia R. Co., 54 Pa. St.
345; Virginia Power Co. _v._ Smith, 117 Va. 418; Morrison _v._ Power
Co., 75 W. Va. 608; Davis _v._ Chicago R. Co., 58 Wis. 646 _Accord_.

Hence it is incorrect to define ordinary care as “such care as the
ordinary person uses in the transaction of the ordinary affairs of
life.” Hennesey _v._ Chicago R. Co., 99 Wis. 109.

Footnote 64:

Only part of the opinion is given.

Footnote 65:

Rosenthal _v._ Chicago R. Co., 255 Ill. 552; Indianapolis Traction Co.
_v._ Crawley, 51 Ind. App. 357 (deaf man); O’Flaherty _v._ Union R.
Co., 45 Mo. 70; Simms _v._ South Carolina R. Co., 27 S. C. 268.
_Accord_.

Footnote 66:

Statement abridged. Part of opinion omitted.

Footnote 67:

The instruction which the court held should have been given in Winn
_v._ Lowell was: “If the plaintiff was a person of poor sight, common
prudence required of her greater care in walking upon the streets, and
avoiding obstructions, than is required of persons of good sight.”

Footnote 68:

Compare Fenneman _v._ Holden, 75 Md. 1; Karl _v._ Juniata, 206 Pa. St.
633; Thompson _v._ Salt Lake Co., 16 Utah 281.

Footnote 69:

Statement abridged. Only so much of the opinion is given as relates to
a single point.

Footnote 70:

Compare Wilson _v._ Brett, 11 M. & W. 113; Austin _v._ Manchester R.
Co., 10 C. B. 454; Grill _v._ General Collier Co., L. R. 1 C. P. 600;
Steamboat New World _v._ King, 16 How. 469; Purple _v._ Union R. Co.,
114 Fed. 123; Oregon Co. _v._ Roe, 176 Fed. 715; Stringer _v._ Alabama
R. Co., 99 Ala. 397; Louisville R. Co. _v._ Shanks, 94 Ind. 598; Denny
_v._ Chicago R. Co., 150 Ia. 460; Raymond _v._ Portland R. Co., 100
Me. 529; McPheeters _v._ Hannibal R. Co., 45 Mo. 22; Reed _v._
Telegraph Co., 135 Mo. 661; Village _v._ Holliday, 50 Neb. 229;
Perkins _v._ New York R. Co., 24 N. Y. 196; McAdoo _v._ Richmond R.
Co., 105 N. C. 140; Fitzgerald _v._ Grand Trunk R. Co., 4 Ont. App.
601 _Accord_.

In Wilson _v._ Brett, _supra_, Rolfe, B., said: “I could see no
difference between negligence and gross negligence—... it was the same
thing with the addition of a vituperative epithet.”

Footnote 71:

Maryland R. Co. _v._ Tucker, 115 Md. 43; Cates _v._ Hall, 171 N. C.
360; Lundy _v._ Southern Tel. Co., 90 S. C. 25 _Accord_.

See various forms of stating this general doctrine in 2 Hutchinson on
Carriers, (3d. ed.) §§ 895, 896; 4 Elliott on Railroads (1st ed.) §
1585; 1 Shearman & Redfield on Negligence (6th ed.) § 51.

In Wharton on Negligence (1st ed.) §§ 636, 637, the author says that
the diligence should be “that which a good carrier of the particular
grade is accustomed to exert;” _i. e._, “the diligence and skill which
a good business man in his specialty is accustomed to use under
similar circumstances.”

For a criticism of Wharton’s statement, see 1 S. & R. Negl. (6th ed.)
§§ 43–50. And compare 2 Hutchinson on Carriers (3d ed.) § 897, note
13.

“It is reasonable care under the existing circumstances that one
person has the right to require of another; and that degree of care
becomes increased with any increase of the apparent danger involved in
its absence or with the increased power of control of one of the
parties whose conduct is in question.... A common carrier of
passengers either by rail or by water has so complete a control and
the consequences of negligence on his part may be so serious that he
is justly held to a very high degree of care for their safety; and
accordingly it has been often said, both in this and in other
jurisdictions, that he is held to the exercise of the highest degree
of care. But as was pointed out in Dodge _v._ Boston & Bangor
Steamship Co., 148 Mass. 207, 217, 218, this phrase and similar words
which have been used to convey the same idea mean simply that the
carrier is bound to use the utmost care consistent with the nature of
his undertaking and with a due regard for all other matters that ought
to be considered in conducting the business. This conductor was not
bound absolutely to exercise the highest degree of care in running his
car, but only the highest degree of care which was consistent with the
practical performance of all his duties in seeing that the car was run
safely without unreasonable delays, and so as to provide for the
safety and convenience and properly rapid transit of his passengers.
What was required of him was the highest degree of care consistent
with the practical management and operation of his car for the
carriage of passengers, ‘or in other words, the requirement [was]
reasonable care according to the nature of the contract’ with the
passengers.” Sheldon, J., in Gardner _v._ Boston R. Co., 204 Mass.
213, 216. Compare Campbell, J., in Michigan R. Co. _v._ Coleman, 28
Mich. 440, 449.

Footnote 72:

Only so much of the case is given as relates to a single point.

Footnote 73:

“Due care,” “reasonable care,” and “ordinary care” are synonymous
terms. Neal _v._ Gillett, 23 Conn. 437; Baltimore R. Co. _v._ Faith,
175 Ill. 58; Raymond _v._ Portland R. Co., 100 Me. 529; Durant _v._
Palmer, 29 N. J. Law, 544.

Footnote 74:

“But it would savor too much of refinement to hold that there is any
practical inaccuracy in saying that one driving a high-powered
automobile must exercise a greater care toward others on a state
highway than one plodding along a country road with an ox team.” Rugg,
C. J., in Com. _v._ Horsfall, 213 Mass. 232, 235.

Footnote 75:

“The rule, that due diligence is such attention and effort applied to
a given case as the ordinary prudent man would put forth under the
same circumstances, seems to meet the demands of every conceivable
case.... The ratio of diligence to circumstances being thus fixed, the
two extremes may change to an infinite extent without destroying the
ratio, and without giving rise to what we term negligence. The bailee
who undertakes the carriage of stone for the paving of a street is
held to the rule that he must use such attention and effort as the
ordinary prudent man would use under like circumstances.”

“The bailee, who undertakes to repair a delicate watch, is held to the
rule that he must use such attention and effort as the ordinary
prudent man would use under the same circumstances. The contract of
the watchmaker is the same, relatively, as that of the hod-carrier.
Each contracts to provide the reasonable ordinary skill and attention
which a man in his position would exercise under like circumstances.
The ratio, proportion, or correspondence of diligence to
circumstances, of care to surroundings, is fixed and identical. And in
determining a question of diligence or negligence in either case, it
would be only necessary to apply the same rule to varying
circumstances and persons, to demand the same ratio between varying
extremes. And it is not too much to assert that all the perplexity and
misunderstanding on the subject of diligence and negligence are due to
the habit of confounding the specific acts and circumstances, which
must always vary, with the ratio or relation between them, which
remains always the same. It is true that there _may_ be different
ratios of effort and attention to the circumstances and to the results
desired. A man may contract to furnish the highest skill, the most
perfect means and appliances, the most assiduous attention in the
accomplishment of a specific end. But, when an individual so
contracts, there is the element of _special_ or _positive_ intention
introduced, which takes the case out of the category of diligence, and
renders such a contract a special and extraordinary one. The law never
requires such a special, positive intention....” 6 Albany Law Journ.
313, 314.

Footnote 76:

Arguments omitted.

Footnote 77:

A fuller statement of the views of the learned judge may be found in
the extracts, which follow, from his work on Bailments:

“Section 11. [On the subject of the various degrees of care or
diligence which are recognized in the common law.]... There may be a
high degree of diligence, a common degree of diligence, and a slight
degree of diligence;...”

“Common or ordinary diligence is that degree of diligence which men in
general exact in respect to their own concerns.... That may be said to
be common or ordinary diligence, in the sense of the law, which men of
common prudence generally exercise about their own affairs in the age
and country in which they live.”

“Section 16. Having thus ascertained the nature of ordinary diligence,
we may now be prepared to decide upon the other two degrees. High or
great diligence is of course extraordinary diligence, or that which
very prudent persons take of their own concerns; and low or slight
diligence is that which persons of less than common prudence, or
indeed of any prudence at all, take of their own concerns. Sir William
Jones considers the latter to be the exercise of such diligence as a
man of common sense, however inattentive, takes of his own concerns.
Perhaps this is expressing the measure a little too loosely; for a man
may possess common sense, nay, uncommon sense, and yet be so grossly
inattentive to his own concerns as to deserve the appellation of
having no prudence at all. The measure is rather to be drawn from the
diligence which men, habitually careless or of little prudence (not
‘however inattentive’ they may be), generally take in their own
concerns.”

“Section 17. Having, then, arrived at the three degrees of diligence,
we are naturally led to those of negligence, which correspond thereto;
for negligence may be ordinary, or less than ordinary, or more than
ordinary. Ordinary negligence may be defined to be the want of
ordinary diligence, and slight negligence to be the want of great
diligence, and gross negligence to be the want of slight diligence.
For he who is only less diligent than very careful men cannot be said
to be more than slightly inattentive; he who omits ordinary care is a
little more negligent than men ordinarily are; and he who omits even
slight diligence fails in the lowest degree of prudence, and is deemed
grossly negligent....” Story on Bailments (8th ed.), §§ 11, 16, 17.

See also Redington _v._ Pacific Co., 107 Cal. 317, 323–324; Belt Line
R. Co. _v._ Banicki, 102 Ill. App. 642; Union R. Co. _v._ Henry, 36
Kan. 565; French _v._ Buffalo R. Co., 2 Abb. Dec. 196, 200–201, 4
Keyes 108, 113–114; Cederson _v._ Navigation Co., 38 Or. 343; Lockwood
_v._ Belle City R. Co., 92 Wis. 97, 111–113; Astin _v._ Chicago R.
Co., 143 Wis. 477.

“The theory that there are three degrees of negligence described by
the terms slight, ordinary, and gross, has been introduced into the
common law from some of the commentators on the Roman law. It may be
doubted if these terms can be usefully applied in practice. Their
meaning is not fixed, or capable of being so. One degree, thus
described, not only may be confounded with another, but it is quite
impracticable exactly to distinguish them. Their signification
necessarily varies according to circumstances, to whose influence the
courts have been forced to yield, until there are so many real
exceptions that the rules themselves can scarcely be said to have a
general operation. In Storer _v._ Gowen, 18 Maine, 177, the Supreme
Court of Maine says: ‘How much care will, in a given case, relieve a
party from the imputation of gross negligence, or what omission will
amount to the charge, is necessarily a question of fact, depending on
a great variety of circumstances which the law cannot exactly define.’
Mr. Justice Story, Bailments, § 11, says: ‘Indeed, what is common or
ordinary diligence is more a matter of fact than of law.’ If the law
furnishes no definition of the terms gross negligence, or ordinary
negligence, which can be applied in practice, but leaves it to the
jury to determine, in each case, what the duty was, and what omissions
amount to a breach of it, it would seem that imperfect and confessedly
unsuccessful attempts to define that duty had better be abandoned.

“Recently, the judges of several courts have expressed their
disapprobation of these attempts to fix the degrees of diligence by
legal definitions, and have complained of the impracticability of
applying them. Wilson _v._ Brett, 11 Meeson and Wels. 113; Wyld _v._
Pickford, 8 ibid. 443, 461, 462; Hinton _v._ Dibbin, 2 Q. B. 646, 651.
It must be confessed that the difficulty in defining gross negligence,
which is apparent in perusing such cases as Tracy et al. _v._ Wood, 3
Mason 132, and Foster _v._ The Essex Bank, 17 Mass. 479, would alone
be sufficient to justify these complaints. It may be added that some
of the ablest commentators on the Roman law, and on the civil code of
France have wholly repudiated this theory of three degrees of
diligence, as unfounded in principles of natural justice, useless in
practice, and presenting inextricable embarrassments and difficulties.
See Toullier’s Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203,
etc.; Makeldey, Man. Du Droit Romain, 191.” Curtis, J., in Steamboat
_v._ King, 16 How. 469, 474 (injury to gratuitous passenger).

“Confusion has arisen from regarding negligence as a positive instead
of a negative word. It is really the absence of such care as it was
the duty of the defendant to use. A bailee is only bound to use the
ordinary care of a man, and so the absence of it is called gross
negligence. A person who undertakes to do some work for reward to an
article must exercise the care of a skilled workman, and the absence
of such care in him is negligence. Gross, therefore, is a word of
description, and not a definition; and it would have been only
introducing a source of confusion to use the expression gross
negligence, instead of the equivalent, a want of due care and skill in
navigating the vessel, which was again and again used by the Lord
Chief Justice in his summing up.” Willes, J., in Grill _v._ General
Collier Co., L. R. 1 C. P. 600.

As to the standard for physicians, see McNevins _v._ Lowe, 40 Ill.
209; Small _v._ Howard, 128 Mass. 131; Luka _v._ Lowrie, 171 Mich.
122; Booth _v._ Andrus, 91 Neb. 810; McCandless _v._ McWha, 22 Pa. St.
261.

Footnote 78:

Statement rewritten. Only part of case is given.

Footnote 79:

The word gross was struck out by chap. 375, Acts of 1907, § 1.

Footnote 80:

Compare Martin _v._ Boston R. Co., 205 Mass. 16; Devine _v._ New York
R. Co., 205 Mass. 416.

Footnote 81:

For other cases of statutory degrees of negligence, see Seaboard R.
Co. _v._ Cauthen, 115 Ga. 422; Louisville R. Co. _v._ Long, 94 Ky.
410; Western Tel. Co. _v._ Reeves, 34 Okl. 468; Davis _v._ Railroad
Co., 63 S. C. 370. That the wanton and reckless disregard of
consequences which makes a defendant liable at common law to a
plaintiff not in the exercise of due care is something more than
negligence gross in degree, see Birmingham R. Co. _v._ Pinckard, 124
Ala. 372; Denman _v._ Johnston, 85 Mich. 387; Banks _v._ Braman, 188
Mass. 367; Southern Mfg. Co. _v._ Bradley, 52 Tex. 587; Barlow _v._
Foster, 149 Wis. 613.

Footnote 82:

Statement of facts abridged. Only so much of the case is given as
relates to one point. Arguments omitted.

Footnote 83:

E. g., Neal _v._ Gillett, 23 Conn. 437 (child of 13; charge that age
was not to be taken into account upheld). This is universally
rejected. Lynch _v._ Nurdin, 1 Q. B. 29; Washington R. Co. _v._
Gladmon, 15 Wall. 401; Government R. Co. _v._ Hanlon, 53 Ala. 70;
Chicago R. Co. _v._ Murray, 71 Ill. 601; Indianapolis R. Co. _v._
Wilson, 134 Ind. 95; McMillan _v._ Burlington R. Co., 46 Ia. 231;
Kansas R. Co. _v._ Whipple, 39 Kan. 531; Lynch _v._ Smith, 104 Mass.
52; Huff _v._ Ames, 16 Neb. 139; Swift _v._ Staten Island R. Co., 123
N. Y. 645; Pennsylvania R. Co. _v._ Kelly, 31 Pa. St. 372; Queen _v._
Dayton Coal Co., 95 Tenn. 458; Cook _v._ Houston Navigation Co., 76
Tex. 353; Roth _v._ Union Depot Co., 13 Wash. 525.

Footnote 84:

Smith _v._ Pittsburgh R. Co., 90 Fed. 783; Warble _v._ Sulzberger, 185
Ala. 603; Denver Tramway Co. _v._ Nicholas, 35 Col. 462; Rohloff _v._
Fair Haven R. Co., 76 Conn. 689; Goldstein _v._ People’s R. Co., 5
Pennewill, 306; Elwood R. Co. _v._ Ross, 26 Ind. App. 258; Wyman _v._
Berry, 106 Me. 43; Munn _v._ Reed, 4 All. 431; Rasmussen _v._ Whipple,
211 Mass. 546 (but see Angelary _v._ Springfield R. Co., 213 Mass.
110); Lucarelli _v._ Boston R. Co., 213 Mass. 454; Strudgeon _v._
Village, 107 Mich. 496; Consolidated Traction Co. _v._ Scott, 58 N. J.
Law, 682; Swift _v._ Staten Island R. Co., 123 N. Y. 645; Laferty _v._
Third Ave. R. Co., 176 N. Y. 594; Lake Erie R. Co. _v._ Mackey, 53
Ohio St. 370; Box & Label Co. _v._ Caine, 11 Ohio Cir. Ct. R. N. S. 81
(Aff’d 78 Ohio St. 405); Dubiver _v._ City R. Co., 44 Or. 227; Rachmel
_v._ Clark, 205 Pa. St. 314; Parker _v._ Washington R. Co., 207 Pa.
St. 438 (but compare Mulligan _v._ Burrough, 243 Pa. St. 361); Texas
R. Co. _v._ Phillips, 91 Tex. 278; Christensen _v._ Oregon R. Co., 29
Utah, 192; Blankenship _v._ Chesapeake R. Co., 94 Va. 449; Deputy _v._
Kimmell, 73 W. Va. 595 _Accord_.

Children are seldom made defendants in actions for negligence. Most of
the discussions as to the standard of care required of children are to
be found in cases where the children, or their parents or
representatives, were plaintiffs seeking to recover for damage to the
children alleged to be caused by defendant’s negligence, and where the
defendant contended that the action was barred by the contributory
negligence of the child. A good discussion where defendant was an
infant may be found in Briese _v._ Maechtle, 146 Wis. 89.

Footnote 85:

Arguments and part of opinion omitted.

Footnote 86:

Northern R. Co. _v._ Heaton, 191 Fed. 24; Little Rock Traction Co.
_v._ Nelson, 66 Ark. 494 (boy ten years old); Quincy Gas Co. _v._
Bauman, 203 Ill. 295, 104 Ill. App. 600 (seven); Fishburn _v._
Burlington R. Co., 127 Ia. 483 (six); Kentucky Hotel Co. _v._ Camp, 97
Ky. 424 (seven); McMahon _v._ Northern R. Co., 39 Md. 438 (six);
Purcell _v._ Boston R. Co., 211 Mass. 79; Giaccobe _v._ Boston R. Co.,
215 Mass. 224 (seven); Godfrey _v._ Boston R. Co., 215 Mass. 432
(six); Weitzel _v._ Detroit R. Co., 186 Mich. 7 (nine); Ritscher _v._
Orange R. Co., 79 N. J. Law, 462 (six); Verdon _v._ Automobile Co., 80
N. J. Law, 199 (seven); Citizen’s R. Co. _v._ Bell, 26 Ohio Cir. Ct.
R. 691 (seven); Galveston R. Co. _v._ Moore, 59 Tex. 64 (six);
Robinson _v._ Cone, 22 Vt. 213 (three); McVoy _v._ Oakes, 91 Wis. 214
(seven); Frasers _v._ Tramways Co., 20 Sc. L. R. 192 (six); Plantza
_v._ Glasgow, 47 Sc. L. R. 688 (five) _Accord_.

A few jurisdictions have an absolute rule as to children under seven.
Government R. Co. _v._ Hanlon, 53 Ala. 70; Chicago R. Co. _v._ Tuohy,
196 Ill. 410; Reichle _v._ Transit Co., 241 Pa. St. 1 (six); Schnurr
_v._ Traction Co., 153 Pa. St. 29; Dodd _v._ Gas Co., 95 S. C. 9. Also
several jurisdictions rely on presumptions as to children between
seven and fourteen (or sometimes twelve). Birmingham R. Co. _v._
Jones, 146 Ala. 277; City _v._ McLain, 67 Miss. 4; Hebert _v._ Hudson
Electric Co., 136 App. Div. 107; Rolin _v._ Tobacco Co., 141 N. C.
300; Dowlen _v._ Texas Power Co., (Tex. Civ. App.) 174 S. W. 674; City
_v._ Shull, 97 Va. 419; Traction Co. _v._ Wilkinson, 101 Va. 394. See
also (as to children over fourteen) Central R. Co. _v._ Phillips, 91
Ga. 526; Frauenthal _v._ Laclede Gas Co., 67 Mo. App. 1; Murphy _v._
Perlstein, 73 App. Div. 256; Travers _v._ Hartmann, 5 Boyce, 302.

In Berdos _v._ Tremont Mills, 209 Mass. 489, 494, Rugg, J., says: “It
is common knowledge that children under the age of fourteen are
lacking in prudence, foresight, and restraint, and that their
curiosity and restlessness have a tendency to get them into positions
of danger. There is some point in every life where these conditions
are present in such degree as to deprive the child of capacity to
assume risk intelligently, or to be guilty of negligence consciously.
That point varies in different children for divers reasons. There is
no hard and fast rule that at any particular age a minor is presumed
to be able to comprehend risks or to be capable of negligence. Extreme
cases can be stated which obviously fall on one side or the other of
the line. In some jurisdictions it has been held that _prima facie_ a
child under fourteen years of age is presumed not to be capable of
contributory negligence. Tucker _v._ Buffalo Cotton Mills, 76 S. C.
539, and cases cited. Tutwiler Coal, Coke & Iron Co. _v._ Enslen, 129
Ala. 336. But the sounder doctrine seems to be that age is an
important though not decisive factor in determining capacity, and that
the decision of that question is not helped or hampered by any legal
presumption. This is the law of this Commonwealth.”

Compare Jacobs _v._ Koehler Co., 208 N. Y. 416.

In Kyle _v._ Boston R. Co., 215 Mass. 260, a boy five years and eleven
months old, who ran in front of an approaching car was held negligent
as a matter of law. It has generally been held that children under six
are not to be charged with negligence. See City _v._ Lewis, 155 Ky.
832; Johnson _v._ City, 164 Mich. 251; Love _v._ Detroit R. Co., 170
Mich. 1; Eskildsen _v._ City, 29 Wash. 583.

As to lower ages, see Morgan _v._ Bridge Co., 5 Dill. 96; Louisville
R. Co. _v._ Arp, 136 Ga. 489; Indianapolis R. Co. _v._ Bordenchecker,
33 Ind. App. 138; Fink _v._ City, 115 Ia. 641; Berry _v._ St. Louis R.
Co., 214 Mo. 593. Compare Gardner _v._ Grace, 1 F. & F. 359; Dorr _v._
Atlantic R. Co., 76 N. H. 160 (five and a half); Campbell _v._ Ord, 11
Sc. L. R. 54; McGregor _v._ Ross, 20 Sc. L. R. 462.

Footnote 87:

Statement abridged. Only so much of the opinion is given as relates to
a single point.

Footnote 88:

Garrison _v._ St. Louis R. Co., 92 Ark. 437; De Soto Co. _v._ Hill,
179 Ala. 186 (personal standard applied to a boy brighter than his
age); Jollimore _v._ Connecticut Co., 86 Conn. 314; Herrington _v._
City, 125 Ga. 58; Elk Mills _v._ Grant, 140 Ga. 727; Keller _v._
Gaskill, 9 Ind. App. 670; Cole _v._ Searfoss, 49 Ind. App. 334;
Louisville R. Co. _v._ Allnutt, 150 Ky. 831; Van Natta _v._ Peoples R.
Co., 133 Mo. 13; Spillane _v._ Missouri R. Co., 135 Mo. 414; Moeller
_v._ United R. Co., 242 Mo. 721; David _v._ West Jersey R. Co., 84 N.
J. Law, 685; Marius _v._ Motor Co., 146 App. Div. 608; Gigoux _v._
County, 73 Or. 212; Bridger _v._ Asheville R. Co., 27 S. C. 456; North
Texas Construction Co. _v._ Bostick, 98 Tex. 239; Kyne _v._ Southern
R. Co., 41 Utah, 368; Quinn _v._ Ross Car Co., 157 Wis. 543 _Accord_.
As to experience, see Stern _v._ Bensieck, 161 Mo. 146.

Section 2901 of the Georgia Civil Code is as follows:—

“Due care in a child of tender years is such care as its capacity,
mental and physical, fits it for exercising in the actual
circumstances of the occasion and situation under investigation.”

In Harrington _v._ Mayor, 125 Ga. 58, 60, Lumpkin, J., said: “The
average child of its own age is not the standard by which to measure
its legal diligence with exactness. ‘Such care as the capacity of the
particular child enables it to use naturally and reasonably, is what
the law requires.’” Compare Bleckley, C. J., in Western & Atlantic R.
Co. _v._ Young, 81 Ga. 397, 416, 417.

Footnote 89:

The liability of an infant for his torts is universally recognized.

_Trespass._ Y. B. 35 Hen. VI. f. 11, pl. 18; Burnard _v._ Haggis, 14
C. B. N. S. 45; Neal _v._ Gillett, 23 Conn. 437; Wilson _v._ Garrard,
59 Ill. 51; Peterson _v._ Haffner, 59 Ind. 130; Scott _v._ Watson, 46
Me. 362; Marshall _v._ Wing, 50 Me. 62; Sikes _v._ Johnson, 16 Mass.
389; School District _v._ Bragdon, 23 N. H. 507; Campbell _v._ Stakes,
2 Wend. 137; Hartfield _v._ Roper, 21 Wend. 615, 620; Tifft _v._
Tifft, 4 Denio, 175; Conklin _v._ Thompson, 29 Barb. 218; Huchting
_v._ Engel, 17 Wis. 230; Vosburg _v._ Putney, 80 Wis. 523; Vosburg
_v._ Putney, 86 Wis. 278.

_Conversion._ Mills _v._ Graham, 1 B. & P. N. R. 140; Bristow _v._
Clark, 1 Esp. 171; Vasse _v._ Smith, 6 Cranch, 226; Oliver _v._
McClellan, 21 Ala. 675; Ashlock _v._ Vivell, 29 Ill. App. 388; Lewis
_v._ Littlefield, 15 Me. 233; Caswell _v._ Parker, 96 Me. 39
(_semble_); Homer _v._ Thwing, 3 Pick. 492; Walker _v._ Davis, 1 Gray,
506; Wheeler Co. _v._ Jacobs, 2 Misc. 236; Green _v._ Sperry, 16 Vt.
390; Baxter _v._ Bush, 29 Vt. 465.

_Deceit._ Fitts _v._ Hall, 9 N. H. 441; Word _v._ Vance, 1 N. & McC.
197.

_Defamation._ Hodsman _v._ Grissell, Noy, 129; Drane _v._ Pawley, 8
Ky. Law Rep. 530; Fears _v._ Riley, 148 Mo. 49.

_Negligence._ Jennings _v._ Rundall, 8 T. R. 335; Dixon _v._ Bell, 1
Stark. 287; Marsh _v._ Loader, 14 C. B. N. S. 535; Latt _v._ Booth, 3
Car. & K. 292; Humphrey _v._ Douglass, 10 Vt. 71 _Accord_.

In Scott _v._ Watson, _supra_, Appleton, J., said: “Nor is his infancy
any defence, for infants are liable for torts.... The parent is not
answerable for the torts of his minor child, committed in his absence
and without his authority or approval, but the minor is answerable
therefor. Tifft _v._ Tifft, 4 Denio, 177. The minor is not exempt from
liability, though the trespass was committed by the express command of
the father. Humphrey _v._ Douglass, 10 Vt. 71.

“Nor can the defendant derive any support from the scriptural
injunction to children of obedience to their parents, invoked in
defence. No such construction can be given to the command, ‘Children,
obey your parents in the Lord, for this is right,’ as to sanction or
justify the trespass of the son upon the land of another, and the
asportation of his crops, even though done by the express commands of
his father. The defence is as unsound in its theology as it is
baseless in its law.” [Smith _v._ Kron, 96 N. C. 392, 397; O’Leary
_v._ Brooks, 7 N. D. 554; Humphrey _v._ Douglass, 10 Vt. 71; Huchting
_v._ Engel, 17 Wis. 230 _Accord_.]

May, J., dissented, saying: “I am not quite satisfied with either the
law or the theology of the opinion in this case. That sins of
ignorance may be winked at, is both a dictate of reason and of
Scripture. It is true, as a general rule, that infants who have
arrived at the age of discretion are liable for their tortious acts.
But, for the protection of infants, ought not the rule to be limited
to cases where the infant acts under such circumstances that _he must
know or be presumed to know_ that the acts which he commits are
unauthorized and wrong, when it appears that in the commission of the
acts he was under the control and direction of his father? Will not an
opposite doctrine tend to encourage disobedience in the child, and
thus be subversive of the best interests of the community? Will it not
also tend to subject him to embarrassment and insolvency when he shall
arrive at full age? If all the members of a family under age are to be
held liable in trespass or trover for the food which they eat, when
that food is in fact the property of another, but, being set before
them, they partake of it, in ignorance of such fact, by the command or
direction of the parent, and under the belief that it is his, will not
such a doctrine be in conflict with the principle that the common law
is intended as a shield and protection against the improvidence of
infancy? While the decided cases upon this subject seem to be limited
to cases of contract, is there not the same reason for extending it,
and applying it to cases like the one before us? In all the cases
which I have examined in which infants have been held liable, the
proof shows acts of positive wrong committed under circumstances where
the infant must have known the nature and character of his acts. If
the doctrines of the opinion are to prevail in a case like this, then
the common law is but the revival of the old doctrine that the
parents, by eating sour grapes, have set the children’s teeth on edge.
The rule that a servant who acts in ignorance of the rights of his
principal is to be held liable for his acts, does not fall within the
principles for which I contend.”

Footnote 90:

Welch _v._ Durand, 36 Conn. 182; Flinn _v._ State, 24 Ind. 286;
Peterson _v._ Haffner, 59 Ind. 130; Mercer _v._ Corbin, 117 Ind. 450;
Commonwealth _v._ Lister, 15 Phila. 405; Vosburg _v._ Putney, 80 Wis.
523; Vosburg _v._ Putney, 86 Wis. 278 _Accord_.

Footnote 91:

The topics dealt with in this section do not concern the substantive
law of tort. They fall rather under the heads of procedure and
evidence. But, without some knowledge of these particular subjects, it
is difficult to understand the ground of decision in some of the cases
on the general subject of negligence.

Footnote 92:

Statement, arguments, and parts of opinions omitted.

Footnote 93:

This decision and Bridges _v._ North London R. Co., L. R. 7 H. L. 213,
put an end in England to a conflict of authority as to the power of
the judge to withdraw the case from the jury where there was an
“invitation to alight” or “slamming the door” of a compartment car.
See the cases cited in 21 Halsbury, Laws of England, 445.

A like question, much discussed in the United States, is: A man,
without looking or listening, attempts to cross the track of a steam
railway, and is hit by a negligently managed engine. Should the judge
rule that crossing without looking and listening (or crossing without
stopping, looking, and listening) is, as matter of law, negligent
conduct? Or should the judge tell the jury that such conduct is
evidence from which negligence _may be_ inferred, and that it is for
them to say whether they _do_ infer it? As to this, there is a
conflict of authority. See discussion and collected cases in 3 Elliott
on Railroads (1st ed.) § 1167; 2 Thompson, Commentaries on the Law of
Negligence, Chap. 52, Article 2, §§ 1637–1661, especially §§ 1640,
1649, 1650, 1653; 33 Cyc. 1116 ff.; Beach on Contributory Negligence
(3d ed.) §§ 181, 182.

Other like questions arise in case of alighting from a moving car:
Puget Sound R. Co. _v._ Felt, 181 Fed. 938; Birmingham R. Co. _v._
Girod, 164 Ala. 10; St. Louis R. Co. _v._ Plott, 108 Ark. 292; Carr
_v._ Eel River R. Co., 98 Cal. 366; Coursey _v._ Southern R. Co., 113
Ga. 297; Ardison _v._ Illinois R. Co., 249 Ill. 300; Louisville R. Co.
_v._ Crunk, 119 Ind. 542; Walters _v._ Missouri R. Co., 82 Kan. 739;
Hayden _v._ Chicago R. Co., 160 Ky. 836; Cumberland R. Co. _v._
Maugans, 61 Md. 53; Street _v._ Chicago R. Co., 124 Minn. 517; Johnson
_v._ St. Joseph R. Co., 143 Mo. App. 376; Willis _v._ Metropolitan R.
Co., 63 App. Div. 332; Pennsylvania R. Co. _v._ Lyons, 129 Pa. St.
113; Kearney _v._ Seaboard R. Co., 158 N. C. 521; San Antonio Traction
Co. _v._ Badgett, (Tex. Civ. App.) 158 S. W. 803; Gaines _v._ Ogden R.
Co., 44 Utah, 512; Breeden _v._ Seattle R. Co., 60 Wash. 522.

Boarding moving car: Central R. Co. _v._ Hingson, 186 Ala. 40; South
Chicago R. Co. _v._ Dufresne, 200 Ill. 456; Chicago Traction Co. _v._
Lundahl, 215 Ill. 289; Pence _v._ Wabash R. Co., 116 Ia. 279; Jonas
_v._ South Covington R. Co., 162 Ky. 171; Mabry _v._ Boston R. Co.,
214 Mass. 463; Foley _v._ Detroit R. Co., 179 Mich. 586; Hull _v._
Minneapolis R. Co., 116 Minn. 349; Nolan _v._ Metropolitan R. Co., 250
Mo. 602.

Standing on platform or running board: Texas R. Co. _v._ Lacey, 185
Fed. 225; Central R. Co. _v._ Brown, 165 Ala. 493; Holloway _v._
Pasadena R. Co., 130 Cal. 177; Augusta R. Co. _v._ Snider, 118 Ga.
146; Chicago R. Co. _v._ Newell, 212 Ill. 332; Math _v._ Chicago R.
Co., 243 Ill. 114; Louisville R. Co. _v._ Stillwell, 142 Ky. 330;
Blair _v._ Lewiston R. Co., 110 Me. 235; Olund _v._ Worcester R. Co.,
206 Mass. 544; Heshion _v._ Boston R. Co., 208 Mass. 117; Wheeler _v._
Boston R. Co., 220 Mass. 298; Lacey _v._ Minneapolis R. Co., 118 Minn.
301; Setzler _v._ Metropolitan R. Co., 227 Mo. 454; Trussell _v._
Traction Co., 79 N. J. Law, 533; Ward _v._ International R. Co., 206
N. Y. 83; Edwards _v._ New Jersey R. Co., 144 App. Div. 554;
Germantown R. Co. _v._ Walling, 97 Pa. St. 55; Brice _v._ Southern R.
Co., 85 S. C. 216.

Part of body protruding from car: Georgetown R. Co. _v._ Smith, 25
App. D. C. 259; Clerc _v._ Morgan’s R. Co., 107 La. 370; Lange _v._
Metropolitan R. Co., 151 Mo. App. 500; Kuttner _v._ Central R. Co., 80
N. J. Law, 11; Goller _v._ Fonda R. Co., 110 App. Div. 620.

Footnote 94:

But see L. R. 6 Q. B. 760–761.

Footnote 95:

Arguments omitted; also the concurring opinion of Lush, J., and the
dissenting opinion of Hannen, J.

Footnote 96:

Affirmed in the Exchequer Chamber, L. R. 6 Q. B. 759.

Byrne _v._ Boadle, 2 H. & C. 722; Scott _v._ London Docks Co., 3 H. &
C. 596; Skinner _v._ London R. Co., 5 Ex. 787; The Joseph D. Thomas,
81 Fed. 578; Hastorf _v._ Hudson River Co., 110 Fed. 669; Cincinnati
R. Co. _v._ South Fork Coal Co., 139 Fed. 528; Kahn _v._ Cap Co., 139
Cal. 340; Armour _v._ Golkowska, 202 Ill. 144; Talge _v._ Hockett, 55
Ind. App. 303; Nicoll _v._ Sweet, 163 Ia. 683; Melvin _v._
Pennsylvania Steel Co., 180 Mass. 196; Hull _v._ Berkshire R. Co., 217
Mass. 361; Cleary _v._ Cavanaugh, 219 Mass. 281; Scharff _v._ Southern
Construction Co., 115 Mo. App. 157; Pratt _v._ Missouri R. Co., 139
Mo. App. 502; Mullen _v._ St. John, 57 N. Y. 567; Wolf _v._ American
Society, 164 N. Y. 30; Griffen _v._ Manice, 166 N. Y. 188; Kennedy
_v._ McAllaster, 31 App. Div. 453; Scheider _v._ American Bridge Co.,
78 App. Div. 163; Travers _v._ Murray, 87 App. Div. 552; Connor _v._
Koch, 89 App. Div. 33; Larkin _v._ Reid Co., 161 App. Div. 77;
Papazian _v._ Baumgartner, 49 Misc. 244; Barnes _v._ Automobile Co.,
32 Ohio Cir. Ct. R. 233; Muskogee Traction Co. _v._ McIntire, 37 Okl.
684; Edwards _v._ Manufacturers’ Co., 27 R. I. 248; Patterson _v._
Brewing Co., 16 S. D. 33; Richmond R. Co. _v._ Hudgins, 100 Va. 409;
Gibson _v._ Chicago R. Co., 61 Wash. 639; Carroll _v._ Chicago R. Co.,
99 Wis. 399; Klitzke _v._ Webb, 120 Wis. 254; Schmidt _v._ Johnson
Co., 145 Wis. 49; Snyder _v._ Wheeling Electrical Co., 43 W. Va. 661
_Accord_.

Where the declaration alleges negligence and sets forth the nature and
particulars of the accident but not the particulars of the alleged
negligence, plaintiff may rely upon this doctrine, if the accident is
of such a kind as to indicate that it would not have happened without
negligence on the part of the defendant. James _v._ Boston R. Co., 204
Mass. 158.

The doctrine applies only in the absence of explanation. Cook _v._
Newhall, 213 Mass. 392. The inference may be met by defendant’s
showing the real cause of the accident. Nawrocki _v._ Chicago R. Co.,
156 Ill. App. 563; Parsons _v._ Hecla Iron Works, 186 Mass. 221; Cohen
_v._ Farmers’ Co., 70 Misc. 548; Stearns _v._ Spinning Co., 184 Pa.
St. 519; Scarpelli _v._ Washington Power Co., 63 Wash. 18. By
plaintiff showing by his own witnesses just how the accident happened.
Buckland _v._ New York R. Co., 181 Mass. 3. Or by defendant’s showing
that reasonable care was employed to prevent all probable sources of
accident. Thompson _v._ St. Louis R. Co., 243 Mo. 336, 355; Sweeney
_v._ Edison Co., 158 App. Div. 449.

“There are many cases that hold that an unexplained accident with a
machine, not liable to occur if such machine was properly constructed
and in a proper state of repair, is evidence of negligence; as in
Spaulding _v._ C. & N. W. R. Co., 30 Wis. 110, where it was held that
the escape of fire from a passing locomotive engine, sufficient to
cause damage, raised a presumption of improper construction or
insufficient repair or negligent handling of such engine. To the same
effect are Cummings _v._ Nat. Furnace Co., 60 Wis. 603; Kurz &
Huttenlocher Ice Co. _v._ M. & N. R. Co., 84 Wis. 171; Stacy _v._ M.,
L. S. & W. R. Co., 85 Wis. 225; Mullen _v._ St. John, 57 N. Y. 567;
Volkmar _v._ Manhattan R. Co., 134 N. Y. 418; McCarragher _v._ Rogers,
120 N. Y. 526, and many others that might be cited. Such cases lay
down a very well-recognized principle in the law of negligence, but do
not ... conflict in the slightest degree with numerous authorities
that go on another principle, just as well-recognized and firmly
established, to the effect that undisputed proof of freedom of the
machine from all discoverable defects, either in construction or
repair, effectually overcomes any mere inference or presumption
arising from the happening of the accident, so as to leave no question
in that regard for the jury; as in Spaulding _v._ C. & N. W. R. Co.,
33 Wis. 582, where this court held the inference that a locomotive
engine was defective, arising merely from the escape of fire therefrom
sufficient to cause damage, rebutted by conclusive proof that the
engine was free from discoverable defects, so as to leave nothing on
that point for the consideration of a jury.” Marshall, J., Vorbrich
_v._ Geuder Co., 96 Wis. 277, 284. See Green _v._ Urban Constructing
Co., 106 App. Div. 460 _Accord_.

Footnote 97:

The arguments of counsel and a part of the opinion are omitted.

Footnote 98:

There is a conflict of authority upon the question whether the maxim
_res ipsa loquitur_ is applicable in an action by a servant against a
master. See cases collected in an elaborate note, 6 Lawyers’ Reports,
Annotated, New Series, 337–363. See also 2 Labatt on Master & Servant,
§§ 833, 834, 835; especially authorities cited in § 834, note 8.

Footnote 99:

“There was much discussion by counsel of the doctrine of _res ipsa
loquitur_ and its relevancy to the facts of this case. The thing
speaks for itself, is a principle applied by the law where under the
circumstances shown the accident presumably would not have occurred in
the use of a machine if due care had been exercised, or, in the case
of an elevator, when in its normal operation after due inspection. The
doctrine does not dispense with the requirement that the party who
alleges negligence must prove the fact, but relates only to the mode
of proving it. The fact of the accident furnishes merely some evidence
to go to the jury, which requires the defendant ‘to go forward with
his proof.’ The rule of _res ipsa loquitur_ does not relieve the
plaintiff of the burden of showing negligence, nor does it raise any
presumption in his favor. Whether the defendant introduces evidence or
not, the plaintiff in this case will not be entitled to a verdict
unless he satisfies the jury by the preponderance of the evidence that
his injuries were caused by a defect in the elevator attributable to
the defendant’s negligence. The law attaches no special weight, as
proof, to the fact of an accident, but simply holds it to be
sufficient for the consideration of the jury even in the absence of
any additional evidence. Womble _v._ Grocery Co., 135 N. C. 474; 2
Labatt on Master & Servant, § 834; 4 Wigmore on Evidence, § 2509. In
all other respects, the parties stand before the jury just as if there
was no such rule. The judge should carefully instruct the jury as to
the application of the principle, so that they will not give to the
fact of the accident any greater artificial weight than the law
imparts to it. Wigmore, in the section just cited, says the following
considerations ought to limit the doctrine of _res ipsa loquitur_: 1.
The apparatus must be such that in the ordinary instance no injurious
operation is to be expected unless from a careless construction,
inspection, or user; 2. Both inspection and user must have been, at
the time of the injury, in the control of the party charged; 3. The
injurious occurrence must have happened irrespective of any voluntary
action at the time by the party injured. He says further that the
doctrine is to some extent founded upon the fact that the chief
evidence of the true cause of the injury, whether culpable or
innocent, is practically accessible to the party charged and perhaps
inaccessible to the party injured. What are the general limits of the
doctrine and what is the true reason for its adoption, we will not now
undertake to decide. It is established in the law as a rule for our
guidance and must be enforced whenever applicable, and to the extent
that it is applicable, to the facts of the particular case.” Walker,
J., in Stewart _v._ Van Deventer Carpet Co., 138 N. C. 60, 65.

The burden of proof is not shifted; merely the burden of going
forward. Sweeney _v._ Erving, 228 U. S. 233; Ferrier _v._ Chicago R.
Co., 185 Ill. App. 326; Bigwood _v._ Boston R. Co., 209 Mass. 345;
Alabama R. Co. _v._ Groome, 97 Miss. 201; Kay _v._ Metropolitan R.
Co., 163 N. Y. 447.

Footnote 100:

The arguments of counsel, concurring opinion of Vaughan-Williams, L.
J., and dissenting opinion of Buckley, L. J., and part of the opinion
of Moulton, L. J., dealing with another point, are omitted.

Footnote 101:

Bonham _v._ Winchester Arms Co., 179 Ill. App. 469; Prestolite Co.
_v._ Skeel, 182 Ind. 593; Rice _v._ Chicago R. Co., 153 Mo. App. 35;
Dalzell _v._ New York R. Co., 136 App. Div. 329 _Accord_.

The nature and circumstances of the accident itself must not only
support an inference of defendant’s negligence but must exclude all
others. Lucid _v._ Powder Co., 199 Fed. 377.

Footnote 102:

Statement abridged.

Footnote 103:

“The maxim _res ipsa loquitur_ is simply a rule of evidence.

The general rule is that negligence is never presumed from the mere
fact of injury, yet the manner of the occurrence of the injury
complained of, or the attendant circumstances, may sometimes well
warrant an inference of negligence. It is sometimes said that it
warrants a presumption of negligence, but the presumption referred to
is not one of law, but of fact. It is, however, more correct and less
confusing to refer to it as an inference, rather than a presumption,
and not an inference which the law draws from the fact, but an
inference which the jury are authorized to draw, and not an inference
which the jury are compelled to draw.” Cobb, J., in Palmer Brick Co.
_v._ Chenall, 119 Ga. 837, 842. See Sweeney _v._ Erving, 228 U. S.
233, 240; Harlow _v._ Standard Imp. Co., 145 Cal. 477; National
Biscuit Co. _v._ Wilson, 169 Ind. 442; O’Neil _v._ Toomey, 218 Mass.
242; Lincoln _v._ Detroit R. Co., 179 Mich. 189; Boucher _v._ Boston
R. Co., 76 N. H. 91; Ross _v._ Cotton Mills, 140 N. C. 115. But
compare Thompson _v._ St. Louis R. Co., 243 Mo. 336, 353.

Footnote 104:

Statement abridged.

Footnote 105:

59 N. J. Law, 474.

Footnote 106:

Actiesselskabet Ingrid _v._ Central R. Co., 216 Fed. 72; Huneke _v._
West Brighton Amusement Co., 80 App. Div. 268; De Glopper _v._
Nashville R. Co., 123 Tenn. 633 _Accord_.

Footnote 107:

Statement abridged. Part of opinion omitted.

Footnote 108:

Carpenter _v._ Walker, 170 Ala. 659; Miller _v._ Fletcher, 142 Ga.
668; Zabron _v._ Cunard Co., 151 Ia. 345; Randolph _v._ Snyder, 139
Ky. 159; Springfield Egg Co. _v._ Springfield Ice Co., 259 Mo. 664;
Hales _v._ Raines, 146 Mo. App. 232, 239; Robinson _v._ Threadgill, 13
Ired. Law, 39; Hobbs _v._ Smith, 27 Okl. 830 _Accord_.

Footnote 109:

The opinion of Lord Esher, M. R., is omitted.

Footnote 110:

The settled practice allows an action against a carrier either upon
contract or upon tort, as best suits the purposes of the pleader. 3
Hutchinson, Carriers (3d ed.), § 1325.

Footnote 111:

Sect. 2222. “There must be fixed on the line of said roads, and at the
distance of four hundred yards from the centre of each of such road
crossings, and on each side thereof, a post, and the engineer shall be
required, whenever he shall arrive at either of said posts, to blow
the whistle of the locomotive until it arrives at the public road, and
to simultaneously check and keep checking the speed thereof, so as to
stop in time should any person or thing be crossing said track on said
road.”

Sect. 2224. “If any engineer neglects to blow said whistle as
required, and to check the speed as required, he is guilty of a
misdemeanor....”—Georgia Code of 1895.

Footnote 112:

Only so much of the case is given as relates to a single point.
Statement abridged. Part of opinion omitted.

Footnote 113:

But see Mayer _v._ Thompson, 104 Ala. 611; Carter _v._ Atlantic R.
Co., 84 S. C. 456; Lough _v._ Davis, 30 Wash. 204.

Footnote 114:

Stiewel _v._ Borman, 63 Ark. 30; Owens _v._ Nichols, 139 Ga. 475;
Baird _v._ Shipman, 132 Ill. 16; Tippecanoe Loan & Trust Co. _v._
Jester, 180 Ind. 357; Ward _v._ Pullman Co., 131 Ky. 142; Consolidated
Gas Co. _v._ Connor, 114 Md. 140; Ellis _v._ McNaughton, 76 Mich. 237;
Orcutt _v._ Century Bldg. Co., 201 Mo. 424; Hagerty _v._ Montana Ore
Co., 38 Mont. 69; Horner _v._ Lawrence, 37 N. J. Law, 46; Schlosser
_v._ Great Northern R. Co., 20 N. D. 406, 411; Greenberg _v._
Whitcomb, 90 Wis. 225 _Accord_.

Footnote 115:

Northern R. Co. _v._ State, 29 Md. 420; Dyche _v._ Vicksburg R. Co.,
79 Miss. 361; Bresnahan _v._ Lonsdale Co., (R. I. 1900) 51 Atl. 624
_Accord_.

See also Willes, J., in Skelton _v._ London R. Co., L. R. 2 C. P. 631,
636; Bailey _v._ Walker, 29 Mo. 407; Thorne _v._ Deas, 4 Johns. 84,
96; Hyde _v._ Moffat, 16 Vt. 271.

Footnote 116:

Allen _v._ Hixson, 111 Ga. 460; Griswold _v._ Boston R. Co., 183 Mass.
434; Stager _v._ Laundry Co., 38 Or. 480, 489; Scholl _v._ Belcher, 63
Or. 310; Ollett _v._ Pennsylvania R. Co., 201 Pa. St. 361; King _v._
Interstate R. Co., 23 R. I. 583; Riley _v._ Gulf R. Co., (Tex. Civ.
App.) 16 S. W. 595 _Accord_. See also Kenney _v._ Hannibal R. Co., 70
Mo. 252.

Whitesides _v._ Southern R. Co., 128 N. C. 229 (divided court)
_contra_. See also Dyche _v._ Vicksburg R. Co., 79 Miss. 361.

Footnote 117:

Ohio R. Co. _v._ Early, 141 Ind. 73; Raasch _v._ Elite Laundry Co., 98
Minn. 357 (_semble_); Salter _v._ Nebraska Telephone Co., 79 Neb. 373
(_semble_) _Accord_. See also Shaw _v._ Milwaukee R. Co., 103 Minn. 8.

It has been held also that such a duty is incidental to the relation
of carrier and passenger. Layne _v._ Chicago R. Co., 175 Mo. App. 35,
41. Compare Kambour _v._ Boston R. Co., 77 N. H. 33; Southern R. Co.
_v._ Sewell, 18 Ga. App. 544.

It has always been regarded as incidental to the employment of seamen.
The Iroquois, 194 U. S. 240; U.S. _v._ Knowles, 4 Sawy. 517; Scarff
_v._ Metcalf, 107 N.Y. 211.

Footnote 118:

See also Weymire _v._ Wolfe, 52 Ia. 533; Trout _v._ Watkins, 148 Mo.
App. 621. Compare Texas R. Co. _v._ Geraldon, 54 Tex. Civ. App. 71.

On the whole subject, see Ames, Law and Morals, 22 Harvard Law Rev.
99, 111–113; Bohlen, The Moral Duty to Aid Others as a Basis of Tort
Liability, 56 University of Pennsylvania Law Rev. 217, 316; Bruce,
Humanity and the Law, 73 Central Law Journ. 335.

Footnote 119:

A woman’s head-dress catches fire: water is at hand: a man, instead of
assisting to quench the fire, looks on and laughs at it. A drunken
man, falling with his face downwards into a puddle, is in danger of
suffocation: lifting his head a little on one side would save him:
another man sees this and lets him lie. A quantity of gunpowder lies
scattered about a room: a man is going into it with a lighted candle:
another, knowing this, lets him go in without warning. Who is there
that in any of these cases would think punishment misapplied?—Author’s
Note.

Footnote 120:

This proposed code was not enacted.

Footnote 121:

A Penal Code prepared by the Indian Law Commissioners, and published
by command of the Governor-General of India in Council; Calcutta,
1837.

Footnote 122:

As to the authorship of these notes, see the preface to the English
edition (1875) of Macaulay’s Works. As to the code itself, see
Stephen, History of the Criminal Law of England, 298–323.

Footnote 123:

Statement abridged. Arguments of counsel omitted.

Footnote 124:

Grand Trunk R. Co. _v._ Barnett, [1911] A. C. 361; Louisville R. Co.
_v._ Womack, 173 Fed. 752; Chesapeake R. Co. _v._ Hawkins, 174 Fed.
597; Graysonia Lumber Co. _v._ Carroll, 102 Ark. 460; Chicago Terminal
Co. _v._ Kotoski, 199 Ill. 383; Neice _v._ Chicago R. Co., 254 Ill.
595; Jordan _v._ Grand Rapids R. Co., 162 Ind. 464; Burgess _v._
Atchison R. Co., 83 Kan. 497; Lando _v._ Chicago R. Co., 81 Minn. 279;
Ingram-Day Lumber Co. _v._ Harvey, 98 Miss. 11; Koegel _v._ Missouri
R. Co., 181 Mo. 379; Hoberg _v._ Collins, 80 N. J. Law, 425; Gulf R.
Co. _v._ Dees, 44 Okl. 118; Woodward _v._ Southern R. Co., 90 S. C.
262; Norfolk R. Co. _v._ Wood, 99 Va. 156; Huff _v._ Chesapeake R.
Co., 48 W. Va. 45 _Accord_.

So in case of persons wrongfully upon engines, cars, or trains.
Chicago R. Co. _v._ McDonough, 112 Ill. App. 315; Handley _v._
Missouri R. Co., 61 Kan. 237; Planz _v._ Boston R. Co., 157 Mass. 377;
Bjornquist _v._ Boston R. Co., 185 Mass. 130; Feeback _v._ Missouri R.
Co., 167 Mo. 206; Wickenburg _v._ Minneapolis R. Co., 94 Minn. 276
(boy of twelve); Johnson _v._ New York R. Co., 173 N. Y. 79; Morgan
_v._ Oregon R. Co., 27 Utah, 92. But see Johnson _v._ Chicago R. Co.,
123 Ia. 224; Pierce _v._ North Carolina R. Co., 124 N. C. 83. As to
who is a trespasser in such a place, see Yancey _v._ Boston R. Co.,
205 Mass. 162.

“A railway company may lawfully require a wilful trespasser upon one
of its moving trains to immediately cease his unlawful conduct, by
such means as not to indicate a willingness to deprive him of his
self-control in leaving the train, the speed of the train not being so
great that a personal injury to him should be expected to occur,
giving due consideration to the duty of the trespasser to cease his
lawlessness by all reasonable means in his power and reasonable
expectation that he will use such means in attempting to do it. It is
not sufficient to indicate an intentional injury that the party
causing it had reasonable ground to expect that such a result was
within reasonable probabilities, otherwise a violation of the duty to
exercise ordinary care would, of itself, be sufficient to indicate
such injury. The danger of inflicting a personal injury upon a person
by the conduct of another must be such as to reasonably permit of a
belief that such other either contemplated producing it, or, being
conscious of the danger that it would occur, imposed such danger upon
that person in utter disregard of the consequences, to warrant saying,
reasonably, that the circumstances indicate willingness to perpetrate
such injury.” Marshall, J., in Bolin _v._ Chicago R. Co., 108 Wis.
333, 351–352. See also Hoberg _v._ Collins, 80 N. J. Law, 425, 429.
But compare Palmer _v._ Gordon, 173 Mass. 410; Romana _v._ Boston R.
Co., 226 Mass. 533.

Footnote 125:

Statement abridged. Part of opinion omitted.

Footnote 126:

Rome Furnace Co. _v._ Patterson, 120 Ga. 521; Fields _v._ Louisville
R. Co., 163 Ky. 673 _Accord_. See also Hector Min. Co. _v._ Robertson,
22 Col. 491; Hobbs _v._ Blanchard, 74 N. H. 116; Stuck _v._ Kanawha R.
Co., 76 W. Va. 453; Peaslee, Duty to Seen Trespassers, 27 Harvard Law
Rev. 403.

As to duty to observed child trespasser, see Little Rock R. Co. _v._
Barker, 39 Ark. 491, 500; Louisville R. Co. _v._ Lohges, 6 Ind. App.
288; Baltimore R. Co. _v._ Welch, 114 Md. 536. To observed helpless
trespasser, see Tanner _v._ Louisville R. Co., 60 Ala. 621; Pannell
_v._ Nashville R. Co., 97 Ala. 298; Martin _v._ Chicago R. Co., 194
Ill. 138; Krenzer _v._ Pittsburgh R. Co., 151 Ind. 587; Glenn _v._
Louisville R. Co., 28 Ky. Law Rep. 949. To trespasser observed in a
dangerous position, see Haley _v._ Kansas City R. Co., 113 Ala. 640;
Atkinson _v._ Kelley, 8 Ala. App. 571; St. Louis R. Co. _v._ Townsend,
69 Ark. 380, 383; Chicago R. Co. _v._ Kotoski, 199 Ill. 383;
Richardson _v._ Missouri R. Co., 90 Kan. 292; Whitehead _v._ St. Louis
R. Co., 99 Mo. 263; Mathews _v._ Chicago R. Co., 63 Mo. App. 569;
Omaha R. Co. _v._ Cook, 42 Neb. 577.

Footnote 127:

Statement rewritten; part of case omitted; argument omitted.

Footnote 128:

The above portions of the instructions are set out in the argument of
counsel, pp. 235–237.

Footnote 129:

Schmidt _v._ Michigan Coal Co., 159 Mich. 308; Myers _v._ Boston R.
Co., 72 N. H. 175; Carney _v._ Concord St. R. Co., 72 N. H. 364; Brown
_v._ Boston R. Co., 73 N. H. 568; Magar _v._ Hammond, 171 N. Y. 377;
O’Leary _v._ Brooks Elevator Co., 7 N. D. 568 _Accord_. See also
Houston R. Co. _v._ Garrett, (Tex. Civ. App.) 160 S. W. 111.

As to the effect of a statute prohibiting the particular trespass, see
Marra _v._ New York R. Co., 139 App. Div. 707.

As to when a horse is trespassing, see Taft _v._ New York R. Co., 157
Mass. 297.

Footnote 130:

The statement and part of the opinion are omitted.

Footnote 131:

That in general there is no duty to look out for trespassers on the
track or right of way, see also Cleveland R. Co. _v._ Tartt, 99 Fed.
369; Louisville R. Co. _v._ Jones, 191 Ala. 484; Goudreau _v._
Connecticut Co., 84 Conn. 406; Atlantic R. Co. _v._ McDonald, 135 Ga.
635; Curd _v._ Cincinnati R. Co., 163 Ky. 104; Baltimore R. Co. _v._
State, 114 Md. 536; Petur _v._ Erie R. Co., 151 App. Div. 578; Carter
_v._ Erie R. Co., 33 Ohio Cir. Ct. Rep. 377; Laeve _v._ Missouri R.
Co., (Tex. Civ. App.) 136 S. W. 1129.

Jeffries _v._ Seaboard R. Co., 129 N. C. 236 _contra_. See also Ark.
Kirby’s Dig. § 6607; Tenn. Shannon’s Code, § 1574(4).

As to duty of trainmen in a place where there is a known likelihood of
trespassers, see Southern R. Co. _v._ Donovan, 84 Ala. 141; Bullard
_v._ Southern R. Co., 116 Ga. 644; Cincinnati R. Co. _v._ Blankenship,
157 Ky. 699; Risbridger _v._ Michigan R. Co., 188 Mich. 672; Fearons
_v._ Kansas City R. Co., 180 Mo. 208; Eppstein _v._ Missouri R. Co.,
197 Mo. 720; Krummack _v._ Missouri R. Co., 98 Neb. 773; St. Louis R.
Co. _v._ Hodge, (Okl.) 157 Pac. 60; Whelan _v._ Baltimore R. Co., 70
W. Va. 442; Whalen _v._ Chicago R. Co., 75 Wis. 654. _Contra_:
Baltimore R. Co. _v._ Welch, 114 Md. 536; Boden _v._ Boston R. Co.,
205 Mass. 504; Haltiwanger _v._ Columbia R. Co., 64 S. C. 7. Compare
Lowery _v._ Walker, [1911] A. C. 10.

The trainmen may assume that an adult trespasser, not in obvious
peril, will look out for himself. Indianapolis R. Co. _v._ McClaren,
62 Ind. 566; Campbell _v._ Kansas City R. Co., 55 Kan. 536; St. Louis
R. Co. _v._ Herrin, 6 Tex. Civ. App. 718. As to a child, see
Pennsylvania R. Co. _v._ Morgan, 82 Pa. St. 134.

Footnote 132:

“The duty must be one owed by the defendants to the plaintiffs in
respect to the very matter or act charged as negligence.”—PARSONS, C.
J., in Pittsfield C. M. Co. _v._ Pittsfield Shoe Co., 71 N. H. 522,
531.

Footnote 133:

Statement abridged.

Footnote 134:

Hardcastle _v._ South Yorkshire R. Co., 4 H. & N. 67; Ponting _v._
Noakes, [1894] 2 Q. B. 281; Scoggin _v._ Atlantic Cement Co., 179 Ala.
213; Gordon _v._ Roberts, 162 Cal. 506; Whitney _v._ New York R. Co.,
87 Conn. 623; Garner _v._ Town, 7 Ga. App. 630; McDermott _v._ Burke,
256 Ill. 401; Northwestern El. Co. _v._ O’Malley, 107 Ill. App. 599;
Knapp _v._ Doll, 180 Ind. 526; St. Joseph I. Co. _v._ Bertch, 33 Ind.
App. 491; Upp _v._ Darner, 150 Ia. 403; Bransom _v._ Labrot, 81 Ky.
638; Mallock _v._ Derby, 190 Mass. 208; Flanagan _v._ Sanders, 138
Mich. 253; Dahl _v._ Valley Dredging Co., 125 Minn. 90; Schmidt _v._
Distilling Co., 90 Mo. 284; Henry _v._ Disbrow M. Co., 144 Mo. App.
350; Butler _v._ Chicago R. Co., 155 Mo. App. 287; Burrill _v._
Alexander, 75 N. H. 554; Kleinberg _v._ Schween, 134 App. Div. 493;
Riggle _v._ Lens, 71 Or. 125; Clapp _v._ La Grill, 103 Tenn. 164;
Stamford Oil Co. _v._ Barnes, 103 Tex. 409; Denison Light Co. _v._
Patton, 105 Tex. 621; Lunsford _v._ Colonial Coal Co., 115 Va. 346;
Anderson _v._ Northern R. Co., 19 Wash. 340; West _v._ Shaw, 61 Wash.
227.

As to setting traps for trespassers, see Bird _v._ Holbrook, 4 Bing.
628; Hooker _v._ Miller, 37 Ia. 613. Compare Marble _v._ Ross, 124
Mass. 44; Loomis _v._ Terry, 17 Wend. 497; Sherfey _v._ Bartley, 4
Sneed, 58.

Footnote 135:

Latham _v._ Johnson, [1913] 1 K. B. 398; Cleveland R. Co. _v._
Ballentine, 84 Fed. 935; Riedel _v._ West Jersey Co., 177 Fed. 374;
Pastorello _v._ Stone, 89 Conn. 286; Norman _v._ Bartholomew, 104 Ill.
App. 667; Nelson _v._ Burnham Co., 114 Me. 213; Peninsular Trust Co.
_v._ City, 131 Mich. 571; Houck _v._ Chicago R. Co., 116 Mo. App. 559;
Hughes _v._ Boston R. Co., 71 N. H. 279; Leithold _v._ Philadelphia R.
Co., 47 Pa. Super. Ct. 137; Dobbins _v._ Missouri R. Co., 91 Tex. 60;
Bottum _v._ Hawks, 84 Vt. 370; Curtis _v._ Stone Quarries, 37 Wash.
355; Uthermohler _v._ Mining Co., 50 W. Va. 457; Ritz _v._ City, 45 W.
Va. 262 Accord. Compare Walsh _v._ Pittsburg R. Co., 221 Pa. St. 463;
Lyttle _v._ Harlem Coal Co., 167 Ky. 345.

Footnote 136:

This opinion, too long to be inserted here, will be found in 2 Cent.
Law Journal, 170.

Footnote 137:

Railroad Co. _v._ Stout, 17 Wall. 657; Union R. Co. _v._ McDonald, 152
U. S. 262 (slackpit); St. Louis R. Co. _v._ Underwood, (C. C. A.) 194
Fed. 363 (pile of lumber); Southern R. Co. _v._ Bunt, 131 Ala. 591;
Thompson _v._ Alexander Cotton Mills Co., 190 Ala. 184 (drain
containing hot water); Barrett _v._ Southern P. R. Co., 91 Cal. 296
(but see Peters _v._ Bowman, 115 Cal. 345—pond; George _v._ Los
Angeles R. Co., 126 Cal. 357—cars standing unattended); Ferguson _v._
Columbus R. Co., 75 Ga. 637, 77 Ga. 102 (but see Savannah R. Co. _v._
Beavers, 113 Ga. 398—excavation); City _v._ McMahon, 154 Ill. 141;
Donk Bros. _v._ Leavitt, 109 Ill. App. 385; Belt R. Co. _v._ Charters,
123 Ill. App. 322 (but see American Advertising Co. _v._ Flannigan,
100 Ill. App. 452); Chicago R. Co. _v._ Fox, 38 Ind. App. 268; Lewis
_v._ Cleveland R. Co., 42 Ind. App. 337; Edgington _v._ Burlington R.
Co., 116 Ia. 410 (but see Anderson _v._ Ft. Dodge R. Co., 150 Ia.
465); Price _v._ Atchison Water Co., 58 Kan. 551 (reservoir); Kansas
City R. Co. _v._ Matson, 68 Kan. 815 (wood pile); Osborn _v._ Atchison
R. Co., 86 Kan. 440 (abandoned round house—but see Somerfield _v._
Land and Power Co., 93 Kan. 762—unguarded canal); Bransom _v._ Labrot,
81 Ky. 638 (pile of timber); Palermo _v._ Orleans Ice Co., 130 La. 833
(gutter containing hot water); Koons _v._ St. Louis R. Co., 65 Mo.
592; Schmidt _v._ Kansas City Distilling Co., 90 Mo. 284 (hole made by
escaping steam); Berry _v._ St. Louis R. Co., 214 Mo. 593 (but see
Overholt _v._ Vieths, 93 Mo. 422—abandoned quarry; Barney _v._
Hannibal R. Co., 126 Mo. 372—unfenced freight yard; Kelly _v._ Benas,
217 Mo. 1—pile of lumber); Chicago R. Co. _v._ Krayenbuhl, 65 Neb.
889; Evansich _v._ Gulf R. Co., 57 Tex. 126 (but see Missouri R. Co.
_v._ Edwards, 90 Tex. 65; Johnson _v._ Atlas Supply Co., (Tex. Civ.
App.) 183 S. W. 31, 33); Smalley _v._ Rio Grande R. Co., 34 Utah, 423
(but see Palmer _v._ Oregon S. L. Co., 34 Utah, 466); Haynes _v._
City, 69 Wash. 419 (but see Barnhart _v._ Chicago R. Co., 89 Wash.
304); Kelley _v._ Southern R. Co., 152 Wis. 328 (but see Emond _v._
Kimberly-Clark Co., 159 Wis. 83—pond) _Accord_.

Compare McCabe _v._ American Woolen Co., (C. C. A.) 132 Fed. 1006
(unguarded canal); Valley Planing Mill _v._ McDaniel, 119 Ark. 139;
Brinkley _v._ Cooper, 70 Ark. 331; Prickett _v._ Pardridge, 189 Ill.
App. 307; Stendal _v._ Boyd, 73 Minn. 53; Dahl _v._ Valley Dredging
Co., 125 Minn. 90; Cooper _v._ Overton, 102 Tenn. 211.

See also Smith, Landowner’s Liability to Children, 11 Harv. Law Rev.
349, 434; 7 Thompson, Negligence, § 1031; Burdick, Torts (3d. ed.), §§
558–569.

As to the age to which the doctrine is applicable, see Belt R. Co.
_v._ Charters, 123 Ill. App. 322; State Bank _v._ Mandel, 176 Ill.
App. 278; Wilmes _v._ Chicago R. Co. 175 Ia. 101; Shaw _v._ Chicago R.
Co., (Mo.) 184 S. W. 1151.

Footnote 138:

Wilmot _v._ McPadden, 79 Conn. 367 (building in course of
construction); Daniels _v._ New York R. Co., 154 Mass. 349; Ryan _v._
Towar, 128 Mich. 463 (water wheel); Peninsular Trust Co. _v._ City,
131 Mich. 571 (reservoir); Hughes _v._ Boston R. Co., 71 N. H. 279
(torpedo on right of way); Delaware R. Co. _v._ Reich, 61 N. J. Law,
635; Walsh _v._ Fitchburg R. Co., 145 N. Y. 301; Railroad Co. _v._
Harvey, 77 Ohio St. 235; Paolino _v._ McKendall, 24 R. I. 432
(unguarded fire); Uthermohlen _v._ Bogg’s Run Co., 50 W. Va. 457
_Accord_.

Footnote 139:

The arguments of counsel and the concurring opinions of Lords
Atkinson, Collins, and Loreburn are omitted.

Footnote 140:

See Latham _v._ Johnson, [1913] 1 K. B. 398. In that case Hamilton, L.
J., said (pp. 415–416): “Two other terms must be alluded to—a ‘trap’
and ‘attraction’ or ‘allurement.’ A trap is a figure of speech, not a
formula. It involves the idea of concealment and surprise, of an
appearance of safety under circumstances cloaking a reality of danger.
Owners and occupiers alike expose licensees and visitors to traps on
their premises at their peril, but a trap is a relative term. In the
case of an infant, there are moral as well as physical traps. There
may accordingly be a duty towards infants not merely not to dig
pitfalls for them, but not to lead them into temptation.
‘Allurements,’ too, is a vague word. It may refer only to the
circumstances under which the injured child has entered the close.
Here it is hard to see how infantile temptations can give rights,
however much they may excuse peccadilloes. A child will be a
trespasser still, if he goes on private ground without leave or right,
however natural it may have been for him to do so. On the other hand,
the allurement may arise after he has entered with leave or as of
right. Then the presence in a frequented place of some object of
attraction, tempting him to meddle where he ought to abstain, may well
constitute a trap, and in the case of a child too young to be capable
of contributory negligence it may impose full liability on the owner
or occupier, if he ought, as a reasonable man, to have anticipated the
presence of the child and the attractiveness and peril of the object.”

“Finally, what objects which attract infants to their hurt are traps
even to them? Not all objects with which children hurt themselves
simpliciter. A child can get into mischief and hurt itself with
anything if it is young enough. In some cases the answer may rest with
the jury, but it must be matter of law to say whether a given object
can be a trap in the double sense of being fascinating and fatal. No
strict answer has been, or perhaps ever will be, given to the
question, but I am convinced that a heap of paving stone in broad
daylight in a private close cannot so combine the properties of
temptation and retribution as to be properly called a trap.”

Footnote 141:

Statement abridged. Arguments omitted, and parts of opinions.

Footnote 142:

See also Cole _v._ Willcutt, 214 Mass. 453; Habina _v._ Twin City
Electric Co., 150 Mich. 41; Chesley _v._ Rocheford, 4 Neb. Unoff. 768,
777.

For examples of “traps,” see Lowery _v._ Walker, [1911] A. C. 10;
Rollestone _v._ Cassirer, 3 Ga. App. 161; Foren _v._ Rodick, 90 Me.
276; Hill _v._ President and Trustees, 61 Or. 190; Grant _v._ Hass, 31
Tex. Civ. App. 688; Brinilson _v._ Chicago R. Co., 144 Wis. 614.

Footnote 143:

Affirmed in the Exchequer Chamber, L. R. 2 C. P. 311. Hounsell _v._
Smyth, 7 C. B. N. S. 731; Batchelor _v._ Fortescue, 11 Q. B. D. 474;
Watson _v._ Manitou R. Co., 41 Col. 138; Bentley _v._ Loverock, 102
Ill. App. 166; Joseph _v._ Henrici Co., 137 Ill. 171; Indiana R. Co.
_v._ Barnhart, 115 Ind. 399; South Bend Iron Works _v._ Larger, 11
Ind. App. 367; Dixon _v._ Swift, 98 Me. 207; Reardon _v._ Thompson,
149 Mass. 267; Blackstone _v._ Chelmsford Foundry Co., 170 Mass. 321;
Vanderbeck _v._ Hendry, 34 N. J. Law, 467; Fitzpatrick _v._ Cumberland
Glass Co., 61 N. J. Law, 378; Taylor _v._ Turnpike Co., 65 N. J. Law,
102; Victory _v._ Baker, 67 N. Y. 366; Larmore _v._ Crown Point Iron
Co., 101 N. Y. 391; Sterger _v._ Van Sicklen, 132 N. Y. 499;
Englehardt _v._ Central R. Co., 139 App. Div. 786; McCann _v._
Thilemann, 36 Misc. 145; Monroe _v._ Atlantic R. Co., 151 N. C. 374;
Costello _v._ Farmers’ Bank, 34 N. D. 131; Kelley _v._ City, 41 Ohio
St. 263; Schiffer _v._ Sauer, 238 Pa. St. 550; Lunsford’s
Administrator _v._ Colonial Coal Co., 115 Va. 346 _Accord_.

But see Brinilson _v._ Chicago R. Co., 144 Wis. 614.

_As to liability to children licensees_, see Jansen _v._ Siddal, 41
Ill. App. 279; Cleveland R. Co. _v._ Means, (Ind. App.) 104 N. E. 785;
Benson _v._ Baltimore Traction Co., 77 Md. 535; McCoy _v._ Walsh, 186
Mass. 369; Romana _v._ Boston R. Co., 218 Mass. 76; Bottum _v._ Hawks,
84 Vt. 370.

But see Knapp _v._ Doll, 180 Ind. 526 (citing cases); Wilmes _v._
Chicago R. Co., 175 Ia. 101; Lyttle _v._ Town Coal Co., 167 Ky. 345.

_As to liability where there is a known, permissive, general use by
the public_, see Pomponio _v._ New York R. Co., 66 Conn. 528; Western
R. Co. _v._ Meigs, 74 Ga. 857; Green _v._ Chicago R. Co., 110 Mich.
648; Barry _v._ New York R. Co., 92 N. Y. 289; Taylor _v._ Delaware
Canal Co., 113 Pa. St. 162; Delaney _v._ Milwaukee R. Co., 33 Wis. 67.
Compare Tucker _v._ Draper, 62 Neb. 66.

_Liability in case of gratuitous carriage_: [The judge at the trial in
charging the jury] “suggested that the measure of duty towards a bare
licensee is different, where the licensor accepts the duty of carrying
him, from what it is where he merely permits him to pass through his
premises; and I think the cases support this view.... I think it was
competent for the jury to find, as they must be taken to have found, a
failure of that ordinary care which is due from a person who
undertakes the carriage of another gratuitously. The principle in all
cases of this class is that the care exercised must be reasonable; and
the standard of reasonableness naturally must vary according to the
circumstances of the case, the trust reposed, and the skill and
appliances at the disposal of the person to whom another confides a
duty. There is an obvious difference between the measure of confidence
reposed and responsibility accepted in the case of a person who merely
receives permission to traverse the premises of another, and in the
case where a person or his property is received into the custody of
another for transportation: see in the case of goods, Southcote’s
Case, (1601) 4 Rep. 83 b. cited in Coggs _v._ Bernard, 1 Smith, L. C.,
11th ed., p. 173, and the notes thereto. In the case of persons
received for carriage, PARKE, B., says in Lygo _v._ Newbold, (1854) 9
Ex. 302, at p. 305: ‘A person who undertakes to provide for the
conveyance of another, although he does so gratuitously, is bound to
exercise due and reasonable care.’ In Austin _v._ Great Western Ry.
Co., [1867] 2 Q. B. 442, at p. 445, BLACKBURN, J., says: ‘I think that
what was said in the case of Marshall _v._ York, Newcastle and Berwick
Ry. Co., (1851) 11 C. B. 655, was quite correct. It was there laid
down that the right which a passenger by railway has to be carried
safely does not depend on his having made a contract, but that the
fact of his being a passenger casts a duty on the company to carry him
safely.’”

COLLINS, M. R., in Harris _v._ Perry, [1903] 2 K. B. 219, 225, 226.
And see, also, Sington on Negligence, 61, 62. But compare Beard _v._
Klusmeier, 158 Ky. 153.

In the case of a gratuitous loan of a chattel, the lender owes no duty
to the borrower except to give warning of any defects actually known
to the lender. Gagnon _v._ Dana, 69 N. H. 264; Coughlin _v._ Gillison,
[1899] 1 Q. B. 145. “A contract of gratuitous service, however, such
as one of carriage, involves a duty of reasonable care, and must
therefore be distinguished from a contract of gratuitous bailment or a
gift, which does not.” Salmond on Torts, 361.

Footnote 144:

Foster _v._ Portland Min. Co., (C. C. A.) 114 Fed. 613; Central R. Co.
_v._ Robertson, 95 Ga. 430; Chicago R. Co. _v._ Reinhardt, 235 Ill.
576, 139 Ill. App. 53; Indianapolis Water Co. _v._ Harold, 170 Ind.
170; Lawson _v._ Shreveport Waterworks Co., 111 La. 73; Schaaf _v._
St. Louis Basket Co., 151 Mo. App. 35; Furey _v._ New York R. Co., 67
N. J. Law, 270; Fogarty _v._ Bogart, 59 App. Div. 114; Toledo Real
Estate Co. _v._ Putney, 20 Ohio Cir. Ct. Rep. 486; Bush _v._ Johnston,
23 Pa. St. 209 _Accord_. Compare Moffatt _v._ Kenny, 174 Mass. 311.

Footnote 145:

The case is reprinted from the Law Times Reports, except the opinions
of Crompton, J., and Blackburn, J., which are taken from the Weekly
Reporter.

Footnote 146:

The reference should be 25 L. J. (N. S.) or 34 L. J.

Footnote 147:

Felton _v._ Aubrey, 74 Fed. 350; De Haven _v._ Hennessey, (C. C. A.)
137 Fed. 472; Standard Car Co. _v._ McGuire, 161 Fed. 527; Pomponio
_v._ New York R. Co., 66 Conn. 528; Rink _v._ Lowry, 38 Ind. App. 132;
Schmidt _v._ Michigan Coal Co., 159 Mich. 308; Clarkin _v._
Biwabik-Bessemer Co., 65 Minn. 483; Hyatt _v._ Murray, 101 Minn. 507;
Schaaf _v._ St. Louis Basket Co., 151 Mo. App. 35; Knowles _v._ Exeter
Mfg. Co., 77 N. H. 268; Houston R. Co. _v._ Bulger, 35 Tex. Civ. App.
478; Houston R. Co. _v._ O’Leary, (Tex. Civ. App.) 136 S. W. 601
(explosion of car containing fire-works); St. Louis R. Co. _v._
Balthrop, (Tex. Civ. App.) 167 S. W. 246; Hoadley _v._ International
Paper Co., 72 Vt. 79 _Accord_.

Illinois R. Co. _v._ Godfrey, 71 Ill. 500; Cunningham _v._ Toledo R.
Co., 260 Ill. 589; Dixon _v._ Swift, 98 Me. 207; O’Brien _v._ Union R.
Co., 209 Mass. 449 _Contra_. See also Fox _v._ Warner Asphalt Co., 204
N. Y. 240; Roche _v._ American Ice Co., 140 App. Div. 341; Rosenthal
_v._ United Beef Co., 52 Misc. 166. Compare Knight _v._ Lanier, 69
App. Div. 454.

Footnote 148:

Statement abridged.

Footnote 149:

Corby _v._ Hill, 4 C. B. N. S. 556; Rooney _v._ Woolworth, 78 Conn.
167; Graves _v._ Thomas, 95 Ind. 361; Penso _v._ McCormick, 125 Ind.
116; Morrison _v._ Carpenter, 179 Mich. 207; Wheeler _v._ St. Joseph
Stock Yards Co., 66 Mo. App. 260 _Accord_. Compare Ellsworth _v._
Metheney, (C. C. A.) 104 Fed. 119; Cahill _v._ Stone, 153 Cal. 571;
Martin _v._ Louisville Bridge Co., 41 Ind. App. 493; Quigley _v._
Clough, 173 Mass. 429; Phillips _v._ Library Co., 55 N. J. Law, 307;
Beck _v._ Carter, 68 N. Y. 283; Hanson _v._ Spokane Valley Land Co.,
58 Wash. 6.

Footnote 150:

Statement and arguments omitted.

Footnote 151:

Farrant _v._ Barnes, 11 C. B. N. S. 553; 31 L. J. (C. P.) 137.

Footnote 152:

And see Bolch _v._ Smith, 7 H. & N. 736; 31 L. J. (Ex.) 201.

Footnote 153:

Bennett _v._ Louisville R. Co., 102 U. S. 577; Alabama Steel Co. _v._
Clements, 146 Ala. 259; Hobart Tie Co. _v._ Keck, 89 Ark. 122; Whitney
_v._ New York R. Co., 87 Conn. 623; Christopher _v._ Russell, 63 Fla.
191; Southern Express Co. _v._ Williamson, 66 Fla. 286; Horton _v._
Harvey, 119 Ga. 219; Latham _v._ Roach, 72 Ill. 179; Spry Lumber Co.
_v._ Duggan, 182 Ill. 218; Calvert _v._ Springfield Electric Co., 231
Ill. 290; Laurie _v._ McCullough, 174 Ind. 477; Young _v._ People’s
Gas Co., 128 Ia. 290; Anderson _v._ Hair, 103 Ky. 196; Carleton _v._
Franconia Iron Co., 99 Mass. 216; McDermott _v._ Sallaway, 198 Mass.
517; Marston _v._ Reynolds, 211 Mass. 590; Jacobsen _v._ Simons, 217
Mass. 194; Samuelson _v._ Cleveland Iron Co., 49 Mich. 164; Donaldson
_v._ Wilson, 60 Mich. 86; Pelton _v._ Schmidt, 104 Mich. 345; Nash
_v._ Minneapolis Mill Co., 24 Minn. 501; Emery _v._ Minneapolis
Exposition, 56 Minn. 460; Kean _v._ Schoening, 103 Mo. App. 77; Shaw
_v._ Goldman, 116 Mo. App. 332; Montague _v._ Hanson, 38 Mont. 376;
Land _v._ Fitzgerald, 68 N. J. Law, 28; Smith _v._ Jackson, 70 N. J.
Law, 183; Ackert _v._ Lansing, 59 N. Y. 646; Weller _v._ Consolidated
Gas Co., 198 N. Y. 98; Wilson _v._ Olano, 28 App. Div. 448; Withers
_v._ Brooklyn Exchange, 106 App. Div. 255; Higgins _v._ Ruppert, 124
App. Div. 530; Massey _v._ Seller, 45 Or. 267; Newingham _v._ Blair,
232 Pa. St. 511; Freer _v._ Cameron, 4 Rich. Law, 228; League _v._
Stradley, 68 S. C. 515; Richmond R. Co. _v._ Moore, 94 Va. 493; Smith
_v._ Parkersburg Ass’n, 48 W. Va. 232; Landry _v._ Great Northern R.
Co., 152 Wis. 379 _Accord_.

_As to child accompanying invitee_: see Butler _v._ Chicago R. Co.,
155 Mo. App. 287.

_Liability to children invitees_: see Miller _v._ Peck Dry Goods Co.,
104 Mo. App. 609; Houck _v._ Chicago R. Co., 116 Mo. App. 559.

_Liability where plaintiff departs from or goes beyond the permission
or invitation_: New York Oil Co. _v._ Pusey, 211 Fed. 622; Louisville
R. Co. _v._ Sides, 129 Ala. 399; First Nat. Bank _v._ Chandler, 144
Ala. 286; Coberth _v._ Great Atlantic Co., 36 App. D. C. 569;
Etheredge _v._ Central R. Co., 122 Ga. 853; Bennett _v._ Butterfield,
112 Mich. 96; Hutchinson _v._ Cleveland Iron Co., 141 Mich. 346; Trask
_v._ Shotwell, 41 Minn. 66; Ryerson _v._ Bathgate, 67 N. J. Law, 337;
Gilfillan _v._ German Hospital, 115 App. Div. 48; Castoriano _v._
Miller, 15 Misc. 254; Weaver _v._ Carnegie Steel Co., 223 Pa. St. 238;
Hagan _v._ Delaware Steel Co., 240 Pa. St. 222; Pierce _v._ Whitcomb,
48 Vt. 127; Peake _v._ Buell, 90 Wis. 508; Lehmann _v._ Amsterdam
Coffee Co., 146 Wis. 213.

But compare Pauckner _v._ Wakem, 231 Ill. 276.

_Use for purpose not intended by owner or occupier_: Thiele _v._
McManus, 3 Ind. App. 132; Smith _v._ Trimble, 111 Ky. 861; Ferguson
_v._ Ferguson, (Ky.) 114 S. W. 297; Speicher _v._ New York Tel. Co.,
60 N. J. Law, 242, 59 N. J. Law, 23; Clark _v._ Fehlhaber, 106 Va.
803. See also Urban _v._ Focht, 231 Pa. St. 623.

_Invitee of licensee_: see Brehmer _v._ Lyman, 71 Vt. 98.

In Cox _v._ Coulson, [1916] 2 K. B. 177, a spectator in a theatre was
injured by the discharge of a pistol during a performance. Bankes, L.
J., said: “It seems to me obvious that the duty of the invitor in a
case like the present is not only confined to the state of the
premises, using that expression as extending to the structure merely.
The duty must to some extent extend to the performance given in the
structure, because the performance may be of such a kind as to render
the structure an unsafe place to be in whilst the performance is going
on, or it may be of such a kind as to render the structure unsafe
unless some obvious precaution is taken. As an illustration under the
latter head I would instance a case where a tight-rope dancer performs
on a rope stretched over the heads of the audience. In such a case the
provision of a net under the rope to protect the audience in case the
performer fell seems so obvious a precaution to take that in the
absence of it the premises could not be said to be reasonably safe. In
the present case the performance was one which included a discharge of
pistols loaded with blank ammunition as one of the incidents. If the
pistols had been properly loaded, it is difficult to see that the
incident exposed any member of the audience in any ordinarily
constructed theatre to any danger. On the other hand, if any one of
the pistols was not properly loaded, what would otherwise be a safe
performance became an exceedingly dangerous one, and any part of the
auditorium might be rendered an extremely unsafe place to be in.
Whether the circumstances were such that any negligence or want of
proper care can be attributed to the appellant in relation to the
loading of the pistol or in relation to the ammunition supplied for
that purpose has not been investigated, and I do not think that
justice can be done between the parties until this is done.”

Footnote 154:

These notices read as follows: “All persons riding on this elevator do
so at their own risk.”

Footnote 155:

Craney _v._ Union Stockyards Co., 240 Ill. 602; Kentucky Distilleries
Co. _v._ Leonard, (Ky.) 79 S. W. 281 _Accord_. But see Burns _v._
Boston R. Co., 183 Mass. 96; Pike _v._ Boston R. Co., 192 Mass. 426.

Footnote 156:

Statement rewritten. Only so much of the case is given as relates to a
single point. The passage in quotation marks is taken from the report
of this case in 67 Northeastern Reporter, 863.

Footnote 157:

Bell _v._ Central Nat. Bank, 28 App. D. C. 580; Connolly _v._ Des
Moines Inv. Co., 130 Ia. 633; Branham _v._ Buckley, 158 Ky. 848;
Schnatterer _v._ Bamberger, 81 N. J. Law. 558 _Accord_.

Footnote 158:

Washington Market Co. _v._ Clagett, 19 App. D. C. 12; Woods _v._
Trinity Parish, 21 D. C. 540; Nave _v._ Flack, 90 Ind. 205; Ford _v._
Crigler, (Ky.) 74 S. W. 661; Perrine _v._ Union Stockyards Co., 81
Neb. 790; Kenny _v._ Hall Realty Co., 85 Misc. 439; Glase _v._ City,
169 Pa. St. 488 _Accord_. Compare Larson _v._ Red River Transportation
Co., 111 Minn. 427; Eisenberg _v._ Missouri R. Co., 33 Mo. App. 85;
Henkel _v._ Murr, 31 Hun, 28; Alperin _v._ Earle, 55 Hun, 211.

Footnote 159:

Moone _v._ Smith, 6 Ga. App. 649; Mastad _v._ Swedish Brethren, 83
Minn. 40; Rommel _v._ Schambacher, 120 Pa. St. 579 _Accord_.

But compare Woolworth _v._ Conboy, 170 Fed. 934; Lord _v._ Sherer Co.,
205 Mass. 1.

Footnote 160:

Jones _v._ New York R. Co., 211 Mass. 521; De Boer _v._ Brooklyn Wharf
Co., 51 App. Div. 289 _Accord_. Compare Hillman _v._ Boston R. Co.,
207 Mass. 478.

This case is often cited as though it decided that the defendant was
liable to the plaintiff for harm suffered by the plaintiff on account
of a defect in the premises; _e. g._, defective planks on the
crossing. For a more correct view of the real question involved see
the able argument of Mr. Thorndike in Stevens _v._ Nichols, _post_.

_Liability of owner or occupier of a place manifestly intended for
public or general use_: see Crogan _v._ Schiele, 53 Conn. 186; Howe
_v._ Ohmart, 7 Ind. App. 32; Davis _v._ Central Congregational
Society, 129 Mass. 367; Holmes _v._ Drew, 151 Mass. 578; Gordon _v._
Cummings, 152 Mass. 513; Kelly _v._ Southern R. Co., 28 Minn. 98;
Marsh _v._ Minneapolis Brewing Co., 92 Minn. 182; Rachmel _v._ Clark,
205 Pa. St. 314.

_Liability of owner or occupier who passively acquiesces in use by
others_: see White _v._ France, 2 C. P. D. 308; Alabama R. Co. _v._
Godfrey, 156 Ala. 202; Herzog _v._ Hemphill, 7 Cal. App. 116;
Pastorello _v._ Stone, 89 Conn. 286; Etheredge _v._ Central R. Co.,
122 Ga. 853; Nave _v._ Flack, 90 Ind. 205; Evansville R. Co. _v._
Griffin, 100 Ind. 221; Martin _v._ Louisville Bridge Co., 41 Ind. App.
493; Zoebisch _v._ Tarbell, 10 Allen, 385; Bowler _v._ Pacific Mills,
200 Mass. 364; Habina _v._ Twin City Electric Co., 150 Mich. 41; Moore
_v._ Wabash R. Co., 84 Mo. 481, 488; Kelly _v._ Benas, 217 Mo. 1;
Barry _v._ Calvary Cemetery Assn., 106 Mo. App. 358; Walsh _v._
Fitchburg R. Co., 145 N. Y. 301; Fox _v._ Warner Asphalt Co., 204 N.
Y. 340; Monroe _v._ Atlantic R. Co., 151 N. C. 374; Phillips _v._ Orr,
152 N. C. 583; Railroad Co. _v._ Harvey, 77 Ohio St. 235; Breckenridge
_v._ Bennett, 7 Kulp (Pa.) 95.

Footnote 161:

The report in 155 Mass. 472 does not give any portion of the
arguments. The following passages are extracts from the printed brief
for the defendants.

Footnote 162:

Smith _v._ London Docks Co., L. R. 3 C. P. 326; Holmes _v._
Northeastern R. Co., L. R. 4 Ex. 254, L. R. 6 Ex. 123; Wright _v._
London R. Co., L. R. 10 Q. B. 298, 1 Q. B. D. 252; Berlin Mills _v._
Croteau, (C. C. A.) 88 Fed. 860; Smith _v._ Day, (C. C. A.) 100 Fed.
244; Currier _v._ Trustees, (C. C. A.) 117 Fed. 44; Rhode _v._ Duff,
(C. C. A.) 208 Fed. 115; Middleton _v._ Ross, (C. C. A.) 213 Fed. 6;
Alabama R. Co. _v._ Godfrey, 156 Ala. 202; Schmidt _v._ Bauer, 80 Cal.
565; Herzog _v._ Hemphill, 7 Cal. App. 116; Pauckner _v._ Wakem, 231
Ill. 276; Franey _v._ Union Stockyards Co., 235 Ill. 522, 138 Ill.
App. 215; Purtell _v._ Coal Co., 256 Ill. 110; Northwestern R. Co.
_v._ O’Malley, 107 Ill. App. 599; Deach _v._ Woolner, 187 Ill. App.
524; Faris _v._ Hoberg, 134 Ind. 269; Baltimore R. Co. _v._ Slaughter,
167 Ind. 330; Thiele _v._ McManus, 3 Ind. App. 132; Wilmes _v._
Chicago R. Co., 175 Ia. 101; Lackat _v._ Lutz, 94 Ky. 287; Smith _v._
Trimble, 111 Ky. 861; Kentucky Distilleries Co. _v._ Leonard, (Ky.) 79
S. W. 281; Bell _v._ Houston R. Co., 132 La. 88; Dixon _v._ Swift, 98
Me. 207; Patten _v._ Bartlett, 111 Me. 409; Elie _v._ Lewiston R. Co.,
112 Me. 178; Plummer _v._ Dill, 156 Mass. 426; Gauley _v._ Hall, 168
Mass. 513; Cowen _v._ Kirby, 180 Mass. 504; Norris _v._ Nawn
Contracting Co., 206 Mass. 58; Lepnick _v._ Gaddis, 72 Miss. 200;
Glaser _v._ Rothschild, 221 Mo. 180; Davis _v._ Ringolsky, 143 Mo.
App. 364; Bryant _v._ Missouri R. Co., 181 Mo. App. 189; True _v._
Meredith Creamery, 72 N. H. 154; Flanagan _v._ Atlantic Asphalt Co.,
37 App. Div. 476; Buchtel College _v._ Martin, 25 Ohio Cir. Ct. R.
494; Smith _v._ Sunday Creek Co., 74 W. Va. 606; Ross _v._ Kanawha R.
Co., 76 W. Va. 197; Hupfer _v._ National Distilling Co., 114 Wis. 279;
Muench _v._ Heinemann, 119 Wis. 441 _Accord_. See also Blossom _v._
Poteet, 104 Tex. 230 (wife bringing husband’s dinner to mill where he
was employed); Southwestern Cement Co. _v._ Bustillos, (Tex. Civ.
App.) 169 S. W. 638 (child bringing lunch to employee).

But compare Mandeville Mills _v._ Dale, 2 Ga. App. 607; Furey _v._ New
York Central R. Co., 67 N. J. Law, 270; Gorr _v._ Mittlestaedt, 96
Wis. 296.

Footnote 163:

That is, 155 Mass.

Footnote 164:

McClain _v._ Bank, 100 Me. 437; Moffatt _v._ Kenny, 174 Mass. 311
_Accord_.

Hanson _v._ Spokane Water Co., 58 Wash. 6 _Contra_. Compare Buckingham
_v._ Fisher, 70 Ill. 121.

_Liability to one who has business with an abutting owner who has a
right to use the way_: see Cavanagh _v._ Block, 192 Mass. 63.

_As to what constitutes an implied invitation_, see Bryan _v._
Stewart, 194 Ala. 353; Baltimore R. Co. _v._ Slaughter, 167 Ind. 330;
Pittsburgh R. Co. _v._ Simons, 168 Ind. 333; Stanwood _v._ Clancey,
106 Me. 72; Kalus _v._ Bass, 122 Md. 467; Walker _v._ Winstanley, 155
Mass. 301; Plummer _v._ Dill, 156 Mass. 426; Chenery _v._ Fitchburg R.
Co., 160 Mass. 211; Tracey _v._ Page, 201 Mass. 62; Shaw _v._ Ogden,
214 Mass. 475; Romana _v._ Boston R. Co., 218 Mass. 76; Allen _v._
Yazoo R. Co., 111 Miss. 267; Black _v._ Central R. Co., 85 N. J. Law,
197; Heskell _v._ Auburn Light Co., 209 N. Y. 86.

Footnote 165:

The statement has been much abridged.

Footnote 166:

Anderson _v._ Robinson, 182 Ala. 615; Hedskin _v._ Gillespie, 33 Ind.
App. 650; Shackford _v._ Coffin, 95 Me. 69; Rolfe _v._ Tufts, 216
Mass. 563; Brady _v._ Klein, 133 Mich. 422; Korach _v._ Loeffel, 168
Mo. App. 414 (but see Graff _v._ Lemp Brewing Co., 130 Mo. App. 618;
Marcheck _v._ Klute, 133 Mo. App. 280); Dustin _v._ Curtis, 74 N. H.
266; Schick _v._ Fleischhauer, 26 App. Div. 210; Stelz _v._ Van Dusen,
93 App. Div. 358; Kushes _v._ Ginsberg, 99 App. Div. 417; Boden _v._
Scholtz, 101 App. Div. 1; Mitchell _v._ Stewart, 187 Pa. St. 217;
Davis _v._ Smith, 26 R. I. 129 _Accord_. See also Clyne _v._ Helmes,
61 N. J. Law, 358. Compare Miles _v._ Janvrin, 196 Mass. 431, 200
Mass. 514; Flanagan _v._ Welch, 220 Mass. 186.

Sontag _v._ O’Hare, 73 Ill. App. 432; Schwandt _v._ Metzger Oil Co.,
93 Ill. App. 365 (but see Cromwell _v._ Allen, 151 Ill. App. 404);
Good _v._ Von Hemert, 114 Minn. 393; Glidden _v._ Goodfellow, 124
Minn. 101; Keegan _v._ Heileman Brewing Co., 129 Minn. 496; Merchants
Cotton Press Co. _v._ Miller, 135 Tenn. 187; Lowe _v._ O’Brien, 77
Wash. 677 _Contra_. See Moore _v._ Steljes, 69 Fed. 518.

_Liability where landlord makes repairs negligently_: see Mann _v._
Fuller, 63 Kan. 664; Gill _v._ Middleton, 105 Mass. 477; Thomas _v._
Lane, 221 Mass. 447; Finer _v._ Nichols, 175 Mo. App. 525; Carlon _v._
City Sav. Bank, 85 Neb. 659; Wynne _v._ Haight, 27 App. Div. 7;
Marston _v._ Frisbie, 168 App. Div. 666; Flam _v._ Greenberg, (App.
Div.) 158 N. Y. Supp. 670; Wilcox _v._ Hines, 100 Tenn. 538.

Footnote 167:

See Hutchinson _v._ The Newcastle, York, & Berwick Railway Company, 5
Exch. 343; Wiggett _v._ Fox, 11 Exch. 832.—Reporter’s Note.

Footnote 168:

Whether the result in the above case is correct is a question not yet
decided in most of the United States, and upon which conflicting
opinions have been expressed. See Hart _v._ Cole, 156 Mass. 475;
KNOWLTON, J., in Coupe _v._ Platt, 172 Mass. 458, 459; Bigelow on
Torts, 7th ed., pp. 362, 363, sections 740–743, 8th ed., p. 158;
Burdick on Torts, 3d ed., sect. 555; 2 Shearman & Redfield on
Negligence, 4th ed., sect. 706; Barman _v._ Spencer, (Ind.) 49 N. E.
9, 11, 12; Beard _v._ Klusmeier, 158 Ky. 153; Land _v._ Fitzgerald, 68
N. J. Law, 28.

Footnote 169:

Pennebaker _v._ San Joaquin Light Co., 158 Cal. 579; Lunt _v._ Post
Printing Co., 48 Col. 316; Gibson _v._ Leonard, 143 Ill. 182, 37 Ill.
App. 344; Thrift _v._ Vandalia R. Co., 145 Ill. App. 414; Woodruff
_v._ Bowen, 136 Ind. 431; Hamilton _v._ Minneapolis Desk Co., 78 Minn.
3; New Omaha Electric Light Co. _v._ Anderson, 73 Neb. 84; Woods _v._
Miller, 30 App. Div. 232; Eckes _v._ Stetler, 98 App. Div. 76; Houston
R. Co. _v._ O’Leary, (Tex. Civ. App.) 136 S. W. 601 _Accord_. But see
Wilson _v._ Great Southern Tel. Co., 41 La. Ann. 1041.

_Liability to police officer or other person in by permission of law_:
see Casey _v._ Adams, 234 Ill. 350; Eckels _v._ Maher, 137 Ill. App.
45; Blatt _v._ McBarron, 161 Mass. 21; Racine _v._ Morris, 136 App.
Div. 467; Woods _v._ Lloyd, (Pa.) 16 Atl. 43; Burroughs Adding Machine
Co. _v._ Fryar, 132 Tenn. 612; Greenville _v._ Pitts, 102 Tex. 1.

But compare Kennedy _v._ Heisen, 182 Ill. App. 200; Parker _v._
Barnard, 135 Mass. 116; Learoyd _v._ Godfrey, 138 Mass. 315; Pickwick
_v._ McCauliff, 193 Mass. 70.

_Liability to volunteer salvor in case of fire_: see Kohn _v._ Lovett,
44 Ga. 251; Gibson _v._ Leonard, 143 Ill. 182.

_Liability to person who has contractual right to inspect the
premises_: see Dashields _v._ Moses, 35 App. D. C. 583.

Footnote 170:

The authorities on all sides of the question raised in this cause are
collected and discussed in the cases that follow. See also Pollock,
Torts, 6 ed., 496–497; Piggott, Torts, 231–232; 1 Jaggard, Torts,
904–909; Clerk & Lindsell, Torts, 6 ed., 511–522; Salmond, Torts, 4
ed., 415–424; Bohlen, Affirmative Obligations in the Law of Torts, 44
Am. Law Reg. 341.

Footnote 171:

The statement of facts by the reporter is omitted.

Footnote 172:

The statement of facts is omitted.

Footnote 173:

Arguments omitted.

Footnote 174:

See an elaborate criticism of George _v._ Skivington, L. R. 5 Ex. 1,
in Blacker _v._ Lake, 106 Law Times Rep. (N. S.) 533, 537.

Footnote 175:

_Liability of abstracter to third party_ injured by mistake or
omission in abstract of title: see Thomas _v._ Guarantee Title & Trust
Co., 81 Ohio St. 432; Bremerton Development Co. _v._ Title Trust Co.,
67 Wash. 268.

_Liability of water company to injured citizen_ where it has failed to
provide water for extinguishment of fires according to its contract
with the municipality: see Sunderland, Liability of Water Companies
for Fire Losses, 3 Mich. Law Rev. 442; Kales, Liability of Water
Companies for Fire Losses—Another View, 3 Mich. Law Rev. 501; note in
19 Green Bag, 129–133.

Footnote 176:

Part of case omitted; also arguments.

On the subject of this section the student may read profitably,
Bohlen, Contributory Negligence, 21 Harvard Law Rev. 233; Clark, Tort
Liability for Negligence in Missouri, Bull. of Univ. of Mo. Law
Series, No. 12, pp. 25–43.

Footnote 177:

1 Q. B. 29, 36.

Footnote 178:

Chicago R. Co. _v._ Levy, 160 Ill. 385; Toledo R. Co. _v._ Brannagan,
75 Ind. 490; Cincinnati R. Co. _v._ Butler, 103 Ind. 31 (but changed
in case of injuries to the person, Acts of 1899, p. 58, Burns’ Ann.
St. § 362); Greenleaf _v._ Illinois R. Co., 29 Ia. 14 (but changed in
case of actions against a common carrier, Suppl. to the Code, 1913, §
3593 _a_); Brown _v._ Illinois R. Co., 123 Ia. 239; Dickey _v._ Maine
Tel. Co., 43 Me. 492; Planz _v._ Boston R. Co., 157 Mass. 377 (but
changed by Acts of 1914, ch. 553); Mynning _v._ Detroit R. Co., 67
Mich. 677; Curran _v._ Warren Chemical Mfg. Co., 36 N. Y. 153; City
_v._ Nix, 3 Okl. 136; Bovee _v._ Danville, 53 Vt. 183 _Accord_.

_Contra_, contributory negligence an affirmative defence: Inland
Coasting Co. _v._ Tolson, 139 U. S. 551; Montgomery Gaslight Co. _v._
Montgomery R. Co., 86 Ala. 372; Texas R. Co. _v._ Orr, 46 Ark. 182;
Atchison _v._ Wills, 21 App. D. C. 548; MacDougall _v._ Central R.
Co., 63 Cal. 431; Moore _v._ Lanier, 52 Fla. 353; City _v._ Hudson, 88
Ga. 599; Hopkins _v._ Utah R. Co., 2 Idaho, 300; St. Louis R. Co. _v._
Weaver, 35 Kan. 412; Hocum _v._ Weitherick, 22 Minn. 152; Buesching
_v._ St. Louis Gaslight Co., 73 Mo. 219; Nelson _v._ City, 16 Mont.
21; O’Brien _v._ Omaha Water Co., 83 Neb. 71; Valley _v._ Concord R.
Co., 68 N. H. 546; New Jersey Exp. Co. _v._ Nichols, 33 N. J. Law 434;
Jordan _v._ City, 112 N. C. 743; Carr _v._ Minneapolis R. Co., 16 N.
D. 217; Grant _v._ Baker, 12 Or. 329; Beatty _v._ Gilmore, 16 Pa. St.
463; Carter _v._ Columbia R. Co., 19 S. C. 20; Houston R. Co. _v._
Cowser, 57 Tex. 293; Richmond Granite Co. _v._ Bailey, 92 Va. 554;
Johnson _v._ Bellingham Imp. Co., 13 Wash. 455; Fowler _v._ Baltimore
R. Co., 18 W. Va. 579; Hoth _v._ Peters, 55 Wis. 405.

Footnote 179:

As to contributory negligence as a bar to an action for damage caused
in part by defendant’s failure to perform a duty imposed on him by
statute, see Bishop, Commentaries on the Written Laws, §§ 117, 117
_a_, § 131, pars. 2, 3, § 134, pars. 3,4, § 139, par. 1; Kelley _v._
Killourey, 81 Conn. 320; Catlett _v._ Young, 143 Ill. 74; Shultz _v._
Griffith, 103 Ia. 150; Hussey _v._ King, 83 Me. 568; Wadsworth _v._
Marshall, 88 Me. 263; Schutt _v._ Adair, 99 Minn. 7; Quimby _v._
Woodbury, 63 N. H. 370; Kilpatrick _v._ Grand Trunk R. Co., 72 Vt.
263.

Footnote 180:

Only so much of the case is given as relates to a single point.

Footnote 181:

Remainder of opinion omitted.

Start, J., in LaFlam _v._ Missisquoi Pulp Company, 74 Vt. 125. 143:
“The defendants, by their second request, asked for an instruction
that if, by the exercise of ordinary care and prudence upon the part
of the plaintiff, he would not have been injured, he cannot recover.
The court instructed the jury, that, if the plaintiff’s want of
ordinary care or his negligence contributed in any material degree to
the happening of the accident, he is not entitled to recover, even
though the defendants were negligent. This was in accordance with the
rule as it has sometimes been stated by this court. In Magoon _v._
Boston & Maine R. R. Co., 67 Vt. 184, 31 Atl. 156, and in Hill _v._
New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, if the
negligence or carelessness of the person injured contributes in any
material degree to the production of the injury complained of, he
cannot recover; but in Reynolds _v._ Boston & Maine R. R. Co., 64 Vt.
66, 24 Atl. 134, 33 Am. St. Rep. 908, the holding is that, if the
negligence of the plaintiff contributes in the _least_ degree to the
accident, there can be no recovery. We think this is the correct rule,
and that the instruction should have conformed to it. The use of the
word ‘material’ left the jury at liberty to consider the degree of the
plaintiff’s negligence, which is not considered permissible in
jurisdictions where the doctrine of contributory negligence prevails.
To allow jurors to consider so-called degrees of negligence would, in
effect, nullify this doctrine. 7 Am. & Eng. Enc. Law, (2d ed.) 379.”

“Negligence contributing as an efficient cause of injury will defeat
an action therefor, irrespective of the quantum of negligence of the
respective parties.” Jaggard, J., in O’Brien _v._ St. Paul City R.
Co., 98 Minn. 205, 207–208.

“An effect often has many proximate, and many remote, causes. If the
negligence of the plaintiff was one of the proximate causes of the
injury,—if it directly contributed to the unfortunate result,—he
cannot recover, even though the negligence of the defendant also
contributed to it.” Sanborn, J., in Missouri Pac. R. Co. _v._ Moseley,
57 Fed. 921, 925.

“While purporting to give a legal definition of contributory
negligence, this instruction demands that such negligence shall be
found the sole and direct cause of the accident—an interpretation at
war with the term ‘contributory’ itself.” Reyburn, J., in Hanheide
_v._ St. Louis Transit Co., 104 Mo. App. 323, 330.

“... if it appears that his [plaintiff’s] negligence has contributed
as an efficient cause to the injury of which he complains, the court
will not undertake to balance the negligence of the respective parties
for the purpose of determining which was most at fault. The law
recognizes no gradations of fault in such case, and where both parties
have been guilty of negligence, as a general rule, there can be no
recovery. There is really no distinction between negligence in the
plaintiff and negligence in the defendant, except that the negligence
of the former is called ‘contributory negligence.’” Whittle, J., in
Richmond Traction Co. _v._ Martin’s Adm’r, 102 Va. 209, 213.

“... there was a lack of ordinary care on his [the deceased’s] part,
and where this occurs, contributing proximately to the injury, this
lack will prevent a recovery, though the negligence of the other party
may have much more contributed thereto.” Beard, C. J., in Memphis Gas
& Electric Co. _v._ Simpson, (Tenn.) 109 S. W. 1155, 1158.

American Woolen Co. _v._ Stewart, (C. C. A.) 217 Fed. 1; Birmingham R.
Co. _v._ Bynum, 139 Ala. 389; St. Louis R. Co. _v._ Musgrove, 113 Ark.
599; Denver R. Co. _v._ Maydole, 33 Col. 150; Robinson _v._ Huber,
(Del.) 63 Atl. 873; O’Keefe _v._ Chicago R. Co., 32 Ia. 467;
Pennsylvania R. Co. _v._ Roney, 89 Ind. 453; Atchison R. Co. _v._
Henry, 57 Kan. 154; Mann _v._ City, 154 Ky. 154; Marble _v._ Ross, 124
Mass. 44; Mynning _v._ Detroit R. Co., 59 Mich. 257; Hurt _v._ St.
Louis R. Co., 94 Mo. 255; Village _v._ Holliday, 50 Neb. 229;
Pennsylvania R. Co. _v._ Righter, 42 N. J. Law, 180; St. Louis R. Co.
_v._ Elsing, 37 Okl. 333; Weaver _v._ Pennsylvania R. Co., 212 Pa. St.
632; Weir _v._ Haverford Electric Co., 221 Pa. St. 611; McLean _v._
Atlantic R. Co., 81 S. C. 100; McDonald _v._ International R. Co., 86
Tex. 1; Hazen _v._ Rutland R. Co., 89 Vt. 94; Chesapeake R. Co. _v._
Lee, 84 Va. 642; Franklin _v._ Engel, 34 Wash. 480; Tesch _v._
Milwaukee R. Co., 108 Wis. 593 _Accord_.

Footnote 182:

“The doctrine of comparative negligence no longer exists in this
state.” Wilkin, J., in City _v._ Holcomb, 205 Ill. 643, 646.

“The intrinsic difficulty of the subject of contributory negligence
has led to three distinct lines of decisions. In England and a
majority of the States of the Union, the negligence of the plaintiff
which contributes to the injury is held to be an absolute bar to the
action. In the States of Illinois and Georgia the doctrine of
comparative negligence has been adopted, that is, if on comparing the
negligence of the plaintiff with that of the defendant, the former is
found to be slight and the latter gross, the plaintiff may recover. In
this State we hold that although the injured party may contribute to
the injury by his own carelessness or wrongful conduct, yet if the act
or negligence of the party inflicting the injury was the proximate
cause of the injury, the latter will be liable in damages, the
negligence or wrongful conduct of the party injured being taken into
consideration, by way of mitigation, in estimating the damages. In
other words, if defendant was guilty of a wrong by which plaintiff is
injured, and plaintiff was also in some degree negligent or
contributed to the injury, it should go in mitigation of damages, but
cannot justify or excuse the wrong. East Tennessee, Virginia & Georgia
Railroad Company _v._ Fain, 12 Lea, 35. At the same time we hold that
if a party by his own gross negligence bring an injury upon himself,
or proximately contribute to such injury, he cannot recover; neither
can he recover in cases of mutual negligence where both parties are
equally blamable. Id. The principal difference between our rule and
the English rule, as modified by the more recent decisions, is in
allowing the damages to be mitigated by the conduct of the injured
party. In this respect our rule meets the objection which Mr.
Thompson, in his notes on contributory negligence, makes to the
construction put by some of the courts on the English rule, or to the
application of the rule in particular cases. ‘It is,’ he says,
‘nothing more than a declaration that although both parties have been
guilty of negligence contributing to the injury, the party who
suffered the damage is to be completely exonerated, and the other
party is not to be exonerated to any extent; the former is to recover
of the latter without any abatement on account of his own share of the
fault, all the damages which he has suffered.’ ‘This is,’ he adds,
‘manifest injustice; and yet it is practiced every day in the courts
of England and in those of nearly every State in the Union.’ 2
Thompson on Neg. 1155. Our rule, moreover, is merely an adaptation of
the law which prevails in civil actions for assault and battery, where
the conduct of the plaintiff in the way of provocation is always
admissible in evidence to mitigate the damages. Jackaway _v._ Dula, 7
Yer. 82; Chambers _v._ Porter, 5 Cold. 273, 280; Suth. on Dam. 745.”
Cooper, J., in Louisville R. Co. _v._ Fleming, 14 Lea, (Tenn.) 128,
135. But see Southern R. Co. _v._ Pugh, 97 Tenn. 624.

Footnote 183:

This refers to § 8657: “Every common carrier by railroad while
engaging in commerce between any of the several States or Territories,
or between the District of Columbia and any of the States or
Territories, or between the District of Columbia or any of the States
or Territories and any foreign nation or nations....”

Footnote 184:

See also Florida, Comp. L., 1914, § 3149; Georgia, Park’s Annotated
Code, 1914, §§ 2781 (2332), 2783; Iowa, Supplement to Code, 1913, §
2071; Kansas, Laws of 1911, ch. 239, § 2; Maine, Pub. L. 1910, c. 258,
§ 4; Mississippi, Laws of 1910, c. 135; Nebraska, Rev. St. 1915, §§
6054, 7892; Nevada, Rev. L. § 5651 (employees in mines); Ohio, Page &
Adams, Ann. Gen. Code, §§ 6245–1, 9018; South Dakota, Laws of 1907, c.
219, § 2; Texas, McEachin’s Civ. St. art. 6649; Virginia, Acts of
1916, ch. 444, § 2; Wisconsin, Stat. 1915, ch. 87, § 1816 (3).

Compare Arkansas, Kirby’s Dig. § 6654; Illinois, R. S. c. 114, § 231;
Indiana, Burns’ Ann. St. § 5277 _c_; Missouri, R. S. (1909) §§ 3164,
3172.

Footnote 185:

American Workmen’s Compensation Acts often provide that if the
employer does not elect to act under the statute, he shall be liable
to an action at law by the injured employee in which contributory
negligence shall be no defence. See, for example, Ohio, Page & Adams,
Annotated Gen. Code, § 1465–60.

Footnote 186:

Portions of opinion omitted. Argument for appellant omitted.

Footnote 187:

PLANIOL, TRAITÉ ÉLÉMENTAIRE DE DROIT CIVIL (6 ed.) II, § 899: “It
frequently happens that one who suffers damage through the fault of
another is not himself exempt from all fault; he has concurred in the
accident and shares responsibility therefor with the other. In this
case there is what we call in practice _faute commune_. This community
of fault diminishes the responsibility of the principal author of
damage who now only owes a partial reparation.”

GERMAN CIVIL CODE, § 254: “If any fault of the injured party has
contributed in causing the injury, the obligation to compensate the
injured party and the extent of the compensation to be made depends
upon the circumstances, especially upon how far the injury has been
caused chiefly by the one or the other party.

“This applies also even if the fault of the injured party consisted
only in an omission to call the attention of the debtor to the danger
of an unusually serious injury which the debtor neither knew nor ought
to have known, or in an omission to avert or mitigate the injury....”

[The word “debtor” is used here in the Roman sense, meaning the person
bound in any sort of obligation—here the delictual obligation to make
reparation for an injury due to fault.]

Footnote 188:

See The Drumlanrig, [1911] A. C. 16; Steamship Devonshire _v._ Barge
Leslie, [1912] A. C. 634; St. Louis Packet Co. _v._ Murray, 144 Ky.
815. But compare Murphy _v._ Diamond, 3 La. Ann. 441; New York Towboat
Co. _v._ New York R. Co., 148 N. Y. 574; Union Steamship Co. _v._
Nottingham, 17 Grat. 115.

Footnote 189:

The book cites Carth. 194 and 451 in the margin, which references do
not bear on the point here in question.—Reporter’s note.

Footnote 190:

The usual mode of citation is 1 Q. B.

Footnote 191:

“The other instruction was in these words: ‘There is another
qualification of this rule of negligence, which it is proper I should
mention. Although the rule is that, even if the defendant be shown to
have been guilty of negligence, the plaintiff cannot recover if he
himself be shown to have been guilty of contributory negligence which
may have had something to do in causing the accident; yet the
contributory negligence on his part would not exonerate the defendant,
and disentitle the plaintiff from recovering, if it be shown that the
defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the plaintiff’s negligence.’

“The qualification of the general rule, as thus stated, is supported
by decisions of high authority, and was applicable to the case on
trial.” Gray, J., in Inland Coasting Co. _v._ Tolson, 139 U. S. 551,
558.

“Although the defendant’s negligence may have been the primary cause
of the injury complained of, yet an action for such injury cannot be
maintained if the proximate and immediate cause of the injury can be
traced to the want of ordinary care and caution in the person injured;
subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies _v._ Mann, 10 M. & W. 546)
that the contributory negligence of the party injured will not defeat
the action if it be shown that the defendant might, by the exercise of
reasonable care and prudence, have avoided the consequences of the
injured party’s negligence.” Lamar, J., in Grand Trunk R. Co. _v._
Ives, 144 U. S. 408, 429.

Footnote 192:

The statement of facts and portions of the opinion are omitted.

Footnote 193:

174 U. S. 379.

Footnote 194:

The statement of facts is condensed, and the arguments of counsel and
part of the opinion are omitted.

Footnote 195:

Only a portion of the opinion is printed.

Footnote 196:

The statement of facts is abridged from the statement in the opinion
and from the statement made by the reporter. The citations of counsel
are omitted.

Footnote 197:

“... The wagon so loaded coming to the bridge and being unable to pass
underneath it, the train stopped, and those who had charge of it,
without looking to ascertain the cause of the stoppage, gave momentum
to the engine to such an extent that the wagon with its load knocked
the bridge down.” Statement of facts in opinion of Bramwell, B., L. R.
9 Exch. 72. Compare statement in L. R. 10 Exch. 102.

Footnote 198:

Printed papers in the case.

Footnote 199:

L. R. 9 Ex. 71.

Footnote 200:

L. R. 10 Ex. 700.

Footnote 201:

Arguments of counsel are omitted.

Footnote 202:

L. R. 9 Ex. at 72.

Footnote 203:

See also Cayzer _v._ Carron, 9 App. Cas. 873; McDermaid _v._ Edinburgh
Tramways Co., 22 Sc. L. R. 13.

Footnote 204:

Only a portion of the opinion is printed.

Footnote 205:

This opinion of CARPENTER, J., was given in the Circuit Court; and was
quoted by MOORE, J., in his dissenting opinion in the Supreme Court.

Footnote 206:

“We shall immediately see, moreover, that independent negligent acts
of A and B may both be proximate in respect of harm suffered by Z,
though either of them, if committed by Z himself, would have prevented
him from having any remedy for the other. Thus it appears that the
term ‘proximate’ is not used in precisely the same sense in fixing a
negligent defendant’s liability and a negligent plaintiff’s
disability.” Pollock, _Torts_, 6th ed. 447.

“... In determining whether the cause of the accident is proximate or
remote, the same test must be applied to the conduct of the injured
party as is to be applied to the defendant. The conduct of the latter
cannot be judged by one rule and that of the former by some other
rule.”—O’BRIEN, J., in Rider _v._ Syracuse R. Co., 171 N. Y. 139, 154.

[An instruction as to the meaning of the word “proximately” intimates]
“that there is a difference between the meaning of the word when
applied to the defendant and when applied to the plaintiff. There is
no such difference. Contributory negligence on the part of the
plaintiff must bear the same proximate relation to the result as the
actionable negligence of the defendant. It need not be the sole cause,
and it may contribute but slightly, but it must be a proximate cause
in the same sense that the defendant’s negligence must be proximate.”
WINSLOW, J., in Boyce _v._ Wilbur Lumber Co., 119 Wis. 642, 649–650.

Footnote 207:

The statement has been abridged and the arguments and part of the
opinion are omitted.

Footnote 208:

Compare Rider _v._ Syracuse R. Co., 171 N. Y. 139.

Footnote 209:

The statement of facts and argument of counsel are omitted.

Footnote 210:

The statement of facts, arguments and parts of the opinions are
omitted.

Footnote 211:

See also Bruggeman _v._ Illinois R. Co., 147 Ia. 187, 204–214;
Anderson _v._ Minneapolis R. Co., 103 Minn. 224; Cavanaugh _v._ Boston
R. Co., 76 N. H. 68; Scholl _v._ Belcher, 63 Or. 310, 323; Underwood
_v._ Old Colony R. Co., 33 R. I. 319. As to the requirement of a “new
act of negligence” see Rider _v._ Syracuse R. Co., 171 N. Y. 139.

Footnote 212:

Statement abridged. Only part of opinion is given.

Footnote 213:

Statement omitted, also a large part of opinion.

Footnote 214:

85 N. C. 310.

Footnote 215:

Statement abridged. Part of opinion omitted.

Footnote 216:

The statement has been abridged and the arguments and part of the
opinion are omitted.

Footnote 217:

See also Weitzman _v._ Nassau R. Co., 33 App. Div. 585; Green _v._
Metropolitan R. Co., 42 App. Div. 160.

Footnote 218:

Statement abridged.

Footnote 219:

In Kierzenkowski _v._ Philadelphia Traction Co., 184 Pa. St. 459, the
plaintiff was a girl three years old, who had been knocked down by one
of defendant’s horse cars. The court (_inter alia_) instructed the
jury, in substance, as follows:—

The law does not allow that children of this age can be guilty of
contributory negligence; but you are obliged to consider the case as
to the negligence alone of the defendant. If you were driving along
the street with your horse and wagon, and a child runs under the feet
of the horses and is killed, you are not responsible; not because the
child is guilty of contributory negligence, but because you are not
guilty of negligence. If it is an unavoidable accident, you are not
responsible. If the jury believe from the evidence in this case that
the child suddenly and unexpectedly appeared in the vicinity of the
track under such circumstances that the driver of the car could not
have discovered its presence in time to avoid the accident, the
verdict must be for the defendant.

An exception to the charge was overruled.

Footnote 220:

Birmingham R. Co. _v._ Brantley, 141 Ala. 614; Baltimore Traction Co.
_v._ Wallace, 77 Md. 435; Lassiter _v._ Raleigh R. Co., 133 N. C. 244;
Memphis R. Co. _v._ Haynes, 112 Tenn. 712 _Accord_.

“Let us view this subject in a more concrete form. The last railroad
statistics I have been able to find were issued by the Interstate
Commerce Commission for the year 1906.

[The learned judge then copies a table from the report referred to and
proceeds.]

It will be observed that while the road mileage and train mileage in
Canada are each ten per cent of the entire road system and the entire
train mileage, the number of trespassers injured or killed in that
country was only three per cent of the total number; while in this
State the road mileage is twenty-six per cent of the total road
mileage and the train mileage twenty-five per cent of the total train
mileage, forty-eight per cent of the total number of trespassers
injured or killed were injured or killed in Missouri.

Illinois has thirty per cent of the road mileage and thirty-two per
cent of the train mileage, and only twenty per cent of the total
number of trespassers injured or killed were injured or killed in that
State.

It is important to know both the train mileage and the road mileage,
for the reason the greater number of trains that are run over a given
road mileage the greater number of fatalities to trespassers will
result. The train mileage, therefore, in the various States offers the
most accurate basis for comparison.

A computation will show that one trespasser was killed for every
eighty-one miles of road in Canada; for every seventeen miles in
Michigan; for every forty-two miles in Ohio; for every thirty-one
miles in Indiana; for every forty-six miles in Illinois; for every
seventeen miles in Missouri; and for every forty-one miles in Iowa.

It will be observed that the number of miles for each trespasser
killed in Missouri and Michigan is the same. This results, however,
from the fact that the line from Chicago, St. Louis, and other points
converging at Montpelier, Ohio, and thence all the traffic eastward
goes over the one hundred and five miles of line located in the State
of Michigan. The effect of this is also shown in the train mileage.
Thus, while Michigan has only four per cent of road mileage, it has
one-third or six per cent of the train mileage. The population along
the Michigan mileage is very dense; about five miles of the line from
Delray to Detroit run through a very densely populated
district—practically a city.

It should also be noted that while Illinois has greater road and train
mileage than Missouri, only sixteen trespassers were injured or killed
while walking on tracks in that State, where thirty-nine persons were
killed or injured while walking on the track in Missouri. If we also
consider the more dense population of Illinois, the figures become
more startling. And if we should extend these figures in the same
proportion to all of the railroads of the State and country, we would
then see the appalling number of trespassers killed and injured
annually on account of this inhuman doctrine, which is approximately
7750.

In so far as I have been able to ascertain, the courts of all the
other States than this hold that persons who walk upon railroad tracks
do so at their peril, and I am thoroughly satisfied and convinced that
this fact accounts for the small number of fatalities to track-walkers
in those States as compared with Missouri; and by parity of reasoning
I am also convinced that if said section 1105 was strictly enforced,
as it should be, the contrast between those States and this would not
be near so great as it is now; and that if we had a statute like that
of Canada, making it a crime for persons to walk upon railroad tracks,
then the percentage of fatalities to track-walkers in this State would
fall still lower than what it is in any of the States mentioned. Such
a policy and such a statute would exclude from the railroads all
pedestrians, and thereby save this great sacrifice of life and limb,
as well as the pecuniary loss incident thereto.” WOODSON, J.
(dissenting), in Murphy _v._ Wabash Railroad Company, 228 Mo. 56, 88,
108.

See also the observations of Professor Clark in University of Missouri
Bulletin, Law Series, No. 12, 34–39.

Footnote 221:

Birmingham Light & Power Co. _v._ Jones, 146 Ala. 277; Indianapolis R.
Co. _v._ Boettcher, 131 Ind. 82 _Accord_.

Footnote 222:

Southern R. Co. _v._ Svendsen, 13 Ariz. 111; Kramm. _v._ Stockton R.
Co., 10 Cal. App. 271; Nehring _v._ Connecticut Co., 86 Conn. 109;
Central R. Co. _v._ Moore, 5 Ga. App. 562; Heidenreich _v._ Bremner,
260 Ill. 439; Kansas R. Co. _v._ Whipple, 39 Kan. 531; Schoolcraft
_v._ Louisville R. Co., 92 Ky. 233; La Barge _v._ Pere Marquette R.
Co., 134 Mich. 139; St. Louis R. Co. _v._ Ault, 101 Miss. 341; Brendle
_v._ Spencer, 125 N. C. 474; Goodwin _v._ Atlantic R. Co., 82 S. C.
321; Bolin _v._ Chicago R. Co., 108 Wis. 333 _Accord_.

Footnote 223:

Carrington _v._ Louisville R. Co., 88 Ala. 472; Wood _v._ Los Angeles
R. Co., 172 Cal. 15; Rowen _v._ New York R. Co., 59 Conn. 364; Florida
R. Co. _v._ Hirst, 30 Fla. 1; Louisville R. Co. _v._ McCoy, 81 Ky.
403; Davis _v._ Saginaw Bay R. Co., 191 Mich. 131 _Accord_. Compare
Magar _v._ Hammond, 171 N. Y. 377.

“Mere negligence which gives a cause of action is the doing of an act,
or the omission to act, which results in damage, but without intent to
do wrong or cause damage. To constitute a wilful injury, there must be
design, purpose, intent to do wrong and inflict the injury. Then there
is that reckless indifference or disregard of the natural or probable
consequence of doing an act, or omission of an act, designated whether
accurately or not, in our decisions, as ‘wanton negligence,’ to which
is imputed the same degree of culpability and held to be equivalent to
wilful injury. A purpose or intent to injure is not an ingredient of
wanton negligence. Where either of those exist, if damage ensues, the
injury is wilful. In wanton negligence, the party doing the act, or
failing to act, is conscious of his conduct, and without having the
intent to injure, is conscious, from his knowledge of existing
circumstances and conditions, that his conduct will likely or probably
result in injury. These are the distinctions between simple
negligence, wilful injury, and that wanton negligence which is the
equivalent of wilful injury, drawn and applied in our decisions. A
mere error of judgment as to the result of doing an act or the
omission of an act, having no evil purpose or intent, or consciousness
of probable injury, may constitute simple negligence, but cannot rise
to the degree of wanton negligence or wilful wrong....” Coleman, J.,
in Birmingham R. Co. _v._ Bowers, 110 Ala. 328, 331.

“The mere intentional omission to perform a duty or the intentional
doing of an act contrary to duty, although such conduct be culpable
and result in injury, without further averment, falls very far short
of showing that the injury was intentionally or wantonly inflicted.
Unless there was a purpose to inflict the injury, it cannot be said to
have been intentionally done; and unless an act is done, or omitted to
be done, under circumstances and conditions known to the person, that
his conduct is likely to, or probably will result in injury, and
through reckless indifference to consequences, he consciously and
intentionally does a wrongful act, or omits an act, the injury cannot
be said to be wantonly inflicted. These principles have been
frequently declared by this court....” Coleman, J., in Memphis R. Co.
_v._ Martin, 117 Ala. 367, 382.

Central R. Co. _v._ Newman, 94 Ga. 560; Lafayette R. Co. _v._ Adams,
26 Ind. 76; Chicago R. Co. _v._ Bills, 118 Ind. 221; Alger _v._
Duluth-Superior Traction Co., 93 Minn. 314; Jensen _v._ Denver R. Co.,
44 Utah, 100; Boggess _v._ Chesapeake R. Co., 37 W. Va. 297; Astin
_v._ Chicago R. Co., 143 Wis. 477 _Contra_. But see Jaggard, J.,
dissenting, in Anderson _v._ Minneapolis R. Co., 103 Minn. 224, 230.

“For a motorman to be inattentive to the way ahead of him is so
palpably negligent that it partakes of the nature of a reckless and
wanton act. Therefore a defendant in an action of this character will
not be heard to say that its motorman did not see the situation of the
injured person where it was open to his view nor did not realize the
peril where the indications would have disclosed it to any reasonable
mind. Charged with the knowledge of the peril of another that could
have been obtained by the use of ordinary care, a failure on the part
of a motorman to make every reasonable effort to avoid injuring the
endangered person would be in the highest degree wrongful, since it
would be negligence committed with the knowledge that another
certainly and immediately would be injured thereby. The principles of
right and justice do not tolerate the idea that the negligence of the
person imperilled involved in his act of placing himself in position
to be injured without giving proper heed to his own safety can
coöperate with the negligence of one who comprehending his danger or
being in a position to comprehend it by the use of ordinary care and
having at hand the means and opportunity of avoiding it, fails to
reasonably employ them and by such failure inflicts an injury. Such
negligence engrosses the entire field of culpability and eliminates
contributory negligence as a factor in the production of the injury.
It logically follows from the principles stated that the issue of
negligence in the performance of the humanitarian duty must be
governed by the rules applicable to ordinary negligence. The
determinative question in all such cases is, did the operators of the
car use ordinary care to ascertain the peril of the plaintiff and to
avoid the injury after they discovered it or should have discovered
it? In some of the decisions of the Supreme Court the idea appears to
be expressed that in order to find a defendant guilty of a breach of
the humanitarian rule the elements of wantonness and wilfulness must
appear in its conduct, but as we have attempted to show the mere
failure to observe ordinary care in situations of this character is of
itself a wanton act since it is abhorrent not only to fundamental
principles of law but to the dictates of common humanity. The views
expressed are supported by the weight of authority in this state,
including the most recent decisions of the Supreme and Appellate
courts....” Johnson, J., in Cole _v._ Metropolitan R. Co., 121 Mo.
App. 605, 611.

Footnote 224:

Only a portion of the opinion is printed.

Footnote 225:

Statement of facts abridged. Arguments omitted. Only such portion of
the two opinions of Dixon, C. J., are given as relate to one question.
The dissenting opinion of Paine, J., is omitted.

Footnote 226:

Vaughan _v._ Taff Vale R. Co., 3 H. & N. 743; Leroy Fibre Co. _v._
Chicago R. Co., 232 U. S. 340; Flynn _v._ San Francisco R. Co., 40
Cal. 14; Fitch _v._ Pacific R. Co., 45 Mo. 322; Salmon _v._ Delaware
R. Co., 38 N. J. Law, 5; Philadelphia R. Co. _v._ Schultz, 93 Pa. St.
341 _Accord_. But see Collins _v._ New York R. Co., 5 Hun, 499.

In Leroy Fibre Co. _v._ Chicago R. Co., _supra_, Holmes, J.,
(concurring in the result) said:

“If a man stacked his flax so near to a railroad that it obviously was
likely to be set fire to by a well-managed train, I should say that he
could not throw the loss upon the road by the oscillating result of an
inquiry by the jury whether the road had used due care. I should say
that although of course he had a right to put his flax where he liked
upon his own land the liability of the railroad for a fire was
absolutely conditioned upon the stacks being at a reasonably safe
distance from the train. I take it that probably many, certainly some,
rules of law based on less than universal considerations are made
absolute and universal in order to limit those over-refined
speculations that we all deprecate, especially where such rules are
based upon or affect the continuous physical relations of material
things. The right that is given to inflict various inconveniences upon
neighboring lands by building or digging, is given, I presume, because
of the public interest in making improvement free, yet it generally is
made absolute by the common law. It is not thought worth while to let
the right to build or maintain a barn depend upon the speculations of
a jury as to motives. A defect in the highway, declared a defect in
the interest of the least competent travellers that can travel
unattended without taking legal risks, or in the interest of the
average man, I suppose to be a defect as to all. And as in this case
the distinction between the inevitable and the negligent escape of
sparks is one of the most refined in the world, I think that I must be
right so far, as to the law in the case supposed.

If I am right so far, a very important element in determining the
right to recover is whether the plaintiff’s flax was so near to the
track as to be in danger from even a prudently managed engine. Here
certainly, except in a clear case, we should call in the jury. I do
not suppose that any one would call it prudent to stack flax within
five feet of the engines or imprudent to do it at a distance of half a
mile, and it would not be absurd if the law ultimately should
formulate an exact measure, as it has tended to in other instances;
(Martin _v._ District of Columbia, 205 U. S. 135, 139) but at present
I take it that if the question I suggest be material we should let the
jury decide whether seventy feet was too near by the criterion that I
have proposed. Therefore, while the majority answer the first
question, No, on the ground that the railroad is liable upon the facts
stated as matter of law, I should answer it Yes, with the proviso that
it was to be answered No, in case the jury found that the flax,
although near, was not near enough to the trains to endanger it if the
engines were prudently managed, or else I should decline to answer the
question because it fails to state the distance of the stacks.

I do not think we need trouble ourselves with the thought that my view
depends upon differences of degree. The whole law does so as soon as
it is civilized. See Nash _v._ United States, 229 U. S. 373, 376, 377.
Negligence is all degree—that of the defendant here degree of the
nicest sort; and between the variations according to distance that I
suppose to exist and the simple universality of the rules in the
Twelve Tables or the Leges Barbarorum, there lies the culture of two
thousand years.”

Where inflammable matter is brought upon land and kept near the track,
see Erickson _v._ Pennsylvania R. Co., (C. C. A.) 170 Fed. 572;
Southern R. Co. _v._ Wilson, 138 Ala. 510; Railway Co. _v._ Fire
Ass’n, 55 Ark. 163; Cleveland R. Co. _v._ Scantland, 151 Ind. 488;
Boston Excelsior Co. _v._ Bangor, 93 Me. 52; Peter _v._ Chicago R.
Co., 121 Mich. 324; Kalbfleisch _v._ Long Island R. Co., 102 N. Y.
520; Southern R. Co. _v._ Patterson, 105 Va. 6, in accord with the
principal case. See also Ross _v._ Boston R. Co., 6 All. 87.

Macon R. Co. _v._ McConnell, 27 Ga. 481; Coates _v._ Missouri R. Co.,
61 Mo. 38 (but see Mo. Rev. St. 1909, § 3151); Murphy _v._ Chicago R.
Co., 45 Wis. 222 _Contra_.

Compare Alabama R. Co. _v._ Fried, 81 Miss. 314; Louisville R. Co.
_v._ Short, 110 Tenn. 713; San Antonio R. Co. _v._ Home I. Co., (Tex.
Civ. App.) 70 S. W. 999.

Footnote 227:

Statement of case abridged. Arguments omitted.

Footnote 228:

116 U. S. 366.

Footnote 229:

Little _v._ Hackett, 116 U. S. 366; Baltimore R. Co. _v._ Friel, (C.
C. A.) 77 Fed. 126; Georgia R. Co. _v._ Hughes, 87 Ala. 610; Little
Rock R. Co. _v._ Harrell, 58 Ark. 454; Thompson _v._ Los Angeles R.
Co., 165 Cal. 748; Fujise _v._ Los Angeles R. Co., 12 Cal. App. 207;
Woodley _v._ Baltimore R. Co., 19 D. C. 542; Baltimore R. Co. _v._
Adams, 10 App. D. C. 97; Chicago R. Co. _v._ Hines, 183 Ill. 482;
Chicago R. Co. _v._ Leach, 215 Ill. 184; Pittsburgh R. Co. _v._
Spencer, 98 Ind. 186; Miller _v._ Louisville R. Co., 128 Ind. 97;
Chicago R. Co. _v._ Groves, 56 Kan. 601; Louisville R. Co. _v._ Case,
9 Bush, 728; Louisville R. Co. _v._ Molloy, 122 Ky. 219; Holzab _v._
New Orleans R. Co., 38 La. Ann. 185; Roby _v._ Kansas City R. Co., 130
La. 880; Consolidated Gas Co. _v._ Getty, 96 Md. 683; Cuddy _v._ Horn,
46 Mich. 596; Galloway _v._ Detroit Ry., 168 Mich. 343; Flaherty _v._
Minneapolis R. Co., 39 Minn. 328; Colton _v._ Willmar R. Co., 99 Minn.
366; Gulf R. Co. _v._ Barnes, 94 Miss. 484; Becke _v._ Missouri R.
Co., 102 Mo. 544; Sluder _v._ St. Louis Transit Co., 189 Mo. 107;
Bennett _v._ New Jersey R. Co., 36 N. J. Law, 225; New York R. Co.
_v._ Steinbrenner, 47 N. J. Law, 161; Colegrove _v._ New York R. Co.,
20 N. Y. 492; Webster _v._ Hudson R. Co., 38 N. Y. 260; Arctic Fire
Ins. Co. _v._ Austin, 69 N. Y. 470; Lewis _v._ Long Island R. Co., 162
N. Y. 52; Ward _v._ International R. Co., 206 N. Y. 83; Crampton _v._
Ivie, 124 N. C. 591; Covington Transfer Co. _v._ Kelly, 36 Ohio St.
86; Chickasha R. Co. _v._ Marshall, 43 Okl. 192; Dean _v._
Pennsylvania R. Co., 129 Pa. St. 514; Bunting _v._ Hogsett, 139 Pa.
St. 363; Markham _v._ Houston Navigation Co., 73 Tex. 247; Gulf R. Co.
_v._ Pendry, 87 Tex. 553; New York R. Co. _v._ Cooper, 85 Va. 939;
Croft _v._ Northwestern Steamship Co., 20 Wash. 175 _Accord_.

Footnote 230:

Statement abridged. Greater part of opinion omitted.

Footnote 231:

Elyton Land Co. _v._ Mingea, 89 Ala. 521; Birmingham R. Co. _v._
Baker, 132 Ala. 507; Hot Springs R. Co. _v._ Hildreth, 72 Ark. 572;
Farley _v._ Wilmington R. Co., 3 Pennewill 581; Porter _v._
Jacksonville Electric Co., 64 Fla. 409; Roach _v._ Western R. Co., 93
Ga. 785; West Chicago R. Co. _v._ Dougherty, 209 Ill. 241; Nonn _v._
Chicago R. Co., 232 Ill. 378; Yeates _v._ Illinois R. Co., 241 Ill.
205; Cincinnati R. Co. _v._ Cook, 44 Ind. App. 303; Larkin _v._
Burlington R. Co., 85 Ia. 492; Withey _v._ Fowler, 164 Ia. 377; City
_v._ Hatch, 57 Kan. 57; Williams _v._ Withington, 88 Kan. 809; City
_v._ Bott, 151 Ky. 578; State _v._ Boston R. Co., 80 Me. 430; Denis
_v._ Lewiston R. Co., 104 Me. 39; Philadelphia R. Co. _v._ Hogeland,
66 Md. 149; United Railways _v._ Biedler, 98 Md. 564; Randolph _v._
O’Riordan, 155 Mass. 331; McKernan _v._ Detroit R. Co., 138 Mich. 519;
Follman _v._ City, 35 Minn. 522; Dickson _v._ Missouri R. Co., 104 Mo.
491; Petersen _v._ St. Louis Transit Co., 199 Mo. 331; Farrar _v._
Metropolitan R. Co., 249 Mo. 210; Loso _v._ County, 77 Neb. 466; Noyes
_v._ Town, 64 N. H. 361; Noonan _v._ Consolidated Traction Co., 64 N.
J. Law, 579; Dyer _v._ Erie R. Co., 71 N. Y. 228; Geary _v._
Metropolitan R. Co., 84 App. Div. 514; Robinson _v._ Metropolitan R.
Co., 91 App. Div. 158; Ward _v._ Brooklyn R. Co., 119 App. Div. 487;
Morris _v._ Metropolitan R. Co., 63 App. Div. 78; Terwilliger _v._
Long Island R. Co., 152 App. Div. 168; Kammerdiener _v._ Rayburn, 233
Pa. St. 328; Sieb _v._ Central Traction Co., 47 Pa. Super. Ct. 228;
Wilson _v._ Puget Sound R. Co., 52 Wash. 522 _Accord_.

See McLaughlin _v._ Pittsburgh R. Co., 252 Pa. St. 32.

Footnote 232:

Davis _v._ Chicago R. Co., (C. C. A.) 159 Fed. 10; Rebillard _v._
Minneapolis R. Co., 216 Fed. 503; Ewans _v._ Wilmington R. Co., 7
Pennewill 458; Brannen _v._ Kokomo Road Co., 115 Ind. 115; Holden _v._
Missouri R. Co., 177 Mo. 456; Brickell _v._ New York R. Co., 120 N. Y.
290; Caminez _v._ Brooklyn R. Co., 127 App. Div. 138; Doctoroff _v._
Metropolitan R. Co., 55 Misc. 215; Southern R. Co. _v._ Jones, 118 Va.
685; Wilson _v._ Puget Sound R. Co., 52 Wash. 522; Warth _v._ Jackson
County Court, 71 W. Va. 184 _Accord_.

See Atlantic R. Co. _v._ Ironmonger, 95 Va. 625.

Footnote 233:

City _v._ Thuis, 28 Ind. App. 523; Bush _v._ Union R. Co., 62 Kan.
709; Yarnold _v._ Bowers, 186 Mass. 396; Peabody _v._ Haverhill R.
Co., 200 Mass. 277; Lundergan _v._ New York R. Co., 203 Mass. 460;
Fogg _v._ New York R. Co., 223 Mass. 444; Marsh _v._ Kansas City R.
Co., 104 Mo. App. 577; Meenagh _v._ Buckmaster, 26 App. Div. 451;
Cunningham _v._ Erie R. Co., 137 App. Div. 506 _Accord_.

_Driver known to be incompetent_, see: Cahill _v._ Cincinnati R. Co.,
92 Ky. 345.

_Passenger unknown to driver_, see: Cincinnati R. Co. _v._ Wright, 54
Ohio St. 181.

Footnote 234:

Pyle _v._ Clark, (C. C. A.) 79 Fed. 744; Dale _v._ Denver Tramway Co.,
(C. C. A.) 173 Fed. 787; North Alabama Traction Co. _v._ Thomas, 164
Ala. 191; Lininger _v._ San Francisco R. Co., 18 Cal. App. 411;
Tonsley _v._ Pacific Electric Co., 166 Cal. 457; Parmenter _v._
McDougall, 172 Cal. 306; Denver Tramway Co. _v._ Armstrong, 21 Col.
App. 640; Sampson _v._ Wilson, 89 Conn. 707; Metropolitan R. Co. _v._
Powell, 89 Ga. 601; Southern R. Co. _v._ King, 128 Ga. 383: Chicago R.
Co. _v._ Condon, 121 Ill. App. 440; Dudley _v._ Peoria R. Co., 153
Ill. App. 619; Town _v._ Musgrove, 116 Ind. 121; Lake Shore R. Co.
_v._ Boyts, 16 Ind. App. 640; Nisbet _v._ Town, 75 Ia. 314; Hubbard
_v._ Bartholomew, 163 Ia. 58; Corley _v._ Atchison R. Co., 90 Kan. 70;
Bevis _v._ Vanceburg Tel. Co., 121 Ky. 177; Illinois R. Co. _v._
Wilkins, 149 Ky. 35; Sykes _v._ Maine R. Co., 111 Me. 182; United R.
Co. _v._ Cram, 123 Md. 332; Chadbourne _v._ Springfield R. Co., 199
Mass. 574; Ingalls _v._ Lexington R. Co., 205 Mass. 73; Alabama R. Co.
_v._ Davis, 69 Miss. 444; Mittelsdorfer _v._ West Jersey R. Co., 77 N.
J. Law, 698; Weber _v._ Philadelphia R. Co., 88 N. J. Law, 398;
Robinson _v._ New York R. Co., 66 N. Y. 11; Noakes _v._ New York R.
Co., 121 App. Div. 716; Zimmerman _v._ Union R. Co., 28 App. Div. 445;
Mack _v._ Town, 98 App. Div. 577; Jerome _v._ Hawley, 147 App. Div.
475; Duval _v._ Atlantic R. Co., 134 N. C. 331; Ouverson _v._ City, 5
N. D. 281; Toledo R. Co. _v._ Mayers, 93 Ohio St. 304; Tonseth _v._
Portland R. Co., 70 Or. 341; Little _v._ Central Tel. Co., 213 Pa. St.
229; Walsh _v._ Altoona R. Co., 232 Pa. St. 479; Wachsmith _v._
Baltimore R. Co., 233 Pa. St. 465; Trumbower _v._ Lehigh Transit Co.,
235 Pa. St. 397; Hermann _v._ Rhode Island Co., 36 R. I. 447; Latimer
_v._ County, 95 S. C. 187; Turnpike Co. _v._ Yates, 108 Tenn. 428;
Missouri R. Co. _v._ Rogers, 91 Tex. 52; Lochhead _v._ Jensen, 42 Utah
99; Atwood _v._ Utah R. Co., 44 Utah 366 _Accord_.

Kneeshaw _v._ Detroit R. Co., 169 Mich. 697; Colborne _v._ United R.
Co., 177 Mich. 139; Granger _v._ Farrant, 179 Mich. 19 (but compare
Hampel _v._ Detroit R. Co., 138 Mich. 1); Whittaker _v._ City, 14
Mont. 124; Omaha R. Co. _v._ Talbot, 48 Neb. 627; Prideaux _v._. City,
43 Wis. 513; Otis _v._ Town, 47 Wis. 422; Ritger _v._ City, 99 Wis.
190; Lightfoot _v._ Winnebago Traction Co., 123 Wis. 479; Lauson _v._
Town, 141 Wis. 57 _Contra_.

As to whether the negligence of an agent or servant will be imputed to
a principal or employer not personally culpable, see also: Siegel _v._
Norton, 209 Ill. 201; Moore _v._ Stetson, 96 Me. 197; Bjbjian _v._
Woonsocket Rubber Co., 164 Mass. 214; Philip _v._ Heraty, 135 Mich.
446; Fero _v._ Buffalo R. Co., 22 N. Y. 209.

_Contributory negligence of agent or servant in sole charge of the
property injured_, see: Kennedy _v._ Alton Traction Co., 180 Ill. App.
146; Toledo R. Co. _v._ Goddard, 25 Ind. 185; Louisville R. Co. _v._
Stommel, 126 Ind. 35; Young _v._ County, 137 Ia. 515; Dunn _v._ Old
Colony R. Co., 186 Mass. 316; La Riviere _v._ Pemberton, 46 Minn. 5;
Johnson _v._ Atchison R. Co., 117 Mo. App. 308; Page _v._ Hodge, 63 N.
H. 610; Smith _v._ New York R. Co., 4 App. Div. 493; Puterbaugh _v._
Reasor, 9 Ohio St. 484; Hawley _v._ Sumpter R. Co., 49 Or. 509.
Compare Gress _v._ Philadelphia R. Co., 228 Pa. St. 482 (care of
injured child delegated to another child, whose negligence
contributed).

As to when negligence of the servant is imputed to the master, see
also: Sims _v._ Macon R. Co., 28 Ga. 93 (slave); Read _v._ City, 115
Ga. 366; Potter _v._ Ft. Wayne Traction Co., 43 Ind. App. 427; City
_v._ Bott, 151 Ky. 578; Markowitz _v._ Metropolitan R. Co., 186 Mo.
350; Moon _v._ St. Louis Transit Co., 237 Mo. 425; Reed _v._
Metropolitan R. Co., 58 App. Div. 87; Wood _v._ Coney Island R. Co.,
133 App. Div. 270; Crampton _v._ Ivie, 126 N. C. 894. Compare Snyder
Ice Co. _v._ Bowron, (Tex. Civ. App.) 156 S. W. 550.

_Whether husband’s negligence will be imputed to the wife_, see:
McFadden _v._ Santa Ana R. Co., 87 Cal. 464; Basler _v._ Sacramento
Gas Co., 158 Cal. 514; Joliet _v._ Seward, 86 Ill. 402; Yahn _v._
Ottumwa, 60 Ia. 429 (see also Nesbit _v._ Garner, 75 Ia. 314; Willfong
_v._ Omaha R. Co., 116 Ia. 548); Denton _v._ Missouri R. Co., 90 Kan.
51; Livingston _v._ Philley, 155 Ky. 224; Ploetz _v._ Holt, 124 Minn.
169; Moon _v._ St. Louis Transit Co., 237 Mo. 425; Johnson _v._
Springfield Traction Co., 176 Mo. App. 174; Hajsek _v._ Chicago R.
Co., 68 Neb. 539, 5 Neb. Unoff. 67; Pennsylvania R. Co. _v._
Goodenough, 55 N. J. Law, 577; Horandt _v._ Central R. Co., 78 N. J.
Law, 190; Carlisle _v._ Sheldon, 38 Vt. 440.

_Imputed negligence as between fellow servants_, see: Nonn _v._
Chicago R. Co., 232 Ill. 378; Ford _v._ Hine, 237 Ill. 463; Paducah
Traction Co. _v._ Sine, (Ky.) 111 S. W. 356; City _v._ Heitkemper, 169
Ky. 167; Earp _v._ Phelps, 120 Md. 282; Siever _v._ Pittsburgh R. Co.,
252 Pa. St. 1; Landry _v._ Great Northern R. Co., 152 Wis. 379;
Sommerfeld _v._ Chicago R. Co., 155 Wis. 102.

_Whether bailor barred by contributory negligence of bailee_, see:
Svea Ins. Co. _v._ Vicksburgh R. Co., 153 Fed. 774; Henderson _v._
Chicago R. Co., 170 Ill. App. 616; Welty _v._ Indianapolis R. Co., 105
Ind. 55; Illinois R. Co. _v._ Sims, 77 Miss. 325; Spelman _v._ Delano,
177 Mo. App. 28; Forks Township _v._ King, 84 Pa. St. 230; Gibson _v._
Bessemer R. Co., 226 Pa. St. 198; Texas R. Co. _v._ Tankersley, 63
Tex. 57.

_Consignor and consignee_, see McCarthy _v._ Louisville R. Co., 102
Ala. 193.

_Lessor and lessee_, see Higgins _v._ Los Angeles Gas Co., 159 Cal.
651; Contos _v._ Jamison, 81 S. C. 488.

Footnote 235:

See Alabama R. Co. _v._ Hanbury, 161 Ala. 358; Louisville R. Co. _v._
Armstrong, 127 Ky. 367; Beaucage _v._ Mercer, 206 Mass. 492; Ward _v._
Meads, 114 Minn. 18; Schron _v._ Staten Island R. Co., 16 App. Div.
11; Christopherson _v._ Minneapolis R. Co., 28 N. D. 128; Wentworth
_v._ Town, 90 Vt. 60; Washington R. Co. _v._ Zell, 118 Va. 755.

According to the decision in Shindelus _v._ St. Paul City R. Co., 80
Minn. 364, if any of the young men of the party in the Koplitz case
had sued the city, the negligence of Gibbons would have been imputed
to them.

Compare Laurence _v._ Sioux City, 172 Ia. 320; Scheib _v._ New York R.
Co., 115 App. Div. 578; Kansas City R. Co. _v._ Durrett, (Tex. Civ.
App.) 187 S. W. 427.

Footnote 236:

Statement abridged. Arguments omitted; also portions of opinion.

Footnote 237:

Chicago R. Co. _v._ Kowalski, (C. C. A.) 92 Fed. 310; Pratt Coal Co.
_v._ Brawley, 83 Ala. 371; St. Louis R. Co. _v._ Rexroad, 59 Ark. 180;
Daley _v._ Norwich R. Co., 26 Conn. 591; Jacksonville Electric Co.
_v._ Adams, 50 Fla. 429; Ferguson _v._ Columbus R. Co., 77 Ga. 102;
Chicago R. Co. _v._ Wilcox, 138 Ill. 370; Evansville _v._ Senhenn, 151
Ind. 42 (overruling earlier cases _contra_); Ives _v._ Welden, 114 Ia.
476; Union R. Co. _v._ Young, 57 Kan. 168 (older cases _contra_);
South Covington R. Co. _v._ Herrklotz, 104 Ky. 400; Westerfield _v._
Levis, 43 La. Ann. 63; Shippy _v._ Au Sable, 85 Mich. 280; Mattson
_v._ Minnesota R. Co., 95 Minn. 477 (overruling older cases _contra_);
Westbrook _v._ Mobile R. Co., 66 Miss. 560; Winters _v._ Kansas City
R. Co., 99 Mo. 509; Neff _v._ City, 213 Mo. 350; Huff _v._ Ames, 16
Neb. 139; Warren _v._ Manchester R. Co., 70 N. H. 352; Bottoms _v._
Seaboard R. Co., 114 N. C. 699; Bellefontaine R. Co. _v._ Snyder, 18
Ohio St. 399; Erie R. Co. _v._ Schuster, 113 Pa. St. 412; Whirley _v._
Whiteman, 1 Head, 610; Galveston R. Co. _v._ Moore, 59 Tex. 64;
Robinson _v._ Cone, 22 Vt. 213; Norfolk R. Co. _v._ Ormsby, 27 Grat.
455; Dicken _v._ Liverpool Coal Co., 41 W. Va. 511 _Accord_.

Meeks _v._ So. Pac. R. Co., 52 Cal. 602; O’Brien _v._ McGlinchy, 68
Me. 552; Baltimore R. Co. _v._ McDonnell, 43 Md. 534; Wright _v._
Malden R. Co., 4 All. 283; Cotter _v._ Lynn R. Co., 180 Mass. 145 (but
see Mass. Acts 1914, c. 553); Hartfield _v._ Roper, 21 Wend. 615;
Parishi _v._ Eden, 62 Wis. 272; Kuchler _v._ Milwaukee Electric Co.,
157 Wis. 107 _Contra_.

As to the limits of the rule in the jurisdictions that follow
Hartfield _v._ Roper, see McNeil _v._ Boston Ice Co., 173 Mass. 570;
O’Brien _v._ McGlinchy, 68 Me. 552; Ihl _v._ Forty-Second Street
Ferry, 47 N. Y. 317; McGarry _v._ Loomis, 63 N. Y. 104.

Footnote 238:

Savannah Electric Co. _v._ Dixon, (Ga.) 89 S. E. 373; Smith _v._
Marion Bottle Co., 84 Kan. 551 _Accord_.

Footnote 239:

At common law, no civil action could be maintained for wrongfully
causing the death of a human being. Following the English act of 1846,
known as Lord Campbell’s Act (9 & 10 Vict. c. 93) statutes in all
jurisdictions now provide an action for the benefit of specified
relatives of a deceased person against one who tortiously caused his
death. In Tiffany, Death by Wrongful Act, 2 Edition, 1913, these
statutes are printed in full in the appendix. The book also contains
an analytical table of the statutes.

Sometimes the relatives are authorized to sue in person; while in
other statutes it is provided that the action shall be brought by an
administrator of the estate of the deceased. But, even under the
latter class of statutes, the sum recovered does not usually become a
part of the general assets of the estate available for the payment of
creditors (unless, perhaps, in the absence of any relatives). In some
instances the statute provides that an action can be brought only in
case the person killed could have maintained an action if death had
not ensued. But, even where the statute does not contain an explicit
provision of the above nature, the courts generally hold that
contributory negligence on the part of the deceased bars the statutory
action. The question remains: Will the contributory negligence of the
sole beneficiary bar the action, either where he is personally
plaintiff, or where he is plaintiff in his capacity as administrator
of the deceased, or where the plaintiff is a third person suing in the
capacity of administrator?

The statutes of a few states may, perhaps, be construed as proceeding
upon the theory that a right of action is vested in the deceased, and
that provision is now made for the survival of such right of action.

Footnote 240:

Wymore _v._ Mahaska County, 78 Ia. 396. The material provisions of the
statute involved in that case were:—

Section 3730, McClain’s Annotated Code of Iowa. All causes of action
shall survive, and may be brought, notwithstanding the death of the
person entitled or liable to the same.

Section 3731.... When a wrongful act produces death, the damages shall
be disposed of as personal property belonging to the estate of the
deceased, except that if the deceased leaves a husband, wife, child,
or parent, it shall not be liable for the payment of debts.

Section 3732. The actions contemplated in the two preceding sections
may be brought, or the court, on motion, may allow the action to be
continued, by or against the legal representatives or successors in
interest of the deceased. Such action shall be deemed a continuing
one, and to have accrued to such representative or successor at the
same time it did to the deceased if he had survived....

Section 3761. A father, or, in case of his death or imprisonment or
desertion of his family, the mother, may prosecute as plaintiff an
action for the expenses and actual loss of service resulting from the
injury or death of a minor child.

Footnote 241:

Southern R. Co. _v._ Shipp, 169 Ala. 327; Nashville Lumber Co. _v._
Busbee, 100 Ark. 76 _Accord_. See Macdonald _v._ O’Reilley, 45 Or.
589. In Warren _v._ Street R., 70 N. H. 352, 362, PIKE, J., said: “The
child’s cause of action survived by reason of the statute, and the
money recovered in it will be assets in the hands of its
administrator, to be distributed in accordance with the special
provisions of the statute. If the father’s negligence barred his right
to recover in this action, there would seem to be no reason why it
would not bar him from recovering any property of the child which he
might inherit under the general provisions relating to descent and
distribution, but this is not claimed to be and is not the law.”

Footnote 242:

Lee _v._ New River Coal Co., (C. C. A.) 203 Fed. 644; Chicago R. Co.
_v._ Logue, 158 Ill. 621; True _v._ Woda, 201 Ill. 315; Gibbons _v._
Williams, 135 Mass. 333; Tucker _v._ Draper, 62 Neb. 66; Davis _v._
Seaboard R. Co., 136 N. C. 115; Scherer _v._ Schlaberg, 18 N. D. 421;
Bamberger _v._ Citizens’ R. Co., 95 Tenn. 18; Palmer _v._ Oregon R.
Co., 34 Utah, 466; Ploof _v._ Burlington Traction Co., 70 Vt. 509;
Vinnette _v._ Northern R. Co., 47 Wash. 320; Gunn _v._ Ohio R. Co., 42
W. Va. 676 _Accord_.

“The right of recovery and measure of damages are different from what
existed in the intestate. This right of recovery did not exist at
common law. It is wholly given by the act. It is not an act to cause
to survive a right of recovery which otherwise would be taken away by
the death of the injured.... Hence the contention that the recovery is
in the right of the intestate, and can be defeated only by his
contributory negligence, cannot be sustained.... From a very early day
the common law has denied a recovery, as unjust, to a party whose
negligence has contributed to the accident causing the injury for
which he demands damages. All statutes conferring a right of recovery
of damages, especially when in terms they give such damages only as
are _just_, must be read and considered with reference to this
universal principle of the common law.” Ross, C. J., in Ploof _v._
Burlington Traction Co., 70 Vt. 509, 516, 517.

“Shall the state say to the father, ‘If you know that your child is in
danger of injury from the negligence of others, you are under no legal
obligation to protect it from such injury, and if you allow the child
to be killed, you may recover, from one who is equally at fault with
yourself, for any pecuniary injury you may suffer by reason of the
death?’ No such meaning can be derived from the statute.” SEDGWICK,
C., in Tucker _v._ Draper, 62 Neb. 66, 67.

See Wigmore, Contributory Negligence of the Beneficiary as a Bar to an
Administrator’s Action for Death, 2 Illinois Law Rev. 487.

As to recovery where third person is administrator and there is
negligence on the part of the sole beneficiary or all the
beneficiaries, see: Toledo R. Co. _v._ Grable, 88 Ill. 441; Feldman
_v._ Detroit R. Co., 162 Mich. 486; Davis _v._ Seaboard R. Co., 136 N.
C. 115; Wolf _v._ Lake Erie R. Co., 55 Ohio St. 517; Gunn _v._ Ohio R.
Co., 42 W. Va. 676. _Contra_: Wymore _v._ Mahaska County, 78 Ia. 396;
McKay _v._ Syracuse R. Co., 208 N. Y. 359.

As to recovery where some of the beneficiaries are negligent and
others not, see: Phillips _v._ Denver Tramway Co., 53 Col. 458; Love
_v._ Detroit R. Co., 170 Mich. 1; Wolf _v._ Lake Erie R. Co., 55 Ohio
St. 517; Darbrinsky _v._ Pennsylvania Co., 248 Pa. St. 503.

Footnote 243:

See Broschart _v._ Tuttle, 59 Conn. 1; Dudley _v._ Northampton, 202
Mass. 443, 449.

Footnote 244:

The arguments are omitted.

Footnote 245:

Hinckley _v._ Penobscot, 42 Me. 89; Smith _v._ Boston R. Co., 120
Mass. 490 (injury to passenger travelling on train in violation of
Sunday law) _Accord_.

“The provisions of chapter ninety-eight of the Public Statutes
relating to the observance of the Lord’s day shall not constitute a
defence to an action for a tort or injury suffered by a person on that
day.” Mass. Acts 1884, c. 57, § 1.

Footnote 246:

The arguments are omitted; also that part of the opinion which relates
to the question of contributory negligence.

Footnote 247:

Atlanta Steel Co. _v._ Hughes, 136 Ga. 511 (plaintiff working on
Sunday); Black _v._ Lewiston, 2 Idaho, 276; Louisville R. Co. _v._
Buck, 116 Ind. 566 (plaintiff working on Sunday); Chicago R. Co. _v._
Graham, 3 Ind. App. 28; Schmid _v._ Humphrey, 48 Ia. 652; Taylor _v._
Star Coal Co., 110 Ia. 40 (plaintiff working on Sunday); City _v._
Orr, 62 Kan. 61; Illinois R. Co. _v._ Dick, 91 Ky. 434 (plaintiff
working on Sunday); Opsahl _v._ Judd, 30 Minn. 126; Corey _v._ Bath,
35 N. H. 530; Delaware R. Co. _v._ Trautwein, 52 N. J. Law, 169; Platz
_v._ City, 89 N. Y. 219; Mohney _v._ Cook, 26 Pa. St. 342; Baldwin
_v._ Barney, 12 R. I. 392; Hoadley _v._ International Paper Co., 72
Vt. 79 (plaintiff working on Sunday) _Accord_.

In Johnson _v._ Town of Irasburgh, 47 Vt. 28, the Supreme Court of
Vermont, while agreeing with the reasoning in Sutton _v._ Wauwatosa,
on the question of causation, nevertheless reached the same result as
in Bosworth _v._ Swansey, holding that the plaintiff was not entitled
to recover. This conclusion was arrived at upon grounds which were not
discussed in the above Wisconsin and Massachusetts cases. The very
able opinion of Ross, J., upon this point (47 Vt. 35–38), may be
summarized as follows:—

The liability of the town for the insufficiency of the highway is
purely statutory. The duty to travellers imposed by the statute is
only a duty to that class of travellers who have the right to pass, to
those who are legally travelling. The legislature did not intend to
impose a duty upon towns “in behalf of a person who was forbidden to
use all highways for the purposes of travel, and at a time when he was
so forbidden to use them. Can he be a traveller within the purview of
the statute who is forbidden to travel?” The duty and liability “are
co-extensive with the purposes for which persons can legitimately use
the highways, and no greater.” “The plaintiff when injured was
forbidden by law to use the highway, and by reason thereof the
defendant town owed him no duty to provide any kind of a highway, and
therefore was under no liability for any insufficiency in any
highway.”

Footnote 248:

Section 3 of this statute is as follows:—

“The officers and men of the Boston Protective Department, with their
teams and apparatus, shall have the right of way, while going to a
fire, through any street, lane, or alley in the city of Boston,
subject to such rules and regulations as the city council and the fire
commissioners may prescribe, and subject also to the rights of the
Boston Fire Department; and any violation of the street rights of the
Boston Protective Department shall be punished in the same manner as
is provided for the punishment of violations of the rights of the
Boston Fire Department in chapter three hundred and seventy-four of
the acts of eighteen hundred and seventy-three.”

Footnote 249:

Monroe _v._ Hartford R. Co., 76 Conn. 201; Tackett _v._ Taylor, 123
Ia. 149; Baker _v._ Portland, 58 Me. 199; Bourne _v._ Whitman, 209
Mass. 155; Chesapeake R. Co. _v._ Jennings, 98 Va. 70 _Accord_.

Footnote 250:

Atlantic R. Co. _v._ Weir, 63 Fla. 69; Lockridge _v._ Minneapolis R.
Co., 161 Ia. 74 _Accord_. See Lindsay _v._ Cecchi, 3 Boyce, 133; Hyde
_v._ McCreery, 145 App. Div. 729.

In Bourne _v._ Whitman, 209 Mass. 155, a duly licensed automobile was
being driven by an unlicensed person. Knowlton, C. J., said:

“It is universally recognized that the violation of a criminal statute
is evidence of negligence on the part of the violator, as to all
consequences that the statute was intended to prevent. It has been
said in a general way that such a violation is evidence of negligence
of the violator, and it has sometimes been stated that this would show
negligence that can be availed of as a ground of recovery by one who
suffers any kind of an injury from him while this illegality
continues; but it is now settled that it is not even evidence of
negligence, except in reference to matters to which the statute
relates. Davis _v._ John L. Whiting & Son Co., 201 Mass. 91, 96 and
cases cited. A criminal statute in the usual form is enacted for the
benefit of the public. It creates a duty to the public. Every member
of the public is covered by the protecting influence of the
obligation. If one suffers injury as an individual, in his person or
his property, by a neglect of this duty, he has a remedy, not because
our general criminal laws are divided in their operation, creating one
duty to the public and a separate duty to individuals; but because as
one of the public in a peculiar situation, he suffers a special
injury, different in kind from that of the public generally, from the
neglect of the public duty....

If we consider the effect of such a violation of law by a plaintiff,
upon his right to recover, the principles that have been recognized
are instructive. They were considered long ago in connection with our
Sunday law. It has been established from early times that one who is
violating a criminal law cannot recover for an injury to which his
criminality was a directly contributing cause....

The only matter which seems to be left doubtful under our decisions in
this class of cases, is what constitutes ‘illegality,’ which is
sometimes a directly contributing cause of the injury. Some cases have
been decided, which seem to imply that if there is an illegal element
entering into a plaintiff’s act or conduct, and this act or conduct
directly contributes to his injury, he cannot recover, although the
illegal element or the objectionable quality of the act had no
tendency to produce the injury, and the consequences would have been
the same under the other existing conditions, if the criminal element
had been absent. In other cases the decision seems to turn upon
whether the criminal element in the act or conduct, considered by
itself alone, operated as a direct cause to produce a result that
would not have been produced under the same conditions in other
respects, if the criminal element had been absent. This latter seems
to be the pivotal question in most cases decided in other States.

The fact that the number of punishable misdemeanors has multiplied
many times in recent years, as the relations of men in business and
society have grown complex with the increase of population, is a
reason why the violation of a criminal statute of slight importance
should not affect one’s civil rights, except when this violation,
viewed in reference to the element of criminality intended to be
punished, has had a direct effect upon his cause of action. Our
decisions seem to have been tending toward the adoption of such a
rule. Welch _v._ Wesson, 6 Gray, 505. Spofford _v._ Harlow, 3 Allen,
176. Steele _v._ Burkhardt, 104 Mass. 59. Damon _v._ Scituate, 119
Mass. 66. Hall _v._ Ripley, 119 Mass. 135. Dudley _v._ Northampton
Street Railway, 202 Mass. 443, 446. Moran _v._ Dickinson, 204 Mass.
559, 562. Chase _v._ New York Central & Hudson River Railroad, 208
Mass. 137, 157.

Under particular statutes, we are brought back to the question, what
is the legal element which is the essence of the command or
prohibition? In most cases, the effect of doing or failing to do that
which the law forbids or requires under a penalty, when considered in
reference to its relation to one’s civil rights in collateral matters,
ought to be limited pretty strictly. Take the case of driving without
sleigh bells in violation of the law of the road. R. L., c. 54, § 3.
Kidder _v._ Dunstable, 11 Gray, 342. Counter _v._ Couch, 8 Allen, 436,
437. The requirement of the law is that ‘No person shall travel on a
bridge or way with a sleigh or sled drawn by a horse, unless there are
at least three bells attached to some part of the harness.’ The wrong
to be prevented is the failure to have bells while travelling in this
way. The travelling in other respects is unobjectionable. The question
arises whether the act should be deemed illegal as a whole, in
reference to the rule that the courts will not aid one to obtain the
fruits of his disobedience of law, or whether in this aspect its
different qualities may be considered separately. It is possible to
decide this question either way, but we think it is more consistent
with justice and with the course of decision elsewhere, to hold that,
in reference to the law of negligence and the rule as to rejection of
causes of action that are founded on illegality, an act may be
considered in its different aspects in its relation to the cause of
action, and if only that part of it which is innocent affects the
cause of action, the existence of an illegal element is immaterial. We
do not think, under this statute, that one who drives in a sleigh
without bells should be treated as a trespasser on the highway,
although he is punishable criminally for the failure to have the bells
attached to the harness, and is liable in damages to any member of the
public who suffers a special injury by reason of this failure.

Consider the St. 1909, c. 514, § 74, which forbids, under a penalty,
the regular operation of any elevator by a person under the age of
sixteen years, and the regular operation of any rapidly running
elevator by a person under the age of eighteen years. If a person
under the prescribed age, while employed to operate an elevator, is
injured through the negligence of the owner, in leaving it in an
unsafe condition, shall his violation of the statute by entering this
service before reaching the prescribed age, be treated as criminality,
entering into every one of his acts in moving the elevator, so as to
prevent his recovery for an injury from the joint effect of his
employer’s negligence and his own application of the power to raise or
lower the elevator? We think it better to hold, if his age and the
degree of his competency, which might depend in part upon his age, had
no causal connection with the injury, that his criminality was not a
direct cause of the injury. In other words, that the punishable
element in the act is only disobedience as to age, and although his
act in applying the power to the elevator which brought him in contact
with the defect, is punishable, and in a sense illegal because of the
existence of that element, in determining the relation of his conduct
to the cause of action, to see whether the court will aid him in the
prosecution of it, we ought to limit the illegality to that part of
his conduct towards which the statute is particularly directed. We are
to consider the specific thing at which the statute is aimed, and the
immediate effect that it was intended directly and proximately to
accomplish by its command or prohibition....

Take the provision in St. 1903, c. 473, § 5, that ‘No person shall
operate an automobile or motor cycle for hire, unless specially
licensed by the commission so to do,’ and the earlier provision in the
same section that no person shall ‘operate an automobile or motor
cycle upon any public highway or private way laid out under authority
of statute unless licensed so to do under the provisions of this act.’
The operating of the automobile in itself is unobjectionable. The
illegal element in the act is the failure to have a license. The
purpose of the requirement of a license is to secure competency in the
operator. If in any case the failure to have a license, looking to
those conditions that ordinarily accompany the failure to have it, is
a cause contributing directly to an injury, a violator of the law
would be legally responsible to another person injured by the failure;
or, if he is injured himself, would be precluded from recovery against
another person who negligently contributed to the injury. But we are
of opinion that his failure in that respect is only evidence of
negligence in reference to his fitness to operate a car, and to his
skill in the actual management of it, unless in the case of the
plaintiff, it is shown to be a contributing cause to the injury sued
for, in which case it is a bar to recovery. We think that the
operation of a car without a license, while it is a punishable act,
does not render the operator a trespasser on the highway, but that the
illegal element in the act is only the failure to have a license while
operating it, so that if the operation and movement contributed to the
accident with which the want of a license had no connection, except as
a mere condition, they would not preclude the operator as a plaintiff
from recovery. If the illegal quality of the act had no tendency to
cause the accident, the fact that the act is punishable because of the
illegality, ought not to preclude one from recovery for harmful
results to which, without negligence, the innocent features of the act
alone contributed.

The other part of this statute, relative to the licensing of
automobiles, has been construed differently. In Dudley _v._
Northampton Street Railway, 202 Mass. 443, because of the peculiar
provisions of the statute and the dangers and evils that it was
intended to prevent, it was decided, after much consideration, that
the having of such a machine in operation on a street, without a
license, was the very essence of the illegality, and that the
illegality was inseparable from the movement of the automobile upon
the street at any time, for a single foot; that in such movement the
machine was an outlaw, and any person on the street as an occupant of
the automobile, participating in the movement of it, was for the time
being a trespasser. Some of us were disinclined to lay down the law so
broadly, and the opinion of the court was not unanimous; but the
doctrine has been repeatedly reaffirmed and is now the established law
of the Commonwealth. Feeley _v._ Melrose, 205 Mass. 329. Chase _v._
New York Central & Hudson River Railroad, 208 Mass. 137, 158. The
difference between this provision of the statute and that involved in
the present case is in part one of form, but in connection with the
form, it is still more the seeming purpose and intent of the
Legislature as to permitting such machines upon the public ways
without adequate means of identifying them and ascertaining their
owner, together with the requirement that the machine itself, as a
thing of power, shall have its own registration and legalization, the
evidence of which it shall always carry with it....

We are of opinion that the law of these last cases should not be
extended to the provision of the statute requiring every operator to
have a personal license to operate the car. The jury should have been
instructed that the defendant’s failure to have a license was only
evidence of his negligence as to the management of the car.”

See also Holland _v._ Boston, 213 Mass. 560; Holden _v._ McGillicuddy,
215 Mass. 563; Conroy _v._ Mather, 217 Mass. 91.

In Taylor _v._ Stewart, 172 N. C. 203, Brown, J., (for the court)
said:

“The plaintiff sues to recover for the death of his child, who was run
over and killed by an automobile, belonging to the defendant J. W.
Stewart. At the time the car was being operated by James Stewart, the
son of the said J. W. Stewart, a lad of 13 years of age. A colored
chauffeur, who had been sent out with the car by the owner, was
sitting beside the lad.

His honor charged the jury that under the laws of North Carolina it
was a misdemeanor for a person under the age of 16 to drive an
automobile upon any highway or public street, and that it is a
circumstance from which the jury may infer negligence, and that it
does not necessarily follow that the jury shall conclude it was
negligence, but that it is a circumstance to go to the jury. In this
his honor erred. He should have instructed the jury that it is
negligence _per se_ for the defendant James Stewart to have driven the
machine in violation of the statute law of the state. Zageir _v._
Southern Express Co., 89 S. E. 44; Paul _v._ Railroad, 170 N. C. 231,
87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter _v._ English, 166 N. C.
125, 81 S. E. 1066.”

See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of
Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private
Action, 27 Harvard Law Rev. 317.

Footnote 251:

Part of case omitted; also arguments of counsel.

Footnote 252:

Williams _v._ New Albany R. Co., 5 Ind. 111; Vandalia R. _v._ Duling,
60 Ind. App. 332; Union R. Co. _v._ Rollins, 5 Kan. 167 (as to
legislation, see Darling _v._ Rodgers, 7 Kan. 592; Missouri R. Co.
_v._ Olden, 72 Kan. 110); Crawford _v._ Hughes, 3 J. J. Marsh. 433;
Little _v._ Lathrop, 5 Me. 356; Richardson _v._ Milburn, 11 Md. 340;
Eames _v._ Salem R. Co., 98 Mass. 560; Collins _v._ Lundquist, 154
Mich. 658; Vandegrift _v._ Rediker, 22 N. J. Law, 185; Munger _v._
Tonawanda R. Co., 4 N. Y. 349; Gregg _v._ Gregg, 55 Pa. St. 227; Hurd
_v._ Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. _v._ Clark, 145
Wis. 181 _Accord_.

As between adjoining owners, in absence of statutory duty as to
division fence, see Bissell _v._ Southworth, 1 Root, 269; McNeer _v._
Boone, 52 Ill. App. 181; Myers _v._ Dodd, 9 Ind. 290; Stephenson _v._
Elliott, 2 Ind. App. 233; De Mers _v._ Rohan, 126 Ia. 488; Markin _v._
Priddy, 40 Kan. 684; Sturtevant _v._ Merrill, 33 Me. 62; Gillespie
_v._ Hendren, 98 Mo. App. 622; Tewksbury _v._ Bucklin, 7 N. H. 518;
Deyo _v._ Stewart, 4 Denio, 101; Angell _v._ Hill, 18 N. Y. Supp. 824;
Kobayashi _v._ Strangeway, 64 Wash. 36.

_As to liability of the owner for unauthorized entry of a dog_ on
another’s lands, see Brown _v._ Giles, 1 Carr. & P. 118; Read _v._
Edwards, 17 C. B. N. S. 245; Doyle _v._ Vance, 6 Vict. L. R. (Law) 87.

_Trespass on unenclosed land by chickens_, see Evans _v._ McLalin, 189
Mo. App. 310.

Footnote 253:

Morgan _v._ Hudnell, 52 Ohio St. 552 _Accord_.

Footnote 254:

Arguments omitted.

Footnote 255:

Hartford _v._ Brady, 114 Mass. 466; Wood _v._ Snider, 187 N. Y. 28;
Erdman _v._ Gottshall, 9 Pa. Super. Ct. 295; Metropolitan Ins. Co.
_v._ Clark, 145 Wis. 181 _Accord_.

Cattle, while being driven on the highway, enter on the unfenced land
of A adjoining the highway, and pass thence on to the unfenced land of
B, adjoining the land of A, but not adjoining the highway. B has an
action against the owner of the cattle. Wood _v._ Snider, 187 N. Y.
28. See also note in 12 L. R. A. N. S. 912.

Footnote 256:

As to the effect of statutes requiring lands to be fenced, see
Northern R. Co. _v._ Cunningham, 89 Fed. 594; Comerford _v._ Dupuy, 17
Cal. 308 (as to later legislation see Hahn _v._ Garratt, 69 Cal. 146;
Fisch _v._ Nice, 12 Cal. App. 60); Nuckolls _v._ Gaut, 12 Col. 361;
Wright _v._ Wright, 21 Conn. 329; Frazier _v._ Nortinus, 34 Ia. 82
(but no application to cultivated land—Hallock _v._ Hughes, 42 Ia.
516); Louisville R. Co. _v._ Simmons, 85 Ky. 151; Gorman _v._ Pacific
R. Co., 26 Mo. 441 (as to later legislation, see O’Riley _v._ Diss, 41
Mo. App. 184); Smith _v._ Williams, 2 Mont. 195; Randall _v._ Gross,
67 Neb. 255 (no application to cultivated lands); Jones _v._
Witherspoon, 52 N. C. 555; Kerwhaker _v._ Cleveland R. Co., 3 Ohio St.
172; Walker _v._ Bloomingcamp, 34 Or. 391; Gregg _v._ Gregg, 55 Pa.
St. 227 (as to later legislation see Thompson _v._ Kyler, 9 Pa. Co.
Ct. R. 205); Davis _v._ Davis, 70 Tex. 123; Poindexter _v._ May, 98
Va. 143; Walls _v._ Cunningham, 123 Wis. 346.

As to effect of statutes providing for division fences, see D’Arcy
_v._ Miller, 86 Ill. 102; Duffees _v._ Judd, 48 Ia. 256; Wills _v._
Walters, 5 Bush, 351; Gooch _v._ Stephenson, 13 Me. 371; Shepherd _v._
Hees, 12 Johns. 433; Barber _v._ Mensch, 157 Pa. St. 390; Tower _v._
Providence R. Co., 2 R. I. 404.

Such statutes apply only as between adjoining owners: Aylesworth _v._
Herrington, 17 Mich. 417; Wilder _v._ Wilder, 38 Vt. 678; and as to
cattle lawfully on the adjoining land: Lord _v._ Wormwood, 29 Me. 282;
Vandegrift _v._ Rediker, 22 N. J. Law, 185; Melody _v._ Reab, 4 Mass.
471; Lawrence _v._ Combs, 37 N. H. 331.

Footnote 257:

Arguments and portions of the opinion omitted.

Footnote 258:

Buford _v._ Houtz, 133 U. S. 320; Nashville R. Co. _v._ Peacock, 25
Ala. 229 (as to later legislation, see Phillips _v._ Bynum, 145 Ala.
549); Little Rock R. Co. _v._ Finley, 37 Ark. 562; Morris _v._ Fraker,
5 Col. 425; Studwell _v._ Ritch, 14 Conn. 292; Sprague _v._ Fremont R.
Co., 6 Dak. 86; Savannah R. Co. _v._ Geiger, 21 Fla. 669; Macon R. Co.
_v._ Lester, 30 Ga. 911 (but see later legislation, Puckett _v._
Young, 112 Ga. 578); Seeley _v._ Peters, 5 Gilm. 130 (but see Ill.
Rev. St. c. 8, § 1); Bulpit _v._ Mathews, 145 Ill. 345; Vicksburgh R.
Co. _v._ Patton, 31 Miss. 156; Gorman _v._ Pacific R. Co., 26 Mo. 441
(but see later legislation, Gumm _v._ Jones, 115 Mo. App. 597);
Delaney _v._ Errickson, 10 Neb. 492; Laws _v._ North Carolina R. Co.,
52 N. C. 468 (but see later legislation, State _v._ Mathis, 149 N. C.
546); Cleveland R. Co. _v._ Elliott, 4 Ohio St. 474 (but see later
legislation, Marsh _v._ Koons, 78 Ohio St. 68); Murray _v._ South
Carolina R. Co., 10 Rich. Law, 227; Hardman _v._ King, 14 Wyo. 503
_Accord_.

_Turning or driving cattle on another’s uninclosed, unimproved lands_,
where the common law is inapplicable or is abrogated by legislation:
Lazarus _v._ Phelps, 152 U. S. 81; Bell _v._ Gonzales, 35 Col. 138;
Bedden _v._ Clark, 76 Ill. 338; Dexter _v._ Heaghney, 47 Ill. App.
205; Harrison _v._ Adamson, 76 Ia. 337; Union R. Co. _v._ Rollins, 5
Kan. 167; Powers _v._ Kindt, 13 Kan. 74; Monroe _v._ Cannon, 24 Mont.
316; Musselshell Cattle Co. _v._ Woolfolk, 34 Mont. 126; Herrin _v._
Sieben, 46 Mont. 226; Delaney _v._ Errickson, 11 Neb. 533; Addington
_v._ Canfield, 11 Okl. 204; Thomas _v._ Blythe, 44 Utah, 1; Cosgriff
_v._ Miller, 10 Wyo. 190; Martin _v._ Platte Valley Sheep Co., 12 Wyo.
432; Healey _v._ Smith, 14 Wyo. 263. Compare Avery _v._ Maxwell, 4 N.
H. 36.

Compare reasons given for the inapplicability of the common-law rule
to Colorado. BECK, J., in Morris _v._ Fraker, 5 Col. 425, 428, 429.

Footnote 259:

Arguments omitted.

Footnote 260:

See Herold _v._ Meyers, 20 Ia. 378; Williams _v._ Michigan R. Co., 2
Mich. 259; Christy _v._ Hughes, 24 Mo. App. 275; Peek _v._ Western
Tel. Co., 159 Mo. App. 148; Crandall _v._ Eldridge, 46 Hun, 411.

_Whether there is a right of pasturage on uninclosed lands_, where the
common law rule is not in force, see Union R. Co. _v._ Rollins, 5 Kan.
167; Caulkins _v._ Mathews, 5 Kan. 191; Knight _v._ Abert, 6 Pa. St.
472.

Footnote 261:

The arguments are omitted.

Footnote 262:

After stating that “if a man have a beast, as a bull, cow, horse, or
dog, used to hurt people, if the owner know not his quality, he is not
punishable, &c.,” Hale adds (citing authorities) that “these things
seem to be agreeable to law.

“1. If the owner have notice of the quality of his beast, and it doth
anybody hurt, he is chargeable with an action for it.

“2. Though he have no particular notice that he did any such thing
before, yet if it be a beast that is _ferae naturae_, as a lion, a
bear, a wolf, yea an ape or monkey, if he get loose and do harm to any
person, the owner is liable to an action for the damage, and so I knew
it adjudged in Andrew Baker’s Case, whose child was bit by a monkey
that broke its chain and got loose.

“3. And therefore in case of such a wild beast, or in case of a bull
or cow, that doth damage, where the owner knows of it, he must at his
peril keep him up safe from doing hurt, for though he use his
diligence to keep him up, if he escape and do harm, the owner is
liable to answer damages.” 1 Hale’s P. C. 430, Part I, c.
33.—Reporter’s Note.

Footnote 263:

Jackson _v._ Smithson, 15 M. & W. 563; Card _v._ Case, 5 C. B. 622;
Strouse _v._ Leipf, 101 Ala. 433; Holt _v._ Leslie, 116 Ark. 433;
Laverone _v._ Mangianti, 41 Cal. 138; Gooding _v._ Chutes Co., 155
Cal. 620; Woolf _v._ Chalker, 31 Conn. 121; Kightlinger _v._ Egan, 75
Ill. 141; Gordon _v._ Kaufman, 44 Ind. App. 603; Holt _v._ Myers, 47
Ind. App. 118; Kennett _v._ Engle, 105 Mich. 693; Hall _v._ Huber, 61
Mo. App. 384; O’Neill _v._ Blase, 94 Mo. App. 648; Muller _v._
McKesson, 73 N. Y. 195; People _v._ Shields, 142 App. Div. 194; Tubbs
_v._ Shears, 55 Okl. 610; Mann _v._ Weiand, 81* Pa. St. 243; McCaskill
_v._ Elliot, 5 Strob. 196; Missio _v._ Williams, 129 Tenn. 504; Harris
_v._ Carstens Packing Co., 43 Wash. 647; Gunderson _v._ Bieren, 80
Wash. 459 _Accord_.

Footnote 264:

See Mason _v._ Keeling, 12 Mod. 332.

Footnote 265:

Besozzi _v._ Harris, 1 F. & F. 92; Texas R. Co. _v._ Juneman, 71 Fed.
939 (wild steer); Jackson _v._ Baker, 24 App. D. C. 100; Graham _v._
Payne, 122 Ind. 403 (ram); Marble _v._ Ross, 124 Mass. 44 (bull);
Marquet _v._ La Duke, 96 Mich. 596; Phillips _v._ Garner, 106 Miss.
828; Manger _v._ Shipman, 30 Neb. 352; Van Leuven _v._ Lyke, 1 N. Y.
515; Mahoney _v._ Dwyer, 84 Hun, 348; Malloy _v._ Starin, 113 App.
Div. 852 (reversed on other grounds, 191 N. Y. 21); Stamp _v._
Eighty-sixth St. Amusement Co., 95 Misc. 599 _Accord_.

Compare Hayes _v._ Miller, 150 Ala. 621, as to a wolf domesticated to
such an extent that the owner believed it harmless.

_As to the liability of the owner of bees_, see O’Gorman _v._
O’Gorman, [1903] 2 I. R. 573; Parsons _v._ Manser, 119 Ia. 88; Petey
Mfg. Co. _v._ Dryden, 5 Pennewill, 166; Lucas _v._ Pettit, 12 Ont.
Law, 448; Notes in 97 Am. State Rep. 287, and 62 L. R. A. 132. Compare
Earl _v._ Van Alstine, 8 Barb. 630; Olmsted _v._ Rich, 25 N. Y. St.
Rep. 271; Arkadelphia _v._ Clark, 52 Ark. 23.

Footnote 266:

“Certain animals _ferae naturae_ may doubtless be domesticated to such
an extent as to be classed, in respect to the liability of the owner
for injuries they commit, with the class known as tame or domestic
animals; but inasmuch as they are liable to relapse into their wild
habits and to become mischievous, the rule is that if they do so, and
the owner becomes notified of their vicious habit, they are included
in the same rule as if they had never been domesticated, the gist of
the action in such a case, as in the case of untamed wild animals,
being not merely the negligent keeping of the animal, but the keeping
of the same with knowledge of the vicious and mischievous propensity
of the animal.” Clifford, J., in Spring Company _v._ Edgar, 99 U. S.
645, 653.

Footnote 267:

See Bennet _v._ Bostock, 13 Scottish Sheriff Court Reports, 50; in the
same direction with Scribner _v._ Kelley, 38 Barb. 14, cited in the
foregoing opinion.

Footnote 268:

Kelley _v._ Killourey, 81 Conn. 320; Keightlinger _v._ Egan, 65 Ill.
235; Feldman _v._ Sellig, 110 Ill. App. 130; Donahue _v._ Scott
Transfer Co., 141 Ill. App. 174; Bush _v._ Wathen, 104 Ky. 548; Quimby
_v._ Woodbury, 63 N. H. 370; Badali _v._ Smith, (Tex. Civ. App.) 37 S.
W. 642 _Accord_.

“There are expressions in some of the cases indicating that the
liability of the owner is not affected by the negligence of the person
injured.... If a person with full knowledge of the evil propensities
of an animal wantonly excites him or voluntarily and unnecessarily
puts himself in the way of such an animal, he would be adjudged to
have brought the injury upon himself, and ought not to be entitled to
recover. In such a case it cannot be said, in a legal sense, that the
keeping of the animal, which is the _gravamen_ of the offence,
produced the injury.... But as the owner is held to a rigorous rule of
liability on account of the danger to human life and limb, by
harboring and keeping such animals, it follows that he ought not to be
relieved from it by slight negligence or want of ordinary care [on the
part of the plaintiff].... As negligence, in the ordinary sense, is
not the ground of liability, so contributory negligence, in its
ordinary meaning, is not a defence. These terms are not used in a
strictly legal sense in this class of actions, but for convenience ...
I think ... that the rule of liability before indicated is a
reasonable one, and that the owner cannot be relieved from it by any
act of the person injured, unless it be one from which it can be
affirmed that he caused the injury himself, with a full knowledge of
its probable consequences.” _Church, C. J._, in Muller _v._ McKesson,
73 N. Y. 195, 201, 202, 204.

So Woolf _v._ Chalker, 31 Conn. 121; Vredenberg _v._ Behan, 33 La.
Ann. 627; Fake _v._ Addicks, 45 Minn. 37; Malloy _v._ Starin, 113 App.
Div. 852.

_Negligence of the person injured_, see Graham _v._ Walsh, 14 Ga. App.
287; Buckley _v._ Gee, 55 Ill. App. 388; Milne _v._ Walker, 59 Ia.
186; Carpenter _v._ Latta, 29 Kan. 591; Tolin _v._ Terrell, 133 Ky.
210; Garland _v._ Hewes, 101 Me. 549; Twigg _v._ Ryland, 62 Md. 380;
Spellman _v._ Dyer, 186 Mass. 176; Ryan _v._ Marren, 216 Mass. 556;
Warrick _v._ Farley, 95 Neb. 565; Earhart _v._ Youngblood, 27 Pa. St.
331.

Footnote 269:

Arguments omitted. Compare report of same case in 1 Ld. Raym. 606.

Footnote 270:

_Sed quaere_: for in S. C. 1 Ld. Ray. 608, it is said that the case
was adjourned, and that afterwards the parties agreed, and therefore
no judgment was given.—Reporter’s Note.

As to the requirement of _scienter_ in case of injury by domestic
animals, Shaw _v._ Craft, 37 Fed. 317; Kitchens _v._ Elliott, 114 Ala.
290; Finney _v._ Curtis, 78 Cal. 498; Warner _v._ Chamberlain, 7
Houst. 18; Reed _v._ Southern Express Co., 95 Ga. 108; Domm _v._
Hollenbeck, 259 Ill. 382; Indianapolis Abattoir Co. _v._ Bailey, 54
Ind. App. 370; Trumble _v._ Happy, 114 Ia. 624; Ballou _v._ Humphrey,
8 Kan. 219; Murray _v._ Young, 12 Bush. 337; Goode _v._ Martin, 57 Md.
606; Dix _v._ Somerset Coal Co., 217 Mass. 146; Durrell _v._ Johnson,
31 Neb. 796; Smith _v._ Donohue, 49 N. J. Law, 548; Vrooman _v._
Lawyer, 13 Johns. 339; Dufer _v._ Cully, 3 Or. 377; Robinson _v._
Marino, 3 Wash. 434; Johnston _v._ Mack Mfg. Co., 65 W. Va. 544;
Kertschacke _v._ Ludwig, 28 Wis. 430 _Accord_.

_Liability for injury to trespassers in case of scienter_: Woolf _v._
Chalker, 31 Conn. 121; Conway _v._ Grant, 88 Ga. 40; Engebretson _v._
Bremer, 128 Minn. 232; Loomis _v._ Terry, 17 Wend. 496; Pierret _v._
Moller, 3 E. D. Smith, 574; Sherfey _v._ Bartley, 4 Sneed, 58.

_Liability where dog runs at large unmuzzled in violation of
ordinance_: Buchanan _v._ Stout, 139 App. Div. 204.

_Where vicious dog kills trespassing dog_: Wiley _v._ Slater. 22 Barb.
506.

_What constitutes knowledge_, see: Shaw _v._ Craft, 37 Fed. 317;
Barclay _v._ Hartman, 2 Marv. 351; Keightlinger _v._ Egan, 65 Ill.
235; Domm _v._ Hollenbeck, 259 Ill. 382; Kolb _v._ Klages, 27 Ill.
App. 531; Cameron _v._ Bryan, 89 Ia. 214; Holt _v._ Myers, 47 Ind.
App. 118; Murray _v._ Young, 12 Bush, 337; Twigg _v._ Ryland, 62 Md.
380; Knowles _v._ Mulder, 74 Mich. 202; Slater _v._ Sorge, 166 Mich.
173; Rowe _v._ Ehrmanntraut, 92 Minn. 17; Reynolds _v._ Hussey, 64 N.
H. 64; Emmons _v._ Stevane, 73 N. J. Law, 349, 77 N. J. Law, 570;
Rider _v._ White, 65 N. Y. 54; Brice _v._ Bauer, 108 N. Y. 428; Martin
_v._ Borden, 123 App. Div. 66; McGarry _v._ New York R. Co., 60 N. Y.
Sup. Ct. 367; Hayes _v._ Smith, 62 Ohio St. 161; Holden _v._ Shattuck,
34 Vt. 336.

_Knowledge of single vicious act_: Eastman _v._ Scott, 182 Mass. 192;
Kittredge _v._ Elliott, 16 N. H. 77; Keenan _v._ Gutta Percha Mfg.
Co., 46 Hun, 544; Cockerham _v._ Nixon, 11 Ired. 269. Compare: Linck
_v._ Scheffel, 32 Ill. App. 17; Cooper _v._ Cashman, 190 Mass. 75;
Buckley _v._ Leonard, 4 Denio, 500.

Statutes making owners or keepers of dogs liable irrespective of
_scienter_ or of negligence in keeping are not uncommon, but vary
greatly in detail.

Footnote 271:

Worthen _v._ Love, 60 Vt. 285 _Accord_. Baker _v._ Snell, [1908] 2 K.
B. 352, 825; Laverone _v._ Mangianti, 41 Cal. 138; Muller _v._
McKesson, 73 N. Y. 195; Dockerty _v._ Hudson, 125 Ind. 102 _Contra_.

Compare: The Lord Derby, 17 Fed. 265; Melsheimer _v._ Sullivan, 1 Col.
App. 22; Woodbridge _v._ Marks, 17 App. Div. 139; Lloyd _v._ Bowen,
170 N. C. 216; Hayes _v._ Smith, 62 Ohio St. 161; Fallon _v._ O’Brien,
12 R. I. 518.

See also Vredenberg _v._ Behan, 33 La. Ann. 627 (bear teased by third
person broke loose and injured plaintiff); Kinmouth _v._ McDougall, 19
N. Y. Supp. 771 (ram teased by children injured plaintiff).

See Bevan, The Responsibility at Common Law for the Keeping of
Animals, 22 Harvard Law Rev. 465.

Footnote 272:

Compare Merritt _v._ Matchett, 135 Mo. App. 176.

Footnote 273:

Hadwell _v._ Righton, [1907] 2 K. B. 345; Higgins _v._ Searle, 25
Times L. R. 301; Klenberg _v._ Russell, 125 Ind. 531; Dix _v._
Somerset Coal Co., 217 Mass. 146; Shipley _v._ Colclough, 81 Mich.
624; Smith _v._ Donahue, 49 N. J. Law, 548; Meegan _v._ McKay, 1 Okl.
59 _Accord_. But see Barnes _v._ Chapin, 4 All. 444.

Footnote 274:

Jewett _v._ Gage, 55 Me. 538 (hog) _Accord_.

Compare COULTER, J., in Goodman _v._ Gay, 15 Pa. St. 188, 193, 194;
Corcoran _v._ Kelly, 61 Misc. 323.

_A fortiori_ if one turns loose a vicious animal: McGuire _v._
Ringrose, 41 La. Ann. 1029.

_Injuries by animals running at large contrary to statute_, see:
Williams _v._ Brennan, 213 Mass. 28; Low _v._ Barnes, 30 Okl. 15;
Palmer _v._ Saccocia, 33 R. I. 476.

Footnote 275:

In the argument for defendant the declaration is set out as follows:—

“In a plea of the case for that the said plaintiff, on the 14th day of
September, 1855, was possessed of a valuable horse, of the value of
$125.00, which was peaceably and of right depasturing in his own
close, and the defendant was possessed of another horse, vicious and
unruly, which was running at large where of right it ought not to be,
and being so unlawfully at large, broke into the plaintiff’s close, at
the time aforesaid, and viciously and wantonly kicked, reared upon,
and injured the plaintiff’s horse, so that his death was caused
thereby, which vicious habits and propensities were well known to the
defendant at the time aforesaid. To the damage, &c.”

Footnote 276:

The arguments are omitted.

Footnote 277:

Angus _v._ Radin, 2 South. (N. J.) 815 _Accord_. The same result has
often been reached in an action of trespass _quare clausum_ in which
the injury by the trespassing animal is set up in aggravation. Lee
_v._ Riley, 17 C. B. N. S. 722; Theyer _v._ Purnell, [1918] 2 K. B.
333; Van Leuven _v._ Lyke, 1 N. Y. 515; Dolph _v._ Ferris, 7 Watts &
Sergt. 367; Chunot _v._ Larson, 43 Wis. 536.

But see McDonald _v._ Jodrey, 8 Pa. Co. Ct. R. 142 (cat went on
plaintiff’s premises and killed canary).

Footnote 278:

Statement and arguments omitted.

Footnote 279:

17 C. B. N. S. 260.

Footnote 280:

13 C. B. N. S. 430.

Footnote 281:

18 C. B. N. S. 732.

Footnote 282:

L. R. 10 C. P. 10.

Footnote 283:

McClain _v._ Lewiston Driving Ass’n, 17 Idaho, 63; Green _v._ Doyle,
21 Ill. App. 205; Chunot _v._ Larson, 43 Wis. 536 _Accord_.

Buck _v._ Moore, 35 Hun, 338 (defendant’s trespassing dog killed
plaintiff’s dog); Van Etten _v._ Noyes, 128 App. Div. 406 _Contra_.

Footnote 284:

Statement condensed. Arguments and portions of opinions omitted.

Footnote 285:

But compare Bischoff _v._ Cheney, 89 Conn. 1 (trespassing cat).

In Pollock on Torts, 6th ed., 479, it is said that the owner of cattle
and other live stock straying on the land of others is “liable only
for natural and probable consequences, not for an unexpected event,
such as a horse not previously known to be vicious kicking a human
being.” In 1 Beven on Negligence, 2d ed., 637, it is said, that if
animals are trespassing and do injury not in accordance with the
ordinary instinct of the animals, “the owner is not liable for the
injury apart from the trespass (though he may be for the trespass),
unless he knows of the particular vice which caused the injury.”

See FISK, J., in Peterson _v._ Conlan, 18 N. D. 205, 212.

Footnote 286:

Statement abridged. Arguments in all the courts omitted; also opinions
in Court of Exchequer.

Footnote 287:

“It is not every use to which the land is put that brings into play
that principle [Rylands _v._ Fletcher]. It must be some special use
bringing with it increased danger to others, and must not merely be
the ordinary use of the land or such a use as is proper for the
general benefit of the community.” Lord Moulton in Rickards _v._
Lothian, [1913] A. C. 263, 280.

“This was a case of the escape of water from lavatory pipes. It would
appear, therefore, that the construction of distributing water-pipes
in a building is an ordinary and natural use of land, but that the
construction of the water-mains or reservoirs from which the water is
obtained is not so. Such unreal and impracticable distinctions are not
creditable to the development of English law.” Salmond, Torts (4 ed.)
§ 61, n. 13.

See the remarks of Doe, C. J., in Brown _v._ Collins, _infra_, p. 482.

“This rule is rightly applicable only to such unusual and
extraordinary uses of property in reference to the benefits to be
derived from the use and the dangers or losses to which others are
exposed, as should not be permitted except at the sole risk of the
user. The standard of duty established by the courts in these cases is
that every owner shall refrain from these unwarrantable and extremely
dangerous uses of property unless he provides safeguards whose
perfection he guarantees.... The principle applicable to the erection
of common buildings whose fall might do damage to persons or property
on the adjacent premises holds owners to a less strict duty. This
principle is that where a certain lawful use of property will bring to
pass wrongful consequences from the condition in which the property is
put, if these are not guarded against, an owner who makes such a use
is bound at his peril to see that proper care is taken in every
particular to prevent the wrong.... The duty which the law imposes
upon an owner of real estate in such a case, is to make the conditions
safe so far as it can be done by the exercise of ordinary care on the
part of all those engaged in the work. He is responsible for the
negligence of independent contractors as well as for that of his
servants. This rule is applicable to every one who builds an ordinary
wall which is liable to do serious injury by falling outside of his
own premises.... The uses of property governed by this rule are those
that bring new conditions which involve risks to the persons or
property of others, but which are ordinary and usual and in a sense
natural, as incident to the ownership of the land. The rule first
referred to applies to unusual and extraordinary uses which are so
fraught with peril to others that the owner should not be permitted to
adopt them for his own purposes without absolutely protecting his
neighbors from injury or loss by reason of the use.” Knowlton, J., in
Ainsworth _v._ Lakin, 180 Mass. 397, 399–401.

Footnote 288:

Eastern Tel. Co. _v._ Capetown Tramways Cos., [1902] A. C. 381;
Midwood _v._ Manchester Corporation, [1905] 2 K. B. 597; Charing Cross
Co. _v._ London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K.
B. 772; Brennan Construction Co. _v._ Cumberland, 29 App. D. C. 554
(crude petroleum in tank); Shipley _v._ Associates, 106 Mass. 194;
Cahill _v._ Eastman, 18 Minn. 324; Wiltse _v._ Red Wing, 99 Minn. 255
(reservoir); French _v._ Carter Creek Mfg. Co., 173 Mo. App. 220
(stored nitroglycerine); Defiance Water Co. _v._ Olinger, 54 Ohio St.
532; Bradford Co. _v._ St. Mary’s Co., 60 Ohio St. 560 (stored
nitroglycerine); Langabaugh _v._ Anderson, 68 Ohio St. 131 (crude
petroleum in tank); Texas R. Co. _v._ Frazer (Tex. Civ. App.) 182 S.
W. 1161 (dam); Weaver Mercantile Co. _v._ Thurmond, 68 W. Va. 530
_Accord_. See Wing _v._ London General Omnibus Co., [1909] 2 K. B.
652.

“In every case of the kind which has been reported since Rylands _v._
Fletcher, that is, during the last 25 years, there has been a manifest
inclination to discover something in the facts which took the case out
of the rule. According to the English judicial system which has gone
round the world with the English language and English or Anglicized
institutions, the decisions of superior courts are not merely
instructive and worthy of regard, but of binding authority in
subsequent cases of the like sort. But there are some authorities
which are followed and developed in the spirit, which become the
starting-point of new chapters of the law; there are others that are
followed only in the letter, and become slowly but surely choked and
crippled by exceptions. This again, is independent of the
considerations of local fitness which must always have weight when
precedents are cited from a country remote both in place and in
manners.” Pollock, Law of Fraud in British India, 53–54 (1894).

“In August, 1908, Count Z. sent one of his dirigibles from Mainz to
Friederickshafen. Some motor trouble happened, and the ship was landed
in a field. Thousands of people rushed to the place, so ropes were run
around it, and soldiers were ordered on guard. The ship was anchored,
and in addition held by forty men with ropes at the stem, and by
thirty at the stern. In the afternoon a sudden thunderstorm came up,
struck the dirigible, tore it loose and sent it adrift for about a
mile, when it caught fire and was destroyed.

Spectators had been around all the time, and were standing outside the
ropes in rows several deep. Some unfortunate person standing in the
outer row near the rear gondola, was caught by the ship’s anchor,
dragged into the air and carried for some distance; in the fall, one
of his legs sustained such injuries that it had to be amputated.

He brought suit for damages, and was nonsuited; appealed; same result.
Finally, he appealed to the Reichsgericht. It refused to interfere,
for the following reasons: There being no special law governing damage
by air-navigation, it becomes necessary to prove negligence on the
part of the aviator or promoter. The idea that the mere undertaking of
a business, acknowledged to be dangerous, carries with it
responsibility for all damage caused thereby, is not law. The only
duty which the hazardousness of the undertaking imposes upon the
person engaged therein, is that of extra care. Otherwise, almost all
kinds of transportation would be impossible.

In this case, the trip had commenced during exceptionally fine
weather, which continued until after the time when the ship had been
landed and anchored. Defendant had proved that on former occasions he
had succeeded in landing, anchoring and holding his ship, even when
the weather was unfavorable, and that the means he on such occasions
had employed in keeping the ship at its moorings, were not any
stronger than those employed on this occasion; in fact, they were
weaker. It could not be demanded of the defendant that he should
anticipate and provide against such an extraordinary violent gust of
wind as tore his airship away.” 75 Central Law Journ. 311 (1912).

In Charing Cross Co. _v._ London Hydraulic Power Co., [1914] 3 K. B.
772, hydraulic mains under the streets burst and injured plaintiff’s
cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I
think that this present case is also indistinguishable from Rylands
_v._ Fletcher. Two grounds of distinction have been suggested. It is
said that the doctrine of Rylands _v._ Fletcher is applicable between
the owners of adjacent closes, which are adjacent whether there be any
intermediate property or not; and that it is a doctrine depending upon
the ownership of land and the rights attaching to the ownership of
land, under which violations of that species of right can be prevented
or punished. In the present case instead of having two adjacent owners
of real property, you have only two neighboring owners, not strictly
adjacent, of chattels, whose chattels are there under a permission
which might have been obtained by the private license of the owners of
the soil, though in fact obtained under parliamentary powers; hence
the two companies are in the position of co-users of a highway, or at
any rate of co-users of different rooms in one house, and Rylands _v._
Fletcher does not apply. The case depends on doctrines applicable to
the highways, or to houses let out in tenements. I am unable to agree
with any of these distinctions, though they have been pressed upon us
by both learned counsel with great resource and command of the
authorities. Midwood _v._ Manchester Corporation, [1905] 2 K. B. 597,
is not decided as a case of a dispute arising between the owners of
two adjacent closes. The case is treated as one between a corporation,
whose business under the roadway is exactly similar to that of the
defendant corporation here, and injured occupiers of the premises. If
the distinction drawn between the present case and that of adjacent
landowners in Rylands _v._ Fletcher be a good one, it either was not
taken in Midwood _v._ Manchester Corporation or was taken and treated
as of no importance. Further I am satisfied that Rylands _v._ Fletcher
is not limited to the case of adjacent freeholders. I shall not
attempt to show how far it extends. It extends as far as this case,
and that is enough for the present purpose.”

See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen,
The Rule in Rylands _v._ Fletcher, 59 University of Pennsylvania Law
Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its
History, 7 Harv. Law Rev. 315, 383, 442.

_Liability in case of customary or statutory duty or authority_ to use
land as defendant did, see Madras R. Co. _v._ Zemindar, L. R. 1 Ind.
App. 364; Green _v._ Chelsea Waterworks Co., 70 L. T. 547; Price _v._
South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City _v._
Bridgeport Hydraulic Co., 81 Conn. 84.

Footnote 289:

Argument abridged.

Footnote 290:

The judgment of the Court below, read by BRAMWELL, B., states the
finding thus: “In this case I understand the jury to have found that
all reasonable care had been taken by the defendant, that the banks
were fit for all events to be anticipated, and the weirs broad enough;
that the storm was of such violence as to be properly called the act
of God, or _vis major_.”

Footnote 291:

See Salmond, Torts (4 ed.) § 65.

Footnote 292:

Arguments omitted.

Footnote 293:

See Carstairs _v._ Taylor, L. R. 6 Ex. 217; Wilson _v._ Newberry, L.
R. 7 Q. B. 31; Rickards _v._ Lothian, [1913] A. C. 263.

Footnote 294:

Actiesselskabet Ingrid _v._ Central R. Co., (C. C. A.) 216 Fed. 72
(explosives); Judson _v._ Giant Powder Co., 107 Cal. 549 (explosives);
Lake Shore R. Co. _v._ Chicago R. Co., 48 Ind. App. 584 (semble);
Owensboro _v._ Knox, 116 Ky. 451 (electricity); Murphy _v._ Gillum, 73
Mo. App. 478 (semble); Losee _v._ Buchanan, 51 N. Y. 476 (boiler);
Cosulich _v._ Standard Oil Co., 122 N. Y. 118 (petroleum); Huff _v._
Austin, 46 Ohio St. 386 (boiler); Pennsylvania Coal Co. _v._
Sanderson, 113 Pa. St. 126 (semble); Sowers _v._ McManus, 214 Pa. St.
244 (explosives); Davis _v._ Charleston R. Co., 72 S. C. 112 (boiler)
_Accord_.

_Bursting of dam_, see: Alabama Coal & Iron Co. _v._ Turner, 145 Ala.
639; Todd _v._ Cochell, 17 Cal. 97; Shrewsbury _v._ Smith, 12 Cush.
177; City Water Power Co. _v._ City, 113 Minn. 33; King _v._ Miles
City Co., 16 Mont. 463; Livingston _v._ Adams, 8 Cow. 175; Lapham _v._
Curtis, 5 Vt. 371. Compare Pennock _v._ Central R. Co., 159 App. Div.
517.

_As to constitutionality of legislation imposing liability without
fault_, see City _v._ Sturges, 222 U. S. 313, 322; Pittsburgh R. Co.
_v._ Home Ins. Co., 183 Ind. 355; Daugherty _v._ Thomas, 174 Mich.
371; Ives _v._ South Buffalo R. Co., 201 N. Y. 271, 295–298.

Footnote 295:

See Cahill _v._ Eastman, 18 Minn. 324; Madras R. Co. _v._ Zemindar of
Carvatenagarum, L. R. 1 Ind. App. 364.—Reporter’s Note.

Footnote 296:

Only so much of the case is given as relates to a single point.

Footnote 297:

_Damage through escape of gas from pipes_, see: Gould _v._ Winona Gas
Co., 100 Minn. 258; Taylor _v._ St. Joseph Gas Co., 185 Mo. App. 537;
Morgan _v._ United Gas Co., 214 Pa. St. 109; Windish _v._ Peoples Gas
Co., 248 Pa. St. 236.

Footnote 298:

Herndon _v._ Stultz, 124 Ia. 734 Accord. But see Indiana, Burns’ Ann.
Stat., 1914, §§ 5524–5525; Texas, McEachin’s Civil Stat., arts.
6601–6602.

As to constitutionality of such legislation, see Ex parte Hodges, 87
Cal. 162.

Footnote 299:

Argument omitted.

Footnote 300:

Edwards _v._ Massingill, 3 Ala. App. 406; Kansas City R. Co. _v._
Wilson, (Ark.) 171 S. W. 484; Bullock _v._ Porter, 2 Boyce, 180;
Talmadge _v._ Central R. Co., 125 Ga. 400; Beckham _v._ Seaboard Ry.,
127 Ga. 550; Pittsburgh R. Co. _v._ Culver, 60 Ind. 469; Brummit _v._
Furness, 1 Ind. App. 401; Hanlon _v._ Ingram, 3 Ia. 81; Johnson _v._
Veneman, 75 Kan. 278; Needham _v._ King, 95 Mich. 303; Bolton _v._
Calkins, 102 Mich. 69; Steffens _v._ Fisher, 161 Mo. App. 386; Bock
_v._ Grooms, 2 Neb. Unoff. 803; Read _v._ Pennsylvania R. Co., 44 N.
J. Law, 280; Clark _v._ Foot, 8 Johns. 421; Stuart _v._ Hawley, 22
Barb. 619; Hitchcock _v._ Riley, 44 Misc. 260; McDermott _v._
Consolidated Ice Co., 44 Pa. Super. Ct. 445; Pfeiffer _v._ Aue, 53
Tex. Civ. App. 98; Waldy _v._ Preston Mill Co., 80 Wash. 25; Fahn _v._
Reichart, 8 Wis. 255 _Accord_.

_Fires set by locomotives._ As to liability for fires set by
locomotives, there is a conflict. One view is that the plaintiff must
establish negligence, as in other cases. Garrett _v._ Southern R. Co.,
(C. C. A.) 101 Fed. 102; Pittsburgh R. Co. _v._ Hixon, 110 Ind. 225
(changed by statute); Louisville R. Co. _v._ Haggard, 161 Ky. 317;
Wallace _v._ New York R. Co., 208 Mass. 16 (_res ipsa loquitur_
inapplicable); New England Box Co. _v._ New York R. Co., 210 Mass.
465; Fero _v._ Buffalo R. Co., 22 N. Y. 209; Peck _v._ New York R.
Co., 165 N. Y. 347; Campbell _v._ Baltimore R. Co., 58 Pa. Super. Ct.
241.

Another view is that proof that the fire was due to sparks or coals
from an engine makes a _prima facie_ case of negligence or even casts
upon the company the burden of disproving negligence. McCullen _v._
Chicago R. Co., (C. C. A.) 101 Fed. 66; Woodward _v._ Chicago R. Co.,
(C. C. A.) 145 Fed. 577 (statute); Erickson _v._ Pennsylvania R. Co.,
(C. C. A.) 170 Fed. 572 (statute); Alabama R. Co. _v._ Johnston, 128
Ala. 283; St. Louis R. Co. _v._ Trotter, 89 Ark. 273 (changed by
statute); Florida R. Co. _v._ Welch, 53 Fla. 145 (statute); Southern
R. Co. _v._ Thompson, 129 Ga. 367 (statute); Osburn _v._ Oregon R.
Co., 15 Idaho, 478; American Strawboard Co. _v._ Chicago R. Co., 177
Ill. 513; Kennedy _v._ Iowa Ins. Co., 119 Ia. 29 (statute); Atchison
R. Co. _v._ Geiser, 68 Kan. 281; Fuller _v._ Chicago R. Co., 137 La.
997; Dyer _v._ Maine R. Co., 99 Me. 195; Baltimore R. Co. _v._ Dorsey,
37 Md. 19; Continental Ins. Co. _v._ Chicago R. Co., 97 Minn. 467;
Alabama R. Co. _v._ Barrett, 78 Miss. 432; Miller _v._ St. Louis R.
Co., 90 Mo. 389; Rogers _v._ Kansas City R. Co., 52 Neb. 86; Laird
_v._ Connecticut R. Co., 62 N. H. 254 (statute); Goodman _v._ Lehigh
R. Co., 78 N. J. Law, 317 (statute); North Fork Lumber Co. _v._
Southern R. Co., 143 N. C. 324; Missouri R. Co. _v._ Gentry, 31 Okl.
579 (but changed by statute); Anderson _v._ Oregon R. Co., 45 Or. 211;
Hutto _v._ Seaboard Ry., 81 S. C. 567; Gulf R. Co. _v._ Johnson, 92
Tex. 591; Ide _v._ Boston R. Co., 83 Vt. 66 (statute); Norfolk R. Co.
_v._ Thomas, 110 Va. 622; Thorgrimson _v._ Northern R. Co., 64 Wash.
500; Jacobs _v._ Baltimore R. Co., 68 W. Va. 618; Moore _v._ Chicago
R. Co., 78 Wis. 120.

In other jurisdictions there is a statutory absolute liability for
such fires. St. Louis R. Co. _v._ Cooper, 120 Ark. 595; British Assur.
Co. _v._ Colorado R. Co., 52 Col. 589; Martin _v._ New York R. Co., 62
Conn. 331; Pittsburgh R. Co. _v._ Chappell, 183 Ind. 141; Stewart _v._
Iowa R. Co., 136 Ia. 182; Murphy _v._ St. Louis R. Co., 248 Mo. 28;
Baltimore R. Co. _v._ Kreager, 61 Ohio St. 312; Midland R. Co. _v._
Lynn, 38 Okl. 695; MacDonald _v._ New York R. Co., 23 R. I. 558;
Peoples Oil Co. _v._ Charleston R. Co., 83 S. C. 530; Jensen _v._
South Dakota R. Co., 25 S. D. 506.

Footnote 301:

State _v._ General Stevedoring Co., 213 Fed. 51; Kinney _v._ Koopman,
116 Ala. 310; Kleebauer _v._ Western Fuse Co., 138 Cal. 497; Simpson
_v._ Du Pont Powder Co., 143 Ga. 465; Barnes _v._ Zettlemoyer, 25 Tex.
Civ. App. 468 _Accord_.

French _v._ Center Creek Powder Co., 173 Mo. App. 220 _Contra_.

Compare Sloss-Sheffield Steel Co. _v._ Prosch, 190 Ala. 290; Flynn
_v._ Butler, 189 Mass. 377; Reilly _v._ Erie R. Co., 72 App. Div. 476.

Footnote 302:

Only part of case is given. Argument omitted.

Footnote 303:

Statement and arguments omitted.

Footnote 304:

Wright _v._ Malden R. Co., 4 All. 283; Nelson _v._ Burnham & Morrill
Co., 114 Me. 213; Fluker _v._ Ziegele Brewing Co., 201 N. Y. 40; Beck
_v._ Vancouver R. Co., 25 Or. 32 _Accord_. See also Newcomb _v._
Boston Protective Department, _ante_, p. 391; Bourne _v._ Whitman,
_ante_, p. 400, note 1.

Platte & Denver Canal Co. _v._ Dowell, 17 Col. 376: Richardson _v._ El
Paso Min. Co., 51 Col. 440; Lindsay _v._ Cecchi, 3 Boyce, 133; Toledo
R. Co. _v._ O’Connor, 77 Ill. 391; United States Brewing Co. _v._
Stoltenberg, 211 Ill. 531; Presto-Lite Co. _v._ Skeel, 182 Ind. 593;
Correll _v._ Burlington R. Co., 38 Ia. 120; Schlereth _v._ Missouri R.
Co., 96 Mo. 509; Brannock _v._ Elmore, 114 Mo. 55; Olson _v._ Nebraska
Tel. Co., 83 Neb. 735; Texas R. Co. _v._ Brown, 11 Tex. Civ. App. 503;
Smith _v._ Milwaukee Builders’ Exchange, 91 Wis. 360 _Contra_.

In Evers _v._ Davis, 86 N. J. Law, 196, 202, GARRISON, J., says:

“The question then is, What is, upon common law principles, the effect
of statutes such as the one we are considering upon the action of
negligence? The familiar expressions that the breach of such a statute
is ‘negligence _per se_’ or is ‘_prima facie_ evidence of negligence’
seem to me to postpone elucidation rather than to contribute to it,
while the implication that proof of a breach of a public statute will
support a private recovery is positively misleading.

A fact constantly to be borne in mind in tracing the legal effect of
such statutes is that the negligence that is essential to the action
of negligence is not solely in the overt act that produced the injury
complained of, but may lie in the failure to foresee the danger likely
to result from the doing of such act. ‘Danger, reasonably to be
foreseen at the time of acting, is the established test of negligence’
says the writer already cited. Of negligence of this sort it may be
said that it is common to all phases of the action, which cannot be
said of the mere overt act, which may not be an act of neglect or
omission at all, but, on the contrary, one of affirmative commission,
e. g., the blowing of a locomotive whistle (Bittle _v._ Camden and
Atlantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma
_v._ Easton and Amboy Railroad Co., 73 Id. 653) or the extraordinary
lurching of a train (Burr _v._ Pennsylvania Railroad Co., 64 Id. 30).
But whether the overt act be one of omission or of commission, and
whether the conduct of the defendant be stated in terms of ‘duty’ or
of ‘fault,’ the one common denominator, so to speak, of the action of
negligence is this element of what we may call discoverable danger;
that is to say, a danger that is susceptible of being discovered in
advance of action or inaction by the exercise of that degree of care
which if a man fails to exercise he becomes civilly liable for the
consequences of his conduct. Now, it is precisely upon this element of
discoverable danger that public statutes or ordinances act, and they
do this not by giving to the plaintiff a right of action he did not
have before, but by their operation upon what we may call the common
law conscience of the defendant, better known to us in its personified
form of ‘the ordinary prudent man,’ the familiar fiction designed by
the common law to aid juries, when deciding what was the proper thing
for a man to do, to lose sight of the personal point of view of that
particular man and to base their judgment upon a general standard
which in the final assize is what the jury itself thinks was the
proper thing to do.

Now this ordinary prudent man of common law creation must in the
nature of things be regarded as a law-abiding citizen to whom, as is
pointed out by Dean Thayer in the article referred to, it would be an
unjust reproach to suppose that, knowing the statute—for upon familiar
principles he can claim no benefit from his ignorance of it—he would
break it, _reasonably_ believing that it was a prudent thing for him
to do; and that in all probability no harm would come of it.

In other words, it is inconsistent with ordinary prudence for an
individual to set up his private judgment against that of the lawfully
constituted public authority. We must assume, therefore, that the
ordinary prudent man would not do such a thing since to do so would be
to change his entire nature and to forego the very traits that brought
him into existence. He would, in fine, cease to be the pattern man he
must continue to be in order to be at all.

Upon common law principles, therefore, when the legislature has by
public statute established a certain standard of conduct in order to
prevent a danger that it foresaw, it has in this regard forewarned the
‘ordinary prudent man’ and through him the defendant in a civil
action, whose conduct must always coincide with this common law
criterion. Such danger, therefore, does not have to be proved by the
plaintiff, since there is no longer room for a reasonable difference
of opinion, for by his breach of the statute the defendant, through
his common law conscience, is charged with knowledge that if injury
ensues he will have acted at his peril.

The court therefore should so instruct the jury, whether such
instruction be couched in the terms of the defendant’s duty to perform
or of his culpability for neglect, or of his liability for the result
of his action or inaction, as the case may be; and thus upon common
law principles the plaintiff in an action of negligence obtains the
benefit of the statute if he be one of the class for whose protection
it was enacted and the breach of such statute was the efficient cause
of the injury of which he complains.”

In Smith _v._ Mine & Smelter Co., 32 Utah, 21, 30, FRICK, J., says:

“The court instructed the jury in substance that, if they found from
the evidence that the appellant had violated the city ordinance in
respect to keeping or storing explosives, such violation constituted
negligence per se. Counsel insist that such is not the law; that it
would be _prima facie_ negligence at most. As to whether a violation
of a law or ordinance constitutes negligence _per se_ depends in a
large measure upon the nature of the law or ordinance. When a standard
of duty or care is fixed by law or ordinance, and such law or
ordinance has reference to the safety of life, limb, or property,
then, as a matter of necessity, a violation of such law or ordinance
constitutes negligence. In any case the standard is usually defined as
that degree of care that men of ordinary care and prudence usually
exercise. But, when the standard is fixed by law or ordinance, how can
one be heard to say that he exercised care in exceeding, or in
refraining to comply with, the standard fixed? There is, in such
cases, no comparison to be made. Care and prudence alone cannot
excuse. Exceeding or disregarding the standard of care imposed must be
held to be negligence, if it is anything. If it is held not to be such
_per se_, it simply amounts to this: That it is for the jury to say
whether, in violating a law or ordinance fixing a standard of care to
be observed the law was carefully or negligently violated. The
violation, thus in and of itself, would mean nothing, and one would be
permitted to violate the law with impunity, provided the jury find it
to have been carefully done. Neither is it an answer to say that the
violation may have been caused by the act of God or unavoidable
accident. If such be the case, then the act constituted no violation
in law, and when there is no violation there would be no negligence
arising out of such act or acts alone, and the jury would be required
to find whether the act or acts complained of constituted a violation,
as above indicated, or not. If they found that the law was
disregarded, but that it was occasioned by a higher power or through
unavoidable accident, then there would be no violation by the person
charged, and hence no negligence imputable to him from that act alone.
But if they found that he had violated the law by his own act, or by
the acts of others chargeable to him, then there would be negligence
_per se_. This negligence, however, standing alone, is not civilly
actionable. The negligence must in all cases be found to be the
proximate cause of the injury. The court instructed the jury that
unless they found that the negligence, if they found negligence as
above stated, was the proximate cause of the injury complained of, the
respondent could not recover. This, we think, is a correct statement
of the law pertaining to ordinances such as the one in question here.
We do not hold that a violation of all laws or ordinances constitutes
negligence _per se_, but we do hold that the violation of ordinances
designed for the safety of life, limb, or property, does constitute
negligence _per se_, and this, we think, is supported by the clear
weight of authority.”

It is sometimes said that violation of a duty so imposed is “_prima
facie_ evidence of negligence;” Giles _v._ Diamond State Iron Co., 7
Houst. 453; True _v._ Woda, 104 Ill. App. 15; Wabash R. Co. _v._
Kamradt, 109 Ill. App. 203; Mize _v._ Rocky Mountain Tel. Co., 38
Mont. 521; Briggs _v._ New York R. Co., 72 N. Y. 26; Acton _v._ Reed,
104 App. Div. 507.

A distinction between a statute and a municipal ordinance has been
urged. Philadelphia R. Co. _v._ Ervin, 89 Pa. St. 71; Lederman _v._
Pennsylvania R. Co., 165 Pa. St. 118; Riegert _v._ Thackery, 212 Pa.
St. 86.

In Ubelmann _v._ American Ice Co., 209 Pa. St. 398, 400, BROWN, J.,
says:

“When negligence is charged it must be proved. Proof of the violation
of an ordinance regulating or relating to conduct alleged to have been
negligent is not in itself conclusive proof of the negligence charged.
The ordinance and its violation are matters of evidence, to be
considered with all other evidence in the case: Lane _v._ Atlantic
Works, 111 Mass. 136. But this rule is limited to cases in which the
ordinance relates to the alleged negligent act under investigation.
Here, as stated, it was the use of an alleged defective shifting rod
in the elevator. Ordinances and their violation are admissible, not as
substantive and sufficient proof of the negligence of the defendant,
but as evidence of municipal expression of opinion, on a matter as to
which the municipal authorities had acted, that the defendant was
negligent, and are to be taken into consideration with all the other
facts in the case. Illustrations of this are found in several of our
later cases. In Lederman _v._ Pennsylvania Railroad Co., 165 Pa. 118,
one of the questions was the undue rate of speed at which the
defendant company was running its cars through the city of Lancaster,
and we held that the ordinance in relation to the speed of railway
trains within the city limits had been properly admitted. An ordinance
of the city of Philadelphia requires all vehicles, including bicycles,
to keep to the right, and, in Foote _v._ American Product Co., 195 Pa.
190, where the rider of the bicycle had conformed to this ordinance,
and the driver of the wagon that ran into him had not, we said,
through our Brother Mestrezat: ‘While the ordinance in itself was not
evidence of negligence, it may be considered with other evidence in
ascertaining whether the defendant was guilty of negligence.’ When the
suit is against the municipality itself, and it is charged with
negligence, due to the dereliction of its employees, their violation
or disregard of its own regulations and ordinances relating to the
matter under investigation are proof of such dereliction, though not
necessarily of the specific negligence charged, which, as in all other
cases, must be proved by proper and satisfactory evidence. The
dereliction of the municipal employees is to be taken into
consideration with the other facts in the case, upon proof of which
the plaintiff relies to sustain his allegation of negligence. An
illustration of this is Herron _v._ The City of Pittsburg, 204 Pa.
509, which was an action against the city to recover damages for
personal injuries sustained by a boy from contact with a live, naked
telephone wire used in the police service of the city, and it appeared
that the break in the wire was known to the police officials within an
hour after it had occurred, and that it was also known to them to be
in close proximity to other wires, some of which carried strong and
dangerous currents of electricity. We regarded as proper the admission
of the ordinance of the city and the rules of the police department
relating to the inspection and use of the city wires.

The ordinance of April 10, 1894, provides for the inspection of
elevators by inspectors duly appointed by the city of Philadelphia,
and makes it the duty of the owner or operator of an elevator, after
its inspection, to procure from the inspector a certificate that it is
in condition to be operated, and to expose the certificate to public
view as near as possible to the elevator car. This ordinance does not
make it the duty of one owning or operating an elevator to demand an
inspection, and it is only after the inspector has inspected that he
must procure and expose the certificate. But, even if there had been
an inspection here, and the defendant company had not procured and
exposed the proper certificate, its failure to do so is not the
negligence charged against it that resulted in the plaintiff’s injury,
and the ordinance clearly had no proper place in his evidence.”

_Breach of rules of a private corporation_, see Hoffman _v._ Cedar
Rapids R. Co., 157 Ia. 655; Stevens _v._ Boston R. Co., 184 Mass. 476;
Virginia R. Co. _v._ Godsey, 117 Va. 167.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.

Footnote 305:

Arguments omitted.

Footnote 306:

Steel Car Forge Co. _v._ Chec, (C. C. A.) 184 Fed. 868; Great Southern
R. Co. _v._ Chapman, 80 Ala. 615; Lindsay _v._ Cecchi, 3 Boyce, 133;
Gibson _v._ Leonard, 143 Ill. 182; Browne _v._ Siegel, 90 Ill. App. 49
(aff’d on another ground, 191 Ill. 226); Presto-Lite Co. _v._ Skeel,
182 Ind. 593; Kidder _v._ Dunstable, 11 Gray, 342; Curwen _v._
Bofferding, 133 Minn. 28; Koch _v._ Fox, 71 App. Div. 288; Kuhnen _v._
White, 102 App. Div. 36; Ledbetter _v._ English, 166 N. C. 125;
Dobbins _v._ Missouri R. Co., 91 Tex. 60; Stacy _v._ Knickerbocker Ice
Co., 84 Wis. 614; Derouso _v._ International Harvester Co., 157 Wis.
32 _Accord_.

Compare Hartnett _v._ Boston Store, 265 Ill. 331, with Pizzo _v._
Wiemann, 149 Wis. 285; Beauchamp _v._ Burn Mfg. Co., 250 Ill. 303,
with Berdos _v._ Tremont Mills, 209 Mass. 489.

Footnote 307:

In Cowley _v._ Newmarket Local Board, [1892] A. C. 345, 351, Lord
Herschell said:

“My Lords, the question which arises in this action is whether the
defendants are liable in respect of an accident which happened to the
plaintiff, owing to the existence of a drop of eighteen inches in the
level of a footway vested in the defendants, in consequence of which
the plaintiff fell and sustained considerable injury. The difference
of level in the footway arose from a carriage-way having been made for
the purpose of access to Captain Machell’s stable, the yard of which
adjoined the footway. This work was executed by Captain Machell in the
year 1873. The plaintiff in his statement of claim asserted that the
defendants had wrongfully suffered and permitted the footway to be out
of repair and in a condition dangerous to passengers. It appeared
clearly at the trial that there had been no misfeasance on the part of
the defendants. The utmost that could be charged against them was
nonfeasance. It was strongly urged at the bar that the highway
including the footway being vested in the defendants, they were
responsible if it was not kept in proper condition and repair to any
one who was injured by reason of its not being so kept. In support of
their contention they relied mainly on the 144th and 149th sections of
the Public Health Act, 1875. By the former of those sections every
urban authority is to execute the office of surveyor of highways, and
to exercise and be subject to all the powers, duties, and liabilities
of surveyors. By the latter it is provided that the urban sanitary
authority shall from time to time cause all streets vested in them to
be levelled, paved, metalled, flagged, channelled, altered, and
repaired as occasion may require. Amongst the duties thus imposed upon
the urban authority was undoubtedly the duty of keeping this highway
in repair, and it is said that any person injured by the
non-performance of a statutory duty is entitled to recover against the
person on whom that duty rests. I entertain very grave doubts whether
the proposition thus broadly stated can be maintained. The principal
authority in support of it is the decision of the Court of Queen’s
Bench in the case of Couch _v._ Steel, 3 E. & B. 402. But in the case
of Atkinson _v._ Newcastle Waterworks Company, 2 Ex. D. 441, the late
Lord Cairns and Cockburn, C. J., and the present Master of the Rolls
all expressed serious doubts whether the case of Couch _v._ Steel was
rightly decided, and whether the broad general proposition could be
supported, that whenever a statutory duty is created any person who
can show he has sustained injury from the non-performance of that duty
can maintain an action for damages against the person on whom the duty
is imposed. I share the doubt expressed by these learned judges and
the opinion expressed by Lord Cairns that much must ‘depend on the
purview of the Legislature in the particular statute and the language
which they have there employed.’ In the case of Glossop _v._ Heston
and Isleworth Local Board, 12 Ch. D. 102, 109, James, L. J., made some
observations bearing on this point, which seem to me to be of great
weight. In that case the plaintiff claimed an injunction to restrain a
nuisance on the ground that the defendants had neglected to perform
the statutory duty cast on them as the sanitary authority of a
particular district. The learned Lord Justice said: ‘It appears to me
that if this action could be sustained it would be a very serious
matter indeed for every ratepayer in England in any district in which
there is any local authority upon whom duties are cast for the benefit
of the locality. If this action could be maintained, I do not see why
it could not, in a similar manner, be maintained by every owner of
land in that district who could allege that if there had been a proper
system of sewage his property would have been very much improved.’ And
he expressed the opinion that such a contention was not supported
either by principle or authority. It is to be observed that the
Highway Act, which defines the duties of surveyors of highways,
prescribes the mode of proceeding when the duty of repairing the
highway is unfulfilled and the liability which is then to attach to
the surveyor. By sect. 94 he may be summoned before the justices, and
if it appears either upon the report of a person appointed by them to
view, or on their own view, that the highway is not in a state of
thorough and perfect repair, they are to convict the surveyor in a
penalty, and to make an order on the surveyor to repair it within a
limited time; and if the repairs are not made within the time so
limited the surveyor is to forfeit and pay to a person to be named and
appointed in a second order a sum of money equal to the cost of
repairing the highway. I think it, to say the least, doubtful whether,
apart from the reason to which I am about to refer, the contention
that an action lies against the local board for a breach of their
statutory duty to repair the highways can be maintained.”

Sydney Municipal Council _v._ Bourke, [1895] A. C. 433; Maguire _v._
Liverpool Corporation, [1905] 1 K. B. 767 _Accord_. But compare Dawson
_v._ Bingley Urban District Council, [1911] 2 K. B. 149.

_Statutory duty to repair street or sidewalk_, see Manchester _v._
Hartford, 30 Conn. 118; Kirby _v._ Boylston Market, 14 Gray, 249;
Rochester _v._ Campbell, 123 N. Y. 405.

Footnote 308:

“A person who sells, gives away, or disposes of, any poison, or
poisonous substance, without attaching to the vial, box, or parcel
containing such poisonous substance, a label, with the name and
residence of such person, the word ‘poison,’ and the name of such
poison, all written or printed thereon, in plain and legible
characters, is guilty of a misdemeanor.”—Minnesota Penal Code, section
329.

“No person shall sell at retail any poisonous commodity recognized as
such, and especially” [here enumerating various poisons], “without
affixing to the box, bottle, vessel or package containing the same,
and to the wrapper or cover thereof, a label bearing the name ‘poison’
distinctly shown, together with the name and place of business of the
seller.... Any person failing to comply with the requirements of this
section shall be deemed guilty of a misdemeanor, and shall be liable
to a fine of not less than five (5) dollars for each and every such
omission.”—Minnesota Laws, 1885, chap. 147, section 14.

Footnote 309:

Couch _v._ Steel, 3 E. & B. 402; Salisbury _v._ Herchenroder, 106
Mass. 458; Parker _v._ Barnard, 135 Mass. 116; Marino _v._ Lehmaier,
173 N. Y. 530; Westervelt _v._ Dives, 220 Pa. St. 617 _Accord_.
Compare Nugent _v._ Vanderveer, 38 Hun, 487.

See also Great Northern Fishing Co. _v._ Edgehill, 11 Q. B. D. 225.

Footnote 310:

Arguments omitted. Only so much of the opinion is given as relates to
a single point.

Footnote 311:

Groves _v._ Wimborne, [1898] 2 Q. B. 402; Cowen _v._ Story & Clark
Co., 170 Ill. App. 92; Andersen _v._ Settergren, 100 Minn. 294; Schaar
_v._ Conforth, 128 Minn. 460 _Accord_. Compare Stehle _v._ Jaeger
Machine Co., 220 Pa. St. 617; Drake _v._ Fenton, 237 Pa. St. 8.

Footnote 312:

Arguments of counsel omitted.

Footnote 313:

Bischof _v._ Illinois R. Co., 232 Ill. 446; Frontier Steam Laundry Co.
_v._ Connolly, 72 Neb. 767; Hocking R. Co. _v._ Phillips, 81 Ohio St.
453 _Accord_.

_Breach of statutory duty toward third person_, see Gibson _v._
Leonard, 143 Ill. 182; Woodruff _v._ Bowen, 136 Ind. 431; Bott _v._
Pratt, 33 Minn. 323; Kelly _v._ Muhs, 71 N. J. Law, 348; Beehler _v._
Daniels, 19 R. I. 49. Compare Racine _v._ Morris, 201 N. Y. 240.

In Stanley _v._ Atchison R. Co., 88 Kan. 84, MASON, J., says:

“The evidence tended to show these facts: Stanley kept a number of
cattle in a feed lot one side of which was formed by the right-of-way
fence. Employees of the company who were engaged in its repair removed
a part of it, as well as a part of Stanley’s fence which connected
with it, and as a temporary protection strung two wires across the
gap. The protection was insufficient and the cattle escaped. None of
them was injured upon the right of way, but a number strayed and were
not recovered, and others suffered injury, in some cases fatal.

The defendant maintains that in any view of the findings the judgment
ought not to be reversed, for the reason that the petition does not
state a cause of action, because the company was under no obligation
to maintain the fence, except for the purpose of avoiding liability
for animals killed or injured by its trains, and therefore cannot be
held accountable for any other kind of loss occasioned by the want of
a sufficient fence. The original statute upon the subject does not in
terms require a railroad right of way to be fenced. It makes the
company responsible for animals killed or injured by the operation of
its railway irrespective of negligence, except where the road is
enclosed with a lawful fence.... The later statute imposed a duty on
the railroad company to maintain the fence, and it is liable for any
injury of which its neglect of such duty is the proximate cause....

The defendant urges that the purpose of the statute referred to is to
promote safety in the running of trains; that in this purpose is found
the only warrant for imposing upon the railroad company the obligation
to fence its right of way; and that therefore the company’s liability
must be limited to injuries resulting from the operation of the road,
and the state has no power to make it liable for losses occasioned by
the escape of animals which do not meet with any injury upon the right
of way. Assuming that the right of the legislature to require a
railroad company to fence its tracks is based solely upon the
consideration that such fencing may be deemed necessary to diminish
the danger of injury to animals from the operation of trains, and to
persons and property resulting from trains colliding with animals, it
is competent as a means of enforcing such requirement to make the
company liable for losses occasioned to the landowner by the escape of
his cattle through a defective fence, although they pass from the
right of way without injury.”

_Liability to licensee in case of breach of statutory duty as to
condition of premises_, see Sheyer _v._ Lowell, 134 Cal. 357.

_Liability to trespassers_, see Nelson _v._ Burnham & Morrill Co., 114
Me. 213; Flanagan _v._ Sanders, 138 Mich. 253; Hamilton _v._
Minneapolis Desk Co., 78 Minn. 3; Bennett _v._ Odell Mfg. Co., 76 N.
H. 180. Compare Butz _v._ Cavanaugh, 137 Mo. 503.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 313,
336.

Footnote 314:

By “Lord Tenterden’s Act,” 9 Geo. IV. ch. 14, s. 6, it is provided,
that no action shall be brought to charge any person upon any
representation made concerning the character, conduct, credit,
ability, trade, or dealings of any other person, to the intent that
such other person may obtain credit, money, or goods, unless such
representation “be made in writing, signed by the party to be charged
therewith.” Statutes of a similar nature have been enacted in some of
the United States.

Footnote 315:

Only part of the opinion is printed.

Footnote 316:

Cf. Lillegren _v._ Burns, 135 Minn. 60.

Footnote 317:

Statement abridged. Only part of opinion is given.

Footnote 318:

In Aaron’s Reefs Ltd. _v._ Twiss, [1896] A. C. 273, 280–281, Lord
Halsbury, L. C., says: “I must protest against it being supposed that
in order to prove a case of this character of fraud, and that a
certain course of conduct was induced by it, a person is bound to be
able to explain with exact precision what was the mental process by
which he was induced to act. It is a question for the jury. If a man
said he was induced by such and such an inducement held out in the
prospectus, I should not think that conclusive. It must be for the
jury to say what they believed upon the evidence. Looking at the
evidence in this case, I should say if I were a juryman that this was
a very fascinating prospectus, and was calculated to induce any one
who believed the statements in it to invest his money in the concern.”

In Mathews _v._ Bliss, 22 Pick. 48, Shaw, C. J., says: “The judge
further instructed the jury, that in order to maintain this action,
they must be satisfied that the defendants had made the false
representation, and that the sale was produced by means of it; that it
was not necessary that it should be the sole and only motive inducing
the sale, but it must have been a predominant one. In this particular,
the Court are of opinion, that the direction, as it may have been and
probably was understood by the jury, was not strictly correct; though
it may have been so qualified and illustrated as to prevent the jury
from being misled by it.

The term ‘predominant,’ in its natural and ordinary signification, is
understood to be something greater or superior in power and influence
to others, with which it is connected or compared. So understood, a
predominant motive, when several motives may have operated, is one of
greater force and effect, in producing the given result, than any
other motive. But the Court are of opinion, that if the false and
fraudulent representation was a motive at all, inducing to the act, if
it was one of several motives, acting together, and by their combined
force producing the result, it should have been left to the jury so to
find it. If the false suggestion had no influence, if the plaintiff’s
agent would have done the same thing and made the sale if such
representation had not been made, then it was not a motive to the act,
and the plaintiff’s agent was not induced to sell by means of it. On
the whole, considering that the ordinary and natural meaning of the
term ‘predominant,’ when applied to one among several motives, is such
as has been stated, that the jury may have so understood it, and if
they did so understand it, they may have come to a verdict not
warranted by law, upon the evidence before them, the Court are of
opinion, that the verdict ought to be set aside, and a new trial
granted.”

Footnote 319:

The case has been much abridged, and the greater part of the report
omitted.

Footnote 320:

Cockrill _v._ Hall, 65 Cal. 326; United States Home Co. _v._ O’Connor,
48 Col. 354; Lynch _v._ Hall, 41 Conn. 238; Jones _v._ Crawford, 107
Ga. 318; Hinchey _v._ Starrett, 91 Kan. 181; Oldham _v._ Bentley, 6 B.
Mon. 428; Price _v._ Read, 2 Har. & G. 291; Adams _v._ Anderson, 4
Har. & J. 558; Sweet _v._ Kimball, 166 Mass. 332; Garry _v._ Garry,
187 Mass. 62; McElrath _v._ Electric Investment Co., 114 Minn. 358;
Holmes _v._ Wilkes, 130 Minn. 170; Cerny _v._ Paxton Co., 78 Neb. 134;
Gabriel _v._ Graham, 168 App. Div. 847; American Hosiery Co. _v._
Baker, 18 Ohio Cir. Ct. R. 604; Standard Elevator Co. _v._ Wilson, 218
Pa. St. 280; Bowe _v._ Gage, 127 Wis. 245 _Accord_. See also Wilson
_v._ Yocum, 77 Ia. 569.

Footnote 321:

Arguments and part of opinion omitted.

Footnote 322:

Harriage _v._ Daley, 121 Ark. 23; Dickinson _v._ Atkins, 100 Ill. App.
401; McAllister _v._ Indianapolis R. Co., 15 Ind. 11; Welshbillig _v._
Dienhart, 65 Ind. 94; Long _v._ Woodman, 58 Me. 49; Davis _v._
Reynolds, 107 Me. 61; Bullock _v._ Wooldridge, 42 Mo. App. 356;
Wolters _v._ Fidelity Trust Co., 73 N. J. Law, 57 _Accord_. See also
Bennett _v._ McIntire, 121 Ind. 231.

In Adams _v._ Gillig, 199 N. Y. 314, plaintiff sued in equity for
cancellation of a conveyance procured by falsely representing that
defendant intended to build a dwelling on the land, when his real
intention was to build a garage. Chase, J., said (pp. 320–322): “A
promise as such to be enforceable must be based upon a consideration,
and it must be put in such form as to be available under the rules
relating to contracts and the admission of evidence relating thereto.
It may include a present intention, but as it also relates to the
future it can only be enforced as a promise under the general rules
relating to contracts.

A mere statement of intention is a different thing. It is not the
basis of an action on contract. It may in good faith be changed
without affecting the obligations of the parties. A statement of
intention does not relate to a fact that has a corporal and physical
existence, but to a material and existing fact nevertheless not
amounting to a promise but which as in the case under discussion
affects and determines important transactions. The question here under
discussion is not affected by the rules relating to the admission of
testimony. As it was not promissory and contractual in its nature
there is nothing in the rules of evidence to prevent oral proof of the
representations made by the defendant to the plaintiff. In an action
brought expressly upon a fraud, oral evidence of facts to show the
fraud is admissible. (Pomeroy’s Equity Jurisprudence, Sec. 889.)

This case stands exactly as it would have stood if the plaintiff and
defendant before the execution and delivery of the deed had entered
into a writing by which the defendant had stated therein his intention
as found by the court on the trial and the plaintiff had stated her
acceptance of his offer based upon her belief and faith in his
statement of intention, and it further appeared that the statement was
so made by the defendant for the purpose of inducing the plaintiff to
sell to him the lot, and that such statement was so made by him
falsely, fraudulently and purposely for the purpose of bringing about
such sale.

Intent is of vital importance in very many transactions. In the
criminal courts it is necessary in many cases for jurors to determine
as a question of fact the intent of the person charged with the crime.
Frequently the life or liberty of the prisoner at the bar depends upon
the determination of such question of fact. In civil actions relating
to wrongs, the intent of the party charged with the wrong is
frequently of controlling effect upon the conclusion to be reached in
the action. The intent of a person is sometimes difficult to prove,
but it is nevertheless a fact and a material and existing fact that
must be ascertained in many cases, and when ascertained determines the
rights of the parties to controversies. The intent of Gillig was a
material existing fact in this case, and the plaintiff’s reliance upon
such fact induced her to enter into a contract that she would not
otherwise have entered into. The effect of such false statement by the
defendant of his intention cannot be cast aside as immaterial simply
because it was possible for him in good faith to have changed his mind
or to have sold the property to another who might have a different
purpose relating thereto. As the defendant’s intention was subject to
change in good faith at any time it was of uncertain value. It was,
however, of some value. It was of sufficient value so that the
plaintiff was willing to stand upon it and make the conveyance in
reliance upon it.

The use of property in a particular manner changes from time to time
and restrictive covenants of great value at one time may become a
source of serious embarrassment at a later date. The fact that
restrictive covenants cannot ordinarily be drawn to bend to changed
conditions has made many purchasers disinclined to accept conveyances
with such covenants. A restrictive covenant in a deed may be of
sufficient importance to justify a refusal by a contractee to accept a
conveyance subject to such conditions. A person in selling property
may be quite willing to execute and deliver a deed thereof without
putting restrictive covenants therein and in reliance upon the good
faith of express, unqualified assurances of the present intention of
the prospective purchaser. In such case the intention is material and
the statement of such intention is the statement of an existing fact.

Unless the court affirms this judgment, it must acknowledge that
although a defendant deliberately and intentionally, by false
statements, obtained from a plaintiff his property to his great damage
it is wholly incapable of righting the wrong, notwithstanding the fact
that by so doing it does in no way interfere with the rules that have
grown up after years of experience to protect written contracts from
collateral promises and conditions not inserted in the contract.

We are of the opinion that the false statements made by the defendant
of his intention should, under the circumstances of this case, be
deemed to be a statement of a material, existing fact of which the
court will lay hold for the purpose of defeating the wrong that would
otherwise be consummated thereby.”

Footnote 323:

Butler _v._ Watkins, 13 Wall. 456; Rogers _v._ Virginia-Carolina
Chemical Co., (C. C. A.) 149 Fed. 1; Sallies _v._ Johnson, 85 Conn.
77; McLaughlin _v._ Thomas, 86 Conn. 252; Olson _v._ Smith, 116 Minn.
430; Herndon _v._ Durham R. Co., 161 N. C. 650; Blackburn _v._
Morrison, 29 Okl. 510 _Accord_.

Grubb _v._ Milan, 249 Ill. 456; Murray _v._ Smith, 42 Ill. App. 548;
Chambers _v._ Mitchell, 123 Ill. App. 595; Younger _v._ Hoge, 211 Mo.
444 _Contra_.

In Commonwealth _v._ Althause, 207 Mass. 32, 47–49, Loring, J., says:
“As a general proposition of law apart from statutes making it a crime
to obtain property by a false pretence, it would seem that a man’s
present intention as to a future act is a fact. Edgington _v._
Fitzmaurice, 29 Ch. D. 459. Swift _v._ Rounds, 19 R. I. 527. In the
first of these two cases (Edgington _v._ Fitzmaurice) Bowen, L. J.,
said, at p. 483: ‘The state of a man’s mind is as much a fact as the
state of his digestion.’ And Chapman, C. J., in Commonwealth _v._
Walker, 108 Mass. 309, 312, said: ‘A man’s intention is a matter of
fact, and may be proved as such....’

But in the case at bar the presiding judge went beyond any decided
case in the explanation which he gave of the difference between the
representation of a person’s present intention as to a future act and
an assurance or promise that the future act shall be done. For the
purpose of illustrating the essential difference between the two he
put as an example of obtaining property by a false pretence a case
which is not obtaining property by a false pretence. In effect he told
the jury that if A buys property intending not to pay for it he
obtains that property by a false pretence. In that case A makes no
representation at all. All that he does is to make a promise, and a
promise is not a representation of a fact. It has been sought to make
out that in legal contemplation a promise with an intention not to
perform is a false pretence because a promise to do a thing of
necessity implies a present intention to do it, and therefore whenever
you have a promise coupled with an intent not to perform you have an
implied false representation of an intention to do the act which the
defendant promised to do and so a false pretence. And this finds some
apparent support in Swift _v._ Rounds, 19 R. I. 527. In that case it
was held that where a defendant buys property intending not to pay for
it he is liable in an action of deceit because he impliedly represents
that he intends to pay for it by the act of buying. It may be doubted
whether the making of a promise implies of necessity in all cases a
present intention to perform that promise. Upon that question we do
not find it necessary to express an opinion. For however that may be,
the fraud of obtaining property by buying it intending not to pay for
it is not, as matter of construction of the statute creating it, the
crime of obtaining property by a false pretence.... It is evident that
the fraud (which by enacting that statute the Legislature intended to
make a crime) was obtaining the property of another by a false
statement of a fact; and it is equally evident that in enacting it the
Legislature did not have in mind the fraud of buying goods not
intending to pay for them. Both are frauds but they are not the same
fraud. In our opinion it was the former alone which the Legislature
had in mind in making it a crime to obtain property by a false
pretence.”

_As to whether intention at the time of the contract or at the time of
delivery of the goods_ is to be regarded, see _In re_ Levi, 148 Fed.
654; Whitten _v._ Fitzwater, 129 N. Y. 626.

Footnote 324:

See Gardner _v._ State, 4 Ala. App. 131; Syracuse Knitting Co. _v._
Blanchard, 69 N. H. 447.

Footnote 325:

Statement abridged. Part of opinion omitted.

Footnote 326:

As to “promissory representations,” see also Sawyer _v._ Prickett, 19
Wall. 146; Sallies _v._ Johnson, 85 Conn. 77; Carter _v._ Orne, 112
Me. 365; Pedrick _v._ Porter, 5 All. 324; Pile _v._ Bright, 156 Mo.
App. 301.

_Known impossible prophecy by one having superior knowledge_, see
Murray _v._ Tolman, 162 Ill. 417; French _v._ Ryan, 104 Mich. 625;
Hedin _v._ Minneapolis Institute, 62 Minn. 146.

Footnote 327:

Only part of the case is given.

Footnote 328:

But see Davis _v._ Reynolds, 107 Me. 61.

In Van Epps _v._ Harrison, 5 Hill, 63, 70–71, Bronson, J., says: “If
an affirmation concerning the cost of the property was of any
consequence, I think the defendant should have taken the trouble to
inquire and satisfy himself. But I cannot think it a matter of any
legal importance. It was only another mode of asserting that the
property was of the value of $32,000; and all the books agree that no
action will lie if such an affirmation prove false. It is the folly of
the purchaser to trust to it. Indeed, the representation here amounts
to less than a direct affirmation of value, for it only asserts that
the plaintiff and another man agreed that such was the value. It would
lead to great mischief to allow men to annul contracts upon such a
ground. If the defendant could make out that the plaintiff was his
agent in purchasing from Van Rensselaer, then what the plaintiffs said
about the price he paid might be material; but not in any other point
of view.

Such are my views upon this branch of the case; but my brethren are of
opinion that the false affirmation concerning the price paid for the
land furnishes a good ground of action. There must, therefore, be a
new trial upon this point, as well as the one relating to the
condition of the land.”

_As to “puffing,”_ see: Mumford _v._ Tolman, 157 Ill. 258; Miller _v._
Craig, 36 Ill. 109; Wightman _v._ Tucker, 50 Ill. App. 75; Woods _v._
Nicholas, 92 Kan. 258; Buckingham _v._ Thompson, 135 S. W. 652.

But see Pratt _v._ Judge, 177 Mich. 558; Adams _v._ Soule, 33 Vt. 538.

_Statements as to value_, see: Harvey _v._ Young, Yelverton, 21; Lake
_v._ Loan Assn., 72 Ala. 207; Stevens _v._ Alabama Land Co., 121 Ala.
450; Kincaid _v._ Price, 82 Ark. 20; Williams _v._ McFadden, 23 Fla.
143; Noetling _v._ Wright, 72 Ill. 390; Cagney _v._ Cuson, 77 Ind.
494; Bossingham _v._ Syck, 118 Ia. 192; Else _v._ Freeman, 72 Kan.
666; Reynolds _v._ Evans, 123 Md. 365; Picard _v._ McCormick, 11 Mich.
68; Doran _v._ Eaton, 40 Minn. 35; Boasberg _v._ Walker, 111 Minn.
445; Union Bank _v._ Hunt, 76 Mo. 439; Dalrymple _v._ Craig, 149 Mo.
345; Dresher _v._ Becker, 88 Neb. 619; Sandford _v._ Handy, 23 Wend.
260; Ellis _v._ Andrews, 56 N. Y. 83; Van Slochem _v._ Villard, 207 N.
Y. 587; Mecum _v._ Becker, 166 App. Div. 793; Campbell _v._ Zion’s
Real Estate Co., 46 Utah, 1; Shanks _v._ Whitney, 66 Vt. 405.

Compare Moon _v._ Benton, 13 Ala. App. 473; Pate _v._ Blades, 163 N.
C. 267; Crompton _v._ Beedle, 83 Vt. 287.

Footnote 329:

Portions of the opinion are omitted.

Footnote 330:

Gordon _v._ Butler, 105 U. S. 553; Kimber _v._ Young, (C. C. A.) 137
Fed. 744; Pittsburgh Life & Trust Co. _v._ Northern Ins. Co., 140 Fed.
888, 148 Fed. 674; Dotson _v._ Kirk, (C. C. A.) 180 Fed. 14; Rendell
_v._ Scott, 70 Cal. 514; Wrenn _v._ Truitt, 116 Ga. 708; Dowden _v._
Wilson, 108 Ill. 257; Curry _v._ Keyser, 30 Ind. 214; Conant _v._
Nat’l State Bank, 121 Ind. 323; Scroggin _v._ Wood, 87 Ia. 497; Vokes
_v._ Eaton, 119 Ky. 913; Holbrook _v._ Connor, 60 Me. 578; Bishop _v._
Small, 63 Me. 12; Donnelly _v._ Baltimore Trust Co., 102 Md. 1; Mooney
_v._ Miller, 102 Mass. 217; Nash _v._ Minnesota Title & Trust Co., 159
Mass. 437; Lynch _v._ Murphy, 171 Mass. 307; Nowlin _v._ Snow, 40
Mich. 699; Myers _v._ Alpena Loan Ass’n, 117 Mich. 389; Getchell _v._
Dusenbury, 145 Mich. 197; Perkins _v._ Trinka, 30 Minn. 241; Brown
_v._ South Joplin Min. Co., 194 Mo. 681; Ray County Bank _v._ Hutton,
224 Mo. 42; Fisher _v._ Seitz, 172 Mo. App. 162; Duffany _v._
Ferguson, 66 N. Y. 482; Hatton _v._ Cook, 166 App. Div. 257; Pritchard
_v._ Dailey, 168 N. C. 330; Martin _v._ Eagle Creek Development Co.,
41 Or. 448; Watts _v._ Cummins, 59 Pa. St. 84; Horrigan _v._ First
Nat. Bank, 9 Baxt. 137; Jude _v._ Woodburn, 27 Vt. 415; Randall _v._
Farnum, 52 Vt. 539; Romaine _v._ Excelsior Machine Co., 54 Wash. 41;
Crislip _v._ Cain, 19 W. Va. 438 _Accord_.

Compare Wall _v._ Graham, 192 Ala. 396; Barron Estate Co. _v._
Woodruff Co., 163 Cal. 561; Phelps _v._ Grady, 168 Cal. 73; Sleeper
_v._ Smith, 77 N. H. 337; Olston _v._ Oregon R. Co., 52 Or. 343.

_Opinion of third person_, see Adams _v._ Collins, 196 Mass. 422.

Footnote 331:

Jarratt _v._ Langston, 99 Ark. 438; Baum _v._ Holton, 4 Col. App. 406;
Shelton _v._ Healy, 74 Conn. 265; Kenner _v._ Harding, 85 Ill. 264;
Dwight _v._ Chase, 3 Ill. App. 67; Wightman _v._ Tucker, 50 Ill. App.
75; Coulter _v._ Clark, 160 Ind. 311; Stauffer _v._ Hulwick, 176 Ind.
410; Beck _v._ Goar, 180 Ind. 81; Automobile Co. _v._ Crowell, 149 N.
W. 861; Hetland _v._ Bilstad, 140 Ia. 411; Picard _v._ McCormick, 11
Mich. 68; Nowlin _v._ Snow, 40 Mich. 699; McDonald _v._ Smith, 139
Mich. 211; Conlan _v._ Roemer, 52 N. J. Law, 53; Bacon _v._ Frisbie,
15 Hun, 26; Marshall _v._ Seelig, 49 App. Div. 433; Ganow _v._ Ashton,
32 S. D. 458; Rodee _v._ Seaman, 33 S. D. 184; Rorer Iron Co. _v._
Trout, 83 Va. 397; Fitzgerald _v._ Frankel, 109 Va. 603; Grant _v._
Huschke, 74 Wash. 257 _Accord_.

Footnote 332:

Winkler _v._ Jerrue, 20 Cal. App. 555; Hodgkins _v._ Dunham, 10 Cal.
App. 690; Olvey _v._ Jackson, 106 Ind. 286; Crane _v._ Elder, 48 Kan.
259; Gurney _v._ Tenney, 197 Mass. 457; Van de Wiele _v._ Garbade, 60
Or. 585; Corey _v._ Boynton, 82 Vt. 257; Simons _v._ Cissna, 52 Wash.
115 _Accord_. Compare Foster _v._ Kennedy, 38 Ala. 359; Sheer _v._
Hoyt, 13 Cal. App. 662; Judy _v._ Jester, 53 Ind. App. 74; Burr _v._
Willson, 22 Minn. 206; Adan _v._ Steinbrecher, 116 Minn. 174.

Footnote 333:

Arguments omitted.

Footnote 334:

See also Nevada Bank _v._ Portland Nat. Bank, 59 Fed. 338.

In Aaron’s Reefs _v._ Twiss, [1896] A. C. 273, Lord Halsbury, L. C.,
said (pp. 283–284): “I do not think any particular form of words is
necessary to convey a false impression. Supposing a person goes to a
bank where the people are foolish enough to believe his words, and
says, ‘I want a mortgage upon my house, and my house is not completed,
but in the course of next week I expect to have it fully completed.’
Suppose there was not a house upon his land at all, and no
possibility, therefore, that it could be fully completed next week,
can anybody say that that was not an affirmative representation that
there was a house which was so near to completion that it only
required another week’s work upon it to complete it? Could anybody
defend himself if he was charged upon an indictment for obtaining
money under false pretences, the allegation in the indictment being
that he pretended that there was a house so near completion that it
only required a week’s work upon it, by saying that he never
represented that there was a house there at all? So here, when I look
at the language in which this prospectus is couched, and see that it
speaks of a property which requires only the erection of machinery to
be either at once or shortly in a condition to do work so as to obtain
all this valuable metal from the mine, it seems to me that, although
it is put in ambidextrous language, it means as plainly as can be that
this is now the condition of the mine, that such and such additions to
it will enable it shortly to produce all those great results, and that
that is a representation of an actually existing fact. I should quite
agree with the proposition that the Lord Chancellor of Ireland and the
Master of the Rolls put forward—if you are looking to the language as
only the language of hope, expectation, and confident belief, that is
one thing; but it does not seem to have been in the minds of the
learned judges that you may use language in such a way as, although in
the form of hope and expectation, it may become a representation as to
existing facts; and if so, and if it is brought to your knowledge that
these facts are false, it is a fraud.”

Footnote 335:

The statement has been abridged.

Footnote 336:

Loewer _v._ Harris, (C. C. A.) 57 Fed. 368; King _v._ White, 119 Ala.
429; Christy _v._ Campbell, 36 Col. 261; Kronfeld _v._ Missal, 87
Conn. 491; James _v._ Crosthwait, 97 Ga. 673; Gordon _v._ Irvine, 105
Ga. 144; Aortson _v._ Ridgway, 18 Ill. 23; Dayton _v._ Kidder. 105
Ill. App. 107; Craig _v._ Hamilton, 118 Ind. 565; Firestone _v._
Werner, 1 Ind. App. 293; Coles _v._ Kennedy, 81 Ia. 360; Howerton _v._
Augustine, 130 Ia. 389; Nairn _v._ Ewalt, 51 Kan. 355; Faris _v._
Lewis, 2 B. Mon. 375; Weikel _v._ Sterns, 142 Ky. 513; Prentiss _v._
Russ, 16 Me. 30; Barrett _v._ Lewiston R. Co., 110 Me. 24; Johnston
_v._ Cope, 3 Har. & J. 89; Burns _v._ Dockray, 156 Mass. 135; Batty
_v._ Greene, 206 Mass. 561; Kenyon _v._ Woodruff, 33 Mich. 310;
Tompkins _v._ Hollister, 60 Mich. 470; Busch _v._ Wilcox, 82 Mich.
315; Marsh _v._ Webber, 13 Minn. 109; Thomas _v._ Murphy, 87 Minn.
358; McAdams _v._ Cates, 24 Mo. 223; Morley _v._ Harrah, 167 Mo. 74;
Manter _v._ Truesdale, 57 Mo. App. 435; Stevens _v._ Fuller, 8 N. H.
463; Fleming _v._ Slocum, 18 Johns. 403; Allen _v._ Addington, 7 Wend.
9; March _v._ First National Bank, 4 Hun, 466; Brown _v._ Gray, 6
Jones Law, 103; Lunn _v._ Shermer, 93 N. C. 164; Gidney _v._ Chappell,
26 Okl. 737; Fitzhugh _v._ Nirschl, 77 Or. 514; Rheen _v._ Naugatuck
Wheel Co., 33 Pa. St. 356; Cardwell _v._ McClelland, 3 Sneed, 150;
Allison _v._ Tyson, 5 Humph. 449; Graham _v._ Stiles, 38 Vt. 578;
Maynard _v._ Maynard, 49 Vt. 297; Crompton _v._ Beedle, 83 Vt. 287;
Jarrett _v._ Goodnow, 39 W. Va. 602; Morgan _v._ Hodge, 145 Wis. 143
_Accord_. Compare: Randolph _v._ Allen, (C. C. A.) 73 Fed. 23; Ball
_v._ Farley, 81 Ala. 288; Cherry _v._ Brizzolara, 89 Ark. 309; Roper
_v._ Sangamon Lodge, 91 Ill. 518; Potts _v._ Chapin, 133 Mass. 276;
Cochrane _v._ Halsey, 25 Minn. 52; Crowell _v._ Jackson, 53 N. J. Law,
656; Babcock _v._ Libbey, 82 N. Y. 144; Jones _v._ Stewart, 62 Neb.
207; Wicker _v._ Worthy, 51 N. C. 500; Harris _v._ Tyson, 24 Pa. St.
347; Iron Bank _v._ Anderson, 194 Pa. St. 205; Bishop _v._ Buckley, 33
Pa. Super. Ct. 123; Campbell _v._ Kinlock, 9 Rich. Law, 300.

In Wiser _v._ Lawler, 189 U. S. 260, Brown, J., said (pp. 264–65):
“Attached to these prospectuses was a map entitled ‘Map of the group
of mines belonging to the Seven Stars Gold Mining Company.’ It is true
that there is neither in the prospectuses nor in the map a distinct
assertion that the legal title to the properties mentioned was vested
in the Seven Stars Company; but we think that no one can read them
without inferring and believing that the Seven Stars was the owner of
these properties, and that the net proceeds of their operation would
be distributed in dividends to stockholders. As they were circulated
as an inducement to take stock in the enterprises, we are bound to
interpret them by the effect they would produce upon an ordinary mind.
Andrews _v._ Mockford, (1896) 1 Q. B. D. 372. They were, however, even
more damaging in their omissions than in their statements. No mention
was made of the fact that the title to these properties stood in the
names of Lawler and Wells; no allusion to the Cowland agreement, with
its provisions for forfeiture, nor to the fact that the only interest
of the company was an equitable right to the properties after the sum
of $450,000 had been realized from the profits and paid to defendants.
In estimating the probability of subscribers being misled by these
prospectuses we may take into consideration not only the facts stated,
but the facts suppressed. New Brunswick Co. _v._ Muggeridge, 1 Drewey
& Smale, 363. They are entitled to know the _cons_ as well as the
_pros_. Gluckstein _v._ Barnes, (1900) App. Cas. 240; Hubbard _v._
Weare, 79 Iowa, 678; Hayward _v._ Leeson, 175 Mass. 310; In re Leeds
and Hanley Theatres, (1902) 2 Ch. Div. 809.”

In Peek _v._ Gurney, L. R. 6 H. L. 377, Lord Cairns said (p. 403):
“Mere non-disclosure of material facts, however morally censurable,
however that non-disclosure might be a ground in a proper proceeding
at a proper time for setting aside an allotment or a purchase of
shares, would in my opinion form no ground for an action in the nature
of an action for misrepresentation. There must, in my opinion, be some
active misstatement of fact, or, at all events, such a partial and
fragmentary statement of fact, as that the withholding of that which
is not stated makes that which is stated absolutely false.”

Compare Mitchell, J., in Newell _v._ Randall, 32 Minn. 171, 172–73:
“It is doubtless the general rule that a purchaser, when buying on
credit, is not bound to disclose the facts of his financial condition.
If he makes no actual misrepresentations, if he is not asked any
questions, and does not give any untrue, evasive, or partial answers,
his mere silence as to his general bad pecuniary condition, or his
indebtedness, will not constitute a fraudulent concealment. 2 Pom. Eq.
Jur. §906; Bigelow on Fraud, 36, 37. But this was not a case of mere
passive non-disclosure. The object of De Laittre’s inquiry clearly was
to ascertain Bauman’s financial condition and ability to pay. Bauman’s
statement was in response to that inquiry, and, when he undertook to
answer, he was bound to tell the whole truth, and was not at liberty
to give an evasive or misleading answer, which, although literally
true, was partial, containing only half the truth, and calculated to
convey a false impression. The natural construction which would, under
the circumstances, be put on this statement is that he had $3,300
capital in his business. It was couched in language calculated to
negative the idea that this was merely the gross amount of his assets,
and that he owed debts to the extent of two-thirds or the whole of
that amount. Such a statement, made under the circumstances it was,
might fairly and reasonably be understood as amounting to a
representation that he had that amount of capital which was and would
remain available, out of which to collect any debt which he might
contract with plaintiff. We think this is the way in which men would
ordinarily have understood it. It is immaterial that more explicit
inquiries by plaintiff would have disclosed the fact of his
indebtedness. It does not lie in Bauman’s mouth to say that plaintiff
relied too implicitly on this general statement. To tell half a truth
only is to conceal the other half. Concealment of this kind, under the
circumstances, amounts to a false representation.”

Footnote 337:

The statement is taken from 37 Ch. D. 541, omitting the last part.
Arguments are omitted. None of the opinions are given except portions
of LORD HERSCHELL’S.

Footnote 338:

The opinion of STIRLING, J., is reported in 37 Ch. D. 550. See
especially 556–558.

Footnote 339:

“Want of honest belief in the truth of what one asserts, not positive
knowledge that it is false, is the essence of the wrong. A man who
knows that he is making a reckless assertion about things of which he
really knows nothing may not be speaking against his own belief, but
he is not speaking according to it, and therefore his conduct is
dishonest, and is esteemed fraud by the law.” Pollock, Law of Fraud in
British India, 43.

Footnote 340:

For a criticism of the view that the directors all believed the
statement, see 6 Law Quarterly Rev. 73; 5 Law Quarterly Rev. 420–422.

Footnote 341:

Schuchardt _v._ Allens, 1 Wall. 359; Union R. Co. _v._ Barnes, (C. C.
A.) 64 Fed. 80; Pittsburgh Life & Trust Co. _v._ Northern Life Ins.
Co., (C. C. A.) 148 Fed. 674; Foster _v._ Kennedy, 38 Ala. 359; Morton
_v._ Scull, 23 Ark. 289; Hutchinson _v._ Gorman, 71 Ark. 305; Davidson
_v._ Jordan, 47 Cal. 351; Bartholomew _v._ Bushnell, 20 Conn. 271;
Fooks _v._ Waples, 1 Har. (Del.) 131; Manes _v._ Kenyon, 18 Ga. 291;
Cooley _v._ King, 113 Ga. 1163; Wheeler _v._ Randall, 48 Ill. 182;
Holdom _v._ Ayer, 110 Ill. 448; Herman _v._ Foster, 185 Ill. App. 97;
Holmes _v._ Clark, 10 Ia. 423; Scroggin _v._ Wood, 87 Ia. 497; Boddy
_v._ Henry, 113 Ia. 462; Farmers’ Stock Breeding Ass’n _v._ Scott, 53
Kan. 534; Campbell _v._ Hillman, 15 B. Mon. 508; Haynes _v._ Gould, 83
Me. 344; Cahill _v._ Applegarth, 98 Md. 493; Emerson _v._ Brigham, 10
Mass. 197; Pike _v._ Fay, 101 Mass. 134; Cole _v._ Cassidy, 138 Mass.
437; Holst _v._ Stewart, 154 Mass. 445; Lillegren _v._ Burns, 135
Minn. 60; Taylor _v._ Frost, 39 Miss. 328; Utley _v._ Hill, 155 Mo.
232; Allen _v._ Wanamaker, 31 N. J. Law, 370; Williams _v._ Wood, 14
Wend. 126; Marsh _v._ Folker, 40 N. Y. 562; Wakeman _v._ Dalley, 51 N.
Y. 27; Kountze _v._ Kennedy, 147 N. Y. 124; Hamrick _v._ Hogg, 1 Dev.
350; Taylor _v._ Leith, 26 Ohio St. 428; Staines _v._ Shore, 16 Pa.
St. 200; Erie Iron Works _v._ Barber, 106 Pa. St. 125; Lamberton _v._
Dunham, 165 Pa. St. 129; Deppen _v._ Light, 228 Pa. St. 79; Gibbs _v._
Odell, 2 Cold. 132; Weeks _v._ Burton, 7 Vt. 67 _Accord_.

In Heilbut _v._ Buckleton, [1913] A. C. 30, Lord Moulton said (p. 48):
“In the history of English law we find many attempts to make persons
responsible in damages by reason of innocent misrepresentations, and
at times it has seemed as though the attempts would succeed. On the
Chancery side of the Court the decisions favoring this view usually
took the form of extending the scope of the action for deceit. There
was a tendency to recognize the existence of what was sometimes called
‘legal fraud,’ i. e., that the making of an incorrect statement of
fact without reasonable grounds, or of one which was inconsistent with
information which the person had received or had the means of
obtaining, entailed the same legal consequences as making it
fraudulently. Such a doctrine would make a man liable for
forgetfulness or mistake or even for honestly interpreting the facts
known to him or drawing conclusions from them in a way which the Court
did not think to be legally warranted. The high-water mark of these
decisions is to be found in the judgment pronounced by the Court of
Appeal in the case of Peek _v._ Derry, (1887) 37 Ch. D. 541; (1889) 14
App. Cas. 337, when they laid down that where a defendant has made a
misstatement of fact and the Court is of opinion that he had no
reasonable grounds for believing that it was true he may be made
liable in an action of deceit if it has materially tended to induce
the plaintiff to do an act by which he has incurred damage. But on
appeal to your Lordships’ House this decision was unanimously
reversed, and it was definitely laid down that, in order to establish
a cause of action sounding in damages for misrepresentation, the
statement must be fraudulent or, what is equivalent thereto, must be
made recklessly, not caring whether it be true or not. The opinions
pronounced in your Lordships’ House in that case show that both in
substance and in form the decision was, and was intended to be, a
reaffirmation of the old common law doctrine that actual fraud was
essential to an action for deceit, and it finally settled the law that
an innocent misrepresentation gives no right of action sounding in
damages.

“On the Common Law side of the Court the attempts to make a person
liable for an innocent misrepresentation have usually taken the form
of attempts to extend the doctrine of warranty beyond its just limits
and to find that a warranty existed in cases where there was nothing
more than an innocent misrepresentation. The present case is, in my
opinion, an instance of this. But in respect of the question of the
existence of a warranty the Courts have had the advantage of an
admirable enunciation of the true principle of law which was made in
very early days by Holt, C. J., with respect to the contract of sale.
He says: ‘An affirmation at the time of the sale is a warranty,
provided it appear on evidence to be so intended.’ So far as decisions
are concerned, this has, on the whole, been consistently followed in
the Courts of Common Law. But from time to time there have been dicta
inconsistent with it which have, unfortunately, found their way into
text-books and have given rise to confusion and uncertainty in this
branch of the law. For example, one often sees quoted the dictum of
Bayley, J., in Cave _v._ Coleman, 3 Man. & Ry. 2, where, in respect of
a representation made verbally during the sale of a horse, he says
that ‘being made in the course of a dealing, and before the bargain
was complete, it amounted to a warranty’—a proposition that is far too
sweeping and cannot be supported. A still more serious deviation from
the correct principle is to be found in a passage in the judgment of
the Court of Appeal in DeLassalle _v._ Guildford, [1901] 2 K. B. 215,
at p. 221, which was cited to us in the argument in the present case.
In discussing the question whether a representation amounts to a
warranty or not the judgment says: ‘In determining whether it was so
intended, a decisive test is whether the vendor assumes to assert a
fact of which the buyer is ignorant, or merely states an opinion or
judgment upon a matter of which the vendor has no special knowledge,
and on which the buyer may be expected also to have an opinion and to
exercise his judgment.’

“With all deference to the authority of the Court that decided that
case, the proposition which it thus formulates cannot be supported. It
is clear that the Court did not intend to depart from the law laid
down by Holt, C. J., and cited above, for in the same judgment that
dictum is referred to and accepted as a correct statement of the law.
It is, therefore, evident that the use of the phrase ‘decisive test’
cannot be defended. Otherwise it would be the duty of a judge to
direct a jury that if a vendor states a fact of which the buyer is
ignorant, they must, as a matter of law, find the existence of a
warranty, whether or not the totality of the evidence shows that the
parties intended the affirmation to form part of the contract; and
this would be inconsistent with the law as laid down by Holt, C. J. It
may well be that the features thus referred to in the judgment of the
Court of Appeal in that case may be criteria of value in guiding a
jury in coming to a decision whether or not a warranty was intended;
but they cannot be said to furnish decisive tests, because it cannot
be said as a matter of law that the presence or absence of those
features is conclusive of the intention of the parties. The intention
of the parties can only be deduced from the totality of the evidence,
and no secondary principles of such a kind can be universally true.

“It is, my Lords, of the greatest importance, in my opinion, that this
House should maintain in its full integrity the principle that a
person is not liable in damages for an innocent misrepresentation, no
matter in what way or under what form the attack is made. In the
present case the statement was made in answer to an inquiry for
information. There is nothing which can by any possibility be taken as
evidence of an intention on the part of either or both of the parties
that there should be a contractual liability in respect of the
accuracy of the statement. It is a representation as to a specific
thing and nothing more. The judge, therefore, ought not to have left
the question of warranty to the jury, and if, as a matter of prudence,
he did so in order to obtain their opinion in case of appeal he ought
then to have entered judgment for the defendants notwithstanding the
verdict.”

But compare Kirkpatrick _v._ Reeves, 121 Ind. 280; Mendenhall _v._
Stewart, 18 Ind. App. 262; McLeod _v._ Tutt, 2 Miss. 288; Searing _v._
Lum, 2 South, 683; Indianapolis R. Co. _v._ Tyng, 63 N. Y. 653; Cobb
_v._ Fogalman, 1 Ired. 440; Mason _v._ Moore, 73 Ohio St. 275; Loper
_v._ Robinson, 54 Tex. 510; Magill _v._ Coffmann, (Tex. Civ. App.) 129
S. W. 1146; Smith _v._ Columbus Buggy Co., 40 Utah, 580; Ogden Resort
Co. _v._ Lewis, 41 Utah, 183; Cameron _v._ Mount, 86 Wis. 477; Palmer
_v._ Goldberg, 128 Wis. 103; Knudson _v._ George, 157 Wis. 520.

As to whether an action ought not to be allowed for negligence in the
use of language, see Smith, Liability for Negligent Language, 14
Harvard Law Rev. 184; Cunningham _v._ Pease, 74 N. H. 435; Conway
National Bank _v._ Pease, 76 N. H. 319. The English Directors’
Liability Act (1890), 53 & 54 Vict. c. 64, makes directors and others
who issue prospectuses liable in certain cases to compensate persons
sustaining loss by reason of any untrue statement in the prospectus,
unless it is proved that the persons issuing the prospectus had
reasonable ground to believe and did believe that the prospectus was
true. See also the statute of Oklahoma, Howe _v._ Martin, 23 Okl. 561,
567.

_Liability for statement made recklessly not knowing whether true or
not_, see: Cooper _v._ Schlesinger, 111 U. S. 148; Hindman _v._ First
National Bank, (C. C. A.) 112 Fed. 931; Mueller Furnace Co. _v._
Cascade Foundry Co., 145 Fed. 596; Einstein _v._ Marshall, 58 Ala.
153; McCoy _v._ Prince, 11 Ala. App. 388; Stimson _v._ Helps, 9 Col.
33; Scholfield Gear Co. _v._ Scholfield, 71 Conn. 1; Upchurch _v._
Mizell, 50 Fla. 456; Corbett _v._ Gilbert, 24 Ga. 454; Miller _v._
John, 208 Ill. 173; Snively _v._ Meixsell, 97 Ill. App. 365; West _v._
Wright, 98 Ind. 335; Graves _v._ Lebanon Bank, 10 Bush, 23; Stone _v._
Denny, 4 Met. 151; Fisher _v._ Mellen, 103 Mass. 503; Beebe _v._
Knapp, 28 Mich. 53; Stone _v._ Covell, 29 Mich. 359; Bullitt _v._
Farrar, 42 Minn. 8; Hamlin _v._ Abell, 120 Mo. 188; Chase _v._ Rusk,
90 Mo. App. 25; Ruddy _v._ Gunby, (Mo.) 180 S. W. 1043; Rowell _v._
Chase, 61 N. H. 135; Shackett _v._ Bickford, 74 N. H. 57; Zabriskie
_v._ Smith, 13 N. Y. 322; Bennett _v._ Judson, 21 N. Y. 238; Taylor
_v._ Commercial Bank, 174 N. Y. 181; Bell _v._ James, 128 App. Div.
241; Whitehurst _v._ Life Ins. Co., 149 N. C. 273; Cawston _v._
Sturgis, 29 Or. 331; Robertson _v._ Frey, 72 Or. 599; Thompson _v._
Chambers, 13 Pa. Super. Ct. 213; Mitchell _v._ Zimmerman, 4 Tex. 75;
Katzenstein _v._ Reid, Murdock & Co., 41 Tex. Civ. App. 106; Benton
_v._ Kuykendall, (Tex. Civ. App.) 160 S. W. 438; Wheeler _v._
Wheelock, 34 Vt. 553; Agnew _v._ Hackett, 80 Wash. 236; Cotzhausen
_v._ Simon, 47 Wis. 103.

Compare Ray County Bank _v._ Hutton, 224 Mo. 42; Ramsey _v._ Wallace,
100 N. C. 75.

Footnote 342:

“The doctrine seems to be well established by authority that the
conduct and admissions of a party operate against him in the nature of
an estoppel, wherever, in good conscience and honest dealing, he ought
not to be permitted to gainsay them. Thus, negligence becomes
constructive fraud,—although, strictly speaking, the actual intention
to mislead or deceive may be wanting, and the party may be innocent,
if innocence and gross negligence may be deemed compatible; and in
such cases the maxim is justly applied to him, that where one of two
innocent persons must suffer, he shall suffer who by his own acts
occasioned the confidence and loss. The application of the maxim to
the case before us is obvious. The principle involved in it is kindred
to that of an equitable estoppel, the difference being that the
application of the estoppel, instead of the maxim, avoids the loss to
the innocent party who has been misled by the conduct of another. See
1 Story’s Eq. Jur., secs. 387, 389; Lucas _v._ Hart, 5 Iowa, 415;
Commonwealth _v._ Moltz, 10 Pa. St. 527, 531; Smith _v._ McNeal, 68
Pa. St. 164.” Foster, J., in Stevens _v._ Dennett, 51 N. H. 324, 335.

“The usual form of expressing the situation which founds an estoppel
_in pais_ has been that followed in the rulings given, in which, as in
many of the older decisions, it is said that an intent to deceive is a
necessary element. But under this formula the jury were not prohibited
from finding the intention and the estoppel, if, without more, the
plaintiff spoke or acted falsely, knowing or having cause to believe
that his words or conduct reasonably might influence the defendant’s
action. The more modern statement, that one is responsible for the
word or act which he knows, or ought to know, will be acted upon by
another, includes the older statement that the estoppel comes from an
intention to mislead. White _v._ Duggan, 140 Mass. 18, 20. Tracy _v._
Lincoln, 145 Mass. 357, 359. O’Donnell _v._ Clinton, 145 Mass. 461,
463. Washburn _v._ Hammond, 151 Mass. 132, 141.” Barker. J., in Stiff
_v._ Ashton, 155 Mass. 130, 133.

Footnote 343:

Milson _v._ Gerstenberg, 43 App. D. C. 165; Ballard _v._ Thibodeau,
109 Me. 559; Kiefer _v._ Rogers, 19 Minn. 32; Hedin _v._ Minneapolis
Medical Institute, 62 Minn. 146; Flaherty _v._ Till, 119 Minn. 191;
Devero _v._ Sparks, 189 Mo. App. 500; Craig _v._ Ward, 1 Abb. Dec.
454; Garvin _v._ Harrell, 27 Okl. 373; Wells _v._ Driskell, (Tex. Civ.
App.) 149 S. W. 205 _Accord_.

See Water Com’rs _v._ Robbins, 82 Conn. 623; Auman _v._ McKibben, 179
Ill. App. 425; Huntress _v._ Blodgett, 206 Mass. 318; Bank _v._ Wood,
189 Mo. App. 62.

_As to the fiction of “presumption of knowledge,”_ see: Hicks _v._
Stevens, 121 Ill. 186; Ward _v._ Trimble, 103 Ky. 153; Reynolds _v._
Evans, 123 Md. 365; Unitype Co. _v._ Ashcraft, 155 N. C. 63; Collins
_v._ Chipman, 41 Tex. Civ. App. 563. Compare Brooks _v._ Hamilton, 15
Minn. 26.

Footnote 344:

O’Neill _v._ Conway, 88 Conn. 651; Bethell _v._ Bethell, 92 Ind. 318;
Riley _v._ Bell, 120 Ia. 618; Gund Brewing Co. _v._ Peterson, 130 Ia.
301; Davis _v._ Central Land Co., 162 Ia. 269; Altoona State Bank _v._
Hart, 82 Kan. 398; Braley _v._ Powers, 92 Me. 203; Litchfield _v._
Hutchinson, 117 Mass. 195; Savage _v._ Stevens, 126 Mass. 207; Teague
_v._ Irwin, 127 Mass. 217; Adams _v._ Collins, 196 Mass. 422; Huntress
_v._ Blodgett, 206 Mass. 318; Chatham Furnace Co. _v._ Moffatt, 147
Mass. 403; Riggs _v._ Thorpe, 67 Minn. 217; Vincent _v._ Corbitt, 94
Miss. 46; Western Cattle Co. _v._ Gates, 190 Mo. 391; Paretti _v._
Rebenack, 81 Mo. App. 494; Leicher _v._ Keeney, 98 Mo. App. 394, 110
Mo. App. 292; Leach _v._ Bond, 129 Mo. App. 315; Crosby _v._ Wells, 73
N. J. Law, 790; Thompson _v._ Koewing, 79 N. J. Law, 246; Hadcock _v._
Osmer, 153 N. Y. 604; Modlin _v._ Roanoke Navigation Co., 145 N. C.
218; Pate _v._ Blades, 163 N. C. 267; Joines _v._ Combs, 38 Okl. 380;
Gibbens _v._ Bourland, (Tex. Civ. App.) 145 S. W. 274; Grant _v._
Huschke, 74 Wash. 257; Tolly _v._ Poteet, 62 W. Va. 231; Rogers _v._
Rosenfeld, 158 Wis. 285 _Accord_. See Roberts _v._ Anheuser Busch
Ass’n, 211 Mass. 449.

In Brownlie _v._ Campbell, 5 App. Cas. 925, Lord Blackburn said (pp.
952—53): “The Courts of Law had to refer fraud, in which knowledge was
an essential ingredient, to a jury. A Court of Equity had to find it
for itself, and consequently the judges in Courts of Equity were not
driven to be so precisely accurate in stating exactly whether they
were going upon the ground that there was a contract or warranty that
the thing was so, or whether they were going upon the ground that the
party, knowing it was not, and representing that it was, had committed
a fraud in doing that. Most of the cases (the leading one is Burrowes
_v._ Loch, 10 Ves. 470, and it is sufficient to mention that, though
there were others) when looked at, if they do not absolutely amount to
contract, come uncommonly near it. In Burrowes _v._ Loch a man
proposing to lend money on the security of an equitable assignment of
a share of what remained due on account of the residue of a testator’s
estate, went to the trustee who held the fund and asked him, telling
him the facts, ‘I am going to lend money upon the security of this
share, has any prior loan upon this been communicated to you so as to
make you have prior notice, so as to make that other loan come in
before me and cut me out, tell me that, in order that I may know
whether I will lend the money or not.’ The party on the other side
answered, ‘There has been none such.’ To say that that is not warranty
or contract that he has received no such notice is, I think, going
very near the wind; if it was not that it was so uncommonly like it,
that I cannot make the distinction myself. That would have been
sufficient for the Master of the Rolls to say, ‘You have warranted
this.’ He also had considerable ground for doubting whether the man
had really _bona fide_ forgotten. The man, he seems to have thought,
had thought this, ‘I will not take the trouble of a search,’ the fact
being that he really knew nothing about this and would not take the
trouble of looking, but he boldly made the assertion, ‘I know there is
none,’ saying as a fact, ‘I know there is none,’ when the real truth
could not be more than ‘I am pretty sure there is none.’ If, when a
man thinks it is highly probable that a thing exists, he chooses to
say he knows the thing exists, that is really asserting what is
false—it is positive fraud. That has been repeatedly laid down, and I
think the more it is considered the more clear it becomes. If you
choose to say, and say without inquiry, ‘I warrant that,’ that is a
contract. If you say, ‘I know it,’ and if you say that in order to
save the trouble of inquiring, that is a false representation—you are
saying what is false to induce them to act upon it. I think all the
cases which have been cited come round to pointing to that, but none
of them, as far as I am aware, are in contradiction with that which I
have cited from Chief Justice Tindal, and I think there are a good
many other authorities to the same effect.”

_As to liability where defendant had no reasonable ground to believe
what he stated_, see Mayer _v._ Salazar, 84 Cal. 646; McCabe _v._
Desnoyers, 20 S. D. 581.

_Statement as to matter of which obviously defendant could not have
personal knowledge_, see: Krause _v._ Cook, 144 Mich. 365; Spead _v._
Tomlinson, 73 N. H. 46.

Footnote 345:

Part of the statement is an abridgment of the report in 6 Bingham,
396.

Footnote 346:

Hindman _v._ First Nat. Bank, (C. C. A.) 112 Fed. 931; Hart _v._
Tallmadge, 2 Day, 381; Young _v._ Hall, 4 Ga. 95; Endsley _v._ Johns,
120 Ill. 469; Leonard _v._ Springer, 197 Ill. 532; Skeels _v._ Porter,
165 Ia. 255; Carpenter _v._ Wright, 52 Kan. 221; Bean _v._ Herrick, 12
Me. 262; Page _v._ Bent, 2 Met. 371; Stoney Creek Woolen Co. _v._
Smalley, 111 Mich. 321; Busterud _v._ Farrington, 36 Minn. 320;
Brownlee _v._ Hewitt, 1 Mo. App. 360; Bingham _v._ Fish, 86 N. J. Law,
316; White _v._ Merritt, 7 N. Y. 352; Hubbard _v._ Briggs, 31 N. Y.
518; Carpenter _v._ Lee, 5 Yerg. 265; Paddock _v._ Fletcher, 42 Vt.
389 _Accord_.

Footnote 347:

Statement of facts and arguments of counsel omitted.

Footnote 348:

See West London Bank _v._ Kitson, 13 Q. B. D. 360; National Bank _v._
Kershaw Oil Mill, (C. C. A.) 202 Fed. 90. Compare Tackey _v._ McBain,
[1912] A. C. 186.

Footnote 349:

Iasigi _v._ Brown, 17 How. 183; Bank of Montreal _v._ Thayer, 7 Fed.
622; Merchants Nat. Bank _v._ Armstrong, 65 Fed. 932; Hindman _v._
First Nat. Bank, (C. C. A.) 98 Fed. 562, 112 Fed. 931; Western Tel.
Co. _v._ Schriver, 141 Fed. 538; Harrison _v._ Savage, 19 Ga. 310;
Slade _v._ Little, 20 Ga. 371; Hunnewell _v._ Duxbury, 154 Mass. 286;
Nash _v._ Minnesota Title & Trust Co., 159 Mass. 437; Rawlings _v._
Bean, 80 Mo. 614; Lembeck _v._ Gerken, 88 N. J. Law, 329; McCracken
_v._ West, 17 Ohio, 16; Wells _v._ Cook, 16 Ohio St. 67 _Accord_. But
see Merchants Nat. Bank _v._ Robison, 8 Utah, 256.

_Person or member of a class to whom defendant expected the
representation to be passed on_, see Shrewsbury _v._ Blount, 2 Man. &
Gr. 475; Gerhard _v._ Bates, 2 E. & B. 476; Bedford _v._ Bagshaw, 4 H.
& N. 538; Scott _v._ Brown, [1892] 2 Q. B. 724; Andrews _v._ Mockford,
[1896] 1 Q. B. 372; Warfield _v._ Clark, 118 Ia. 69; Wells _v._
Western Tel. Co., 144 Ia. 605; Henry _v._ Dennis, 95 Me. 24; Chubbuck
_v._ Cleveland, 37 Minn. 466; Baker _v._ Crandall, 78 Mo. 584; Stuart
_v._ Bank of Staplehurst, 57 Neb. 569; Addington _v._ Allen, 11 Wend.
374; Hadcock _v._ Osmer, 153 N. Y. 604; Cazeaux _v._ Mali, 25 Barb.
578; Converse _v._ Sickles, 16 App. Div. 49.

Footnote 350:

Statement abridged. Part of opinion omitted.

Footnote 351:

In Allaire _v._ Whitney, 1 Hill, 484, 487, Cowen, J., says that actual
damage is not necessary to an action for fraud; and see also Ingraham,
J., in Isman _v._ Loring, 130 App. Div. 845. The same doctrine is
stated in Northrop _v._ Hill, 57 N. Y. 351; and in Van Velsor _v._
Seaberger, 35 Ill. App. 598; but neither case was one of merely
nominal damages. Leadbetter _v._ Morris, 3 Jones, Law, 543, sustains
the view of Cowen, J. The doctrine of Cowen, J., in Allaire _v._
Whitney is also cited approvingly in 1 Sedgwick on Damages, 8th ed., §
101, and in 1 Sutherland on Damages, 3d ed., § 10.

But the great weight of authority is against this doctrine, and
accords with the view taken by the Minnesota court in the above case
of Alden _v._ Wright: viz., that an action of deceit cannot be
maintained in the absence of actual damage. See Pollock, Torts, 9 ed.,
190, 291; Pollock, Law of Fraud in British India, 22, 23; 1 Jaggard,
Torts, 600, 601; Pigott, Torts, 270, 271; McCarrel _v._ Hayes, 186
Ala. 323; Winkler _v._ Jerrue, 20 Cal. App. 555; Morrison _v._ Martin,
84 Conn. 628; Wesselhoeft _v._ Schanze, 153 Ill. App. 443; Bailey _v._
Oatis, 85 Kan. 339; Barnard _v._ Napier, 167 Ky. 824; Reynolds _v._
Evans, 123 Md. 365; Brackett _v._ Perry, 201 Mass. 502; Tregner _v._
Hazen, 116 App. Div. 829; Badger _v._ Pond, 120 App. Div. 619.

Compare Skowhegan Bank _v._ Maxfield, 83 Me. 576 (fraudulently
inducing plaintiff to pay debts); Garry _v._ Garry, 187 Mass. 62
(inducing release of inchoate right of dower); Urtz _v._ New York R.
Co., 202 N. Y. 170 (release of disputed claim).

Footnote 352:

Statement abridged. Part of opinion omitted.

Footnote 353:

In re Pennewell, 119 Fed. 139; Kimmans _v._ Chandler, 13 Ia. 327; Dunn
_v._ Bishop, (R. I.) 90 Atl. 1073 _Accord_. Compare Van Vliet
Automobile Co. _v._ Crowell, (Ia.) 149 N. W. 861.

Footnote 354:

A new statement has been made covering but one point and only the
portion of the opinion relating to that point is given.

Footnote 355:

Ely _v._ Stannard, 46 Conn. 124; Goring _v._ Fitzgerald, 105 Ia. 507;
Briggs _v._ Brushaber, 43 Mich. 330; Currier _v._ Poor, 155 N. Y. 344;
Hoffman _v._ Toft, 70 Or. 488 _Accord_.

See Conway Bank _v._ Pease, 76 N. H. 319.

Footnote 356:

Statement abridged.

Footnote 357:

See Graham _v._ Peale, (C. C. A.) 173 Fed. 9 (delay in asserting
claim); Spreckels _v._ Gorrill, 152 Cal. 383; Barron Estate Co. _v._
Woodruff Co., 163 Cal. 561 (preparations for building); Williams
Crusher & Pulverizer Co. _v._ Lyth Tile Co., 150 N. Y. Suppl. 6
(expensive investigation preliminary to contract not made).

Footnote 358:

“But there is one thing which intervenes between the _injuria_ and the
_damnum_ and that is the plaintiff’s _action_ which results in damage.
It is clear that a misrepresentation cannot of itself directly produce
damage. It requires a means of conveyance, and that is the action
which it produces, and which results in damage.”

“... It is the action of the plaintiff, and not the damage, which must
be materially induced by the misrepresentation.”

“The fallacy is in regarding the damage, and the action resulting in
damage, as the same thing.” Moncrieff, Law of Fraud and
Misrepresentation, 187.

Footnote 359:

Statement abridged and arguments omitted.

Footnote 360:

Reaffirmed in Sigafus _v._ Porter, 179 U. S. 116. The authorities on
each side of this controverted question are collected in a note to
George _v._ Hesse, (100 Tex. 44) 8 L. R. A. N. S. 804. For later
cases, see: Harris _v._ Neil, 144 Ga. 519 (_accord_); Trayne _v._
Boardman, 207 Mass. 581; Crawford _v._ Armacost, 85 Wash. 622
(_contra_).

Footnote 361:

Statement abridged; arguments omitted; also part of opinion.

Footnote 362:

Henderson _v._ Henshall, (C. C. A.) 54 Fed. 320; Tooker _v._ Alston,
159 Fed. 599; Jordan _v._ Pickett, 78 Ala. 331; Dingle _v._ Trask, 7
Col. App. 16; Carondelet Iron Works _v._ Moore, 78 Ill. 65; Jones _v._
Foster, 175 Ill. 459; Press _v._ Hair, 133 Ill. App. 528; Anderson
Foundry _v._ Myers, 15 Ind. App. 385; Moore _v._ Turbeville, 2 Bibb,
602; Weaver _v._ Shriver, 79 Md. 530; Silver _v._ Frazier, 3 All. 382;
Parker _v._ Moulton, 114 Mass. 99; Poland _v._ Brownell, 131 Mass.
138; Thompson _v._ Pentecost, 206 Mass. 505; Anderson _v._ McPike, 86
Mo. 293; Brown _v._ Kansas City R. Co., 187 Mo. App. 104; Morrill _v._
Madden, 35 Minn. 493; Grindrod _v._ Anglo-American Bond Co., 34 Mont.
169; Power _v._ Turner, 37 Mont. 521; Osborne _v._ Missouri R. Co., 71
Neb. 180; Saunders _v._ Hatterman, 2 Ired. 32; Mulholland _v._
Washington Match Co., 35 Wash. 315; Mosher _v._ Post, 89 Wis. 602;
Farr _v._ Peterson, 91 Wis. 182; Kaiser _v._ Nummerdor, 120 Wis. 234;
Jacobsen _v._ Whitely, 138 Wis. 434 _Accord_.

But see Wilson _v._ Higbee, 62 Fed. 723; King _v._ Livingston Mfg.
Co., 180 Ala. 118; Mason _v._ Thornton, 74 Ark. 46; Linington _v._
Strong, 107 Ill. 295; Robinson _v._ Reinhart, 137 Ind. 674; Hanks _v._
McKee, 2 Litt. 227; Bowen _v._ Carter, 124 Mass. 426; Arnold _v._
Teele, 182 Mass. 1; Light _v._ Jacobs, 183 Mass. 206; Bachman _v._
Travelers Ins. Co., (N. H.) 97 Atl. 223; Fox _v._ Duffy, 95 App. Div.
202.

“The doctrine ... is not to be extended. It relates merely to seller’s
talk.” Sheldon, J., in Townsend _v._ Niles, 210 Mass. 524, 531.

_Equal means of knowledge_, see Hill _v._ Bush, 19 Ark. 522; Strong
_v._ Peters, 2 Root, 93; McDaniell _v._ Strohecker, 19 Ga. 432; Knight
_v._ Gaultney, 23 Ill. App. 376; Foley _v._ Cowgill, 5 Blackf. 18;
Boddy _v._ Henry, 113 Ia. 462; Hinchman _v._ Weeks, 85 Mich. 535;
Bradford _v._ Wright, 145 Mo. App. 623; Conway Nat. Bank _v._ Pease,
76 N. H. 319; Long _v._ Warren, 68 N. Y. 426; Crislip _v._ Cain, 19 W.
Va. 438.

_Execution of instrument without reading it_, see Dunham Lumber Co.
_v._ Holt, 123 Ala. 336; Robinson _v._ Glass, 94 Ind. 211; Porter _v._
United Railways, 165 Mo. App. 619; Muller _v._ Rosenblath, 157 App.
Div. 513; Griffin _v._ Roanoke Lumber Co., 140 N. C. 514.

_Reliance on friendship_, see Gray _v._ Reeves, 69 Wash. 374.

Footnote 363:

Arguments omitted; also part of opinion.

Footnote 364:

Martin _v._ Burford, (C. C. A.) 181 Fed. 922; Hutchinson _v._ Gorman,
71 Ark. 305; Scott _v._ Moore, 89 Ark. 321; Montgomery _v._ McLaury,
143 Cal. 83; Teague _v._ Hall, 171 Cal. 668; Eames _v._ Morgan, 37
Ill. 260; Ladd _v._ Pigott, 114 Ill. 647; Kehl _v._ Abram, 210 Ill.
218 (public records); Backer _v._ Pyne, 130 Ind. 288 (records);
McGibbons _v._ Wilder, 78 Ia. 531; Faust _v._ Hosford, 119 Ia. 97
(records); Scott _v._ Burnight, 131 Ia. 507; McKee _v._ Eaton, 26 Kan.
226 (records of patent office); Davis _v._ Jenkins, 46 Kan. 19
(records of land office); Carpenter _v._ Wright, 52 Kan. 221 (deed
records); Trimble _v._ Ward, 97 Ky. 748; Martin _v._ Jordan, 60 Me.
531; Braley _v._ Powers, 92 Me. 203; Harlow _v._ Perry, 113 Me. 239;
David _v._ Park, 103 Mass. 501 (records of patent office); Holst _v._
Stewart, 161 Mass. 516; Rollins _v._ Quimby, 200 Mass. 162 (mortgage
records); Jackson _v._ Armstrong, 50 Mich. 65; Smith _v._ Werkheiser,
152 Mich. 177; Faribault _v._ Sater, 13 Minn. 223; Redding _v._
Wright, 49 Minn. 322; Union Bank _v._ Hunt, 76 Mo. 439; Cottrill _v._
Krum, 100 Mo. 397; Stonemets _v._ Head, 248 Mo. 243; Shearer _v._
Hill, 125 Mo. App. 375; Gerner _v._ Mosher, 58 Neb. 135 (books of
corporation); Perry _v._ Rogers, 62 Neb. 898; Martin _v._ Hutton, 90
Neb. 34; Bradbury _v._ Haines, 60 N. H. 123; Blossom _v._ Barrett, 37
N. Y. 434 (records of court); Gage _v._ Peetsch, 16 Misc. 291
(mortgage records); Blumenfield _v._ Stine, 42 Misc. 411 (records);
Blacknall _v._ Rowland, 108 N. C. 554; Bank of North America _v._
Sturdy, 7 R. I. 109; Handy _v._ Waldron, 19 R. I. 618 (failure to
inquire of references); Hunt _v._ Barker, 22 R. I. 18 (deed records);
Wright _v._ United States Mfg. Co., (Tex. Civ. App.) 42 S. W. 789 (tax
records); Chamberlain _v._ Rankin, 49 Vt. 133; Morrill _v._ Palmer, 68
Vt. 1; Jordan _v._ Walker, 115 Va. 109; City _v._ Tacoma Light Co., 17
Wash. 458; Simons _v._ Cissna, 52 Wash. 115; Borde _v._ Kingsley, 76
Wash. 613; Hall _v._ Bank, 143 Wis. 303 (records); Woteshek _v._
Neuman, 151 Wis. 365; Rogers _v._ Rosenfeld, 158 Wis. 285 _Accord_.

See Henry _v._ Allen, 93 Ala. 197; Hanger _v._ Evins, 38 Ark. 334;
Wheeler _v._ Baars, 33 Fla. 696 (records); Forbes _v._ Thorpe, 209
Mass. 570. Compare Campbell _v._ Frankem, 65 Ind. 591.

_Assertion of title_, see: Crandall _v._ Parks, 152 Cal. 772; Hale
_v._ Philbrick, 42 Ia. 81; Young _v._ Hopkins, 6 T. B. Mon. 18; Cobb
_v._ Wright, 43 Minn. 83; Manley _v._ Johnson, 85 Vt. 262.

_Statements as to boundaries_, see: Roberts _v._ Plaisted, 63 Me. 335;
Olson _v._ Orton, 28 Minn. 36; Clark _v._ Baird, Seld. Notes, 187;
Schwenk _v._ Naylor, 102 N. Y. 683; Roberts _v._ Holliday, 10 S. D.
576.

_Plaintiff informed of truth by third person_, see: Moncrief _v._
Wilkinson, 93 Ala. 373; Haight _v._ Hayt, 19 N. Y. 464; Grosjean _v._
Galloway, 82 App. Div. 380.

_Refusal of defendant to put representation in writing_, Ettlinger
_v._ Weil, 184 N. Y. 179.

Footnote 365:

O’Neill _v._ Conway, 88 Conn. 651; Antle _v._ Sexton, 137 Ill. 410;
Ledbetter _v._ Davis, 121 Ind. 119; Speed _v._ Hollingsworth, 54 Kan.
436; Judd _v._ Walker, 215 Mo. 312; Miller _v._ Wissert, 38 Okl. 808;
Farris _v._ Gilder, (Tex. Civ. App.) 115 S. W. 645 _Accord_.

Compare Cawston _v._ Sturgis, 29 Or. 331. And see Disney _v._ Lang, 90
Kan. 309.

Footnote 366:

Credle _v._ Swindell, 63 N. C. 305; Wamsley _v._ Currence, 25 W. Va.
543 _Accord_.

See Cagney _v._ Cuson, 77 Ind. 494. Compare Lewis _v._ Jewell, 151
Mass. 345.

_Representations as to matter of law_, see Eaglesfield _v._
Londonderry, 4 Ch. D. 693, 702–703; Mutual Life Ins. Co. _v._ Phinney,
178 U. S. 327; Martin _v._ Wharton, 38 Ala. 637; Lehman _v._
Shackleford, 50 Ala. 437; McDonald _v._ Smith, 95 Ark. 523; Kehl _v._
Abram, 210 Ill. 218; Hill _v._ Coates, 127 Ill. App. 196; Clodfelter
_v._ Hulett, 72 Ind. 137; Kinney _v._ Dodge, 101 Ind. 573; Whitman
_v._ Atchison R. Co., 85 Kan. 150; Thompson _v._ Phoenix Ins. Co., 75
Me. 55; Stevens _v._ Odlin, 109 Me. 417; Bilafsky _v._ Conveyancers
Ins. Co., 192 Mass. 504; Kerr _v._ Shurtleff, 218 Mass. 167; Rose _v._
Saunders, 38 Hun, 575; Unckles _v._ Hentz, 18 Misc. 644; Moreland _v._
Atchison, 19 Tex. 303; Texas Cotton Co. _v._ Denny, (Tex. Civ. App.)
78 S. W. 557; Gormely _v._ Gymnastic Ass’n, 55 Wis. 350.

_Law of another state_, see Travelers Protective Ass’n _v._ Smith, 183
Ind. 59; Schneider _v._ Schneider, 125 Ia. 1; Anderson _v._ Heasley,
95 Kan. 572; Wood _v._ Roeder, 50 Neb. 476.

Footnote 367:

“This contention assumes that the defrauded party owes to the party
who defrauded him a duty to use diligence to discover the fraud. There
is no such obligation. One who perpetrates a fraud cannot complain
because his victim continues to have a confidence which a more
vigilant person could not have.” Carpenter, J., in Smith _v._
McDonald, 139 Mich. 225, 229. See Barley _v._ Walford, 9 Q. B. 197,
209. Compare Thaler _v._ Neidermeyer, 185 Mo. App. 257.

Footnote 368:

The statement has been redrawn and only parts of the opinion are
printed.

Footnote 369:

See Hicks _v._ Stevens, 121 Ill. 186.

Footnote 370:

The statement of the case has been abridged and only a part of the
opinion is given.

Footnote 371:

The court decided that the answer was good.

Footnote 372:

In accordance with the opinion of the majority of the court see Clarke
_v._ Postan, 6 Car. & P. 423; Stapp _v._ Partlow, Dudley, (Ga.) 176;
Feazle _v._ Simpson, 2 Ill. 30 (_semble_); Holmes _v._ Johnson,
Busbee, 44; Britton _v._ Granger, 13 Ohio Cir. Ct. Rep. 281, 291.

In accordance with the opinion of the minority see Gregory _v._ Derby,
8 Car. & P. 749, 750 (_semble_); Cooper _v._ Armour, 42 Fed. 215, 217;
Sheppard _v._ Furniss, 19 Ala. 760 (_semble_); Davis _v._ Sanders, 133
Ala. 275, 278 (_semble_); Newfield _v._ Copperman, 15 Abb. Pr. N. S.
360 (_semble_); Lawyer _v._ Loomis, 3 Th. & C. 393, 395; Mitchell _v._
Donanski, 28 R. I. 94; O’Driscoll _v._ McBurney, 2 N. & McC. 54
(_semble_); Heyward _v._ Cuthbert, 4 McC. 354 (_semble_).

Compare Swift _v._ Witchard, 103 Ga. 193.

_Arrest without warrant, not followed by prosecution_, see Auerbach
_v._ Freeman, 43 App. D. C. 176; McDonald _v._ National Art Co., 69
Misc. 325.

_Search warrant issued but no arrest or seizure of property_, see
Gulsby _v._ Louisville R. Co., 167 Ala. 122; Hardin _v._ Hight, 106
Ark. 190; Chicago R. Co. _v._ Holliday, 30 Okl. 680; Olson _v._
Haggerty, 69 Wash. 48.

_Application for a warrant, none issued_, see Schneider _v._ Schlang,
159 App. Div. 385. But see Kashare _v._ Robbins, 135 N. Y. Supp. 1041.

Some jurisdictions, however, require legal process of at least _prima
facie_ validity. See Strain _v._ Irwin, 195 Ala. 414; Smith _v._
Brown, 119 Md. 236; Tiede _v._ Fuhr, 264 Mo. 622; Segusky _v._
Williams, 89 S. C. 414.

Cf. Grissom _v._ Lawler, 10 Ala. App. 540 (plaintiff gave bond after
complaint, so no process issued).

Footnote 373:

Pippet _v._ Hearn, 5 B. & Al. 634; Rutherford _v._ Dyer, 146 Ala. 665;
Peterson _v._ Hoyt, 4 Alaska, 713; Harrington _v._ Tibbet, 143 Cal.
78; Streight _v._ Bell, 37 Ind. 550; Shaul _v._ Brown, 28 Ia. 37; Bell
_v._ Keepers, 37 Kan. 64; Potter _v._ Gjertsen, 37 Minn. 386; Stocking
_v._ Howard, 73 Mo. 25; Hackler _v._ Miller, 79 Neb. 209; Dennis _v._
Ryan, 65 N. Y. 385; Kline _v._ Shuler, 8 Ired. 484; Chicago R. Co.
_v._ Holliday, 30 Okl. 680; Ward _v._ Sutor, 70 Tex. 343; Strehlow
_v._ Pettit, 96 Wis. 22; McIntosh _v._ Wales, 21 Wyo. 397 _Accord_.

Alexander _v._ West, 6 Ga. App. 72 _Contra_.

_Prosecution under unconstitutional statute_: Murten _v._ Garbe, 91
Neb. 439.

_Court without jurisdiction_: Calhoun _v._ Bell, 136 La. 149. Compare
Grorud _v._ Lossl, 48 Mont. 274.

Footnote 374:

1 Marsh. 12, S. C.

Footnote 375:

The statement of the case has been taken from 1 Marsh. 12; the
arguments of counsel are omitted.

Footnote 376:

See Saville _v._ Roberts, 1 Ld. Ray. 374; 12 Mod. 208, S. C.

“It is difficult to see on what grounds it can be maintained that a
charge of breaking the peace conveys no imputation on the character of
the person charged, and it may be doubted whether the authority of the
cases above mentioned (Byne _v._ Moore and Saville _v._ Roberts) would
now be recognized on this point.” Clerk & Lindsell, Torts, (5 ed.)
663.

Footnote 377:

Only the opinion of ERLE, C. J., is given.

Footnote 378:

Hyde _v._ Greuch, 62 Md. 577; Pixley _v._ Reed, 26 Minn. 80
(_semble_); Apgar _v._ Woolston, 43 N. J. Law, 57. 65 (_semble_); Bump
_v._ Betts, 19 Wend. 421; Fortman _v._ Rottier, 8 Ohio St. 548
_Accord_.

See Brinkley _v._ Knight, 163 N. C. 194 (release by constable without
a hearing).

Footnote 379:

Parker _v._ Langley, 10 Mod. 209; Whitworth _v._ Hall, 2 B. & Ad. 695;
Mellor _v._ Baddeley, 2 Cr. & M. 675; Watkins _v._ Lee, 5 M. & W. 270;
McCann _v._ Preneveau, 10 Ont. 573; Poitras _v._ LeBeau, 14 Can. S. C.
742; Stewart _v._ Sonneborn, 98 U. S. 187; Steel _v._ Williams, 18
Ind. 161; West _v._ Hayes, 104 Ind. 251; Olson _v._ Neal, 63 Ia. 214;
Wood _v._ Laycock, 3 Met. (Ky.) 192; Smith _v._ Brown, 119 Md. 236;
Hamilburgh _v._ Shepard, 119 Mass. 30; Wilson _v._ Hale, 178 Mass.
111; Pixley _v._ Reed, 26 Minn. 80; Lowe _v._ Wartman, 47 N. J. Law,
413; Clark _v._ Cleveland, 6 Hill, 344; Searll _v._ McCracken, 16 How.
Pr. 262; Swartwout _v._ Dickelman, 12 Hun, 358; Johnson _v._ Finch, 93
N. C. 205; Forster _v._ Orr. 17 Or. 447; Scheibler _v._ Steinburg, 129
Tenn. 614; Luby _v._ Bennett, 111 Wis. 613 _Accord_.

Consequently, the Statute of Limitations does not run until the
prosecution is terminated. Mayor _v._ Hall, 12 Can. S. C. 74; Printup
_v._ Smith, 74 Ga. 157; Rider _v._ Kite, 61 N. J. Law, 8.

Also although discharged by a magistrate, plaintiff can not sue if the
grand jury afterwards indict. Hartshorn _v._ Smith, 104 Ga. 235;
Weglein _v._ Trow Directory Co., 152 App. Div. 705. See Schippel _v._
Norton, 38 Kan. 567; Knott _v._ Sargent, 125 Mass. 95. Compare Simmons
_v._ Sullivan, 42 App. D. C. 523 (amended or substitute information,
altering the charge); Mistich _v._ Collette, 136 La. 294 (second
prosecution instituted after termination of first and still pending).

Footnote 380:

Everything is omitted, except the opinion of the court on the question
of the termination of the prosecution.

Footnote 381:

Cotton _v._ Wilson, Minor, 203; Hurgren _v._ Union Co., 141 Cal. 585;
Chapman _v._ Woods, 6 Blackf. 504; Richter _v._ Koster, 45 Ind. 440;
Coffey _v._ Myers, 84 Ind. 105; Kelley _v._ Sage, 12 Kan. 109; Bell
_v._ Matthews, 37 Kan. 686; Yocum _v._ Polly, 1 B. Mon. 358; Stanton
_v._ Hart, 27 Mich. 539; Swensgaard _v._ Davis, 33 Minn. 368
(_semble_); Kennedy _v._ Holladay, 25 Mo. App. 503; Casebeer _v._
Drahoble, 13 Neb. 465; Casebeer _v._ Rice, 18 Neb. 203; Apgar _v._
Woolston, 43 N. J. Law, 57; Lowe _v._ Wartman, 47 N. J. Law, 413;
Clark _v._ Cleveland, 6 Hill, 344 (_semble_); Moulton _v._ Beecher, 8
Hun, 100; Fay _v._ O’Neill, 36 N. Y. 11 (_semble_); Murray _v._
Lackey, 2 Murph. 368; Rice _v._ Ponder, 7 Ired. 390; Hatch _v._ Cohen,
84 N. C. 602; Marcus _v._ Bernstein, 117 N. C. 31; Douglas _v._ Allen,
56 Ohio St. 156; Murphy _v._ Moore, (Pa.) 11 Atl. 665; Driggs _v._
Burton, 44 Vt. 124; Woodworth _v._ Mills, 61 Wis. 44; Manz _v._
Klippel, 158 Wis. 557; McCrosson _v._ Cummings, 5 Hawn, 391 _Accord_.

Massachusetts formerly held to the contrary. Parker _v._ Farley, 10
Cush. 279. But see Graves _v._ Dawson, 130 Mass. 78, 133 Mass. 419;
Langford _v._ Boston R. Co., 144 Mass. 431; Briggs _v._ Shepard Mfg.
Co., 217 Mass. 446.

_Indictment quashed_, see Simmons _v._ Sullivan, 42 App. D. C. 523;
Wilkerson _v._ McGee, 265 Mo. 574; Reit _v._ Meyer, 160 App. Div. 752.

Case stricken from docket because sent to wrong court, Sandlin _v._
Anders, 187 Ala. 473.

_Termination of a previous civil action._—If a party sues for a
malicious arrest or seizure of property in a civil action, a voluntary
abandonment of the latter action by the plaintiff therein is
equivalent to its termination in favor of his adversary. Arundell _v._
White, 14 East, 216; Nicholson _v._ Coghill, 4 B. & C. 21; Pierce _v._
Street, 3 B. & Ad. 397; Watkins _v._ Lee, 5 M. & W. 270; Ross _v._
Norman, 5 Ex. 359; Emery _v._ Ginnan, 24 Ill. App. 65; Cardival _v._
Smith, 109 Mass. 158; Ludwick _v._ Penny, 158 N. C. 104; Mayer _v._
Walter, 64 Pa. St. 283. Compare Hales _v._ Raines, 162 Mo. App. 46
(action recommenced after voluntary nonsuit).

The rule is the same as to malicious prosecutions of civil actions
without arrest or attachment in jurisdictions where one is allowed to
sue for malicious prosecution of a civil action, without more. Wall
_v._ Toomey, 52 Conn. 35; Marbourg _v._ Smith, 11 Kan. 554; Mitchell
_v._ Sullivan, 30 Kan. 231. See also Wilson _v._ Hale, 178 Mass. 111;
Luby _v._ Bennett, 111 Wis. 613.

But an abandonment of the previous proceeding, brought about as a
compromise, is not a termination in favor of the original defendant.
Wilkinson _v._ Howel, M. & M. 495; Kinsey _v._ Wallace, 36 Cal. 462
(_semble_); Waters _v._ Winn, 142 Ga. 138; Emery _v._ Ginnan, 24 Ill.
App. 65; Fadner _v._ Filer, 27 Ill. App. 506; Ruehl Brewing Co. _v._
Atlas Brewing Co., 187 Ill. App. 392; Singer Machine Co. _v._ Dyer,
156 Ky. 156; Marks _v._ Gray, 42 Me. 86; Sartwell _v._ Parker, 141
Mass. 405; Langford _v._ Boston R. Co., 144 Mass. 431; Rachelman _v._
Skinner, 46 Minn. 196; McCormick _v._ Sisson, 7 Cow. 715; Gallagher
_v._ Stoddard, 47 Hun, 101; Atwood _v._ Beirne, 73 Hun, 547 (but see
Reit _v._ Meyer, 160 App. Div. 752); Welch _v._ Cheek, 115 N. C. 310;
Clark _v._ Everett, 2 Grant, (Pa.) 416; Mayer _v._ Walter, 64 Pa. St.
283, 287; Rounds _v._ Humes, 7 R. I. 535; Russell _v._ Morgan, 24 R.
I. 134. Unless the settlement was obtained by duress of the person or
the goods of the original defendant. Morton _v._ Young, 55 Me. 24;
White _v._ International Textbook Co., 156 Ia. 210.

Footnote 382:

Only the opinion of the court is given.

Footnote 383:

Anon., 6 Mod. 73; Turner _v._ Ambler, 10 Q. B. 252; Hailes _v._ Marks,
7 H. & N. 56; Wheeler _v._ Nesbitt, 24 How. 544, 550; Stewart _v._
Sonneborn, 98 U. S. 187; Sanders _v._ Palmer, 55 Fed. 217; Jordan _v._
Alabama Co., 81 Ala. 220; Price _v._ Morris, 122 Ark. 382; Mark _v._
Rich, 43 App. D. C. 182; Marable _v._ Mayer, 78 Ga. 710; Joiner _v._
Ocean Co., 86 Ga. 238; Ames _v._ Snider, 69 Ill. 376; Barrett _v._
Spaids, 70 Ill. 408; Leyenberger _v._ Paul, 12 Ill. App. 635; Morrell
_v._ Martin, 17 Ill. App. 336; Adams _v._ Lisher, 3 Blackf. 241; Green
_v._ Cochran, 43 Ia. 544; Yocum _v._ Polly, 1 B. Mon. 358; Medcalfe
_v._ Brooklyn Co., 45 Md. 198; Flickinger _v._ Wagner, 46 Md. 580;
Stone _v._ Crocker, 24 Pick. 81; Coupal _v._ Ward, 106 Mass. 289;
Hamilton _v._ Smith, 39 Mich. 222; Smith _v._ Austin, 49 Mich. 286;
Webster _v._ Fowler, 89 Mich. 303; Cox _v._ Lauritsen, 126 Minn. 128;
Burris _v._ North, 64 Mo. 426; Renfro _v._ Prior, 22 Mo. App. 403;
Kennedy _v._ Holladay, 25 Mo. App. 503, 519; Harris _v._ Quincy R.
Co., 172 Mo. App. 261; McDonald _v._ Goddard Grocery Co., 184 Mo. App.
432; Woodman _v._ Prescott, 65 N. H. 224; Heyne _v._ Blair, 62 N. Y.
19; Miller _v._ Milligan, 48 Barb. 30; Linitzky _v._ Gorman, 146 N. Y.
Supp. 313; Dietz _v._ Langfitt, 63 Pa. St. 234; Emerson _v._ Cochran,
111 Pa. St. 619; Bartlett _v._ Brown, 6 R. I. 37; Welch _v._ Boston R.
Corp., 14 R. I. 609; Stoddard _v._ Roland, 31 S. C. 342; Kelton _v._
Bevins, Cooke, (Tenn.) 90; Evans _v._ Thompson, 12 Heisk. 534; Johnson
_v._ State, 32 Tex. Cr. 58; South Bank _v._ Suffolk Bank, 27 Vt. 505;
Waring _v._ Hudspeth, 75 Wash. 534; Bailey _v._ Gollehon, 76 W. Va.
322; Reicher _v._ Neacy, 158 Wis. 657 _Accord_.

_Definitions of probable cause_, see Gulsby _v._ Louisville R. Co.,
167 Ala. 122; Hanchey _v._ Brunson, 175 Ala. 236; Runo _v._ Williams,
162 Cal, 444; Redgate _v._ Southern R. Co., 24 Cal. App. 573; Mark
_v._ Rich, 43 App. D. C. 182; Pianco _v._ Joseph, 188 Ill. App. 555;
Schwartz _v._ Boswell, 156 Ky. 103; Indianapolis Traction Co. _v._
Henby, 178 Ind. 239; Banken _v._ Locke, 136 La. 155; Chapman _v._
Nash, 121 Md. 608; Gilecki _v._ Dolemba, 189 Mich. 107; Cox _v._
Lauritsen, 126 Minn. 128; Lammers _v._ Mason, 123 Minn. 204; Wilkerson
_v._ McGhee, 163 Mo. App. 356, 153 Mo. App. 343; Humphries _v._
Edwards, 164 N. C. 154; Cole _v._ Reece, 47 Pa. Super. Ct. 212; Waring
_v._ Hudspeth, 75 Wash. 534; Bailey _v._ Gollehon, 76 W. Va. 322.

Footnote 384:

Only the opinion of the court is given.

Footnote 385:

_Conviction reversed._—It is generally agreed that a conviction of the
defendant in the criminal proceeding, although subsequently reversed,
negatives the absence of probable cause, unless it is also made to
appear that the conviction was procured by the fraud of the instigator
of the criminal proceeding. Accordingly, a declaration alleging the
conviction and its reversal, but not alleging any such fraud, is bad
on demurrer. Reynolds _v._ Kennedy, 1 Wils. 232; Crescent Co. _v._
Butcher’s Co., 120 U. S. 141; Knight _v._ Internat. R. Co., 61 Fed.
87; Blackman _v._ West Co., 126 Fed. 252; Casey _v._ Dorr, 94 Ark.
433; Carpenter _v._ Sibley, 153 Cal. 215; Goodrich _v._ Warner, 21
Conn. 432 (_semble_); McElroy _v._ Catholic Press Co., 254 Ill. 290;
Dahlberg _v._ Grace, 178 Ill. App. 97; Adams _v._ Bicknell, 126 Ind.
210; Moffatt _v._ Fisher, 47 Ia. 473; Bowman _v._ Brown, 52 Ia. 437;
Olson _v._ Neal, 63 Ia. 214; Barber _v._ Scott, 92 Ia. 52; White _v._
International Text Book Co., 156 Ia. 210; Ross _v._ Hixon, 46 Kan.
550, 555; Spring _v._ Besore, 12 B. Mon. 551; Kaye _v._ Kean, 18 B.
Mon. 839; Duerr _v._ Ky. Co., 132 Ky. 228; Witham _v._ Gowen, 14 Me.
362; Payson _v._ Caswell, 22 Me. 212; Sidelinger _v._ Trowbridge, 113
Me. 537; Whitney _v._ Peckham, 15 Mass. 243; Dennehey _v._ Woodsum,
100 Mass. 195, 197; Phillips _v._ Kalamazoo, 53 Mich. 33 (see Spalding
_v._ Lowe, 56 Mich. 366); Boogher _v._ Hough, 99 Mo. 183; Nehr _v._
Dobbs, 47 Neb. 863; Burt _v._ Place, 4 Wend. 591; Palmer _v._ Avery,
41 Barb. 290; Francisco _v._ Schmeelk, 156 App. Div. 335; Root _v._
Rose, 6 N. D. 575; Thienes _v._ Francis, 69 Or. 165; Herman _v._
Brookerhoff, 8 Watts, 240 (_semble_); Welch _v._ Boston R. Co., 14 R.
I. 609; Hull _v._ Sprague, 23 R. I. 188; Memphis Co. _v._ Williamson,
9 Heisk. 314; Saunders _v._ Baldwin, 112 Va. 431; Topolewski _v._
Plankinton Packing Co., 143 Wis. 52. Compare Carpenter _v._ Hood, 172
Mich. 533; Platt _v._ Bonsall, 136 App. Div. 397.

As to fraudulently procured plea of guilty, see Johnson _v._ Girdwood,
7 Misc. 651; Holtman _v._ Bullock, 142 Ky. 335.

In a few jurisdictions the conviction, although set aside, is treated
as conclusive evidence of probable cause, proof of fraud in its
procurement being inadmissible. Hartshorn _v._ Smith, 104 Ga. 235;
Clements _v._ Odorless Co., 67 Md. 461, 605 (Bryan, J., diss.); Parker
_v._ Huntington, 7 Gray, 36; Griffis _v._ Sellars, 4 Dev. & B. 176.

In Virginia, on the contrary, a count alleging a conviction and its
reversal is sufficient without any allegation in regard to fraud.
Jones _v._ Finch, 84 Va. 204 (_semble_); Blanks _v._ Robinson, 1 Va.
Dec. 600; Va. L. J. (1886) 398 (overruling Womack _v._ Circle, 32
Grat. 324). See Hale _v._ Boylen, 22 W. Va. 234.

_Commitment for grand jury._—The holding of the defendant for the
grand jury is _prima facie_ evidence of probable cause. Miller _v._
Chicago Co., 41 Fed. 898; Ewing _v._ Sanford, 19 Ala. 605; Price
Mercantile Co. _v._ Cuilla, 100 Ark. 316; Ganea _v._ Southern Co., 51
Cal. 140; Diemer _v._ Herber, 75 Cal. 287; Ritchey _v._ Davis, 11 Ia.
124; Ross _v._ Hixon, 46 Kan. 550; Danzer _v._ Nathan, 145 App. Div.
448; Giesener _v._ Healy, 86 Misc. 16; Ricord _v._ Central Co., 15
Nev. 167; Ash _v._ Marlow, 20 Ohio, 119; Raleigh _v._ Cook, 60 Tex.
438; Hale _v._ Boylen, 22 W. Va. 234.

_Finding of indictment._—The finding of an indictment is _prima facie_
evidence of probable cause. Garrard _v._ Willet, 4 J. J. Marsh. 628;
Sharpe _v._ Johnston, 76 Mo. 660; Peck _v._ Chouteau, 91 Mo. 138;
Wilkerson _v._ McGhee, 153 Mo. App. 343, 163 Mo. App. 356.

_Failure of the prosecution._—The failure of the original prosecution
is in some jurisdictions regarded as _prima facie_ evidence of want of
probable cause. Miller _v._ Chicago R. Co., 41 Fed. 898; Hanchey _v._
Brunson, 175 Ala. 236; Tucker _v._ Bartlett, 97 Kan. 163; Straus _v._
Young, 36 Md. 246; Whitfield _v._ Westbrook, 40 Miss. 311; Bostick
_v._ Rutherford, 4 Hawks, 83; Downing _v._ Stone, 152 N. C. 525;
Barhigh _v._ Tammany, 158 Pa. St. 545; McKenzie _v._ Canning, 42 Utah,
529 (but compare Smith _v._ Clark, 37 Utah, 116); Jones _v._ Finch, 84
Va. 204; Waring _v._ Hudspeth, 75 Wash. 534; Saunders _v._ First Nat.
Bank, 85 Wash. 125; Brady _v._ Stiltner, 40 W. Va. 289; Fetty _v._
Huntington Loan Co., 70 W. Va. 688; Winn _v._ Peckham, 42 Wis. 493;
Lawrence _v._ Cleary, 88 Wis. 473; Manz _v._ Klippel, 158 Wis. 557. In
others there is no such presumption. Incledon _v._ Berry, 1 Camp. 203
n; Stewart _v._ Sonneborn, 98 U. S. 187, 195; Thompson _v._ Beacon
Co., 56 Conn. 493; Plummer _v._ Collins, 1 Boyce, 281; Skidmore _v._
Bricker, 77 Ill. 164; Bitting _v._ Ten Eyck, 82 Ind. 421; Prine _v._
Singer Machine Co., 176 Mich. 300; Williams _v._ Vanmeter, 8 Mo. 339;
Boeger _v._ Langenberg, 97 Mo. 390; Eckerle _v._ Higgins, 159 Mo. App.
177 (distinguishing nol. pros. and discharge on preliminary
examination—see also Smith _v._ Glynn, (Mo.) 144 S. W. 149); Harris
_v._ Quincy R. Co., 172 Mo. App. 261; Scott _v._ Simpson, 1 Sandf.
601; Central Light Co. _v._ Tyron, 42 Okl. 86; Eastman _v._ Monastes,
32 Or. 291; Bekkeland _v._ Lyons, 96 Tex. 255; McIntosh _v._ Wales, 21
Wyo. 397. See also Grorud _v._ Lossl, 48 Mont. 274.

Order vacating attachment as _prima facie_ evidence of want of
probable cause in action for malicious attachment, see Petruschke _v._
Kamerer, 131 Minn. 320.

Footnote 386:

The statement of the evidence, the argument for the defendant, and the
concurring opinion of HOLROYD, J., are omitted.

Footnote 387:

Snow _v._ Allen, 1 Stark. 502; Abrath _v._ North Eastern Co., 11 Q. B.
Div. 440, 11 App. Cas. 247; Scougall _v._ Stapleton, 12 Ont. 206;
Stewart _v._ Sonneborn, 98 U. S. 187; Blunt _v._ Little, 3 Mason, 102;
Cuthbert _v._ Galloway, 35 Fed. 466 (_semble_); Miller _v._ Chicago
Co., 41 Fed. 898; Coggswell _v._ Bohn, 43 Fed. 411; Staunton _v._
Goshorn, 94 Fed. 52; McLeod _v._ McLeod, 73 Ala. 42; Jordan _v._
Alabama Co., 81 Ala. 220; Lemay _v._ Williams, 32 Ark. 166; Bliss _v._
Wyman, 7 Cal. 257; Jones _v._ Jones, 71 Cal. 89; Brooks _v._ Bradford,
4 Col. App. 410; Mark _v._ Rich, 43 App. D. C. 182; Joiner _v._ Ocean
Co., 86 Ga. 238; Baker _v._ Langley, 3 Ga. App. 751; Ross _v._ Innis,
26 Ill. 259; Ames _v._ Snider, 69 Ill. 376; Barrett _v._ Spaids, 70
Ill. 408; Brown _v._ Smith, 83 Ill. 291; Roy _v._ Goings, 112 Ill.
656; Aldridge _v._ Churchill, 28 Ind. 62; Paddock _v._ Watts, 116 Ind.
146; Adams _v._ Bicknell, 126 Ind. 210; Mesher _v._ Iddings, 72 Ia.
553; Schippel _v._ Norton, 38 Kan. 567; Dyer _v._ Singer Machine Co.,
164 Ky. 538; Carrigan _v._ Graham, 166 Ky. 333; Stevens _v._ Fassett,
27 Me. 266; Soule _v._ Winslow, 66 Me. 447; Cooper _v._ Utterbach, 37
Md. 282; Hyde _v._ Greuch, 62 Md. 577; Torsch _v._ Dell, 88 Md. 459;
Stone _v._ Swift, 4 Pick. 389; Monaghan _v._ Cox, 155 Mass. 487;
Stanton _v._ Hart, 27 Mich. 539; Perry _v._ Sulier, 92 Mich. 72; Moore
_v._ Northern Co., 37 Minn. 147; Boyd _v._ Mendenhall, 53 Minn. 274;
Alexander _v._ Harrison, 38 Mo. 258; Burris _v._ North, 64 Mo. 426;
Whitfield _v._ Westbrook, 40 Miss. 311; Grorud _v._ Lossl, 48 Mont.
274; Jonasen _v._ Kennedy, 39 Neb. 313; Magowan _v._ Rickey, 64 N. J.
Law, 402; Hall _v._ Suydam, 6 Barb. 83; Richardson _v._ Virtue, 2 Hun,
208; Turner _v._ Dinnegar, 20 Hun, 465; Beal _v._ Robeson, 8 Ired.
276; Ash _v._ Marlow, 20 Ohio, 119; El Reno Gas Co. _v._ Spurgeon, 30
Okl. 88; Sims _v._ Jay, 53 Okl. 183; Walter _v._ Sample, 25 Pa. St.
275; Smith _v._ Walter, 125 Pa. St. 453; Bartlett _v._ Brown, 6 R. I.
37; Jackson _v._ Bell, 5 S. D. 257; Kendrick _v._ Cypert, 10 Humph.
291; St. Johnsbury Co. _v._ Hunt, 59 Vt. 294; Forbes _v._ Hagman, 75
Va. 168; Saunders _v._ Baldwin, 112 Va. 431; Hightower _v._ Union
Trust Co., 88 Wash. 179; Sutton _v._ McConnell, 46 Wis. 269; Manz _v._
Klippel, 158 Wis. 557 _Accord_.

But see Brewer _v._ Jacobs, 22 Fed. 217; Stewart _v._ Mulligan, 11 Ga.
App. 660; Smith _v._ Glynn, (Mo.) 144 S. W. 149; Downing _v._ Stone,
152 N. C. 525; Ramsey _v._ Arrott, 64 Tex. 320; Glasgow _v._ Owen, 69
Tex. 167; Shannon _v._ Jones, 76 Tex. 141; Tiedeman’s Note, 21 Am. L.
Reg. N. S. 582.

The advice must be that of a lawyer, and not a layman. Murphy _v._
Larson, 77 Ill. 172; McCullough _v._ Rice, 59 Ind. 580; Olmstead _v._
Partridge, 16 Gray, 381; Beal _v._ Robeson, 8 Ired. 276. Even though
the layman be a justice of the peace. Stephens _v._ Gravit, 136 Ky.
479; Coleman _v._ Heurich, 2 Mack. 189; Straus _v._ Young, 36 Md. 246;
Monaghan _v._ Cox, 155 Mass. 487 (_semble_); Gee _v._ Culver, 12 Or.
228; Brobst _v._ Ruff, 100 Pa. St. 91; Sutton _v._ McConnell, 46 Wis.
269. But see Ball _v._ Rawles, 93 Cal. 222; Sisk _v._ Hurst, 1 W. Va.
53. Compare Marks _v._ Hastings, 101 Ala. 165.

The lawyer must have no personal interest in the controversy. Smith
_v._ King, 62 Conn. 515; White _v._ Carr, 71 Me. 555.

In Hazzard _v._ Flury, 120 N. Y. 223, the Court of Appeals held that
mistaken advice of counsel upon a point of law would not justify the
client, since every one is presumed to know the law. Surely that
much-abused fiction has seldom been so glaringly perverted in behalf
of injustice. See Singer Machine Co. _v._ Dyer, 156 Ky. 156.

Footnote 388:

Vann _v._ McCreary, 77 Cal. 434; Boyd _v._ Mendenhall, 53 Minn. 274;
Acton _v._ Coffman, 74 Ia. 17; Johnson _v._ Miller, 82 Ia. 693; Sharpe
_v._ Johnston, 76 Mo. 660; Ames _v._ Rathbun, 37 How. Pr. 289; Laird
_v._ Taylor, 66 Barb. 139; Davenport _v._ Lynch, 6 Jones, (N. C.) 545;
Powell _v._ Woodbury, 85 Vt. 504 _Accord_.

_Withholding facts from or unfairstatement to counsel._ Fowlkes _v._
Lewis, 10 Ala. App. 543; Rothschach _v._ Diven, 97 Kan. 38;
Indianapolis Traction Co. _v._ Henby, 178 Ind. 239; Lammers _v._
Mason, 123 Minn. 204; Bowers _v._ Walker, 192 Mo. App. 230; Lathrop
_v._ Mathers, 143 App. Div. 376; Baer _v._ Chambers, 67 Wash. 357;
Rogers _v._ Van Eps, 143 Wis. 396; Boyer _v._ Bugher, 19 Wyo. 463.

_Must state facts which might have been ascertained with reasonable
diligence._ Weddington _v._ White, 148 Ky. 671; Virtue _v._ Creamery
Mfg. Co., 123 Minn. 17; Duffy _v._ Scheerger, 91 Neb. 511.
_Contra_—enough to make full and fair disclosure of known facts, Roby
_v._ Smith, 40 Okl. 280.

Footnote 389:

The statement of facts is taken from 3 L. J. K. B. N. S. 35. The
arguments of counsel and the concurring opinions of Patteson and
Taunton, JJ., are omitted.

Footnote 390:

Willans _v._ Taylor, 6 Bing. 183; Busst _v._ Gibbons, 30 L. J. Ex. N.
S. 75; Brown _v._ Hawkes, [1891] 2 Q. B. 718; Stewart _v._ Sonneborn,
98 U. S. 187; Brown _v._ Selfridge, 224 U. S. 189; Sanders _v._
Palmer, 55 Fed. 217; Staunton _v._ Goshorn, 94 Fed. 52; Gulsby _v._
Louisville R. Co., 167 Ala. 122; Louisville R. Co. _v._ Stephenson, 6
Ala. App. 578; Ball _v._ Rawles, 93 Cal. 222; Johnson _v._ Southern R.
Co., 157 Cal. 333; Smith _v._ King, 62 Conn. 515; Carroll _v._ Perry,
43 App. D. C. 363; Boyd _v._ Mendenhall, 53 Minn. 274; Helwig _v._
Beckner, 149 Ind. 131; Indianapolis Traction Co. _v._ Henby, 178 Ind.
239; Lawrence _v._ Leathers, 31 Ind. App. 414; Henderson _v._
McGruder, 49 Ind. App. 682; Atchison Co. _v._ Allen, 70 Kan. 743;
Michael _v._ Matson, 81 Kan. 360; Metrop. Co. _v._ Miller, 114 Ky.
754; Moser _v._ Fable, 164 Ky. 517; Medcalfe _v._ Brooklyn Co., 45 Md.
198; Thelin _v._ Dorsey, 59 Md. 539; Campbell _v._ Baltimore R. Co.,
97 Md. 341; Bishop _v._ Frantz, 125 Md. 183; Good _v._ French, 115
Mass. 201; Bartlett _v._ Hawley, 38 Minn. 308; Shafer _v._ Hertzig, 92
Minn. 171; Williams _v._ Pullman Co., 129 Minn. 97; Harris _v._ Quincy
R. Co., 172 Mo. App. 261; McNulty _v._ Walker, 64 Miss. 198; Cohn _v._
Saidel, 71 N. H. 558; Magowan _v._ Rickey, 64 N. J. Law, 402; Hartdorn
_v._ Webb Mfg. Co., (N. J.) 75 Atl. 893; Heyne _v._ Blair, 62 N. Y.
19; Fagnan _v._ Knox, 66 N. Y. 525; Anderson _v._ How, 116 N. Y. 336;
L. I. Union _v._ Seitz, 180 N. Y. 243; Viele _v._ Gray, 10 Abb. Pr. 1;
McCarthy _v._ Barrett, 144 App. Div. 727; Galley _v._ Brennan, 156
App. Div. 443; Stanford _v._ Grocery Co., 143 N. C. 419; Humphries
_v._ Edwards, 164 N. C. 154; Dunnington _v._ Loeser, (Okl.) 149 Pac.
1161; Leahey _v._ March, 155 Pa. St. 458; Roessing _v._ Pittsburgh R.
Co., 226 Pa. St. 523; McCoy _v._ Kalbach, 242 Pa. St. 123; Cooper _v._
Flemming, 114 Tenn. 40; Landa _v._ Obert, 45 Tex. 539; Finigan _v._
Sullivan, 65 Wash. 625; Bailey _v._ Gollehon, 76 W. Va. 322 _Accord_.
But see Wilson _v._ Thurlow, 156 Ia. 656; Griffin _v._ Dearborn, 210
Mass. 308.

Footnote 391:

Abrath _v._ North Eastern Co., 11 Q. B. Div. 440, 448, 455; Wiggin
_v._ Coffin, 3 Story, 1; Johnson _v._ Ebberts, 11 Fed. 129, 6 Sawy.
538, S. C.; Brewer _v._ Jacobs, 22 Fed. 217; Gulsby _v._ Louisville R.
Co., 167 Ala. 122; Hammond _v._ Rowley, 86 Conn. 6; Coleman _v._
Allen, 79 Ga. 637; South Western Co. _v._ Mitchell, 80 Ga. 438;
Stewart _v._ Mulligan, 11 Ga. App. 660; McElroy _v._ Catholic Press
Co., 254 Ill. 290; White _v._ International Text Book Co., 156 Ia.
210; Foltz _v._ Buck, 89 Kan. 381; Metrop. Co. _v._ Miller, 114 Ky.
754; Pullen _v._ Glidden, 66 Me. 202; Wills _v._ Noyes, 12 Pick. 324;
Mitchell _v._ Wall, 111 Mass. 492; Ross _v._ Langworthy, 13 Neb. 492;
Callahan _v._ Kelso, 170 Mo. App. 338; Gee _v._ Culver, 13 Or. 598;
Squires _v._ Job, 50 Pa. Super. Ct. 289; Culberston _v._ Cabeen, 29
Tex. 247, 256; Sebastian _v._ Cheney, (Texas) 24 S. W. 970; Barron
_v._ Mason, 31 Vt. 189, 198; Forbes _v._ Hagman, 75 Va. 168; Spear
_v._ Hiles, 67 Wis. 350; Boyer _v._ Bugher, 19 Wyo. 463 _Accord_.

In Abrath _v._ North Eastern Co., _supra_, malice was defined by
Brett, M. R., p. 448, as “a malicious intention in the mind of the
defendant, that is, not with the mere intention of carrying the law
into effect,” and by Bowen, L. J., as “a malicious spirit, that is, an
indirect and improper motive, and not in furtherance of justice.” See
also especially Pullen _v._ Glidden, and Johnson _v._ Ebberts, cited
_supra_ in this note; Magowan _v._ Rickey, 64 N. J. Law, 402; Peterson
_v._ Reisdorph, 49 Neb. 529; Nobb _v._ White, 103 Ia. 352; Brooks _v._
Bradford, 4 Col. App. 410; Jackson _v._ Bell, 5 S. D. 257.

_Definitions of “malice”_ in this connection, see Fowlkes _v._ Lewis,
10 Ala. App. 543; Redgate _v._ Southern R. Co., 24 Cal. App. 573;
Cincinnati R. Co. _v._ Cecil, 164 Ky. 377; Lammers _v._ Mason, 123
Minn. 204; Downing _v._ Stone, 152 N. C. 525; Wright _v._ Harris, 160
N. C. 542.

Footnote 392:

Farmer _v._ Darling, 4 Burr. 1971; Busst _v._ Gibbons, 30 L. J. Ex. N.
S. 75; Coulter _v._ Dublin Co., 60 L. T. 180; Hicks _v._ Faulkner, 46
L. T. Rep. 127 (affirming S. C. 8 Q. B. D. 167); Wheeler _v._ Nesbitt,
24 How. 544; Stewart _v._ Sonneborn, 98 U. S. 191; Wiggin _v._ Coffin,
3 Story, 1; Burnap _v._ Albert, Taney, 244; Benson v. McCoy, 36 Ala.
710; Lunsford _v._ Dietrich, 93 Ala. 565; Bozeman _v._ Shaw, 37 Ark.
160; Levy _v._ Brannan, 39 Cal. 485; Harkrader _v._ Moore, 44 Cal.
144; Porter v. White, 5 Mackey, 180; Harpham _v._ Whitney, 77 Ill. 32;
Krug _v._ Ward, 77 Ill. 603; Boyd _v._ Mendenhall, 53 Minn. 274;
Frankfurter _v._ Bryan, 12 Ill. App. 549; Gardiner _v._ Mays, 24 Ill.
App. 286; Newell _v._ Downs, 8 Blackf. 523; Oliver _v._ Pate, 43 Ind.
132; Ritchey _v._ Davis, 11 Ia. 124; Atchison Co. _v._ Watson, 37 Kan.
773; Gourgues _v._ Howard, 27 La. Ann. 339; Humphries _v._ Parker, 52
Me. 502; Medcalfe _v._ Brooklyn Co., 45 Md. 198; Mitchell _v._ Wall,
111 Mass. 492; Bartlett _v._ Hawley, 38 Minn. 308; Greenwade _v._
Mills, 31 Miss. 464; Sharpe _v._ Johnston, 59 Mo. 557; Finley _v._ St.
Louis Co., 99 Mo. 559; March _v._ Vandiver, 181 Mo. App. 281; McKown
_v._ Hunter, 30 N. Y. 625; Farnam _v._ Feeley, 56 N. Y. 451; Heyne
_v._ Blair, 62 N. Y. 19; Thompson _v._ Lumley, 50 How. Pr. 105;
Voorhes _v._ Leonard, 1 Th. & C. 148; Johnson _v._ Chambers, 10 Ired.
287; Gee _v._ Culver, 12 Or. 228, 13 Or. 598; Schofield _v._ Ferrers,
47 Pa. St. 194; Dietz _v._ Langfitt, 63 Pa. St. 234; Gilliford _v._
Windel, 108 Pa. St. 142; Bell _v._ Graham, 1 N. & M’C. 278; Campbell
_v._ O’Bryan, 9 Rich. 204; Willis _v._ Knox, 5 S. C. 474; Caldwell
_v._ Bennett, 22 S. C. 1; Evans _v._ Thompson, 12 Heisk. 534; Stansell
_v._ Cleveland, 64 Tex. 660; Shannon _v._ Jones, 76 Tex. 141; Barron
_v._ Mason, 31 Vt. 189; Carleton _v._ Taylor, 50 Vt. 220; Scott _v._
Shelor, 28 Grat. 891; Forbes _v._ Hagman, 75 Va. 168 _Accord_.

But see, _contra_, Wilson _v._ Bowen, 64 Mich. 133.

Footnote 393:

The statement of facts and the argument for the defendant are
abridged; the concurring opinions of Coleridge, Wightman, and Erie,
JJ., are omitted.

Footnote 394:

In Exch. Ch. 1 T. R. 510, reversing the judgment of the Court of
Exchequer in Sutton _v._ Johnstone, 1 T. R. 493. Judgment of Exch. Ch.
affirmed on error, in Dom. Proc. 1 T. R. 784. S. C. 1 Bro. P. C. 76
(2d ed.).

Footnote 395:

1 T. R. 545.

Footnote 396:

The case alluded to is perhaps Broad _v._ Ham, 5 B. N. C. 722. By the
report of S. C. in 8 Scott, 40, the cause appears to have been tried
before Maule, B. (Reporter’s note.)

Footnote 397:

Broad _v._ Ham, 5 B. N. C. 722; Turner _v._ Ambler, 10 Q. B. 252;
Roret _v._ Lewis, 5 D. & L. 371; Hinton _v._ Heather, 14 M. & W. 131;
Williams _v._ Banks, 1 F. & F. 557; Chatfield _v._ Comerford, 4 F. &
F. 1008; Shrosbery _v._ Osmaston, 37 L. T. Rep. 792; Steed _v._
Knowles, 79 Ala. 446; Harkrader _v._ Moore, 44 Cal. 144; Ball _v._
Rawles, 93 Cal. 222; Galloway _v._ Stewart, 49 Ind. 156; Donnelly _v._
Burkett, 75 Ia. 613; Humphries _v._ Parker, 52 Me. 502, 505; Mitchell
_v._ Wall, 111 Mass. 492; Bartlett _v._ Hawley, 38 Minn. 308; Peck
_v._ Chouteau, 91 Mo. 138; Chicago Co. _v._ Kriski, 30 Neb. 215;
Howard _v._ Thompson, 21 Wend. 319; Burlingame _v._ Burlingame, 8 Cow.
141; Fagnan _v._ Knox, 66 N. Y. 525; Anderson _v._ How, 116 N. Y. 336;
Wass _v._ Stephens, 128 N. Y. 123; Wilson _v._ King, 39 N. Y. Super.
Ct. 384; Linitzky _v._ Gorman, 146 N. Y. Supp. 313; Thienes _v._
Francis, 69 Or. 165; King _v._ Colvin, 11 R. I. 582; Scott _v._
Shelor, 28 Grat. 891; Forbes _v._ Hagman, 75 Va. 168; Spear _v._
Hiles, 67 Wis. 350; Baker _v._ Kilpatrick, 7 Br. Col. L. R. 150;
Harcourt _v._ Aiken, 22 N. Zeal. L. R. 389; Clift _v._ Birmingham, 4
W. Aust. L. R. 20 _Accord_.

Footnote 398:

Only the opinion of the court is given.

Footnote 399:

Brown _v._ Hawkes, [1891] 2 Q. B. 718; Grant _v._ Book, 25 Nova
Scotia, 266 _Accord_.

_Malice may be inferred from want of probable cause._ Hanchey _v._
Brunson, 175 Ala. 236; Hawkins _v._ Collins, 5 Ala. App. 522; Fowlkes
_v._ Lewis, 10 Ala. App. 543; Price _v._ Morris, 122 Ark. 382; Redgate
_v._ Southern R. Co., 24 Cal. App. 573; Stewart _v._ Mulligan, 11 Ga.
App. 660; Holliday _v._ Coleman, 12 Ga. App. 779; McElroy _v._
Catholic Press Co., 254 Ill. 290; Pontius _v._ Kimball, 56 Ind. App.
144; Singer Machine Co. _v._ Dyer, 156 Ky. 156; Mertens _v._ Mueller,
119 Md. 525; Griffin _v._ Dearborn, 210 Mass. 308; Moscob _v._ Frank
Ridlon Co., 216 Mass. 193; Krzyszke _v._ Kamin, 163 Mich. 290; Bowers
_v._ Walker, 192 Mo. App. 230; Grorud _v._ Lossl, 48 Mont. 274; Galley
_v._ Brennan, 156 App. Div. 443; Kellogg _v._ Ford, 70 Or. 213; Cole
_v._ Reece, 47 Pa. Super. Ct. 212; Keener _v._ Jeffries, 54 Pa. Super.
Ct. 553; Tufshinsky _v._ Pittsburgh R. Co., 61 Pa. Super. Ct. 121;
Fetty _v._ Huntington Loan Co., 70 W. Va. 688.

It is not a necessary inference. Hanowitz _v._ Great Northern R. Co.,
122 Minn. 241; Smith _v._ Glynn, (Mo.) 144 S. W. 149; Chicago R. Co.
_v._ Holliday, 30 Okl. 680; Boyer _v._ Bugher, 19 Wyo. 463.

It is not inferred from failure to prosecute, Malloy _v._ Chicago R.
Co., 34 S. D. 330, nor from discharge or acquittal. Waring _v._
Hudspeth, 75 Wash. 534.

_Want of probable cause is not to be inferred from malice._ Runo _v._
Williams, 162 Cal. 444; Redgate _v._ Southern R. Co., 24 Cal. App.
573; Plummer _v._ Collins, 1 Boyce, 281; McElroy _v._ Catholic Press
Co., 254 Ill. 290; Shadden _v._ Butler, 164 Ia. 1; Hudson _v._ Nolen,
142 Ky. 824; Chapman _v._ Nash, 121 Md. 608; Griffin _v._ Dearborn,
210 Mass. 308; Callahan _v._ Kelso, 170 Mo. App. 338; Motsinger _v._
Sink, 168 N. C. 548; Kellogg _v._ Ford, 70 Or. 213; McCoy _v._
Kalbach, 242 Pa. St. 123; Boyer _v._ Bugher, 19 Wyo. 463; McIntosh
_v._ Wales, 21 Wyo. 397. But see Squires _v._ Job, 50 Pa. Super. Ct.
289.

Footnote 400:

Only a portion of the opinion is given.

Footnote 401:

Whitehurst _v._ Ward, 12 Ala. 264; Shannon _v._ Simms, 146 Ala. 673;
Whipple _v._ Gorsuch, 82 Ark. 252; Adams _v._ Lisher, 3 Blackf. 241;
Bruley _v._ Rose, 57 Ia. 651; Parkhurst _v._ Masteller, 57 Ia. 474;
White _v._ International Text Book Co., 156 Ia. 210; Lancaster _v._
McKay, 103 Ky. 616, 624; Bacon _v._ Towne, 4 Cush. 217, 241; Threefoot
_v._ Nuckols, 68 Miss. 116; Morris _v._ Corson, 7 Cow. 281; Turner
_v._ Dinnegar, 20 Hun, 465; Bell _v._ Pearcy, 5 Ired. 83; Johnson _v._
Chambers, 10 Ired. 287; Thurber _v._ Eastern Ass’n, 118 N. C. 129
_Accord_. See Indianapolis Traction Co. _v._ Henby, 178 Ind. 239.

Footnote 402:

Watson _v._ Norbury, Sty. 3, 201; Brown _v._ Chapman, 1 W. Bl. 427;
Cotton _v._ James, 1 B. & Ad. 128; Whitworth _v._ Hall, 2 B. & Ad.
695; Hay _v._ Weakley, 5 Car. & P. 361; Farley _v._ Danks, 4 E. & B.
493; Johnson _v._ Emerson, L. R. 6 Ex. 329; Metropolitan Bank _v._
Pooley, 10 App. Cas. 210; Stewart _v._ Sonneborn, 98 U. S. 187;
Wilkinson _v._ Goodfellow Co., 141 Fed. 218; McDonald _v._ Goddard
Grocery Co., 184 Mo. App. 432; Lawton _v._ Green, 5 Hun, 157; Cohen
_v._ Nathaniel Fisher & Co., 135 App. Div. 238; King _v._ Sullivan,
(Tex. Civ. App.) 92 S. W. 51; Carleton _v._ Taylor, 50 Vt. 220
(_semble_) _Accord_.

Similarly an action will lie without proof of special damage for a
malicious and unfounded presentation of a petition to wind up a
trading company. Quartz Co. _v._ Eyre, 11 Q. B. Div. 674; Wyatt _v._
Palmer, [1899] 2 Q. B. 106 (_semble_).

_Malicious inquisition of lunacy_, see Lockenour _v._ Sides, 57 Ind.
360; Dordoni _v._ Smith, 82 N. J. Law, 525.

_Malicious proceeding for suspension or removal of an officer._ Fulton
_v._ Ingalls, 165 App. Div. 323.

_Malicious prosecution of unfounded claim for a patent._ Strelitzer
_v._ Schnaier, 135 App. Div. 384.

Footnote 403:

The arguments of counsel are omitted.

Footnote 404:

_Malicious arrest on civil process._ Stribler _v._ Jones, 1 Lev. 276;
Daw _v._ Swain, 1 Sid. 424; Parker _v._ Langley, Gilb. 163, 10 Mod.
209, S. C.; Goslin _v._ Wilcock, 2 Wils. 302; Sinclair _v._ Eldred, 4
Taunt. 7; Pierce _v._ Street, 3 B. & Ad. 397; Cozer _v._ Pilling, 4 B.
& C. 26; Saxon _v._ Castle, 6 A. & E. 652; Roret _v._ Lewis, 5 D. & L.
371; Medina _v._ Grove, 10 Q. B. 152; Daniels _v._ Fielding, 16 M. &
W. 200 (_semble_, see Clerk & Lindsell, Torts, 5 ed. 683); Moore _v._
Guardner, 16 M. & W. 595 (_semble_); Ross _v._ Norman, 5 Ex. 359;
Ventress _v._ Rosser, 73 Ga. 534; Joiner _v._ Ocean Co., 86 Ga. 238;
Cardival _v._ Smith, 109 Mass. 158; Hamilburgh _v._ Shepard, 119 Mass.
30; Cotter _v._ Nathan & Hurst Co., 218 Mass. 315; Stanfield _v._
Phillips, 78 Pa. St. 73; Emerson _v._ Cochran, 111 Pa. St. 619; Ward
_v._ Sutor, 70 Tex. 343.

_Malicious holding to bail._ Steer _v._ Scoble, Cro. Jac. 667; Berry
_v._ Adamson, 6 B. & C. 528; Small _v._ Gray, 2 Car. & P. 605.

_Malicious seizure of property on civil process._ Sanders _v._ Powell,
1 Lev. 129, 1 Sid. 183, 1 Keb. 603, S. C.; Craig _v._ Hasell, 4 Q. B.
481; Medina _v._ Grove, 10 Q. B. 152; Redway _v._ McAndrew, L. R. 9 Q.
B. 74; Kirksey _v._ Jones, 7 Ala. 622; Vesper _v._ Crane Co., 165 Cal.
36; Juchter _v._ Boehm, 67 Ga. 534; Wilcox _v._ McKenzie, 75 Ga. 73;
Lawrence _v._ Hagerman, 56 Ill. 68; Spaids _v._ Barrett, 57 Ill. 289;
Western Co. _v._ Wilmarth, 33 Kan. 510; Wills _v._ Noyes, 12 Pick.
324; Savage _v._ Brewer, 16 Pick. 453; O’Brien _v._ Barry, 106 Mass.
300; Bobsin _v._ Kingsbury, 138 Mass. 538; Grant _v._ Reinhart, 33 Mo.
App. 74; Smith _v._ Smith, 56 How. Pr. 316; Jaksich _v._ Guisti, 36
Nev. 104; Tyler _v._ Mahoney, 166 N. C. 509; Fortman _v._ Rottier, 8
Ohio St. 548; Sommer _v._ Wilt, 4 S. & R. 19; Mayer _v._ Walter, 64
Pa. St. 283.

_Malicious replevin._ O’Brien _v._ Barry, 106 Mass. 300; McPherson
_v._ Runyon, 41 Minn. 524; Martin _v._ Rexford, 170 N. C. 540.

_Malicious issue of an injunction._ Munce _v._ Black, 7 Ir. C. L. R.
475; McFarlane _v._ Garrett, 3 Pennewill, 36; Landis _v._ Wolf, 206
Ill. 392; Krzyszke _v._ Kamin, 163 Mich. 290; Manlove _v._ Vick, 55
Miss. 567; Burt _v._ Smith, 84 App. Div. 47; Coal Co. _v._ Upson, 40
Ohio St. 17; Hess _v._ German Co., 37 Or. 297; Batson _v._ Paris Co.,
73 S. C. 368; Powell _v._ Woodbury, 85 Vt. 504; Williams _v._
Ainsworth, 121 Wis. 600 (_semble_).

_Malicious procurement of the execution of a search warrant._ Cooper
_v._ Booth, 3 Esp. 135, S. C. 1 T. R. 535 (_cited_); Elsee _v._ Smith,
2 Chit. R. 304, 1 D. & R. 97, S. C.; Wyatt _v._ White, 29 L. J. Ex.
193; Carey _v._ Sheets, 60 Ind. 17, 67 Ind. 375; Whitson _v._ May, 71
Ind. 269; Olson _v._ Tvete, 46 Minn. 225; Miller _v._ Brown, 3 Mo. 94;
Boeger _v._ Langenberg, 97 Mo. 390.

_Malicious garnishment._ King _v._ Yarbray, 136 Ga. 212; Lopes _v._
Connolly, 210 Mass. 487.

_Levy of execution under fraudulent judgment._ Atlanta Ice Co. _v._
Reeves, 136 Ga. 294.

See also Hope _v._ Evered, 17 Q. B. Div. 338; Lea _v._ Charrington, 23
Q. B. Div. 45; Utting _v._ Berney, 5 T. L. Rep. 39.

Footnote 405:

Only the opinion of the court on this point is given.

Footnote 406:

Savile _v._ Roberts, 1 Ld. Ray. 374; Purton _v._ Honnor, 1 B. & P.
205; Cotterell _v._ Jones, 11 C. B. 713; Quartz Co. _v._ Eyre, 11 Q.
B. Div. 674; Ray _v._ Law, Pet. C. C. 207; Tamblyn _v._ Johnston, 126
Fed. 267, 270; Mitchell _v._ South Western Co., 75 Ga. 398 (but see
Slater _v._ Kimbro, 91 Ga. 217); Smith _v._ Mich. Co., 175 Ill. 619;
Bonney _v._ King, 201 Ill. 47; McCormick _v._ Weber, 187 Ill. App.
290; Smith _v._ Hintrager, 67 Ia. 109; Cattle Co. _v._ Nat. Bank, 127
Ia. 153, 158; White _v._ International Text Book Co., 156 Ia. 310;
Cade _v._ Yocum, 8 La. Ann. 477; McNamee _v._ Mink, 49 Md. 122; Sup.
Lodge _v._ Unverzagt, 76 Md. 104 (see Clements _v._ Odorless Co., 67
Md. 461); Woodmansie _v._ Logan, 1 Penningt. 93; Potts _v._ Imlay, 1
South. 330; State _v._ Meyer, 40 N. J. Law, 252; Ely _v._ Davis, 111
N. C. 24 (_semble_); Terry _v._ Davis, 114 N. C. 31; Carpenter _v._
Hanes, 167 N. C. 551; Cincinnati Co. _v._ Bruck, 61 Ohio St. 489
(explaining Pope _v._ Pollock, 46 Ohio St. 367); Kramer _v._ Stock, 10
Watts, 115; Mayer _v._ Walter, 64 Pa. St. 283; Muldoon _v._ Rickey,
103 Pa. St. 110; Emerson _v._ Cochran, 111 Pa. St. 619, 622; Michell
_v._ Donanski, 28 R. I. 94, 97 (_semble_); Smith _v._ Adams, 27 Tex.
28; Johnson _v._ King, 64 Tex. 226; Nowotny _v._ Grona, 44 Tex. Civ.
App. 325; J. Calisher Co. _v._ Bloch, (Tex. Civ. App.) 147 S. W. 683;
Abbott _v._ Thorne, 34 Wash. 692; Luby _v._ Bennett, 111 Wis. 613
(_semble_); Cross _v._ Comm. Agency, 18 N. Zeal. L. R. 153 _Accord_.

Burnap _v._ Albert, Taney, 244; Cooper _v._ Armour, 42 Fed 215, 217;
Wade _v._ Nat. Bank, 114 Fed. 377; Eastin _v._ Stockton Bank, 66 Cal.
123; Berson _v._ Ewing, 84 Cal. 89; Hoyt _v._ Macon, 2 Col. 113
(_semble_); Whipple _v._ Fuller, 11 Conn. 582; Wall _v._ Toomey, 52
Conn. 35; Payne _v._ Donegan, 9 Ill. App. 566 (_semble_); Lockenour
_v._ Sides, 57 Ind. 360; McCardle _v._ McGinley, 86 Ind. 538;
Whitesell _v._ Study, 37 Ind. App. 429; Marbourg _v._ Smith, 11 Kan.
554; Cox _v._ Taylor, 10 B. Mon. 17; Woods _v._ Finnell, 13 Bush. 628;
Johnson _v._ Meyer, 36 La. Ann. 333 (_semble_); Allen _v._ Codman, 139
Mass. 136 (_semble_); Wilson _v._ Hale, 178 Mass. 111; Brand _v._
Hinchman, 68 Mich. 590; Antcliff _v._ June, 81 Mich. 477; McPherson
_v._ Runyon, 41 Minn. 524; O’Neill _v._ Johnson, 53 Minn. 439;
Eickhoff _v._ Fidelity Co., 74 Minn. 139; Virtue _v._ Creamery Mfg.
Co., 123 Minn. 17; Brown _v._ City, 90 Mo. 377 (_semble_); Smith _v._
Burrus, 106 Mo. 94; McCormick Co. _v._ Willan, 63 Neb. 391; Pangburn
_v._ Bull, 1 Wend. 345; Dempsey _v._ Lepp, 52 How. Pr. 11; Smith _v._
Smith, 20 Hun, 555 (_semble_); Willard _v._ Holmes, 21 N. Y. Supp. 998
(_semble_); (but see Willard _v._ Holmes, 142 N. Y. 492; Paul _v._
Fargo, 84 App. Div. 9); Kolka _v._ Jones, 6 N. D. 461; Sawyer _v._
Shick, 30 Okl. 353; Lipscomb _v._ Shofner, 96 Tenn. 112; Swepson _v._
Davis, 109 Tenn. 99; Closson _v._ Staples, 42 Vt. 209 _Contra_.

In Eastin _v._ Stockton Bank, _supra_, the court said: “The English
cases which deny the right to maintain the action, stand upon the
ground that the successful defendant is adequately compensated for the
damages he sustains by the costs allowed him by the statute. Those
costs, it seems, include the attorney’s charges for preparing the case
for trial in all its parts, the fees of the witnesses and the court
officials, and even the _honorarium_ of the barrister who conducted
the case in court. The reason upon which the English rule rests would
not, therefore, seem to apply here, where the costs recoverable under
the statute are confined to much narrower limits....

“Two other objections made to the maintenance of the action,—first,
the claim that if such suits are allowed, litigation will become
interminable, because every successful action will be followed by
another, alleging malice in the prosecution of the former; and second,
that if the defendant may sue for damages sustained by an unfounded
prosecution, the plaintiff may equally bring an action when the
defendant makes a groundless defence,—are well answered in the article
already alluded to [Mr. Lawson’s note, 21 A. L. Reg. N. S. 281, 353]:
‘To the first objection, it is enough to say that the action will
never lie for an unsuccessful prosecution, unless begun and carried on
with malice and without probable cause. With the burden of this
difficult proof upon him, the litigant will need a very clear case
before he will be willing to begin a suit of this character. The
second argument fails to distinguish between the position of the
parties, plaintiff and defendant, in an action at law. The plaintiff
sets the law in motion; if he does so groundlessly and maliciously he
is the cause of the defendant’s damage. But the defendant stands only
on his legal rights—the plaintiff having taken his case to court, the
defendant has the privilege of calling upon him to prove it to the
satisfaction of the judge or jury, and he is guilty of no wrong in
exercising this privilege.’”

In Doane _v._ Hescock, 155 N. Y. Supp. 210, the court (Appellate Term,
First Department) says: “It clearly appears that the complaint does
not state facts sufficient to constitute a cause of action for abuse
of process, nor are the allegations sufficient to support an action
for malicious prosecution of a civil action in this state. There is no
allegation that the action resulted in damages to the business or
reputation of the defendant or that in any way his personal or
property rights were interfered with. The sole allegation as to damage
is the trouble, inconvenience, and expense of defending the action.
This is not sufficient. Paul _v._ Fargo, 84 App. Div. 9, 11, 13
(dissenting opinion, 21), 82 N. Y. Supp. 369; Fulton _v._ Ingalls, 165
App. Div. 323, 326, 151 N. Y. Supp. 130.”

_Malicious excessive attachment._ Tamblyn _v._ Johnston, (C. C. A.)
126 Fed. 267; Mills _v._ Larrance, 217 Ill. 446; Savage _v._ Brewer,
16 Pick. 453; Paul _v._ Fargo, 84 App. Div. 9; Sommer _v._ Wilt, 4 S.
& R. 19.

Footnote 407:

The averments of the count are abridged and the arguments of counsel
are omitted.

Footnote 408:

Fivaz _v._ Nicholls, 2 C. B. 501, 514 (_semble_); Grove _v._
Brandenburg, 7 Blackf. 234 _Accord_.

“Pechell _v._ Watson came to be considered in Flight _v._ Leman. Its
authority was recognized, but the latter case was decided against the
plaintiff, who sued for maintenance, on the ground, I own I should
have thought the narrow ground, that to instigate a suit was not
maintenance, though to support one already instituted was.” _Per_
Coleridge, C. J., in Bradlaugh _v._ Newdegate, 11 Q. B. Div. 1, 8.

See also Alabaster _v._ Harness, [1894] 2 Q. B. 897, [1895] 1 Q. B.
339; Grieg _v._ National Union, 22 T. L. Rep. 274; Goodyear Co. _v._
White, 2 N. J. Law Journ. 150, 10 Fed. Cas. 752, no. 5602; Breeden
_v._ Frankford Ins. Co., 220 Mo. 327, 373, 378–420, 424–443. Compare
Metropolitan Bank _v._ Pooley, 10 App. Cas. 210, 217–218.

Footnote 409:

Only the opinion of the Chief Justice upon the point of abuse of legal
process is given.

Footnote 410:

Heywood _v._ Collinge, 9 A. & E. 268; King _v._ Yarbray, 136 Ga. 212;
Wicker _v._ Hotchkiss, 62 Ill. 107 (_semble_); Emery _v._ Ginnan, 24
Ill. App. 65 (_semble_); Whitesell _v._ Study, 37 Ind. App. 429
(_semble_); Page _v._ Cushing, 38 Me. 523; Wood _v._ Graves, 144 Mass.
365; White _v._ Apsley Co., 181 Mass. 339; White _v._ Apsley Co., 194
Mass. 97; Malone _v._ Belcher, 216 Mass. 209; Pixley _v._ Reed, 26
Minn. 80 (_semble_); Rossiter _v._ Minn. Co., 37 Minn. 296; Bebinger
_v._ Sweet, 6 Hun, 478; Buffalo Co. _v._ Everest, 30 Hun, 586
(_semble_); Hazard _v._ Harding, 63 How. Pr. 326; Prough _v._
Entriken, 11 Pa. St. 81; Mayer _v._ Walter, 64 Pa. St. 283; Lauzon
_v._ Charroux, 18 R. I. 467 _Accord_.

As to the distinction between malicious prosecution and abuse of
process, see Waters _v._ Winn, 142 Ga. 138; Wright _v._ Harris, 160 N.
C. 542; Cooper _v._ Southern R. Co., 165 N. C. 578.

In Wood _v._ Graves, 144 Mass. 365, Allen, J., said, p. 366: “There is
no doubt that an action lies for the malicious abuse of lawful
process, civil or criminal. It is to be assumed, in such a case, that
the process was lawfully issued for a just cause, and is valid in
form, and that the arrest or other proceeding upon the process was
justifiable and proper in its inception. Perhaps the most frequent
form of such abuse is by working upon the fears of the person under
arrest for the purpose of extorting money or other property, or of
compelling him to sign some paper, to give up some claim, or to do
some other act, in accordance with the wishes of those who have
control of the prosecution. The leading case upon this subject is
Grainger _v._ Hill, 4 Bing. N. C. 212, where the owner of a vessel was
arrested on civil process, and the officer, acting under the
directions of the plaintiffs in the suit, used the process to compel
the defendant therein to give up his ship’s register, to which they
had no right. He was held entitled to recover damages, not for
maliciously putting the process in force, but for maliciously abusing
it, to effect an object not within its proper scope.”

In Mayer _v._ Walter, 64 Pa. St. 283, Sharswood, J., said: “There is a
distinction between a malicious use and a malicious abuse of legal
process. An abuse is where the party employs it for some unlawful
object, not the purpose which it is intended by the law to effect; in
other words, a perversion of it. Thus, if a man is arrested, or his
goods seized in order to extort money from him, even though it be to
pay a just claim other than that in suit, or to compel him to give up
possession of a deed or other thing of value, not the legal object of
the process, it is settled that in an action for such malicious abuse
it is not necessary to prove that the action in which the process
issued has been determined, or to aver that it was sued out without
reasonable or probable cause: Grainger _v._ Hill, 4 Bing. N. C. 212.
It is evident that when such a wrong has been perpetrated, it is
entirely immaterial whether the proceeding itself was baseless or
otherwise. We know that the law is good, but only if a man use it
lawfully.

“On the other hand, legal process, civil or criminal, may be
maliciously used so as to give rise to a cause of action where no
object is contemplated to be gained by it other than its proper effect
and execution. As every man has a legal power to prosecute his claims
in a court of law and justice, no matter by what motives of malice he
may be actuated in doing so, it is necessary in this class of cases to
aver and prove that he has acted not only maliciously, but without
reasonable or probable cause. It is clearly settled also, that the
proceeding must be determined finally before any action lies for the
injury; because, as it is said in Arundell _v._ Tregono, Yelv. 117,
the plaintiff will clear himself too soon, viz., before the fact
tried, which will be inconvenient; besides, the two determinations
might be contrary and inconsistent.”

To proceed unfairly and oppressively but without seeking to compel
another to do what he is not obliged to do, e. g., to enter up
judgment on a note after 10 P. M. and to bring immediate execution, is
not a ground of action according to Docter _v._ Riedel, 96 Wis. 158.
But see dissenting opinion of Marshall, J.

Footnote 411:

Only the opinion of the court is given.

Footnote 412:

Y. B. 7 Hen. VI. 43; 1 Roll. Ab. 101, pl. 1, S. C.; Holliday _v._
Sterling, 62 Mo. 321 _Accord_.

Footnote 413:

Edwards _v._ Wooton, 12 Rep. 35; Peacock _v._ Raynell, 2 Brownl. 151;
Barrow _v._ Lewellin, Hob. 152; Hick’s Case, Hob. 375; Rex _v._
Burdett, 4 B. & Ald. 95 _Accord_.

Footnote 414:

Phillips _v._ Jansen, 2 Esp. 624; Ward _v._ Smith, 4 Car. & P. 302;
Sharp _v._ Skues, (C. A.) 25 T. L. Rep. 336; Warnock _v._ Mitchell, 43
Fed. 428; Western Co. _v._ Cashman, 149 Fed. 367; Spaits _v._
Poundstone, 87 Ind. 522; Yousling _v._ Dare, 122 Ia. 539; Lyon _v._
Lash, 74 Kan. 745; Buckwalter _v._ Gossow, 75 Kan. 147; McIntosh _v._
Matherly, 9 B. Mon. 119; Roberts _v._ English Co., 155 Ala. 414;
Dickinson _v._ Hathaway, 122 La. 644; Gambrill _v._ Schooley, 93 Md.
48; Rumney _v._ Worthley, 186 Mass. 144, 145; Youmans _v._ Smith, 153
N. Y. 214, 218; Lyle _v._ Clason, 1 Caines, 581; Waistel _v._ Holman,
2 Hall, 172; Prescott _v._ Tousey, 50 N. Y. Super. Ct. 12; Shepard
_v._ Lamphier, 84 Misc. 498; Fonville _v._ McNease, Dudley, 303; State
_v._ Syphrett, 27 S. C. 29; Fry _v._ McCord, 95 Tenn. 678; Sylvis _v._
Miller, 96 Tenn. 94; Wilcox _v._ Moon, 63 Vt. 481; Wilcox _v._ Moon,
64 Vt. 450 _Accord_.

See Ahern _v._ Maguire, A. M. & O. 39.

If two persons combine in sending a libel to the plaintiff, each is
guilty of a publication to the other. Spaits _v._ Poundstone, 87 Ind.
522, 524, 525.

In Virginia, by statute, an action lies for insulting words written or
spoken, although not read or heard by a third person. Rolland _v._
Batchelder, 84 Va. 664; Strode _v._ Clement, 90 Va. 553.

Footnote 415:

Part of the case, not relating to publication, is omitted.

Footnote 416:

Wenman _v._ Ash, 13 C. B. 836; Jones _v._ Williams, 1 T. L. Rep. 572;
Sesler _v._ Montgomery, 78 Cal. 486, 489 (_semble_); Luick _v._
Driscoll, 13 Ind. App. 279; Wilcox _v._ Moon, 63 Vt. 481; Wilcox _v._
Moon, 64 Vt. 450 _Accord_.

But a communication by the libeller to his own wife is said not to be
a publication. Wennhak _v._ Morgan, 20 Q. B. D. 635; Sesler _v._
Montgomery, 78 Cal. 486; Trumbull _v._ Gibbons, 3 City H. Rec. 97. But
see State _v._ Shoemaker, 101 N. C. 690. See also Central R. Co. _v._
Jones, 18 Ga. App. 414 (dictation by officer of corporation to
co-employee); Kirschenbaum _v._ Kaufman (N. Y. City Ct.), 50 N. Y. Law
Journ. 406 (defamatory matter uttered to business partner in course of
business). It would be more accurate to say that the communication in
such cases is privileged. In Powell _v._ Gelston, [1916] 2 K. B. 615,
a libellous letter, privileged as a communication to A, was sent to B,
who asked for the information in his own name at A’s request. The
letter was opened and read by A only.

Footnote 417:

M’Coombs _v._ Tuttle, 5 Blackf. 431; Van Cleef _v._ Lawrence, 2 City
H. Rec. 41 _Accord_.

Footnote 418:

Wyatt _v._ Gore, Holt, 299; Wenman _v._ Ash, 13 C. B. 836; Kiene _v._
Ruff, 1 Ia. 482; Allen _v._ Wortham, 89 Ky. 485; Rumney _v._ Worthley,
186 Mass. 144; Schenck _v._ Schenck, Spencer, 208; State _v._
McIntire, 115 N. C. 769; Wilcox _v._ Moon, 64 Vt. 540; Adams _v._
Lawson, 17 Gratt. 250 _Accord_.

See Fox _v._ Broderick, 14 Ir. C. L. R. 453; Callan _v._ Gaylord, 3
Watts, 321.

_Slanderous statements to plaintiff in presence of his counsel_,
Massee _v._ Williams, 207 Fed. 222.

_Sending libellous letter to plaintiff’s attorney_, Brown _v._ Elm
City Lumber Co., 167 N. C. 9.

Footnote 419:

Only the opinion of the court is given.

Footnote 420:

Jones _v._ Davers, Cro. Eliz. 496; Price _v._ Jenkings, Cro. Eliz.
865; Amann _v._ Damm, 8 C. B. N. S. 597; Kiene _v._ Ruff, 1 Ia. 42;
Hurtert _v._ Weines, 27 Ia. 134; Mielenz _v._ Quasdorf, 68 Ia. 726;
Economopoulos _v._ A. G. Pollard Co., 218 Mass. 294; Wormouth _v._
Cramer, 3 Wend. 394 _Accord_.

See Bechtell _v._ Shatter, Wright, (Ohio) 107. Conf. Anon., Moore,
182; Gibs _v._ Jenkins, Hob. 335; Zenobio _v._ Axtell, 6 T. R. 162;
Jenkins _v._ Phillips, 9 Car. & P. 766; Hickley _v._ Grosjean, 6
Blackf. 351; Keenholts _v._ Becker, 3 Den. 346; Rahauser _v._ Barth, 3
Watts, 28; Zeig _v._ Ort, 3 Chandl. 26; K. _v._ H., 20 Wis. 239;
Filber _v._ Dautermann, 26 Wis. 518; Simonsen _v._ Herald Co., 61 Wis.
626; Pelzer _v._ Benishy, 67 Wis. 291.

Footnote 421:

Anon., Sty. 70; Force _v._ Warren, 15 C. B. N. S. 806; Desmond _v._
Brown, 33 Ia. 13; Marble _v._ Chapin, 132 Mass. 225, 226; Cameron _v._
Cameron, 162 Mo. App. 110; Traylor _v._ White, 185 Mo. App. 325;
Broderick _v._ James, 3 Daly, 481 Accord.

_Mailing of post card_. Three views have been expressed as to whether
the mailing of a post card is a publication.

(1) The mailing is a publication. Sadgrove _v._ Hole, [1901] 2 K. B.
1, 4, 5 (_semble_); Logan _v._ Hodges, 146 N. C. 38; Spence _v._ Burt,
18 Lanc. L. Rev. 251; Robinson v. Jones, L. R. 4 Ir. 391 (_semble_);
McCann _v._ Edinburgh Co., L. R. 28 Ir. 24, 28 per Palles, C. B.

(2) The mailing is _prima facie_ a publication. Odgers, Libel and
Slander (4 ed.), 153, 281.

(3) The mailing is _prima facie_ not a publication, i. e., is not a
publication unless evidence is given that the post card was read _in
transitu_. Steele _v._ Edwards, 15 Ohio Cir. Ct. 52, 58.

_Publication in ignorance of the libel_. The dissemination of a libel
by a carrier or newsvender or a public library, who neither knew nor
ought to have known of the libel and who had no reason to suppose that
the newspaper was likely to contain libellous matters, gives no cause
of action. Emmens _v._ Pottle, 16 Q. B. D. 354; Martin _v._ Trustees
of British Museum, 10 T. L. Rep. 338. But the proprietor of a
circulating library was held liable for giving out a book containing
defamatory statements, because his freedom from negligence did not
appear. Vizetelly _v._ Mudie’s Library, [1900] 2 Q. B. 170. See also
Morris _v._ Ritchie, Court of Sess., March 12, 1902, 4 F. 645.

Footnote 422:

The case has been much abridged.

Footnote 423:

Phillips _v._ Bradshaw, 167 Ala. 199; Allen _v._ Fincher, 187 Ala.
599; Pouchan _v._ Godeau, 167 Cal. 692; United Mine Workers _v._
Cromer, 159 Ky. 605; Tawney _v._ Simonson, 109 Minn. 341; Sweaas _v._
Evenson, 110 Minn. 304; Vanloon _v._ Vanloon, 159 Mo. App. 255; Jones
_v._ Banner, 172 Mo. App. 132; Bigley _v._ National Fidelity Co., 94
Neb. 813; Phillips _v._ Barber, 7 Wend. 439; Church _v._ New York
Tribune Ass’n, 135 App. Div. 30; Rossiter _v._ New York Press Co., 141
App. Div. 339; Spencer _v._ Minnick, 41 Okl. 613; McGeary _v._ Leader
Pub. Co., 52 Pa. Super. Ct. 35; Lehmann _v._ Medack, (Tex. Civ. App.)
152 S. W. 438 _Accord_. Compare Marshall _v._ Chicago Herald Co., 185
Ill. App. 224; Willfred Coal Co. _v._ Sapp, 193 Ill. App. 400; Sweet
_v._ Post Pub. Co., 215 Mass. 450; Corr _v._ Sun Printing & Pub.
Ass’n, 177 N. Y. 131. But see M. _v._ J., 164 Wis. 39.

A lunatic is liable for torts generally and also for a libel. Mordaunt
_v._ Mordaunt, 39 L. J. Pr. & M. 57, 59. But it is another
illustration of the rule of the principal case that defamatory words
spoken by a lunatic whose insanity was obvious or known to all the
hearers, are not actionable. Yeates _v._ Reed, 4 Blackf. 463; Irvine
_v._ Gibson, 117 Ky. 306; Dickinson _v._ Barber, 9 Mass. 225, 227;
Bryant _v._ Jackson, 6 Humph. 199. So also of words spoken and
understood as a jest. Donoghue _v._ Hayes, Hayes, 265. Drunkenness is
no defence. Kendrick _v._ Hopkins, Cary, 133; Gates _v._ Meredith, 7
Ind. 440.

The old rule of construing defamatory statements _in mitiori sensu_
was long ago exploded. See Odgers, Libel & Slander (5 ed.), 111–113.

_Explanation of words by context_, see Deitchman _v._ Bowles, 166 Ky.
285; McCurda _v._ Lewiston Journal Co., 109 Me. 53; Wing _v._ Wing, 66
Me. 62; Larsen _v._ Brooklyn Eagle, 165 App. Div. 4; Guenther _v._
Ridgway Co., 170 App. Div. 725; Eddy _v._ Cunningham, 69 Wash. 544;
Leuch _v._ Berger, 161 Wis. 564.

Footnote 424:

Only the opinion of the court is given.

Footnote 425:

Massee _v._ Williams, (C. C. A.) 207 Fed. 222; Ivie _v._ King, 167 N.
C. 174; Olympia Waterworks _v._ Mottman, 88 Wash. 694 _Accord_. See
_Ex parte_ Nelson, 251 Mo. 63.

Footnote 426:

A portion of the opinion is omitted.

Footnote 427:

The article was as follows: “He Waxed Eloquent. H. P. Hanson fined ten
dollars for refusing payment of car fare.... H. P. Hanson, a real
estate and insurance broker of South Boston, emerged from the seething
mass of humanity that filled the dock and indulged in a wordy bout
with policeman Hogan, who claimed to have arrested Hanson on the
charge of evading car fare and being drunk at the same time. The judge
agreed that the prisoner was sober, but on the charge of evasion of
car fare the evidence warranted the fining of the eloquent occupant of
the dock ten dollars without costs, which he paid.”

Footnote 428:

The opinion of the dissenting judges is supported by the decisions and
_dicta_ in other jurisdictions. Butler _v._ Barret, 130 Fed. 944
(_semble_); Every Evening Co. _v._ Butler, 144 Fed. 916; Taylor _v._
Hearst, 107 Cal. 262; Hulbert _v._ New Co., 111 Ia. 490; Davis _v._
Marxhausen, 86 Mich. 281, 103 Mich. 315 (_semble_); Clark _v._ North
American Co., 203 Pa. St. 346 (_semble_); Hutchinson _v._ Robinson, 21
N. S. W. L. R. (Law) 130 (_semble_). Compare Newton _v._ Grubbs, 155
Ky. 479; Ellis _v._ Brockton Pub. Co., 198 Mass. 538; Dunlop _v._
Sundberg, 55 Wash. 609.

Footnote 429:

Compare Gandia _v._ Pettingill, 222 U. S. 452; Van Wiginton _v._
Pulitzer Pub. Co., (C. C. A.) 218 Fed. 795; Jones _v._ R. L. Polk &
Co., 190 Ala. 243 (publishing of white woman that she is colored);
Ball _v._ Evening American Co., 237 Ill. 592; MacIntyre _v._ Fruchter,
148 N. Y. Suppl. 786 (“fit only for negroes to associate with”);
Spencer _v._ Looney, 116 Va. 767 (assertion of white person that he
was colored); Galveston Tribune _v._ Guisti, (Tex. Civ. App.) 134 S.
W. 239.

Footnote 430:

This abridged statement has been substituted. The arguments and all
but one of the opinions have been omitted.

Footnote 431:

Compare Northrop _v._ Tibbles, (C. C. A.) 215 Fed. 99. See Smith,
Jones _v._ Hulton, Three Conflicting Views as to a Question of
Defamation, 60 University of Pennsylvania Law Rev. 365, 461.

Footnote 432:

The statement of the pleadings is abridged, and only the opinion of
Littledale, J., is given. Bayley and Parke, JJ., concurred.

Footnote 433:

That the defendant repeated a defamation, giving the name of the
author, seems originally to have been a justification. Northampton’s
Case, 12 Rep. 134 (Fourth Resolution). But the name of the author was
to be given at the time of repetition, and not for the first time in
the plea. Davis _v._ Lewis, 7 T. R. 17. The words, furthermore, had to
be given with sufficient exactness to ground an action against the
author. Maitland _v._ Goldney, 2 East, 426. Doubts were thrown upon
the validity of this justification in Lewis _v._ Walter, 4 B. & Al.
605. The whole doctrine was repudiated, as to libel, in De Crespigny
_v._ Wellesley, 5 Bing. 392, and Tidman _v._ Ainslie, 10 Ex. 63; and
as to slander, in McPherson _v._ Daniels; Watkin _v._ Hall, L. R. 3 Q.
B. 396.

See to same effect Age-Herald Pub. Co. _v._ Waterman, 188 Ala. 272;
Washington Herald Co. _v._ Berry, 41 App. D. C. 322; Brewer _v._
Chase, 121 Mich. 526; Hagener _v._ Pulitzer Pub. Co., 172 Mo. App.
436; Vallery _v._ State, 42 Neb. 123; Walling _v._ Commercial
Advertiser, 165 App. Div. 26; Galveston Tribune _v._ Johnson, (Tex.
Civ. App.) 141 S. W. 302. See also Whitney _v._ Moignard, 24 Q. B. D.
630.

In Speight _v._ Gosnay, 60 L. J. Q. B. 231, the words were not
actionable without special damage and the special damage resulted only
from unauthorized repetition by a third person.

Footnote 434:

This short statement of the case, taken from 3 Camp. 214, has been
substituted for the declaration which is set out at considerable
length in the original report.

Footnote 435:

“When our ancestors years ago drew the distinction between libel and
slander, they exercised that kind of wise discretion which they always
exercised over the whole field of the common law. It would to my mind
be very dangerous for us nowadays to relax in any way the rule of law
which confines actions for spoken words, in the absence of proof of
special damage, to a very limited number of cases.” Vaughan Williams,
L. J., in Dauncey _v._ Holloway, [1901] 2 K. B. 441, 448. See also A.
L. Smith, L. J., Id. 447. But compare Colby _v._ Reynolds, 6 Vt. 489,
493; Tillson _v._ Robbins, 68 Me. 295.

The distinction sanctioned in the principal case between oral and
written scandal still obtains in England and the United States. The
definition of a libel as a written publication calculated to bring
another into hatred, ridicule, or contempt, is also universally
recognized in English-speaking countries. As it is a pure question of
fact for the jury whether the publication in a given case comes within
this definition, it has not seemed advisable to bring together in this
book the multitudinous instances which have been passed upon. A full
collection of the cases may be found in Odgers, Libel and Slander, (5
ed.) 18–38; Townshend, Slander and Libel; (4 ed.) 203–221; 25 Cyc.
255–264.

An action for a libel made in the course of judicial proceedings
cannot be maintained until the proceedings have terminated in favor of
the person defamed, Masterson _v._ Brown, 72 Fed. 136.

Footnote 436:

There is great diversity of opinion as to what words, imputing the
commission of a crime, are actionable _per se_. The authorities may be
classified as follows:—

I. Words imputing a criminal offence punishable corporally.

In Hawes’s Case, March, 113 (speaking against common prayer); Heake
_v._ Moulton, Yelv. 90; Walden _v._ Mitchell, 2 Ventr. 265; Scoble
_v._ Lee, 2 Show. 32 (regrating); McCabe _v._ Foot, 15 L. T. Rep. 115;
Elliott _v._ Ailsberry, 2 Bibb, 473 (fornication); M’Gee _v._ Wilson,
Litt. S. C. 187 (unchastity); Mills _v._ Wimp, 10 B. Mon. 417
(_semble_); Buck _v._ Hersey, 31 Me. 558 (drunkenness); Wagaman _v._
Byers, 17 Md. 183 (adultery); Birch _v._ Benton, 26 Mo. 153 (whipping
one’s wife); Speaker _v._ McKenzie, 26 Mo. 255 (whipping one’s
mother); Billings _v._ Wing, 7 Vt. 439 (“he snaked his mother out of
doors by the hair of her head; it was the day before she died”), the
words uttered were held not to give a right of action, since they
imputed crimes punishable only by fine, or by imprisonment merely as a
consequence of the non-payment of the fine.

II. Words imputing a criminal offence and involving moral turpitude.
Sipp _v._ Coleman, 179 Fed. 997; Taylor _v._ Gumpert, 96 Ark. 354;
Frisbie _v._ Fowler, 2 Conn. 707; Hoag _v._ Hatch, 23 Conn. 585; Page
_v._ Merwin, 54 Conn. 426; Kennenberg _v._ Neff, 74 Conn. 62;
Yakavicze _v._ Valentukevicious, 84 Conn. 350; Reitan _v._ Goebel, 33
Minn. 151.

III. Words imputing a criminal offence, involving moral turpitude and
punishable corporally. Redway _v._ Gray, 31 Vt. 292 (qualifying
Billings _v._ Wing, 7 Vt. 439); Murray _v._ McAllister, 38 Vt. 167.

IV. Words imputing a criminal offence involving disgrace. Miller _v._
Parish, 8 Pick. 384; Brown _v._ Nickerson, 5 Gray, 1; Kenney _v._
McLaughlin, 5 Gray, 3; Ranger _v._ Goodrich, 17 Wis. 78; Mayer _v._
Schleichter, 29 Wis. 646; Gibson _v._ Gibson, 43 Wis. 23; Geary _v._
Bennett, 53 Wis. 444.

V. Words imputing a criminal offence subjecting the offender to
infamous punishment. Shipp _v._ McCraw, 3 Murph. 463; Brady _v._
Wilson, 4 Hawks. 93; Skinner _v._ White, 1 Dev. & Bat. 471; Wall _v._
Hoskins, 5 Ired. 177; Wilson _v._ Tatum, 8 Jones, (N. C.) 300; McKee
_v._ Wilson, 87 N. C. 300; Harris _v._ Terry, 98 N. C. 131.

VI. Words imputing an _indictable_ offence involving moral turpitude,
or subjecting the offender to an infamous punishment. See Brooker _v._
Coffin, _infra_, and cases cited.

VII. Words imputing an _indictable_ offence punishable corporally.
Griffin _v._ Moore, 43 Md. 246; Shafer _v._ Ahalt, 48 Md. 171; Birch
_v._ Benton, 26 Mo. 153; Curry _v._ Collins, 37 Mo. 324; Bundy _v._
Hart, 46 Mo. 460; Lewis _v._ McDaniel, 82 Mo. 577; Houston _v._
Woolley, 37 Mo. App. 15, 24; Parsons _v._ Henry, 177 Mo. App. 329.

_As to defamation of a corporation_, see Oram _v._ Hutt, [1913] 1 Ch.
259; Axton Tobacco Co. _v._ Evening Post Co., 169 Ky. 64; Stone _v._
Textile Employers Ass’n, 137 App. Div. 655.

Footnote 437:

Only the opinion of the court is given.

Footnote 438:

By 54 & 55 Vict. c. 51, words which impute unchastity or adultery to
any woman or girl are actionable, without special damage.

Footnote 439:

This rule has been approved in the following cases: Pollard _v._ Lyon,
91 U. S. 225; Perdue _v._ Burnett, Minor, 138; Dudley _v._ Horn, 21
Ala. 379; Hillhouse _v._ Peck, 2 St. & P. 395; Heath _v._ Devaughn, 37
Ala. 677; Kinney _v._ Hosea, 3 Harring, 77; Pleasanton _v._
Kronemeier, 29 Del. 81; Pledger _v._ Hathcock, 1 Ga. 550; Giddens _v._
Mirk, 4 Ga. 364; Richardson _v._ Roberts, 23 Ga. 215; Burton _v._
Burton, 3 Greene, 316; Halley _v._ Gregg, 74 Ia. 563; Wooten _v._
Martin, 140 Ky. 781; St. Martin _v._ Desnoyer, 1 Minn. 156; West _v._
Hanrahan, 28 Minn. 385; Chaplin _v._ Lee, 18 Neb. 440; Hendrickson
_v._ Sullivan, 28 Neb. 329; McCuen _v._ Ludlum, 2 Harr. 12; Johnson
_v._ Shields, 25 N. J. Law, 116; Widrig _v._ Oyer, 13 Johns. 124;
Martin _v._ Stilwell, 13 Johns. 275; Alexander _v._ Alexander, 9 Wend.
141; Case _v._ Buckley, 15 Wend. 327; Bissell _v._ Cornell, 24 Wend.
354; Demarest _v._ Haring, 6 Cow. 76; Young _v._ Miller, 3 Hill, 21;
Wright _v._ Paige, 3 Keyes, 581, 3 Trans. App. 134, S. C.; Crawford
_v._ Wilson, 4 Barb. 504; Johnson _v._ Brown, 57 Barb. 118; Quinn _v._
O’Gara, 2 E. D. Sm. 388; Torres _v._ Huner, 150 App. Div. 798; Dial
_v._ Holter, 6 Ohio St. 228; Alfele _v._ Wright, 17 Ohio St. 238;
Hollingsworth _v._ Shaw, 19 Ohio St. 430; Davis _v._ Brown, 27 Ohio
St. 326; Davis _v._ Sladden, 17 Or. 259; Andres _v._ Koppenheafer, 3
S. & R. 255; Davis _v._ Carey, 141 Pa. St. 314; Lodge _v._ O’Toole, 20
R. I. 405; Gage _v._ Shelton, 3 Rich. 242; Smith _v._ Brown, 97 S. C.
239; Smith _v._ Smith, 2 Sneed, 473; McAnally _v._ Williams, 3 Sneed,
26; Poe _v._ Grever, 3 Sneed, 664; Payne _v._ Tancil, 98 Va. 262. See
Moore _v._ Francis, 121 N. Y. 199.

Footnote 440:

Hence it is not actionable (without special damage) to call a man a
“bastard,” Paysse _v._ Paysse, 86 Wash. 349, or a “blackleg and
swindler,” McIntyre _v._ Fruchter, 148 N. Y. Supp. 786; or a “rascal,”
Massee _v._ Williams, 207 Mass. 222, or to call a woman a “bitch.”
Craver _v._ Norton, 114 Ia. 46; Sturdivant _v._ Duke, 155 Ky. 100;
Kerone _v._ Block, 144 Mo. App. 575; Blake _v._ Smith, 19 R. I. 476.

But in Fowler _v._ Dowdney, 2 Moody & R. 119, the words “he is a
returned convict” were held actionable, Lord Denman, C. J., saving
that though the punishment had been suffered, “still the obloquy
remains.” Gainford _v._ Tuke, Cro. Jac. 536; Boston _v._ Tatam, Cro.
Jac. 623; Beavor _v._ Hides, 2 Wils. 300; Stewart _v._ Howe, 17 Ill.
71; Wiley _v._ Campbell, 5 T. B. Monr. 396; Krebs _v._ Oliver, 12
Gray, 239; Johnson _v._ Dicken, 25 Mo. 580; Van Ankin _v._ Westfall,
14 Johns. 233; Ship _v._ McCraw, 3 Murphy, 463; Smith _v._ Stewart, 5
Pa. St. 372; Beck _v._ Stitzel, 21 Pa. St. 522; Poe _v._ Grever, 3
Sneed, (Tenn.) 664 _Accord_.

Compare Carpenter _v._ Tarrant, C. t. Hardw. 339; French _v._ Creath,
Breese, 12; Barclay _v._ Thompson, 2 Pen. & W. 148.

Footnote 441:

Only portions of the opinion are given.

Footnote 442:

See also Keck _v._ Shepard, (Ark.) 180 S. W. 501 (statutory); Craver
_v._ Norton, 114 Ia. 46; Hahn _v._ Lumpa, 158 Ia. 560; Traylor _v._
White, 185 Mo. App. 325 (statutory); Culver _v._ Marx, 157 Wis. 320.
On the whole subject, see Veeder, History and Theory of the Law of
Defamation, 4 Columbia Law Rev. 33, 52.

Footnote 443:

Only the opinion of the court is given.

Footnote 444:

“We think that the rule as to words spoken of a man in his office or
trade is not necessarily confined to offices and trades of the nature
and duties of which the court can take judicial notice. The only
limitation of which we are aware is, that it does not apply to illegal
callings.” Channel, B., in Foulger _v._ Newcomb, L. R. 2 Ex. 327, 330.

Footnote 445:

Alexander _v._ Angle, 1 Cr. & J. 143; Sibley _v._ Tomlins, 4 Tyrwh.
90; Doyley _v._ Roberts, 3 B. N. C. 835; Brayne _v._ Cooper, 5 M. & W.
249; James _v._ Brook, 9 Q. B. 7; Dauncey _v._ Holloway, [1901] 2 K.
B. 441; Hogg _v._ Dorrah, 2 Porter, (Ala.) 212; Oram _v._ Franklin, 5
Blackf. 42; Buck _v._ Hersey, 31 Me. 558; Oakley _v._ Farrington, 1
Johns. Cas. 129; Van Tassel _v._ Capron, 1 Den. 250; Ireland _v._
McGarvish, 1 Sandf. 155; Chomley _v._ Watson, [1907] Vict. L. R. 502
_Accord_.

Compare Ware _v._ Clowney, 24 Ala. 707; Butler _v._ Howes, 7 Cal. 87;
Fowles _v._ Bowen, 30 N. Y. 20.

“Some of the cases have proceeded to a length which can hardly fail to
excite surprise: a clergyman having failed to obtain redress for the
imputation of adultery; and a school-mistress having been declared
incompetent to maintain an action for a charge of prostitution. Such
words were undeniably calculated to injure the success of the
plaintiffs in their several professions, but, not being applicable to
their conduct therein, no action lay.” Lord Denman, C. J., in Ayre
_v._ Craven, 2 A. & E. 2. See Morasse _v._ Brooks, 151 Mass. 567, 568.

_Imputation of misconduct to a clergyman_, see Bishop of Norwich _v._
Pricket, Cro. Eliz. 1 (heterodoxy in religion); Payne _v._ Bewmorris,
1 Lev. 248 (incontinence); Pope _v._ Ramsey, 1 Keb. 542 (knave, &c.);
Chaddock _v._ Briggs, 13 Mass. 248 (drunkenness); Ritchie _v._
Widdemer, 59 N. J. Law, 290; Demarest _v._ Haring, 6 Cow. 76
(incontinence); Potter _v._ N. Y. Journal, 68 App. Div. 95; Hayner
_v._ Cowden, 27 Ohio St. 292 (drunkenness); McMillan _v._ Birch, 1
Binney, 178 (drunkenness); Starr _v._ Gardner, 6 Up. Can. Q. B. O. S.
512 (incontinence; but see, _contra_, Breeze _v._ Sails, 23 Up. Can.
Q. B. 94, incontinence), holding the words actionable.

Parrat _v._ Carpenter, Cro. El. 502; Nicholson _v._ Lyne, Cro. El. 94;
Anon., Sty. 49 _Contra_. Compare Gallwey _v._ Marshall, 9 Ex. 294,
568.

_Imputation to teacher of discreditable conduct with pupils._ Spears
_v._ McCoy, 155 Ky. 1. Compare Nicholson _v._ Dillard, 137 Ga. 225.

_Imputation to an officer of drunkenness while on duty._ Reilly _v._
Curtis, 83 N. J. Law, 77.

Footnote 446:

Kempe’s Case, Dy. 72, pl. 6; Stanton _v._ Smith, 2 Ld. Ray. 1480;
Brown _v._ Smith, 13 C. B. 596; Pacific Packing Co. _v._ Bradstreet,
25 Idaho, 696; Simons _v._ Burnham, 102 Mich. 189; Traynor _v._
Sielaff, 62 Minn. 420; Hynds _v._ Fourteenth Street Store, 159 App.
Div. 766; Davis _v._ Ruff, Cheeves, 17 _Accord_.

Barnes _v._ Trundy, 31 Me. 321; Redway _v._ Gray, 31 Vt. 292 _Contra_.

See Bell _v._ Thatcher, Freem. 276; Bryant _v._ Loxton, 11 Moore, 344;
Marino _v._ Di Marco, 41 App. D. C. 76 (“sells rotten goods”); Taylor
_v._ Church, 1 E. D. Smith, 287; Fowles _v._ Bowen, 30 N. Y. 20;
Bilgrien _v._ Ulrich, 150 Wis. 532 (habitual cheating).

Footnote 447:

Sumner _v._ Utley, 7 Conn. 257; Garr _v._ Selden, 6 Barb. 416; Rodgers
_v._ Kline, 56 Miss. 808; Lynde _v._ Johnson, 39 Hun. 5 _Accord_.

Footnote 448:

Johnson _v._ Robertson, 8 Port. (Ala.) 486; Sumner _v._ Utley, 7 Conn.
257; Lovejoy _v._ Whitcomb, 174 Mass. 586; Freisinger _v._ Moore, 65
N. J. Law, 286; Mattice _v._ Wilcox, 147 N. Y. 624; Krug _v._ Pitass,
162 N. Y. 154, 163 N. Y. 600; Lynde _v._ Johnson, 39 Hun, 12;
Hollingsworth _v._ Spectator Co., 49 App. Div. 16; McIntyre _v._
Weinert, 195 Pa. St. 52; Holland _v._ Flick, 212 Pa. St. 201; Gauvreau
_v._ Superior Co., 62 Wis. 403 _Accord_. See Watson _v._ Vanderlash,
Hetl. 69; Edsall _v._ Russell, 4 M. & Gr. 1090. Compare Twiggar _v._
Ossining Printing Co., 161 App. Div. 718; Larsen _v._ Brooklyn Eagle,
165 App. Div. 4.

Foot _v._ Brown, 8 Johns. 64 _Contra_. See Camp _v._ Martin, 23 Conn.
86; Pratt _v._ Pioneer Co., 35 Minn. 251.

The imputation of misconduct in an office of honor but not of profit
is actionable _per se_, Booth _v._ Arnold, [1895] 1 Q. B. 571;
Livingston _v._ McCartin, [1907] Vict. L. R. 48. But the rule is
otherwise, according to Alexander _v._ Jenkins, [1892] 1 Q. B. 797, as
to the imputation of unfitness for such an office.

Footnote 449:

Brook _v._ Wife, Cro. El. 878; Davis _v._ Taylor, Cro. El. 648;
Garford _v._ Clerk, Cro. El. 857; Miller’s Case, Cro. Jac. 430;
Crittal _v._ Horner, Hob. 219 _b_; Elyott _v._ Blague, Sty. 283;
Marshall _v._ Chickall, 1 Sid. 50; Comming’s Case, 2 Sid. 5; Lymbe
_v._ Hockly, 1 Lev. 205; Grimes _v._ Lovel, 12 Mod. 242; Clifton _v._
Wells, 12 Mod. 634; Whitfield _v._ Powel, 12 Mod. 248; Bloodworth _v._
Gray, 7 M. & G. 334; Watson _v._ McCarthy, 2 Ga. 57; Nichols _v._ Guy,
2 Ind. 82; McDonald _v._ Nugent, 122 Ia. 651; Meteye _v._ Times Co.,
47 La. Ann. 824; Golderman _v._ Stearns, 7 Gray, 181; Williams _v._
Holdredge, 22 Barb. 396; Hewitt _v._ Mason, 24 How. Pr. 366; Upton
_v._ Upton, 51 Hun, 184; Simpson _v._ Press Co., 33 Misc. 228; Kaucher
_v._ Blinn, 29 Ohio St. 62; Irons _v._ Field, 9 R. I. 216 _Accord_.

Bury _v._ Chappel, Golds. 135; James _v._ Rutlech, 4 Rep. 17 _a_; Hunt
_v._ Jones, Cro. Jac. 499; Califord _v._ Knight, Cro. Jac. 514
_Contra_.

In Taylor _v._ Hall, 2 Strange, 1189, it was held not actionable to
say that plaintiff had had the pox. Smith’s Case, Noy, 151; Dutton
_v._ Eaton, Al. 30; Carslake _v._ Mapledoram, 2 T. R. 473; Nichols
_v._ Guy, 2 Ind. 82; Pike _v._ Van Wormer, 5 How. Pr. 171; Irons _v._
Field, 9 R. I. 216 _Accord_. Austin _v._ White, Cro. El. 214; Anon.
Ow. 34; Hobson _v._ Hudson, Sty. 199, 219 _Contra_.

Footnote 450:

Only the opinion of the court is given.

Footnote 451:

But see Fitzgerald _v._ Young, 89 Neb. 693 (imputation of insanity to
a teacher).

Footnote 452:

Only the opinion of the court upon this point is given.

Footnote 453:

Lucas _v._ Cotton, Moore, 79; Underwood _v._ Parks, 2 Stra. 1200;
Ellis _v._ Buzzell, 60 Me. 209; Baum _v._ Clause, 5 Hill, 196
_Accord_.

The rule is the same as to actions for a libel. Leyman _v._ Latimer, 3
Ex. D. 15, 352; Grand Union Tea Co. _v._ Lorch, (C. C. A.) 231 Fed.
390; Schuler _v._ Fischer, 167 Ala. 184; Children _v._ Shinn, 168 Ia.
531; Castle _v._ Hunston, 19 Kan. 417; Hanson _v._ Bristow, 87 Kan.
72; Herald Pub. Co. _v._ Feltner, 158 Ky. 35; Cook _v._ Pulitzer Pub.
Co., 241 Mo. 326; Merrey _v._ Guardian Pub. Co., 79 N. J. Law, 177;
Willetts _v._ Scudder, 72 Or. 535. Unless modified by statute, as in
Delaware, Florida, Illinois, Maine, Massachusetts, Nebraska, New York,
Rhode Island and West Virginia. Delaware Co. _v._ Croasdale, 6 Houst.
181; Jones _v._ Townsend, 21 Fla. 431; Palmer _v._ Adams, 137 Ind. 72;
Perry _v._ Porter, 124 Mass. 338; Fordyce _v._ Richmond, 78 Neb. 752;
McClaugherty _v._ Cooper, 39 W. Va. 313. In New Hampshire and
Pennsylvania, however, the mere truth of the libel is not always a
defence, although there is no such statute. Hutchins _v._ Page, 75 N.
H. 215; Burkhart _v._ N. Am. Co., 214 Pa. St. 39.

Footnote 454:

The statement of the pleadings is abridged; the arguments of counsel
and the concurring opinions of Martin, Channell, and Bramwell, BB.,
are omitted.

Footnote 455:

Rex _v._ Skinner, Lofft, 55; Thomas _v._ Churton, 2 B. & S. 475;
Dawkins _v._ Paulet, L. R. 5 Q. B. 94; Dawkins _v._ Prince Edward, 1
Q. B. D. 499; Law _v._ Llewellyn, [1906] 1 K. B. 487 (judge of
inferior court—Scotch case Allardice _v._ Robertson, 1 Dow & Cl. 495
not followed); Bottomley _v._ Brougham, [1908] 1 K. B. 584 (official
receiver); Miller _v._ Hope, 2 Shaw, App. Cas. 125; Yates _v._
Lansing, 5 Johns. 282, 9 Johns. 395 (but see Aylesworth _v._ St. John,
25 Hun, 156); Allen _v._ Earnest, (Tex. Civ. App.) 145 S. W. 1101
_Accord_.

Kendillon _v._ Maltby, Car. & M. 402, 2 M. & Rob. 438, S. C., lays
down too restricted a rule.

“The publication of defamatory words may be under an absolute or under
a qualified or conditional privilege. Under the former there is no
liability, although the defamatory words are falsely and maliciously
published. The class of absolutely privileged communications is narrow
and practically limited to legislative and judicial proceedings and
acts of state.” Hall, C. J., in Hassett _v._ Carroll, 85 Conn. 23, 35.

See Tanner _v._ Stevenson, 138 Ky. 578; Peterson _v._ Steenerson, 113
Minn. 87.

Footnote 456:

Only the opinion of Brett, M. R., is given.

Footnote 457:

Pedley _v._ Morris, 61 L. J. Q. B. 21 _Accord_.

See Buckley _v._ Wood, 4 Rep. 14 _b_; Hodgson _v._ Scarlett, 1 B. &
Ald. 232; Mackay _v._ Ford, 5 H. & N. 792; Smallwood _v._ York, 163
Ky. 139; Rudin _v._ Fauver, 33 Ohio Cir. Ct. R. 315; Kruegel _v._
Cockrell (Tex. Ci _v._ App.) 151 S. W. 352.

“We cannot accept the absolute and unqualified privilege laid down in
Munster _v._ Lamb.... We cannot agree with Brett, M. R., that in a
suit against counsel for slander the only inquiry is whether the words
were spoken in a judicial proceeding, and if so, the case must be
stopped. We quite agree however, with Bramwell, J. A., in Seaman _v._
Netherclift, that ‘relevant’ and ‘pertinent’ are not the best words
that could be used. These words have in a measure a technical meaning,
and we all know the difficulty in determining in some cases what is
relevant or pertinent. With Lord Chancellor Cairns we prefer the words
‘having reference’ or ‘made with reference,’ or in the language of
Shaw, C. J., ‘having relation to the cause or subject-matter.’ And if
counsel in the trial of a cause maliciously slanders a party, or
witness or any other person in regard to a matter that has no
reference or relation to, or connection with, the case before the
Court, he is and ought to be answerable in an action by the party
injured. This qualification of his privilege in no manner impairs the
freedom of discussion so necessary to the proper administration of the
law, nor does it subject counsel to actions for slander except in
cases in which upon reason and sound public policy he ought to be held
answerable. We cannot agree that for the abuse of his privilege he is
amenable only to the authority of the Court. Mere punishment by the
Court is no recompense to one who has thus been maliciously and
wantonly slandered.” Robinson, J., in Maulsby _v._ Reifsnider, 69 Md.
143, 162. La Porta _v._ Leonard, 88 N. J. Law, 663; Andrews _v._
Gardiner, 165 App. Div. 595 _Accord_.

_Defamatory statements in brief of counsel._ Brooks _v._ Bank of
Acadia, 138 La. 657.

_Pleadings._ Nalle _v._ Oyster, 230 U. S. 165; Carpenter _v._ Grimes
Min. Co., 19 Idaho, 384; Hess _v._ McKee, 150 Ia. 409; Lebovitch _v._
Levy, 128 La. 518; Flynn _v._ Boglarsky, 164 Mich. 513; Rosenberg _v._
Dworetsky, 139 App. Div. 517; Harris _v._ Santa Fé Townsite Co., (Tex.
Civ. App.) 125 S. W. 77.

In England, statements in a pleading are absolutely privileged, though
not relevant. Hodson _v._ Pare, [1899] 1 Q. B. 455.

In the United States, statements in a pleading not pertinent to the
action are not privileged. Union Ins. Co. _v._ Thomas, 83 Fed. 803;
King _v._ McKissick, 126 Fed. 215; Potter _v._ Troy, 175 Fed. 128;
Myers _v._ Hodges, 53 Fla. 197; Gaines _v._ Aetna Ins. Co., 104 Ky.
695; Jones _v._ Brownlee, 161 Mo. 258; Gilbert _v._ People, 1 Denio,
41; Kemper _v._ Fort, 219 Pa. St. 85; Crockett _v._ McLanahan, 109
Tenn. 517; Miller _v._ Gust, 71 Wash. 139.

_Charges in disbarment proceedings_, see Preusser _v._ Faulhaber, 33
Ohio Cir. Ct. R. 312.

_Statements in a petition for pardon._ Connollee _v._ Blanton, (Tex.
Ci _v._ App.) 163 S. W. 404 (held absolutely privileged).

_Statement by defendant on trial for crime._ Nelson _v._ Davis, 9 Ga.
App. 131.

In Louisiana the statements of parties in judicial proceedings are not
absolutely privileged. Lescale _v._ Joseph Schwartz Co., 116 La. 293,
118 La. 718; Dunn _v._ Southern Co., 116 La. 431.

Footnote 458:

The arguments and the opinion of Amphlett, J. A., are omitted.

Footnote 459:

Revis _v._ Smith, 18 C. B. 126; Henderson _v._ Broomhead, 4 H. & N.
569; Dawkins v. Rokeby, L. R. 7 H. L. 744, L. R. 8 Q. B. 255 (military
court of inquiry); Goffin _v._ Donnelly, 6 Q. B. D. 307 (select
committee of House of Commons); Gompas _v._ White, 6 T. L. R. 20;
Watson _v._ Jones, [1905] A. C. 480 (privilege extends to statement to
client and solicitor in preparation of case for trial); Terry _v._
Fellows, 21 La. Ann. 375; Hunckle _v._ Voneiff, 69 Md. 173; Dodge _v._
Gilman, 122 Minn. 177; Runge _v._ Franklin, 72 Tex. 585; Kennedy _v._
Hilliard, 10 Ir. C. L. R. 195 _Accord_. But the English courts do not
extend the doctrine to hearings before an administrative board. Atwood
_v._ Chapman, 111 L. T. 726.

See also Hutchinson _v._ Lewis, 75 Ind. 55; Liles _v._ Gaster, 42 Ohio
St. 631.

In Dawkins _v._ Lord Rokeby, _supra_, Lord Penzance said: “It is said
that a statement of fact of a libellous nature which is palpably
untrue—known to be untrue by him who made it, and dictated by
malice—ought to be the subject of a civil remedy, though made in the
course of a purely military inquiry. This mode of stating the question
assumes the untruth and assumes the malice. If by any process of
demonstration, free from the defects of human judgment, the untruth
and malice could be set above and beyond all question or doubt, there
might be ground for contending that the law of the land should give
damages to the injured man.

“But this is not the state of things under which this question of law
has to be determined. Whether the statements were, in fact, untrue,
and whether they were dictated by malice, are, and always will be,
open questions, upon which opinions may differ, and which can only be
resolved by the exercise of human judgment. And the real question is,
whether it is proper on grounds of public policy to remit such
questions to the judgment of a jury. The reasons against doing so are
simple and obvious. A witness may be utterly free from malice, and may
yet in the eyes of a jury be open to that imputation; or, again, the
witness may be cleared by the jury of the imputation, and may yet have
to encounter the expenses and distress of a harassing litigation. With
such possibilities hanging over his head, a witness cannot be expected
to speak with that free and open mind which the administration of
justice demands.

“These considerations have long since led to the legal doctrine that a
witness in the courts of law is free from any action; and I fail to
perceive any reason why the same considerations should not be applied
to an inquiry such as the present, and with the same result.”

Footnote 460:

The statement, arguments of counsel and parts of the opinion are
omitted.

Footnote 461:

“White _v._ Carroll, rightly understood, is in harmony with the other
cases. The case shows that the court held that the answer given to the
question put to the defendant as a witness before the surrogate was
not material and pertinent to the inquiry; and further held it was
privileged if the defendant, when he gave it, in good faith believed
that it was; and whether he so believed, was a question of fact to be
determined by the jury. Had the evidence proved that the answer was
material and pertinent, the court must have held it privileged,
irrespective of the defendant’s belief upon the subject.” Grover, J.,
in Marsh _v._ Ellsworth, 50 N. Y. 309, 313.

“It seems to be settled by the English authorities that judges,
counsel, parties, and witnesses are absolutely exempted from liability
to an action for defamatory words published in the course of judicial
proceedings; and that the same doctrine is generally held in the
American courts, with the qualification, as to parties, counsel, and
witnesses, that their statements made in the course of an action must
be pertinent and material to the case.” Lord, J., in McLaughlin _v._
Cowley, 127 Mass. 316, 319.

“The examination of witnesses is regulated by the tribunal before
which they testify, and if witnesses answer pertinently questions
asked them by counsel which are not excluded by the tribunal, or
answer pertinently questions asked them by the tribunal, they ought to
be absolutely protected. It is not the duty of a witness to decide for
himself whether the questions asked him under the direction of the
tribunal are relevant. As the witness is sworn to tell the whole truth
relating to the matter concerning which his testimony is taken, he
ought also to be absolutely protected in testifying to any matter
which is relevant to the inquiry, or which he reasonably believes to
be relevant to it. But a witness ought not to be permitted with
impunity to volunteer defamatory statements which are irrelevant to
the matter of inquiry, and which he does not believe to be relevant.
This statement of the law we think, is supported by the decisions in
this Commonwealth. The English decisions, perhaps, go somewhat further
than this in favor of a witness; certainly they apply the rule
liberally for his protection.” Field, J., in Wright _v._ Lothrop, 149
Mass. 385, 389.

The principal case and the preceding extracts in this note represent
the views of the American courts in general.

King _v._ McKissick, 126 Fed. 215; Lawson _v._ Hicks, 38 Ala. 279;
Wyatt _v._ Buell, 47 Cal. 624; Hollis _v._ Meux, 69 Cal. 625; People
_v._ Green, 9 Col. 506; Lester _v._ Thurmond, 51 Ga. 118; Buschbaum
_v._ Heriot, 5 Ga. App. 521; Spaids _v._ Barrett, 57 Ill. 289; Fagan
_v._ Fries, 30 Ill. App. 236; Smith _v._ Howard, 28 Ia. 51; Hawk _v._
Evans, 76 Ia. 593; Forbes _v._ Johnson, 11 B. Mon. 48; Morgan _v._
Booth, 13 Bush, 480; Stewart _v._ Hall, 83 Ky. 375; Sebree _v._
Thompson, 126 Ky. 223; Kelly _v._ Lafitte, 28 La. Ann. 435; Gardemal
_v._ McWilliams, 43 La. Ann. 454; Barnes _v._ McCrate, 32 Me. 442;
Hoar _v._ Wood, 3 Met. 193; Kidder _v._ Parkhurst, 3 All. 393;
McLaughlin _v._ Cowley, 127 Mass. 316; Wright _v._ Lothrop, 149 Mass.
385; Wheaton _v._ Beecher, 49 Mich. 348; Acre _v._ Starkweather, 118
Mich. 214; Hastings _v._ Lusk, 22 Wend. 410; Ring _v._ Wheeler, 7 Cow.
725; Garr _v._ Selden, 4 N. Y. 91; Marsh _v._ Ellsworth, 50 N. Y. 309;
Moore _v._ Manufacturers’ Bank, 123 N. Y. 420, 136 N. Y. 666; Newfield
_v._ Copperman, 15 Abb. Pr. N. S. 360; Perkins _v._ Mitchell, 31 Barb.
461; Dada _v._ Piper, 41 Hun, 254; McLaughlin _v._ Charles, 60 Hun,
239; Beggs _v._ McCrea, 62 App. Div. 39 (_semble_); Suydam _v._
Moffat, 1 Sandf. 459; Perzel _v._ Tousey, 52 N. Y. Super. Ct. 79;
Cooper _v._ Phipps, 24 Or. 357; Shadden _v._ McElwee, 86 Tenn. 146;
Mower _v._ Watson, 11 Vt. 536; Dunham _v._ Powers, 42 Vt. 1; Johnson
_v._ Brown, 13 W. Va. 71; Jennings _v._ Paine, 4 Wis. 358; Calkins
_v._ Sumner, 13 Wis. 193; Larkin _v._ Noonan, 19 Wis. 82.

_Statements volunteered by witness._ Viss _v._ Calligan, 91 Wash. 673.

_Statements in affidavit._ Perry _v._ Perry, 153 N. C. 266; Baggett
_v._ Grady, 154 N. C. 342; Keeley _v._ Great Northern R. Co., 156 Wis.
181. But see Ritschy _v._ Garrels, 195 Mo. App. 670.

_Affidavit in legislative investigation._ Tuohy _v._ Hassell, 35 Okl.
61.

_Defamatory statements at creditors’ meeting._ Smith _v._ Agee, 178
Ala. 627.

_Statements in notice of foreclosure sale._ Tierney _v._ Ruppert, 150
App. Div. 863.

_Report of grand jury without indictment._ Rich _v._ Eason, (Tex. Civ.
App.) 180 S. W. 303.

_Statement of guardian as to person making claim against ward’s
estate._ Marney _v._ Joseph, 94 Kan. 18.

_Letter from one attorney to another_, not confined to the matters in
litigation. Savage _v._ Stover, 86 N. J. Law, 478.

_Message of a mayor._ A communication from the mayor of a city to the
common council is absolutely privileged. Trebilcock _v._ Anderson, 117
Mich. 39.

_Official statements of officers of state_ are absolutely privileged.
Chatterton _v._ Secretary of State, [1895] 2 Q. B. 189; Spalding _v._
Vilas, 161 U. S. 483.

_Statements of administrative officers._ Farr _v._ Valentine, 38 App.
D. C. 413; Haskell v. Perkins, 165 Ill. App. 144; Tanner _v._
Stevenson, 138 Ky. 578; Peterson v. Steenerson, 113 Minn. 87; Johnson
_v._ Marsh, 82 N. J. Law, 4 (notice not to sell liquor to alleged
drunkard); Bingham _v._ Gaynor, 203 N. Y. 27.

Footnote 462:

It is well settled that no action is allowed against a witness for
damage caused by his perjury. Damport _v._ Sympson, Cro. El. 520, Ow.
158, 2 And. 47, s. c.; Eyres _v._ Sedgewicke, Cro. Jac. 601; Yelv.
142, 2 Roll. R. 197, S. C.; Wimberly _v._ Thompson, Noy, 6; Harding
_v._ Bodman, Hutt. 11; Coxe _v._ Smithe, 1 Lev. 119; Taylor _v._
Bidwell, 65 Cal. 489; Bostwick _v._ Lewis, 2 Day, 447; Grove _v._
Brandenburg, 7 Blackf. 239; Dunlap _v._ Glidden, 31 Me. 435; Severance
_v._ Judkins, 73 Me. 376, 379; Garing _v._ Fraser, 76 Me. 37; Phelps
_v._ Stearns, 4 Gray, 105; Curtis _v._ Fairbanks, 16 N. H. 542; Smith
_v._ Lewis, 3 Johns. 157; Cunningham _v._ Brown, 18 Vt. 123.

See Bell _v._ Senneff, 83 Ill. 122. Compare Schaub _v._ O’Ferrell, 116
Md. 131.

Footnote 463:

See also Taylor _v._ Bidwell, 65 Cal. 489; Curtis _v._ Fairbanks, 16
N. H. 542; Stevens _v._ Rowe, 59 N. H. 578.

Footnote 464:

A part of the opinion relating to points of pleading is omitted.

Footnote 465:

The arguments and the concurring opinions of Martin and Channell, BB.,
are omitted.

Footnote 466:

Risk Allah Bey _v._ Whitehurst, 18 L. T. Rep. 615; Hope _v._ Leng, 23
T. L. R. 243; Furniss _v._ Cambridge News, 23 T. L. R. 705; Todd _v._
Every Evening Co., (Del.) 62 Atl. 1089 (_semble_); Blodgett _v._ Des
Moines Co., (Ia.) 113 N. W. 821; Billet _v._ Publishing Co., 107 La.
751 (_semble_); McBee _v._ Fulton, 47 Md. 403; Cowley _v._ Pulsifer,
137 Mass. 392; Conner _v._ Standard Co., 183 Mass. 474; Nixon _v._
Dispatch Co., 101 Minn. 309; Hawkins _v._ Globe Co., 10 Mo. App. 174;
Boogher _v._ Knapp, 97 Mo. 122; Brown _v._ Knapp, 213 Mo. 655
(_semble_); Brown _v._ Globe Co., 213 Mo. 611; Thompson _v._ Powning,
15 Nev. 195; Edsall _v._ Brooks, 17 Abb. Pr. 221; N. Y. Code Civ.
Proc., § 1907; Ackerman _v._ Jones, 37 N. Y. Super. Ct. 42; Salisbury
_v._ Union Co., 45 Hun, 120; Hart _v._ Sun Co., 79 Hun, 358;
Cincinnati Co. _v._ Timberlake, 10 Ohio St. 548; Metcalf _v._ Times
Co., 20 R. I. 674; Saunders _v._ Baxter, 6 Heisk. 369; American Co.
_v._ Gamble, 115 Tenn. 663; People _v._ Glassman, 12 Utah, 238
_Accord_.

So publication of copies from the register of judgments is privileged.
Searles _v._ Scarlett, [1892] 2 Q. B. 56.

Publication of papers filed in the clerk’s office, but not produced in
open court, is not privileged. Meeker _v._ Post Pub. Co., 45 Col. 355;
Cowley _v._ Pulsifer, 137 Mass. 392; Lundin _v._ Post Pub. Co., 217
Mass. 213; Park _v._ Detroit Co., 72 Mich. 560; Barber _v._ St. Louis
Co., 3 Mo. App. 377; Stuart _v._ Press Co., 83 App. Div. 467; Byers
_v._ Meridian Printing Co., 84 Ohio St. 408; American Co. _v._ Gamble,
115 Tenn. 663; Houston Pub. Co. _v._ McDavid, (Tex. Civ. App.) 173 S.
W. 467; Ilsley _v._ Sentinel Co., 133 Wis. 20.

_Report of criminal proceeding before magistrate with no
jurisdiction._ Lee _v._ Brooklyn Pub. Co., 209 N. Y. 245.

_Report of investigation before grand jury._ Poston _v._ Washington R.
Co., 36 App. D. C. 359; Sweet _v._ Post Publishing Co., 215 Mass. 450.

_Report in advance of judicial proceeding as to evidence to be
adduced._ Houston Pub. Co. _v._ Tiernan, (Tex. Civ. App.) 171 S. W.
542. See Kelly _v._ Independent Pub. Co., 45 Mont. 127.

_Humorous report._ Bresslin _v._ Star Co., 85 Misc. 609.

_Matter added to the report._ Smith _v._ New Yorker Staats Zeitung,
154 App. Div. 458.

Footnote 467:

Only the opinion of Lord Coleridge, and that, too, slightly abridged,
is given. Lopes, J., concurred.

Footnote 468:

Curry _v._ Walter, 1 Esp. 456, 1 B. & P. 525; Lewis _v._ Levy, E. B. &
E. 537; Kimber _v._ Press Association, [1893] 1 Q. B. 65; McBee _v._
Fulton, 47 Md. 403; Salisbury _v._ Union Co., 45 Hun, 120 (_semble_);
Metcalf _v._ Times Co., 20 R. I. 674 (_semble_); Brown _v._ Providence
Co., 25 R. I. 117 (_semble_) _Accord_.

See Duncan _v._ Thwaites, 3 B. & C. 556; Parsons _v._ Age Herald Pub.
Co., 181 Ala. 439; Todd _v._ Every Evening Co., (Del.) 62 Atl. 1089;
Flues _v._ New Nonpareil Co., 155 Ia. 290; Cowley _v._ Pulsifer, 137
Mass. 392; Jones _v._ Pulitzer Pub. Co., 240 Mo. 200; Stanley _v._
Webb, 4 Sandf. 21; Matthews _v._ Beach, 5 Sandf. 256; Cincinnati Co.
_v._ Timberlake, 10 Ohio St. 548; Mengel _v._ Reading Eagle Co., 241
Pa. St. 367.

The report of _ex parte_ proceedings may be published before their
termination, if of such a character that there will be a final
decision. Kimber _v._ Press Association, [1893] 1 Q. B. 65.

Footnote 469:

Only the opinion of the court is given.

Footnote 470:

In 1843, see Hansard’s Parliamentary Debates, 3d series, vol. lxx. pp.
1254–8; and in 1858, see vol. cxlix. pp. 947–82.—Reporter’s Note.

Footnote 471:

See Hansard’s Parliamentary Debates, 3d series, vol. lxx. p. 1254; and
vol. cxlix. p. 947.—Reporter’s Note.

Footnote 472:

Garby _v._ Bennett, 57 N. Y. Sup. Ct. 853; Buckstaff _v._ Hicks, 94
Wis. 34 (_semble_—report of proceedings of common council of a city
not privileged); Dillon _v._ Balfour, L. R. 20 Ir. 600 _Accord_.

The publication must purport to be a report. Lewis _v._ Hayes, 165
Cal. 527.

Footnote 473:

The concurring opinions of Cockburn, C. J., and Baggallay and
Bramwell, JJ. A., and the arguments of counsel are omitted.

Footnote 474:

See Charlton _v._ Watton, 6 Car. & P. 385; Davison _v._ Duncan, 7. E.
& B. 229, 233; Popham _v._ Pickburn, 7 H. & N. 891; Davis _v._ Duncan,
L. R. 9 C. P. 396; Allbutt _v._ General Council, 23 Q. B. D. 400, 411.

By St. 51 & 52 Vict. c. 64, §§ 3 and 4, “§ 3. A fair and accurate
report in any newspaper of proceedings publicly heard before any court
exercising judicial authority shall, if published contemporaneously
with such proceedings, be privileged: Provided that nothing in this
section shall authorize the publication of any blasphemous or indecent
matter.

“§ 4. A fair and accurate report published in any newspaper of the
proceedings of a public meeting, or (except where neither the public
nor any newspaper reporter is admitted) of any meeting of a vestry,
town council, school board, board of guardians, board or local
authority formed or constituted under the provisions of any Act of
Parliament, or of any committee appointed by any of the
above-mentioned bodies, or of any meeting of any commissioners
authorized to act by letters patent, Act of Parliament, warrant under
the Royal Sign Manual, or other lawful warrant or authority, select
committees of either House of Parliament, justices of the peace in
quarter sessions assembled for administrative or deliberative
purposes, and the publication at the request of any Government office
or department, officer of state, commissioner of police, or chief
constable of any notice or report issued by them for the information
of the public, shall be privileged, unless it shall be proved that
such report or publication was published or made maliciously: Provided
that nothing in this section shall authorize the publication of any
blasphemous or indecent matter: Provided also, that the protection
intended to be afforded by this section shall not be available as a
defence in any proceedings if it shall be proved that the defendant
has been requested to insert in the newspaper in which the report or
other publication complained of appeared a reasonable letter or
statement by way of contradiction or explanation of such report or
other publication, and has refused or neglected to insert the same:
Provided further, that nothing in this section contained shall be
deemed or construed to limit or abridge any privilege now by law
existing, or to protect the publication of any matter not of public
concern and the publication of which is not for the public benefit.

“For the purposes of this section ‘public meeting’ shall mean any
meeting _bona fide_ and lawfully held for a lawful purpose, and for
the furtherance or discussion of any matter of public concern, whether
the admission thereto be general or restricted.” Kelly _v._ O’Malley,
6 T. L. R. 62, was decided under this statute.

_Newspaper publication of reports of administrative officers._ Tilles
_v._ Pulitzer Pub. Co., 241 Mo. 609; Schwarz _v._ Evening News Co., 84
N. J. Law 486; Bingham _v._ Gaynor, 203 N. Y. 27. _Contra_, Madill
_v._ Currie, 168 Mich. 546. See Morasca _v._ Item Co., 126 La. 426.

_Report of investigation by administrative officers._ Williams _v._
Black, 24 S. D. 501.

Footnote 475:

The case has been much abridged.

Footnote 476:

Allbutt _v._ General Council, 23 Q. B. D. 400 _Accord_. But see
Kimball _v._ Post Pub. Co., 199 Mass. 248; Peoples Bank _v._ Goodwin,
148 Mo. App. 364.

_Report of proceedings of a church commission._ Bass _v._ Mathews, 69
Wash. 214.

Footnote 477:

Only the opinion of Mellish, L. J., is given.

Footnote 478:

Macdougall _v._ Knight, 14 App. Cas. 194 (explaining S. C. 17 Q. B.
Div. 636); Salisbury _v._ Union Co., 45 Hun, 120 _Accord_.

See Annaly _v._ Trade Co., L. R. 26 Ir. 394.

Footnote 479:

Parsons _v._ Age Herald Pub. Co., 181 Ala. 439; Washington Herald Co.
_v._ Berry, 41 App. D. C. 322; Lundin _v._ Post Pub. Co., 217 Mass.
213; Schwarz _v._ Evening News Co., 84 N. J. Law, 486; Williams _v._
Black, 24 S. D. 501; Williams Printing Co. _v._ Saunders, 113 Va. 156
_Accord_.

But see U. S. _v._ Journal Co., 197 Fed. 415; Tilles _v._ Pulitzer
Pub. Co., 241 Mo. 609.

“Their Lordships regret to find that there appeared on the one side of
this case the time-worn fallacy that some kind of privilege attaches
to the profession of the Press as distinguished from the members of
the public. The freedom of the journalist is an ordinary part of the
freedom of the subject, and to whatever lengths the subject in general
may go so also may the journalist, but, apart from statute law, his
privilege is no other and no higher. The responsibilities which attach
to his power in the dissemination of printed matter may, and in the
case of a conscientious journalist do, make him more careful; but the
range of his assertions, his criticisms, or his comments is as wide
as, and no wider than, that of any other subject. No privilege
attaches to his position.” Lord Shaw in Arnold _v._ King-Emperor, 111
L. T. 324, 325.

Footnote 480:

The statement has been condensed, the facts sufficiently appearing in
the opinion of Mellor, J. The arguments of counsel and the concurring
opinion of Hannen, J., are omitted.

Footnote 481:

Barbaud _v._ Hookham, 5 Esp. 109; McDougall _v._ Claridge, 1 Camp.
267; Dunman _v._ Bigg, 1 Camp, 269 _n._; Todd _v._ Hawkins, 2 M. & R.
20, 8 Car. & P. 88; Shipley _v._ Todhunter, 7 Car. & P. 680; Harris
_v._ Thompson, 13 C. B. 333; Maitland _v._ Bramwell, 2 F. & F. 623;
Scarll _v._ Dixon, 4 F. & F. 250; Cooke _v._ Wildes, 5 E. & B. 328;
Croft _v._ Stevens, 7 H. & N. 570; Whiteley _v._ Adams, 15 C. B. N. S.
392; Spill _v._ Maule, L. R. 4 Ex. 232; Laughton _v._ Bishop, L. R. 4
P. C. 495; Davies _v._ Snead, L. R. 5 Q. B. 608; Waller _v._ Loch, 7
Q. B. D. 619; Cowles _v._ Potts, 34 L. J. Q. B. 247; Quartz Co. _v._
Beall, 20 Ch. Div. 501; Royal Aquarium _v._ Parkinson, [1892] 1 Q. B.
431; Pittard _v._ Oliver, [1891] 1 Q. B. 474; Phila. Co. _v._ Quigley,
21 How. 202; Broughton _v._ McGrew, 39 Fed. 672; Haight _v._ Cornell,
15 Conn. 74; Etchison _v._ Pergerson, 88 Ga. 620; Wharton _v._ Wright,
30 Ill. App. 343; Coombs _v._ Rose, 8 Blackf. 155; Kirkpatrick _v._
Eagle Lodge, 26 Kan. 384; Lynch _v._ Febiger, 39 La. Ann. 336;
Remington _v._ Congdon, 2 Pick. 310; Bradley _v._ Heath, 12 Pick. 163;
Farnsworth _v._ Storrs, 5 Cush. 412; York _v._ Pease, 2 Gray, 282;
Gassett _v._ Gilbert, 6 Gray, 94; Shurtleff _v._ Parker, 130 Mass. 293
(_semble_); Howland _v._ Flood, 160 Mass. 509; Landis _v._ Campbell,
79 Mo. 433; Rothholz _v._ Dunkle, 53 N. J. Law, 438; Jarvis _v._
Hatheway, 3 Johns, 180; O’Donaghue _v._ McGovern, 23 Wend. 26; Streety
_v._ Wood, 15 Barb. 105; Fowles _v._ Bowen, 30 N. Y. 20; Kilinck _v._
Colby, 46 N. Y. 427; McKnight _v._ Hasbrouck, 17 R. I. 70; Tillinghast
_v._ McLeod, 17 R. I. 208; Holt _v._ Parsons, 23 Tex. 9; Shurtleff
_v._ Stevens, 51 Vt. 501 (_semble_) _Accord_.

See also Dickeson _v._ Hilliard, L. R. 9 Ex. 79; Lyman _v._ Gowing, L.
R. 6 Ir. 259 (where the communication was made to unsuitable persons);
Phillips _v._ Bradshaw, 181 Ala. 541; Bohlinger _v._ Germania Ins.
Co., 100 Ark. 477.

_Communication by promoter of an enterprise to one whose assistance is
sought._ Cook _v._ Gust, 155 Wis. 594.

_Communication from superintendent of railroad to express company as
to employee who serves both._ International R. Co. _v._ Edmundson,
(Tex. Civ. App.) 185 S. W. 402.

_Communication by insurance adjuster to insurers._ Richardson _v._
Cooke, 129 La. 365.

_Indorsement of officer on recommendation for promotion._ Gray _v._
Mossman, 88 Conn. 247.

_Communication between stockholders as to manager of a corporation._
Ashcroft _v._ Hammond, 197 N. Y. 488.

_Communication by person immediately interested made honestly to
protect his own interest._ Delany _v._ Jones, 4 Esp. 190 (but see Lay
_v._ Lawson, 4 A. & E. 798); Fairman _v._ Ives, 5 B. & A. 642; Coward
_v._ Wellington, 7 Car. & P. 531; Tuson _v._ Evans, 12 A. & E. 733
(_semble_); Blackham _v._ Pugh, 2 C. B. 611; Wenman _v._ Ash, 13 C. B.
836 (_semble_, communication to unsuitable person); Manby _v._ Witt,
18 C. B. 544; Taylor _v._ Hawkins, 16 Q. B. 308; Amann _v._ Damm, 8 C.
B. N. S. 597; Force _v._ Warren, 15 C. B. N. S. 806; Oddy _v._ Paulet,
4 F. & F. 1009 (_semble_); Cooke _v._ Wildes, 5 E. & B. 328; Regina
_v._ Perry, 15 Cox C. C. 169; Bank _v._ Strong, 1 App. Cas. 307; Hunt
_v._ Great Northern Co., [1891] 2 Q. B. 189; Baker _v._ Carrick,
[1894] 1 Q. B. 838; Hobbs _v._ Bryers, L. R. 2 Ir. 496; Lang _v._
Gilbert, 4 All. (N. B.) 445; Gasley _v._ Moss, 9 Ala. 266; Butterworth
_v._ Conrow, 1 Marv. 361; Henry _v._ Moberly, 23 Ind. App. 305;
Nichols _v._ Eaton, 110 Ia. 509; Caldwell _v._ Story, 107 Ky. 10;
Baysett _v._ Hire, 49 La. Ann. 904; Dickinson _v._ Hathaway, 122 La.
Ann. 644; Beeler _v._ Jackson, 64 Md. 589; Brow _v._ Hathaway, 13 All.
239; Bacon _v._ Mich. Co., 66 Mich. 166; Howard _v._ Dickie, 120 Mich.
238; Alabama Co. _v._ Brooks, 69 Miss. 168; Lovell Co. _v._ Houghton,
116 N. Y. 520; Lent _v._ Underhill, 54 App. Div. 609; Reynolds _v._
Plumbers’ Ass’n, 30 Misc. 709; Behee _v._ Missouri R. Co., 71 Tex.
424; Missouri R. Co. _v._ Richmond, 73 Tex. 568; Missouri Co. _v._
Behee, 2 Tex. Civ. App. 107; Miller _v._ Armstrong, 24 N. Zeal. 968.

Footnote 482:

The arguments of counsel are omitted.

Footnote 483:

Johnson _v._ Evans, 3 Esp. 32; Fowler _v._ Homer, 3 Camp. 294; Jones
_v._ Thomas, 34 W. R. 104; Lightbody _v._ Gordon, 9 Scotch Sess. Cas.
(4th series) 934; Dale _v._ Harris, 109 Mass. 193 _Accord_.

See to the same effect Flanagan _v._ McLane, 87 Conn. 220; Wall _v._
Seaboard Ry., 18 Ga. App. 457; Cristman _v._ Cristman, 36 Ill. App.
567; Harper _v._ Harper, 10 Bush, 447; Hyatt _v._ Lindner, 133 La.
614; Bavington _v._ Robinson, 127 Md. 46, 124 Md. 85; Eames _v._
Whittaker, 123 Mass. 342; Wells _v._ Toogood, 165 Mich. 677; Lally
_v._ Emery, 59 Hun, 237; Hayden _v._ Hasbrouck, 34 R. I. 556; Viss
_v._ Calligan, 91 Wash. 673. Compare Hansen _v._ Hansen, 126 Minn.
426; Hooper _v._ Truscott, 2 B. N. C. 457; Harrison _v._ Fraser, 29 W.
R. 652.

But see Peak _v._ Taubman, 251 Mo. 390; Vanloon _v._ Vanloon, 159 Mo.
App. 255; Hagener _v._ Pulitzer Pub. Co., 172 Mo. App. 436.

_Relevant statement in course of dispute as to property._ Alderson
_v._ Kahle, 73 W. Va. 690.

Footnote 484:

The argument for the plaintiff and the opinions of Lord Tenterden, C.
J., Bayley, and Littledale, JJ., are omitted.

Footnote 485:

_Servant cases._ Edmondson _v._ Stevenson, Bull. N. P. 8; Weatherston
_v._ Hawkins, 1 T. R. 110; Rogers _v._ Clifton, 3 B. & P. 587;
Pattison _v._ Jones, 8 B. & C. 578; Gardner _v._ Slade, 13 Q. B. 796;
Murdoch _v._ Funduklian, 2 T. L. R. 614 (reversing S. C. 2 T. L. R.
215); Doane _v._ Grew, 220 Mass. 171; Carroll _v._ Owen, 178 Mich. 551
_Accord_.

_Commercial agency cases._ Lemay _v._ Chamberlain, 10 Ont. 638; Todd
_v._ Dun, 12 Ont. 791; Erber _v._ Dun, 12 Fed. 526; Johnson _v._
Bradstreet Co., 77 Ga. 172; Pollasky _v._ Minchener, 81 Mich. 280;
Mitchell _v._ Bradstreet Co., 116 Mo. 226; King _v._ Patterson, 49 N.
J. Law, 417; Taylor _v._ Church, 8 N. Y. 452; Sunderlin _v._
Bradstreet, 46 N. Y. 188; Bradstreet Co. _v._ Gill, 72 Texas, 115
_Accord_.

Macintosh _v._ Dun, [1908] A. C. 390 _Contra_. _Aliter_ in case of
credit association not for profit. London Ass’n for Protection of
Trade _v._ Greenlands, [1916] 2 A. C. 15.

But information given to persons having no interest in the mercantile
standing of the plaintiff—for example, reports sent by a commercial
agency to its subscribers generally—is not privileged. Erber _v._ Dun,
12 Fed. 526; Trussell _v._ Scarlett, 18 Fed. 214 (criticising
Beardsley _v._ Tappan, 5 Blatchford, 497); Locke _v._ Bradstreet Co.,
22 Fed. 771; Pacific Packing Co. _v._ Bradstreet, 25 Idaho, 696;
Pollasky _v._ Minchener, 81 Mich. 280; Ormsby _v._ Douglass, 37 N. Y.
477; State _v._ Lonsdale, 48 Wis. 348.

For other cases of communications privileged because made in answer to
proper inquiries, see Cockayne _v._ Hodgkisson, 5 Car. & P. 543;
Storey _v._ Challands, 8 Car. & P. 234; Kline _v._ Sewell, 3 M. & W.
297; Hopwood _v._ Thorn, 8 C. B. 293; Robshaw _v._ Smith, 38 L. T.
Rep. 423; Weldon _v._ Winslow, Odgers, Lib. & Sl. (5th ed.) 255;
Melcher _v._ Beeler, 48 Col. 233; Zuckerman _v._ Sonnenschein, 62 Ill.
115; Richardson _v._ Gunby, 88 Kan. 47; Atwill _v._ Mackintosh, 120
Mass. 177; Howland _v._ Blake Co., 156 Mass. 543; Froslee _v._ Lund’s
State Bank, 131 Minn. 435; Fahr _v._ Hayes, 50 N. J. Law, 275; Posnett
_v._ Marble, 62 Vt. 481; Rude _v._ Nass, 79 Wis. 321.

_Advice by attorney to client as to person with whom client has
business._ Kruse _v._ Rabe, 80 N. J. Law, 378.

_Fiduciary relations._ Communications made in the line of a business
duty, for example, by an agent or employee to his principal or
employer are privileged. Wright _v._ Woodgate, 2 C. M. & R. 573;
Scarll _v._ Dixon, 4 F. & F. 250; Stace _v._ Griffith, L. R. 2 P. C.
420; Hume _v._ Marshall, 42 J. P. 136; Washburn _v._ Cooke, 3 Den.
110; Lewis _v._ Chapman, 16 N. Y. 369.

_Family relations._ A _bona fide_ communication by a brother to his
sister reflecting on the character of her suitor is privileged. Anon.,
2 Smith, 4, cited; Adams _v._ Coleridge, 1 T. L. R. 4. So is a similar
communication by a son-in-law to his mother-in-law. Todd _v._ Hawkins,
2 M. & Rob. 20, 8 C. & P. 88.

_Inquiry as to character of candidate for admission to a society._
Cadle _v._ McIntosh, 51 Ind. App. 365.

Footnote 486:

Only this opinion and the dissenting opinion of Creswell, J., are
given. Erle, J., concurred with the Lord Chief Justice; Coltman, J.,
agreed with Cresswell, J.

Footnote 487:

“If it had been necessary, I should have been fully prepared to go the
whole length of the doctrine laid down by Tindal, C. J., in the case
of Coxhead _v._ Richards,” _per_ Willes, J., in Amann _v._ Damm, 8 C.
B. N. S. 592, 602. Blackburn, J., in Davies _v._ Snead, L. R. 5 Q. B.
605, 611, and Lindley, J., in Stuart _v._ Bell, [1891] 2 Q. B. 341,
347, expressed similar approval of the opinion of Tindal, C. J.

Vanspike _v._ Cleyson, Cro. El. 541; Peacock _v._ Reynal, 2 Br. &
Gold. 151, 15 C. B. N. S. 418, cited; Herver _v._ Dowson, Bull. N. P.
8; Cleaver _v._ Sarraude, 1 Camp. 268, cited; Picton _v._ Jackman, 4
Car. & P. 257; Dixon _v._ Smith, 29 L. J. Ex. 125, 126; Masters _v._
Burgess, 3 T. L. R. 96; Stuart _v._ Bell, [1891] 2 Q. B. 341; Hart
_v._ Reed, 1 B. Mon. 166; Fresh _v._ Cutter, 73 Md. 87; Noonan _v._
Orton, 32 Wis. 106 _Accord_.

Cockayne _v._ Hodgkisson, 5 Car. & P. 543 (_semble_); King _v._ Watts,
8 Car. & P. 614; Brown _v._ Vannaman, 85 Wis. 451 _Contra_. But see
Hocks _v._ Sprangers, 113 Wis. 123.

In Bennett _v._ Deacon, 2 C. B. 628, a creditor of a buyer volunteered
a warning to the seller as to the buyer’s credit. The court was evenly
divided as to whether the communication was privileged.

Compare Irion _v._ Knapp, 132 La. 60 (letter to a public board as to a
candidate for an appointment).

INDIAN PENAL CODE, § 499, exception 9. It is not defamation to make an
imputation on the character of another, provided that the imputation
be made in good faith for the protection of the interests of the
person making it, or of any other person, or for the public good.

Footnote 488:

As to this remarkable litigant, see the article by Irving Browne,
“Count Joannes,” 8 Green Bag. 435.

Footnote 489:

Only what relates to this count is given.

Footnote 490:

Krebs _v._ Oliver, 12 Gray, 239; Byam _v._ Collins, 111 N. Y. 143
_Accord_.

Anon., 15 C. B. N. S. 410 (cited); Adcock _v._ Marsh, 8 Ired. 360
_Contra_. See Dobbin _v._ Chicago R. Co., 157 Mo. App. 689.

Footnote 491:

The statement of the case has been condensed.

Footnote 492:

In Simmonds _v._ Dunne, Ir. R. 5 C. L. 358; Over _v._ Schiffling, 102
Ind. 191; York _v._ Johnson, 116 Mass. 482, the communications were
not privileged for want of a legitimate interest or duty on the part
of the defendant.

See Whiteley _v._ Newman, 9 Ga. App. 89.

Footnote 493:

Only the opinion of the court is given.

Footnote 494:

Jones _v._ Thomas, 34 W. R. 104; Pittard _v._ Oliver, [1891] 1 Q. B.
474; Broughton _v._ McGrew, 39 Fed. 672; Brow _v._ Hathaway, 13 All.
239; Billings _v._ Fairbanks, 136 Mass. 177, 139 Mass. 66; Keane _v._
Sprague (N. Y. City Court), 30 Alb. L. J. 283 _Accord_.

Webber _v._ Vincent, 9 N. Y. Supp. 101 _Contra_.

_Defamatory letter after termination of employment._ National Cash
Register Co. _v._ Salling, 173 Fed. 22.

Footnote 495:

In Christopher _v._ Akin, 214 Mass. 332, the plaintiff was a
journeyman painter in the employ of the defendant, and was at work on
the house of one Tillinghast. Tillinghast complained to the defendant
that some of his men had stolen a putty knife and other property
belonging to him. The defendant recompensed Tillinghast for the
property and testified that he was told by one of his men that the
plaintiff had admitted to him that he took the putty knife. The men
were paid off by the defendant at his shop on Saturday night,—their
time being made up to Wednesday. Their pay was handed to them in
envelopes. When a man was discharged his envelope contained his pay up
to Saturday night. The plaintiff’s envelope contained his pay in full,
less what the defendant had paid Tillinghast for the property, with a
bill for it. There were four or five men in the shop waiting to be
paid off when it came the plaintiff’s turn to be paid. The plaintiff
opened his envelope and counted the money and found the bill. The
plaintiff asked the defendant what that meant, and the defendant said
in response, “Do you want to know in front of all these men?” and he
said “Yes,” whereupon the defendant said, “That is the stuff you stole
from the Tillinghast job.” Morton, J., said: “Whether a communication
is or is not privileged does not depend so much on the manner or form
in which crime is imputed, where the alleged slander consists as here
of a charge of crime, as on the occasion and circumstances under which
the charge is made. If made in good faith in reference to a matter in
which the person making it is immediately interested, and for the
purpose of protecting his interest and in the belief that it is true
and without any malicious motive, the communication is what is termed
privileged; that is, the occasion and the circumstances under which it
is made are held to be such as, if nothing more appears, to excuse or
justify the statements that are made.”

See Madill _v._ Currie, 168 Mich. 546.

Compare Adam _v._ Ward, [1917] A. C. 309 (statement given to the press
by the army board in reply to a speech in Parliament regarding an army
officer).

Footnote 496:

The statement of the case is abridged; the arguments of counsel and
the concurring opinions of Lord Coleridge, C. J., and Denman, J., are
omitted.

Footnote 497:

Robinson _v._ Jones, L. R. 4 Ir. 391 _Accord_.

Footnote 498:

Robinson _v._ Jones, L. R. 4 Ir. 391 _Accord_. See also Smith _v._
Crocker, 5 T. L. R. 441; Muetze _v._ Tuteur, 77 Wis. 236.

_Statement in presence of third persons not interested._ Fowlie _v._
Cruse, 52 Mont. 222; Fields _v._ Bynum, 156 N. C. 413.

_Notice of discharge of employee posted on the premises._ Ramsdell
_v._ Pennsylvania Co., 79 N. J. Law, 379.

_Notice to customers in a local newspaper._ Hatch _v._ Lane, 105 Mass.
394. See Delany _v._ Jones, 4 Esp. 190 (but see Ley _v._ Lawson, 4 A.
& E. 798); Commonwealth _v._ Featherston, 9 Phila. 594; Holliday _v._
Ontario Co., 33 Up. Can. Q. B. 558.

_General publicity with respect to candidate for local office._
Duncombe _v._ Daniel, 1 Willmore, W. & H. 101, 8 Car. & P. 222; Jones
_v._ Varnum, 21 Fla. 431; State _v._ Haskins, 109 Ia. 656; Coleman
_v._ MacLennan, 78 Kan. 711; Bronson _v._ Bruce, 59 Mich. 467; Wheaton
_v._ Beecher, 66 Mich. 307; Belknap _v._ Ball, 83 Mich. 583; Aldrich
_v._ Press Co., 9 Minn. 133 (but see, _contra_, Marks _v._ Baker, 28
Minn. 162); Bigner _v._ Hodges, 82 Miss. 215; Lewis _v._ Few, 5 Johns.
1; Root _v._ King, 7 Cow. 613; Hunt _v._ Bennett, 19 N. Y. 173; Seely
_v._ Blair, Wright, (Ohio) 358, 683; Knapp _v._ Campbell, 14 Tex. Civ.
App. 199; Sweeney _v._ Baker, 13 W. Va. 158. Compare Flynn _v._
Boglarsky, 164 Mich. 513.

But a communication to the electors alone is privileged, if made in
good faith. Wisdom _v._ Brown, 1 T. L. R. 412; Pankhurst _v._
Hamilton, 3 T. L. R. 500; Burke _v._ Mascarich, 81 Cal. 302
(_semble_); Mott _v._ Dawson, 46 Ia. 533; Bays _v._ Hunt, 60 Ia. 251;
State _v._ Balch, 31 Kan. 465; Commonwealth _v._ Wardwell, 136 Mass.
164; Briggs _v._ Garrett, 111 Pa. St. 404.

But see, _contra_, Smith _v._ Burrus, 106 Mo. 94, where the
distinction between fair comment and qualified privilege was
overlooked. See also Estelle _v._ Daily News Pub. Co., 99 Neb. 397;
Arnold _v._ Ingram, 151 Wis. 438; Putnam _v._ Browne, 162 Wis. 524.

Footnote 499:

The court found that the defendant acted in good faith.

Footnote 500:

Ashford _v._ Evening Star Co., 41 App. D. C. 395; Addington _v._ Times
Pub. Co., 138 La. 731; Briggs _v._ Garrett, 111 Pa. St. 404
(_semble_); Express Co. _v._ Copeland, 64 Tex. 354 _Accord_. Compare
Bingham _v._ Gaynor, 141 App. Div. 301; Ivie _v._ Minton, 75 Or. 483.

_Statement at a meeting to oppose a candidate for public office._
Baker _v._ Warner, 231 U. S. 588.

_Criticism of minister in a church convention._ Dickson _v._ Lights,
(Tex. Civ. App.) 17 S. W. 834.

_Criticism of member of association_ at a meeting to discuss the
affairs of the association. Caldwell _v._ Hayden, 42 App. D. C. 166.

_Reply to defamatory statements._ Adam _v._ Ward [1917] A. C. 309;
Preston _v._ Hobbs, 161 App. Div. 363; Smith _v._ Kemp, 132 La. 943.

Footnote 501:

Only part of the opinion is given.

Footnote 502:

_Criticism of member of congregation in a sermon._ Hassett _v._
Carroll, 85 Conn. 23.

_Statement by clergyman to congregation as to conduct of a trustee._
Everett _v._ DeLong, 144 Ill. App. 496.

Footnote 503:

The arguments of counsel and the concurring opinions of Lopes and Kay,
L.JJ., are omitted.

Footnote 504:

Bohlinger _v._ Germania Ins. Co., 100 Ark. 477; Gambrill _v._
Schooley, 93 Md. 48 _Accord_. See Central R. Co. _v._ Jones, 18 Ga.
App. 414. But the dictation of a defamatory letter by a lawyer to his
clerk and the copying of it by another clerk in the regular course of
serving his clients, although a publication, is, nevertheless,
privileged. Boxsius _v._ Goblet, [1894] 1 Q. B. 842. And the authority
of Pullman _v._ Hill is greatly weakened by Edmonson _v._ Birch,
[1907] 1 K. B. 371, which treats as privileged the dictation of a
defamatory letter by a company through one of its officers to a
stenographer, and Roff _v._ British Chemical Co., [1918] 2 K. B. 277
(letter passed through the hands of two clerks of addressee). See to
the same effect Owen _v._ Ogilvie Co., 32 App. Div. 465.

_Exchange of letters by mistake whereby privileged letter goes to
wrong person._ See Tompson _v._ Dashwood, 11 Q. B. D. 43; Hebditch
_v._ McIlwaine, [1894] 2 Q. B. 54, 61.

A defamatory statement true of A. but published concerning B., by
mistake, will support an action by B. Shepheard _v._ Whitaker, L. R.
10 C. P. 502; Taylor _v._ Hearst, 107 Cal. 262; Griebel _v._ Rochester
Co., 60 Hun, 319. But see, _contra_, Hanson _v._ Globe Co., _supra_,
665 (Holmes, Morton, and Barker, JJ., dissenting).

Compare Brett _v._ Watson, 20 W. R. 723; Fox _v._ Broderick, 14 Ir. C.
L. R. 453, 459; Loibl _v._ Breidenbach, 78 Wis. 49.

Footnote 505:

The concurring opinions of Bramwell and Brett, L.JJ., and the argument
for defendant are omitted.

Footnote 506:

Salmon _v._ Isaac, 20 L. T. Rep. 885; Lawyers Pub. Co. _v._ West Pub.
Co., 32 App. Div. 585; Saunders _v._ Baxter, 6 Heisk. 369 _Accord_.

Footnote 507:

3 Q. B. Div. 237, S. C.

Footnote 508:

The charge of the learned baron is abridged; the arguments of counsel
and the concurring opinions of Bramwell and Cotton, L.JJ., are
omitted.

Footnote 509:

Barry _v._ McCollom, 81 Conn. 293; Bays _v._ Hunt, 60 Ia. 251, 255–6;
Hemmens _v._ Nelson, 138 N. Y. 517; Haft _v._ First Bank, 19 App. Div.
423 _Accord_.

Footnote 510:

The case is materially abridged.

Footnote 511:

Ranson _v._ West, 125 Ky. 457 (_semble_); Toothaker _v._ Conant, 91
Me. 438; Briggs _v._ Garrett, 111 Pa. St. 404; Conroy _v._ Pittsburgh
Times, 139 Pa. St. 334; Mulderig _v._ Wilkes Barre Times, 215 Pa. St.
470; Egan _v._ Dotson, 36 S. D. 459 _Accord_.

See also, Douglass _v._ Daisley, 114 Fed. 628.

Compare Glisson _v._ Biggio, 139 La. 23; Estelle _v._ Daily News Pub.
Co., 99 Neb. 397; Wiese _v._ Riley, 146 Wis. 640.

_Petition or memorial for removal of public officer privileged._ Blake
_v._ Pilfold, 1 M. & Rob. 198; Woodward _v._ Lander, 6 Car. & P. 548;
James _v._ Boston, 2 Car. & K. 4; Spackman _v._ Gibney, Odgers, Lib. &
Sl. (5th ed.) 278; Beatson _v._ Skene, 5 H. & N. 838; Harrison _v._
Bush, 5 E. & B. 344; Hart _v._ Von Gumpach, L. R. 4 P. C. 439; Stanton
_v._ Andrews, 5 Up. Can. Q. B. O. S. 211; Corbett _v._ Jackson, 1 Up.
Can. Q. B. 128; Rogers _v._ Spalding, 1 Up. Can. Q. B. 258; McIntire
_v._ McBean, 13 Up. Can. Q. B. 534; Bell _v._ Parke, 10 Ir. C. L. R.
279 (_semble_); White _v._ Nichols, 3 How. 266; Vogel _v._ Gruaz, 110
U. S. 311; Pearce _v._ Brower, 72 Ga. 243; Young _v._ Richardson, 4
Ill. App. 364; Rainbow _v._ Benson, 71 Ia. 301; Rabb _v._ Trevelyan,
122 La. 174; Bodwell _v._ Osgood, 3 Pick. 379; Wieman _v._ Mabee, 45
Mich. 484; Greenwood _v._ Cobbey, 26 Neb. 449; State _v._ Burnham, 9
N. H. 34; Thorn _v._ Blanchard, 5 Johns. 508; Vanderzee _v._ McGregor,
12 Wend. 545; Howard _v._ Thompson, 21 Wend. 319; Halstead _v._
Nelson, 24 Hun, 395; Decker _v._ Gaylord, 35 Hun, 584; Woods _v._
Wiman, 122 N. Y. 445, 47 Hun, 362; Cook _v._ Hill, 3 Sandf. 341; Van
Wyck _v._ Aspinwall, 17 N. Y. 190; Harwood _v._ Keech, 6 Th. & C. 665;
Logan _v._ Hodges, 146 N. C. 38; Gray _v._ Pentland, 2 S. & R. 23;
Kent _v._ Bongartz, 15 R. I. 72; Reid _v._ Delorme, 2 Brev. 76; Harris
_v._ Huntington, 2 Tyler, 129 _Accord_.

But not absolutely privileged, where the proceeding is not judicial.
Dickson _v._ Wilton, 1 F. & F. 419; Proctor _v._ Webster, 16 Q. B. D.
112; Woods _v._ Wiman, 122 N. Y. 445; Morah _v._ Steele, 157 App. Div.
109; Fulton _v._ Ingalls, 165 App. Div. 323.

Compare McKee _v._ Hughes, 133 Tenn. 455 (petition to revoke
merchant’s license).

Footnote 512:

The statement of the case, the arguments of counsel, the judgment of
Mellor, J., and portions of the judgments of Crompton and Blackburn,
JJ., are omitted.

Footnote 513:

Hibbs _v._ Wilkinson, 1 F. & F. 608; Turnbull _v._ Bird, 2 F. & F.
508; Hunter _v._ Sharpe, 4 F. & F. 983; Hunt _v._ Star Co., [1908] 2
K. B. 309; Walker _v._ Hodgson, [1909] 1 K. B. 239, 253; De Mestre
_v._ Syme, 9 Vict. L. R. (L) 10; Davis _v._ Duncan, L. R. 9 C. P. 396;
Queen _v._ Carden, 5 Q. B. D. 1, 8; Crane _v._ Waters, 10 Fed. 619;
Kinyon _v._ Palmer, 18 Ia. 377; Bradford _v._ Clark, 90 Me. 298;
People _v._ Glassman, 12 Utah, 238 _Accord_.

Footnote 514:

Stuart _v._ Lovell, 2 Stark. 93; Macleod _v._ Wakley, 3 Car. & P. 311;
Green _v._ Chapman, 4 Bing. N. C. 92; Parmiter _v._ Coupland, 6 M. &
W. 105; Whistler _v._ Ruskin, Odgers, Lib. & Sl., (5th ed.) 196;
Wilson _v._ Reed, 2 F. & F. 149; Morrison _v._ Belcher, 3 F. & F. 614;
Hedley _v._ Barlow, 4 F. & F. 224; Risk Allah Bey _v._ Whitehurst, 18
L. T. Rep. 615; Joynt _v._ Cycle Co., [1904] 2 K. B. 292; Massie _v._
Toronto Co., 11 Ont. 362; Burt _v._ Advertiser Co., 154 Mass. 238;
Cooper _v._ Stone, 24 Wend. 434; Reade _v._ Sweetzer, 6 Abb. Pr. N. S.
9, n.; Ullrich _v._ N. Y. Co., 23 Misc. 168 _Accord_.

Footnote 515:

See _contra_, Williams _v._ Spowers, 8 Vict. L. R. (Law) 82.

Footnote 516:

Honest belief is no defense apart from privilege. Van Wiginton _v._
Pulitzer Pub. Co., (C. C. A.) 218 Fed. 483; Brandt _v._ Story, 161 Ia.
451; Tanner _v._ Stevenson, 138 Ky. 578; Reid _v._ Nichols, 166 Ky.
423; Sweet _v._ Post Pub. Co., 215 Mass. 450; Clair _v._ Battle Creek
Journal Co., 168 Mich. 467; Ivie _v._ King, 167 N. C. 174; Spencer
_v._ Minnick, 41 Okl. 613; Williams _v._ Hicks Printing Co., 159 Wis.
90.

_Fair comment on public affairs and public officers._ See Gandia _v._
Pettingill, 222 U. S. 452; Lowe _v._ News Pub. Co., 9 Ga. App. 103;
Diener _v._ Star Chronicle Pub. Co., 230 Mo. 613; Cook _v._ Globe
Printing Co., 227 Mo. 471; Merrey _v._ Guardian Pub. Co., 79 N. J.
Law, 177; Bingham _v._ Gaynor, 203 N. Y. 27.

_Fair comment on candidates._ Walsh _v._ Pulitzer Pub. Co., 250 Mo.
142; Schull _v._ Hopkins, 26 S. D. 21; Ingalls _v._ Morrissey, 154
Wis. 632.

_Fair comment on persons seeking public patronage._ Ott _v._ Murphy,
160 Ia. 730.

Footnote 517:

Dibdin _v._ Swan, 1 Esp. 28; Heriot _v._ Stuart, 1 Esp. 437; Stuart
_v._ Lovell, 2 Stark. 93 (_semble_); Tabart _v._ Tipper, 1 Camp. 350
(_semble_); Dunne _v._ Anderson, Ry. & M. 287, 3 Bing. 88; Soane _v._
Knight, M. & M. 74; Thompson _v._ Shackell, M. & M. 187; Macleod _v._
Wakley, 3 Car. & P. 311; Fraser _v._ Berkeley, 7 Car. & P. 621; Evans
_v._ Harlow, Dav. & M. 507; Paris _v._ Levy, 9 C. B. N. S. 342;
Eastwood _v._ Holmes, 1 F. & F. 347; Hibbs _v._ Wilkinson, 1 F. & F.
608; Turnbull _v._ Bird, 2 F. & F. 508; Strauss _v._ Francis, 4 F. &
F. 939, 1107, 15 L. T. Rep. 674; Henwood _v._ Harrison, L. R. 7 C. P.
606; Jenner _v._ A’Beckett, L. R. 7 Q. B. 11; Mulkern _v._ Ward, 13
Eq. 619, 622; Whistler _v._ Ruskin, Odgers, Lib. & Sl., (5 ed.) 196;
Duplany _v._ Davis, 3 T. L. R. 184; McQuire _v._ Western Co., [1903] 2
K. B. 100; Crane _v._ Waters, 10 Fed. 619; Snyder _v._ Fulton, 34 Md.
128, 137; Gott _v._ Pulsifer, 122 Mass. 235; O’Connor _v._ Sill, 60
Mich. 175; Dowling _v._ Livingstone, 108 Mich. 321; Cooper _v._ Stone,
24 Wend. 434 (_semble_); Reade _v._ Sweetzer, 6 Abb. Pr. N. S. 9, _n._
(_semble_); Adolf Philipp Co. _v._ New Yorker Staatszeitung, 165 App.
Div. 377; Press Co. _v._ Stewart, 119 Pa. St. 584 _Accord_.

“The defendant was, in my opinion, entitled to have the jury’s
decision, as to the plea of fair comment, whether or not, in all the
circumstances proved, the libel went beyond a fair comment on the
plaintiff and on the system of medical enterprise with which he
associated himself, as a matter of public interest treated by the
defendant honestly and without malice. The plea of fair comment does
not arise if the plea of justification is made good, nor can it arise
unless there is an imputation on a plaintiff. It is precisely where
the criticism would otherwise be actionable as a libel that the
defence of fair comment comes in. But the learned judge put aside that
defence, and told the jury that unless a justification was proved they
were bound to find a verdict for the plaintiff, and that, unless
justified, the libel is not fair comment and cannot come within the
region of fair comment.” Lord Loreburn, L. C., in Dakhyl _v._
Labouchere, [1908] 2 K. B. 325, 326–27.

Footnote 518:

The arguments are omitted.

Footnote 519:

The statement has been abridged, and the arguments of counsel together
with a small portion of the judgment are omitted.

Footnote 520:

Merivale _v._ Carson, _supra_, 775; McQuire _v._ Western Co., [1903] 2
K. B. 100, 110; Joynt _v._ Cycle Co., [1904] 2 K. B. 292; Digby _v._
Financial News, [1907] 1 K. B. 502; Hunt _v._ Star Co., [1908] 2 K. B.
309, 317; Walker _v._ Hodgson, [1909] 1 K. B. 239; Starks _v._ Comer,
190 Ala. 245; Com. _v._ Pratt, 208 Mass. 553; Williams _v._ Hicks
Printing Co., 159 Wis. 90; Putnam _v._ Browne, 162 Wis. 524 _Accord_.

In Walker _v._ Hodgson, Kennedy, L. J., said, p. 256: “Now it is true
that there may be comment of an injurious nature in which there is no
statement of facts, or which refers to facts which are admitted or are
indisputable. In such a case the fairness of the comment depends upon
the character of the criticisms, or the inferences of which it is
composed, that is, whether it is a comment made honestly and _bona
fide_, or a comment made _mala fide_ and maliciously.... But where the
words which are alleged to be defamatory allege, or assume as true,
facts concerning the plaintiff which the plaintiff denies, and which
either involve a slanderous imputation in themselves, or upon which
the comment bases imputations or inferences injurious to the
plaintiff, it is, I think, settled law that the defence of fair
comment fails, unless the comment is truthful in regard to its
allegation or assumption of such facts.” See also the remarks of
Buckley, L. J., in the same case, p. 253.

In Hubbard _v._ Allyn, 200 Mass. 167, Rugg, J., said (p. 170): “The
right of the defendant was not to make false statements of fact
because the subject matter was of public interest, but only to
criticise, discuss and comment upon the real acts of the plaintiff and
the consequences likely to follow from them, or upon any other aspect
of the case in a reasonable way. This may be done with severity.
Ridicule, sarcasm and invective may be employed. But the basis must be
a fact, and not a falsehood.”

Nor does it cover violent attacks and insulting statements. Press Pub.
Co. _v._ Gillette, (C. C. A.) 229 Fed. 108; Jozsa _v._ Moroney, 125
La. 813; Hines _v._ Shumaker, 97 Miss. 669; Patten _v._ Harpers Weekly
Corp., 158 N. Y. Supp. 70; Hayden _v._ Hasbrouck, 34 R. I. 556;
Spencer _v._ Looney, 116 Va. 767; Williams _v._ Hicks Printing Co.,
159 Wis. 90; Putnam _v._ Browne, 162 Wis. 524; Compare Dickson _v._
Lights, (Tex. Civ. App.) 170 S. W. 834. And see Phillips _v._
Bradshaw, 167 Ala. 199.

Footnote 521:

Robinson _v._ Coulter, 215 Mass. 566; Tawney _v._ Simonson, 109 Minn.
341 _Accord_.

The burden is on the plaintiff to show malice, not on the defendant to
show good faith. Jenoure _v._ Delmege, [1891] A. C. 73; Davis _v._
Hearst, 160 Cal. 143; Locke _v._ Bradstreet Co., 22 Fed. 771; Hemmens
_v._ Nelson, 138 N. Y. 517; Haft _v._ Newcastle Bank, 19 App. Div.
423; Strode _v._ Clement, 90 Va. 553.

_Definitions of “malice.”_ Doane _v._ Grew, 220 Mass. 171; Peake _v._
Taubman, 251 Mo. 390. See Marney _v._ Joseph, 94 Kan. 18.

“If proof of a malevolent motive would rebut the privilege, which we
do not decide, nothing less than that would do, so far as malice is
concerned. It is true, as is said in the very careful brief for the
plaintiff, that in most connections malice means only knowledge of
facts sufficient to show that the contemplated act is very likely to
have injurious consequences. Apart from statute it generally means no
more when the question is what is sufficient _prima facie_ to charge a
defendant. Burt _v._ Advertiser Newspaper Co., 154 Mass. 238, 245. But
sometimes the defence is not that the damage was not to be foreseen,
but rests on what in substance is a privilege, whether of a kind
usually pleaded as such or not, that is to say, on a right to inflict
the damage even knowingly. In such cases, if malice in any sense makes
a difference, as distinguished from excess over what was reasonable or
needful to do or say under the circumstances, which often is included
under the same word, Gott _v._ Pulsifer, 122 Mass. 235, 239, it means
that the defendant is not within the privilege because he was not
acting in _bona fide_ answer to the needs of the occasion, but outside
of it from a wish to do harm. See Wren _v._ Weild, L. R. 4 Q. B. 730,
735, 736; Clark _v._ Molyneux, 3 Q. B. D. 237, 246, 247.” Holmes, C.
J., in Squires _v._ Wason Mfg. Co., 182 Mass. 137, 141.

See Advertiser Co. _v._ Jones, 169 Ala. 196, 670; Davis _v._ Hearst,
160 Cal. 143.

_Reckless republication without inquiry._ Houston Chronicle Pub. Co.
_v._ Wegner, (Tex. Civ. App.) 182 S. W. 45.

_“Malice” on the face of publication._ Ashford _v._ Evening Star Co.,
41 App. D. C. 395; Dickson _v._ Lights, (Tex. Civ. App.) 170 S. W.
834.

Footnote 522:

16 C. B. N. S. 829, S. C.

Footnote 523:

Nevill _v._ Fine Arts Co., [1895] 2 Q. B. 156; Hollenbeck _v._
Ristine, 105 Ia. 488; Children _v._ Shinn, 168 Ia. 531; Atwill _v._
Mackintosh, 120 Mass. 177; Wagner _v._ Scott, 164 Mo. 289; McGaw _v._
Hamilton, 184 Pa. St. 108; Hellstern _v._ Katzer, 103 Wis. 391
_Accord_. Compare Davis _v._ New England Pub. Co., 203 Mass. 470;
Doane _v._ Grew, 220 Mass. 171.

Footnote 524:

Only the opinion of the court is given.

Footnote 525:

Parmiter _v._ Coupland, 6 M. & W. 105; Odger _v._ Mortimer, 28 L. T.
Rep. 472; Queen _v._ Carden, 5 Q. B. Div. 1, 8; Bryce _v._ Rusden, 2
T. L. R. 435; Duplany _v._ Davis, 3 T. L. R. 184; R. _v._ Flowers, 44
J. P. 377, _per_ Field, J.; LeFroy _v._ Burnside, L. R. 4 Ir. 556,
565, 566; Stewart _v._ McKinley, 11 Vict. L. R. 802; Browne _v._
McKinley, 12 Vict. L. R. 240; Smith _v._ Tribune Co., 4 Biss. 477;
McDonald _v._ Woodruff, 2 Dill. 244; Hallam _v._ Post Co., 55 Fed.
456, 59 Fed. 530; Parsons _v._ Age Herald Pub. Co., 181 Ala. 439;
Jarman _v._ Rea, 137 Cal. 339; Dauphiny _v._ Buhne, 153 Cal. 757; Star
Co. _v._ Donahoe, (Del.) 58 Atl. 513; Jones _v._ Townsend, 21 Fla.
431; Rearick _v._ Wilcox, 81 Ill. 77; Klos _v._ Zahorik, 113 Ia. 161;
Ott _v._ Murphy, 160 Ia. 730; Bearce _v._ Bass, 88 Me. 521; Negley
_v._ Farrow, 60 Md. 158; Commonwealth _v._ Clap, 4 Mass. 163, 169
(_semble_); Curtis _v._ Mussey, 6 Gray, 261; Burt _v._ Advertiser Co.,
154 Mass. 238 (compare Sillars _v._ Collier, 151 Mass. 50); Hubbard
_v._ Allyn, 200 Mass. 166; Foster _v._ Scripps, 39 Mich. 376; Bronson
_v._ Bruce, 59 Mich. 467; Bourreseau _v._ Detroit Co., 63 Mich. 425;
Wheaton _v._ Beecher, 66 Mich. 307; Belknap _v._ Ball, 83 Mich. 583;
Hay _v._ Reid, 85 Mich. 296; Smurthwaite _v._ News Co., 124 Mich. 377;
Aldrich _v._ Press Co., 9 Minn. 133 (but see, _contra_, Marks _v._
Baker, 28 Minn. 162); Smith _v._ Burrus, 106 Mo. 94; State _v._
Schmitt, 49 N. J. Law, 579; Lewis _v._ Few, 5 Johns. 1; Root _v._
King, 7 Cow. 613; Littlejohn _v._ Greeley, 13 Abb. Pr. 41; Hamilton
_v._ Eno, 81 N. Y. 116; Mattice _v._ Wilcox, 147 N. Y. 624; Hoey _v._
New York Times Co., 138 App. Div. 149; Ullrich _v._ N. Y. Co., 23
Misc. 168; Seely _v._ Blair, Wright, (Ohio) 358, 683; Post Co. _v._
Moloney, 50 Ohio St. 71; Upton _v._ Hume, 24 Or. 420; Barr _v._ Moore,
87 Pa. St. 385; Brewer _v._ Weakley, 2 Overt. 99; Banner Co. _v._
State, 16 Lea, 176; Democrat Co. _v._ Jones, 83 Tex. 302; Sweeney _v._
Baker, 13 W. Va. 158; Spiering _v._ Andrae, 45 Wis. 330; Eviston _v._
Cramer, 57 Wis. 570; Gagen _v._ Dawley, 162 Wis. 152; D. Ward _v._
Derrington, 14 S. Aust. L. R. 35; Haselgrove _v._ King, 14 S. Aust. L.
R. 192 _Accord_.

Mott _v._ Dawson, 46 Ia. 533; Bays _v._ Hunt, 60 Ia. 251 (but see
State _v._ Haskins, 109 Ia. 656, 658, and Morse _v._ Printing Co., 124
Ia. 707, 723); State _v._ Balch, 31 Kan. 465; Coleman _v._ McLennan,
78 Kan. 711; Marks _v._ Baker, 28 Minn. 162; State _v._ Burnham, 9 N.
H. 34; Neeb _v._ Hope, 111 Pa. St. 145; Briggs _v._ Garrett, 111 Pa.
St. 404; Press Co. _v._ Stewart, 119 Pa. St. 584; Jackson _v._
Pittsburgh Times, 152 Pa. St. 406; Ross _v._ Ward, 14 S. D. 240;
Boucher _v._ Clark Co., 14 S. D. 72 _Contra_.

See Palmer _v._ Concord, 48 N. H. 211.

In Burt _v._ Advertiser Co., 154 Mass. 238, Holmes, J., said: “But
there is an important distinction to be noticed between the so-called
privilege of fair criticism upon matters of public interest, and the
privilege existing in the case, for instance, of answers to inquiries
about the character of a servant. In the latter case, a _bona fide_
statement not in excess of the occasion is privileged, although it
turns out to be false. In the former, what is privileged, if that is
the proper term, is criticism, not statement, and however it might be
if a person merely quoted or referred to a statement as made by
others, and gave it no new sanction, if he takes upon himself in his
own person to allege facts otherwise libellous, he will not be
privileged if those facts are not true. The reason for the distinction
lies in the different nature and degree of the exigency and of the
damage in the two cases. In these, as in many other instances, the law
has to draw a line between conflicting interests, both intrinsically
meritorious. When private inquiries are made about a private person, a
servant, for example, it is often impossible to answer them properly
without stating facts, and those who settled the law thought it more
important to preserve a reasonable freedom in giving necessary
information than to insure people against occasional unintended
injustice, confined as it generally is to one or two persons. But what
the interest of private citizens in public matters requires is freedom
of discussion rather than of statement. Moreover, the statements about
such matters which come before the courts are generally public
statements, where the harm done by a falsehood is much greater than in
the other case. If one private citizen wrote to another that a high
official had taken a bribe, no one would think good faith a sufficient
answer to an action. He stands no better, certainly, when he publishes
his writing to the world through a newspaper, and the newspaper itself
stands no better than the writer. Sheckell _v._ Jackson, 10 Cush. 25,
26.”

_Participants in legal proceedings_ are legitimate subjects for
comment if restricted to their conduct therein. Rex _v._ White, 1
Camp. 359; Seymour _v._ Butterworth, 3 F. & F. 372; Hedley _v._
Barlow, 4 F. & F. 224; Woodgate _v._ Ridout, 4 F. & F. 202; Hibbins
_v._ Lee, 4 F. & F. 243; Risk Allah Bey _v._ Whitehurst, 18 L. T. Rep.
615; Reg. _v._ Sullivan, 11 Cox C. C. 44, 57; Kane _v._ Mulvany, Ir.
R. 2 C. L. 402; Miner _v._ Detroit Co., 49 Mich. 358. See also Kelly
_v._ Tinling, L. R. 1 Q. B. 699 (churchwarden); Harle _v._ Catherall,
14 L. T. Rep. 801 (waywarden).

_Matters not of public interest._ The right of comment was denied in
Latimer _v._ Western Co., 25 L. T. Rep. 44; Hogan _v._ Sutton, 16 W.
R. 127; Wilson _v._ Fitch, 41 Cal. 363.

See also Hearne _v._ Stowell, 12 A. & E. 719; Gathercole _v._ Miall,
15 M. & W. 319; Walker _v._ Brogden, 19 C. B. N. S. 65; Booth _v._
Briscoe, 2 Q. B. Div. 496.

Footnote 526:

Arguments omitted.

Footnote 527:

The decision of the Appellate Division, overruling demurrer to
complaint, is reported in 64 App. Div. 30.

Footnote 528:

Corelli _v._ Wall, 22 Times L. R. 532 (post cards depicting imaginary
incidents of an author’s life); Atkinson _v._ Doherty, 121 Mich. 372
(picture of plaintiff’s dead husband on cigar label); Henry _v._
Cherry, 30 R. I. 13 (picture as advertisement); Hillman _v._ Star Pub.
Co., 64 Wash. 691 (picture of plaintiff in connection with report of
arrest of her father for crime) _Accord_. Compare Chappell _v._
Stewart, 82 Md. 323 (shadowing).

Corliss _v._ Walker, 57 Fed. 434 (_semble_); Von Theodorovich _v._
Josef Beneficiary Ass’n, 154 Fed. 911 (_semble_); Pavesich _v._ New
England Ins. Co., 122 Ga. 190 (picture as advertisement);
Foster-Milburn Co. _v._ Chinn, 134 Ky. 424 (picture as advertisement);
Douglas _v._ Stokes, 149 Ky. 506 (publishing photograph of deceased
deformed child of plaintiff); Itzkovitch _v._ Whitaker, 115 La. 479,
117 La. 708 (photograph in rogues’ gallery); Schulman _v._ Whitaker,
117 La. 704; Munden _v._ Harris, 153 Mo. App. 652 (picture as
advertisement); Edison _v._ Edison Polyform & Mfg. Co., 73 N. J. Eq.
136 (picture—but here there was chiefly an interest of substance)
_Contra_.

See also Dill, J. in Vanderbilt _v._ Mitchell, 72 N. J. Eq. 910, 919.

As to photographing persons arrested on charges of crime, see Hodgman
_v._ Olsen, 86 Wash. 615.

NEW YORK, CIVIL RIGHTS LAW, §§ 50, 51 (Laws of 1903, ch. 132, §§ 1,
2).

§ 50. A person, firm, or corporation that uses for advertising
purposes, or for the purposes of trade, the name, portrait, or picture
of any living person without having first obtained the written consent
of such person, or if a minor of his or her parent or guardian, is
guilty of a misdemeanor.

§ 51. Any person whose name, portrait, or picture is used within this
state for advertising purposes or for the purposes of trade without
the written consent first obtained as above provided may maintain an
equitable action in the supreme court of this state against the
person, firm, or corporation so using his name, portrait, or picture,
to prevent and restrain the use thereof; and may also sue and recover
damages for any injuries maintained by reason of such use, and if the
defendant shall have knowingly used such person’s name, portrait, or
picture in such manner as is forbidden or declared to be unlawful by
this act, the jury, in its discretion, may award exemplary damages.

See Binns _v._ Vitagraph Co., 210 N. Y. 51.

On the whole subject, see Warren and Brandeis, The Right to Privacy, 4
Harvard Law Rev. 193; Pound, Interests of Personality, 28 Harvard Law
Rev. 343, 362–364.

Footnote 529:

4 Rep. 16 _b_, S. C.

Footnote 530:

Dame Morrison’s Case, Jenk. 316; Matthew _v._ Crasse, 2 Bulst. 89;
Sell _v._ Facy, 2 Bulst. 276, 3 Bulst. 48; Nelson _v._ Staff, Cro.
Jac. 422; Thomson’s Case, Bendl. 148; Countess of Salop’s Case, Bendl.
155; Taylor _v._ Tolwin, Latch, 218; Wicks _v._ Shepherd, Cro. Car.
155; Southold _v._ Daunston, Cro. Car. 269 _Accord_.

See Bridge _v._ Langton, Litt. 193; Norman _v._ Simons, 1 Vin. Abr.
Act. Words, D, _a_, 12.

In Felty _v._ Felty, 164 Ky. 355, plaintiff’s husband left her as a
result of the defamatory words.

Footnote 531:

The arguments of counsel are omitted, together with the concurring
opinions of Martin, Bramwell, and Wilde, BB.

Footnote 532:

Guy _v._ Gregory, 9 Car. & P. 584; Adams _v._ Smith, 58 Ill. 417;
Woodbury _v._ Thompson, 3 N. H. 194; Butler _v._ Hoboken Co., 73 N. J.
Law, 45; Beach _v._ Ranney, 2 Hill, 309; Terwilliger _v._ Wands, 17 N.
Y. 54 (overruling Bradt _v._ Towsley, 13 Wend. 253; Olmsted _v._
Brown, 12 Barb. 657; Fuller _v._ Fenner, 16 Barb. 333); Wilson _v._
Goit, 17 N. Y. 442; Bassell _v._ Elmore, 48 N. Y. 561; Shepherd _v._
Lamphier, 84 Misc. 498; Clark _v._ Morrison, 80 Or. 240 _Accord_. But
see Garrison _v._ Sun Publishing Ass’n, 207 N. Y. 1 (defendant
published a libel on plaintiff’s wife resulting in illness and loss of
her services).

McQueen _v._ Fulgham, 27 Tex. 463; Underhill _v._ Welton, 32 Vt. 40
_Contra_.

_Damage caused by another person’s repetition of the defendant’s
words_ is too remote. Holwood _v._ Hopkins, Cro. El. 787; Ward _v._
Weeks, 7 Bing. 211 (but see Riding _v._ Smith, 1 Ex. D. 91);
Rutherford _v._ Evans, 4 Car. & P. 74; Tunnicliff _v._ Moss, 3 Car. &
K. 83; Kendillon _v._ Maltby, 1 Car. & M. 402; Parkins _v._ Scott, 1
H. & C. 153; Dixon _v._ Smith, 5 H. & N. 450; Clarke _v._ Morgan, 38
L. T. Rep. 354; Bree _v._ Marescaux, 7 Q. B. Div. 434; Cates _v._
Kellogg, 9 Ind. 506; Stevens _v._ Hartwell, 11 Met. 542; Hastings _v._
Stetson, 126 Mass. 329; Hastings _v._ Palmer, 20 Wend. 225; Hallock
_v._ Miller, 2 Barb. 630; Olmsted _v._ Brown, 12 Barb. 657;
Terwilliger _v._ Wands, 17 N. Y. 54; Fowles _v._ Bowen, 30 N. Y. 20;
Bassell _v._ Elmore, 48 N. Y. 561 (but see Sewell _v._ Catlin, 3 Wend.
295; Keenholts _v._ Becker, 3 Den. 346).

See also Whitney _v._ Moignard, 24 Q. B. Div. 630; Speight _v._
Gosnay, 60 L. J. Q. B. 231; Adams _v._ Cameron, 27 Cal. App. 625;
Mills _v._ Flynn, 157 Ia. 477; Fitzgerald _v._ Young, 89 Neb. 693.

The rule is otherwise where the repetition is made as a privileged
communication. Gillett _v._ Bullivant, 7 L. T. 490; Derry _v._
Handley, 16 L. T. Rep. 263; Fowles _v._ Bowen, 30 N. Y. 20.

Footnote 533:

Only the opinion of the court is given.

Footnote 534:

The case is materially abridged.

Footnote 535:

The statement of the counts is abridged, and the arguments of counsel
are omitted.

Footnote 536:

But see now Paterson _v._ Welch, (Court of Sess. May 31, 1893) 20 R.
744. See also Odgers, Lib. & Sl. (1st ed.) 87, 91; Odgers, Outlines of
Law of Libel, 17, 18; Clerk & Lindsell, Torts, (1st ed.) 497–98;
Salmond, Torts, 426–27; Bower’s Code of Actionable Defamation, 338–39,
443–45.

Footnote 537:

“It may be reasonable to allow St. Peter a primacy of order, such a
one as the ringleader hath in a dance.”—Barrow’s Treatise of the
Pope’s Supremacy, Oxford edition of Works, 1830, vol. vii. p. 70. In
Fox’s Preface to Tyndall’s Works, “these three learned fathers of
blessed memory, William Tyndall, John Frith, and Robert Barons,” are
styled “chief ringleaders in these latter tymes of thys Church of
England.”—Reporter’s Note.

Footnote 538:

Only the opinion of Day, J., is given. Wills, J., concurred.

Footnote 539:

_Slander of title._ Mildmay’s Case, 1 Rep. 175; Marvin _v._ Maynard,
Cro. El. 419; Pennyman _v._ Rabanks, Cro. Eliz. 427; Newman _v._
Zachary, Al. 3; Rowe _v._ Roach, 1 M. & S. 304; Bignell _v._ Buzzard,
3 H. & N. 217; Webb _v._ Cecil, 9 B. Mon. 198; Ross _v._ Pynes, Wythe,
71, 3 Call, 490.

In Rowe _v._ Roach, _supra_, Lord Ellenborough said, p. 310: “The law
makes no allowance for the slander of strangers, whatever it may do in
behalf of those who have a real title, or a claim of title. _Rei
immiscet se alienæ_ is the good sense which must govern this case.
Here the defendant is a stranger himself, and shows no authority from
those who are parties in interest.”

Where defendant has some interest, it is enough if he actually
believes what he says against plaintiff’s title.

Gerard _v._ Dickenson, 4 Rep. 18 a, Cro. El. 196; Lovett _v._ Weller,
1 Rolle R. 409; Anon., Sty. 414; Pitt _v._ Donovan, 1 M. & S. 639;
Smith _v._ Spooner, 3 Taunt. 246; Green _v._ Button, 2 C. M. & R. 707;
Pater _v._ Baker, 3 C. B. 831; Watson _v._ Reynolds, M. & M. 1; Carr
_v._ Duckett, 5 H. & N. 783; Atkins _v._ Perrin, 3 F. & F. 179; Brook
_v._ Rawl, 4 Ex. 521; Burnett _v._ Tak, 45 L. T. Rep. 743; Steward
_v._ Young, L. R. 5 C. P. 122; Wren _v._ Weild, L. R. 4 Q. B. 730;
Hart _v._ Wall, 2 C. P. D. 146 (_semble_); Baker _v._ Piper, 2 T. L.
R. 733; Dicks _v._ Brooks, 15 Ch. D. 22; Halsey _v._ Brotherhood, 19
Ch. D. 386; Royal Co. _v._ Wright, 18 Pat. Cas. Rep. 95; Dunlop Co.
_v._ Talbot, 20 T. L. R. 579; Boulton _v._ Shields, 3 Up. Can. Q. B.
21; Hill _v._ Ward, 13 Ala. 310; McDaniel _v._ Baca, 2 Cal. 326;
Thompson _v._ White, 70 Cal. 135; Reid _v._ McLendon, 44 Ga. 156; Van
Tuyl _v._ Riner, 3 Ill. App. 556; Stark _v._ Chitwood, 5 Kan. 141;
Gent _v._ Lynch, 23 Md. 58; Swan _v._ Tappan, 5 Cush. 104; Walkley
_v._ Bostwick, 49 Mich. 374; Chesebro _v._ Powers, 78 Mich. 472;
Meyrose _v._ Adams, 12 Mo. App. 329; Butts _v._ Long, 106 Mo. App.
313; Andrew _v._ Deshler, 45 N. J. Law, 167; Kendall _v._ Stone, 5 N.
Y. 14; Like _v._ McKinstry, 4 Keyes, 397, 3 Abb. App. 62, 41 Barb.
186; Hovey _v._ Rubber Co., 57 N. Y. 119; Dodge _v._ Colby, 37 Hun,
515, 108 N. Y. 445; Lovell Co. _v._ Houghton, 116 N. Y. 520; Hastings
_v._ Giles Co., 51 Hun, 364, 121 N. Y. 674; Cornwell _v._ Parke, 52
Hun, 596, 123 N. Y. 657; McElwee _v._ Blackwell, 94 N. C. 261; Harriss
_v._ Sneeden, 101 N. C. 273.

Compare Virtue _v._ Creamery Mfg. Co., 123 Minn. 17.

As to the requirement of “malice,” see Coffman _v._ Henderson, 9 Ala.
App. 553; Fearon _v._ Fodera, 169 Cal. 370; Long _v._ Rucker, 166 Mo.
App. 572; Potosi Zinc Co. _v._ Mahoney, 36 Nev. 390; Fant _v._
Sullivan, (Tex. Civ. App.) 152 S. W. 515.

See Smith, Disparagement of Property, 13 Columbia Law Rev. 13, 121.

Footnote 540:

Only the opinion of the court is given.

Footnote 541:

Tasburgh _v._ Day, Cro. Jac. 484; Gresham _v._ Grinsley, Yelv. 88;
Sneade _v._ Badley, 3 Bulst. 74, 1 Roll. 244; Law _v._ Harwood, Cro.
Car. 140, W. Jones, 196; Cane _v._ Golding, Sty. 169, 176; Manning
_v._ Avery, 3 Keb. 153; Haddan _v._ Lott, 15 C. B. 411; Evans _v._
Harlow, 5 Q. B. 624; Ashford _v._ Choate, 20 Up. Can; C. P. 471;
Collins _v._ Whitehead, 34 Fed. 121; Ebersole _v._ Fields, 181 Ala.
421; Stark _v._ Chitwood, 5 Kan. 141; Continental Co. _v._ Little, 135
Ky. 618; Swan _v._ Tappan, 5 Cush. 104; Gott _v._ Pulsifer, 122 Mass.
235; Dooling _v._ Budget Co., 144 Mass. 258; Boynton _v._ Shaw Co.,
146 Mass. 219; Wilson _v._ Dubois, 35 Minn. 471; Tobias _v._ Harland,
4 Wend. 537; Madison Church _v._ Madison Church, 26 How. Pr. 72;
Linden _v._ Graham, 1 Duer, 670; Bailey _v._ Dean, 5 Barb. 297;
Kendall _v._ Stone, 5 N. Y. 14; Kennedy _v._ Press Co., 41 Hun, 422;
Childs _v._ Tuttle, 48 Hun, 228; Maglio _v._ N. Y. Co., 93 App. Div.
546; Felt _v._ Germania Life Ins. Co., 149 App. Div. 14; Witteman
Bros. _v._ Witteman Co., 88 Misc. 266; McGuinness _v._ Hargiss, 56
Wash. 162 _Accord_.

Compare Fleming _v._ McDonald, 230 Pa. St. 75.

The breach of a contract by a third person is special damage. Green
_v._ Button, 2 C. M. & R. 707. But see _contra_, Kendall _v._ Stone, 5
N. Y. 14; Brentman _v._ Note, 3 N. Y. Sup. 420 (N. Y. City Court).

Footnote 542:

The arguments and the concurring opinions of Lords Watson, Macnaghten,
Morris, and Shand are omitted.

Footnote 543:

_Disparagement of goods._ In the case cited it was held actionable to
say falsely that plaintiffs’ manure was inferior to defendants’ if
done without legal excuse. Young _v._ Macrae, 3 B. & S. 264; Alcott
_v._ Millar, 21 T. L. R. 30; Dooling _v._ Budget Co., 144 Mass. 258
(_semble_); Boynton _v._ Shaw Co., 146 Mass. 219; Wilson _v._ Dubois,
35 Minn. 471; Wier _v._ Allen, 51 N. H. 177; Snow _v._ Judson, 38
Barb. 210; Kennedy _v._ Press Co., 41 Hun, 422 (_semble_); Paull _v._
Halferty, 63 Pa. St. 46; Young _v._ Geiske, 209 Pa. St. 515 _Accord_.

Footnote 544:

Lyne _v._ Nicholls, 23 T. L. R. 86; Barrett _v._ Associated
Newspapers, 23 T. L. R. 666; Burkett _v._ Griffith, 90 Cal. 532
_Accord_.

Compare Marlin Fire Arms Co. _v._ Shields, 171 N. Y. 384.

Footnote 545:

Prestolite Co. _v._ Heiden, (C. C. A.) 219 Fed. 845; Zittlosen Mfg.
Co. _v._ Boss, (C. C. A.) 219 Fed. 887; Coca-Cola Co. _v._ Butler, 229
Fed. 224; Hartzler _v._ Goshen Ladder Co., 55 Ind. App. 455; National
Biscuit Co. _v._ Pacific Coast Biscuit Co., 83 N. J. Eq. 369; Sanford
Iron Works _v._ Enterprise Machine Works, 130 Tenn. 669; Pacific Coast
Milk Co. _v._ Frye, 85 Wash. 133 _Accord_. In March _v._ Billings, 7
Cush. 322, under similar circumstances, the plaintiff recovered in an
action at law.

See also Coffin, Fraud as an Element of Unfair Competition, 16 Harvard
Law Rev. 272; Wyman, Competition and the Law, 15 Harvard Law Rev. 427;
Cox, The Prevention of Unfair Competition in Business, 5 Harvard Law
Rev. 139; Cushing, On Certain Cases Analogous to Trade Marks, 4
Harvard Law Rev. 321.

_Misleading similarity._ Hanover Milling Co. _v._ Metcalf, 240 U. S.
403; McDonald Mfg. Co. _v._ Mueller Mfg. Co., 183 Fed. 972; British
American Tobacco Co. _v._ British American Cigar Stores Co., (C. C.
A.) 211 Fed. 933; Hiram Walker & Sons _v._ Grubman, 224 Fed. 725;
Jenkins _v._ Kelly & Jones Co., (C. C. A.) 227 Fed. 211; Jacoway _v._
Young, (C. C. A.) 228 Fed. 630; Van Zile _v._ Norub Mfg. Co., 228 Fed.
829; Moline Plow Co. _v._ Omaha Stores Co., (C. C. A.) 235 Fed. 519;
Boston Shoe Shop _v._ McBroom Shoe Shop, 196 Ala. 262; Italian Swiss
Colony _v._ Italian Vineyard Co., 158 Cal. 252; Dunston _v._ Los
Angeles Van & Storage Co., 165 Cal. 89; Modesto Creamery _v._
Stanislaus Creamery Co., 168 Cal. 289; Motor Accessories Co. _v._
Marshalltown Mfg. Co., 167 Ia. 202; Bonnie & Co. _v._ Bonnie Bros.,
160 Ky. 487; Crutcher _v._ Starks, 161 Ky. 690; George G. Fox Co. _v._
Best Baking Co., 209 Mass. 251; C. A. Briggs & Co. _v._ National Wafer
Co., 215 Mass. 100; Grocers’ Supply Co. _v._ Dupuis, 219 Mass. 576;
Rodseth _v._ Northwestern Marble Works, 129 Minn. 472; Rubber &
Celluloid Co. _v._ Rubber Bound Brush Co., 81 N. J. Eq. 419, 519;
Westcott Chuck Co. _v._ Oneida Chuck Co., 199 N. Y. 247; World’s
Dispensary Ass’n _v._ Pierce, 203 N. Y. 419; Material Men’s Ass’n _v._
New York Material Men’s Ass’n, 169 App. Div. 843; German American
Button Co. _v._ Heymsfeld, 170 App. Div. 416; Collier _v._ Jones, 66
Misc. 97; Frohman _v._ William Morris, 68 Misc. 461; Elbs _v._
Rochester Egg Carrier Co., 134 N. Y. Supp. 979; Columbia Engineering
Works _v._ Mallory, 75 Or. 542; Rosenburg _v._ Fremont Undertaking
Co., 63 Wash. 52; J. I. Case Plow Works _v._ J. I. Case Machine Co.,
162 Wis. 185.

_Use of one’s own name_, see L. E. Waterman Co. _v._ Modern Pen Co.,
235 U. S. 88; Borden Ice Cream Co. _v._ Borden’s Consolidated Milk
Co., (C. C. A.) 201 Fed. 510; Deister Concentrator Co. _v._ Deister
Machine Co., 63 Ind. App. 412; C. H. Batchelder Co. _v._ Batchelder,
220 Mass. 42; Zagier _v._ Zagier, 167 N. C. 616.

_Where defendant passes off his product as plaintiff’s_, recovery is
allowed without proof of actual damage. Blofeld _v._ Payne, 4 B. & A.
410; Singleton _v._ Bolton, 3 Doug. 293 (_semble_); Sykes _v._ Sykes,
3 B. & C. 541; Morison _v._ Salmon, 2 M. & G. 385; Crawshay _v._
Thompson, 4 M. & G. 357 (_semble_); Rodgers _v._ Nowill, 5 C. B. 109;
Forster Co. _v._ Cutter Co., 211 Mass. 219. Compare Glendon Co. _v._
Uhler, 75 Pa. St. 467.

Footnote 546:

The learned judge here discussed McDonald _v._ Snelling, 14 All. 290,
and Rigby _v._ Hewitt, 5 Ex. 240, and cited 2 Pars. Cont. 456; Dixon
_v._ Fawcus, 30 L. J. Q. B. 137; Tarleton _v._ McGawley, Peake, 270;
Bell _v._ Midland Co., 10 C. B. N. S. 307 Keeble _v._ Hickeringill, 11
East, 574, _n._

Footnote 547:

Defendant put out an envelope, with the word “telegram” conspicuously
printed thereon, similar to that used by plaintiff, a telegraph
company, to be used for advertising circulars. Plaintiff claimed that
it tended to make its patrons think plaintiff was imposing on them by
allowing advertisers to use its facilities in order to gain their
attention and so injured its business. An injunction was denied.
Postal Telegraph Co. _v._ Livermore & Knight Co., 188 Fed. 696.

In Riding _v._ Smith, 1 Ex. D. 91, plaintiff sued for injury to his
business due to defendant’s charging his wife with adultery, by reason
whereof customers ceased to deal with him.

In Hamon _v._ Falle, 4 App. Cas. 247, an officer of an insurance
company notified a shipowner that the company would not insure the
ship if plaintiff was employed as master. Defendant set up that he
honestly believed plaintiff unfit. See also Bowen _v._ Matheson, 14
All. 499.

In Morasse _v._ Brochu, 151 Mass. 567, defendant in a sermon warned
his congregation against a physician who had been excommunicated for
remarrying after divorce.

Footnote 548:

Only the opinion of the court is given.

Footnote 549:

The opinion of the court on this point is omitted. The defendant’s
contention was not sustained.

Footnote 550:

Only the opinion is given.

Footnote 551:

“It is contended that the amount of the plaintiff’s loss is so
entirely a matter of pure chance as to be incapable of assessment. I
cannot for this purpose draw any distinction between a chance and a
probability. In the Oxford English Dictionary one of the definitions
of ‘chance’ is ‘a possibility or probability of anything happening, as
distinct from a certainty,’ and a citation is given from Reid’s
Intellectual Powers, ‘The doctrine of chances is a branch of
mathematics little more than an hundred years old.’ The two words
‘chance’ and ‘probability’ may be treated as being practically
interchangeable, though it may be that the one is somewhat less
definite than the other.... It is obvious, of course, that the chance
or probability may in a given case be so slender that a jury could not
properly give more than nominal damages, say one shilling; if they had
done so in the present case, it would have been entirely a question
for them, and this Court could not have interfered. But in the present
competition we find chance upon chance, two of which the plaintiff had
succeeded in passing. From being one of six thousand she had become a
member of a class of fifty, and, as I understand it, was first in her
particular division by the votes of readers of the paper; out of those
fifty there were to be selected twelve prize-winners; it is obvious
that her chances were then far greater and more easily assessable than
when she was only one of the original six thousand. If the plaintiff
had never been selected at all, the case would have been very
different; but that was not the case. In my opinion the existence of a
contingency, which is dependent on the volition of a third person, is
not enough to justify us in saying that the damages are incapable of
assessment.” Farwell, L. J., in Chaplin _v._ Hicks, [1911] 2 K. B.
786, 798.

Footnote 552:

Adler _v._ Fenton, 24 How. 407; Findlay _v._ McAllister, 113 U. S. 104
(_semble_); Austin _v._ Barrows, 41 Conn. 287; Green _v._ Kimble, 6
Blackf. 552; Moody _v._ Burton, 27 Me. 427; Lamb _v._ Stone, 11 Pick.
527; Wellington _v._ Small, 3 Cush. 145; Security Bank _v._ Reger,
(Okl.) 151 Pac. 1170; LeGierse _v._ Kellum, 66 Tex. 242 _Accord_.

Penrod _v._ Mitchell, 8 S. & R. 522; Penrod _v._ Morrison, 2 Pen. & W.
126; Mott _v._ Danforth, 6 Watts, 305; Hopkins _v._ Beebe, 26 Pa. St.
85, 87; Kelsey _v._ Murphy, 26 Pa. St. 78, 84; Collins _v._ Cronin,
117 Pa. St. 35, 45 _Contra_. See note in 47 L. R. A. 433–440.

In Smith _v._ Tonstall, Carthew, 3, defendant was held liable for
conspiracy with plaintiff’s debtor on _scire facias_ to procure a
false judgment and anticipate plaintiff by execution thereon and
carrying off of all the debtor’s property. Findlay _v._ McAllister,
113 U. S. 104 (_semble_); Adams _v._ Paige, 7 Pick. 541 _Accord_. See
Pullen _v._ Headberg, 53 Col. 502.

Footnote 553:

Only the opinion is given, and it is somewhat abridged.

Footnote 554:

In Randall _v._ Hazelton, 12 All. 412, plaintiff, a mortgagor, had a
gratuitous promise from the mortgagee not to foreclose without notice.
In order to obtain the property, defendant falsely told the mortgagee
that plaintiff wished the mortgage assigned to defendant and obtained
an assignment and foreclosed without plaintiff’s knowledge.

Footnote 555:

Statement, and part of opinion, omitted.

Footnote 556:

In Rice _v._ Manley, 66 N. Y. 82, plaintiff had a contract with a
third person for a cheese. By means of a forged telegram defendant
procured the third person to sell to him instead. The contract was
within the Statute of Frauds, but it was found that the third person
would have performed but for defendant’s act.

Footnote 557:

The arguments of counsel are omitted.

Footnote 558:

See American Ins. Co. _v._ France, 111 Ill. App. 382; Davis _v._ New
England Pub. Co., 203 Mass. 470; Haney Mfg. Co. _v._ Perkins, 78 Mich.
1; Benton _v._ Pratt, 2 Wend. 385.

“[If, from the nature of the case, the amount of damage caused to a
plaintiff by the tort of a defendant cannot be estimated with
certainty, shall the defendant therefore be exonerated from
liability?] Certainty, it is true, would thus be attained, but it
would be the certainty of injustice.” Christiancy, J., in Allison _v._
Chandler, 11 Michigan, 542, 555. See also pp. 553–556.

Footnote 559:

Standard Oil Co. _v._ Doyle, 118 Ky. 662; Dickson _v._ Dickson, 33 La.
Ann. 1261 _Accord_.

_Threats of vexatious suits against customers_: Emack _v._ Kane, 34
Fed. 46; Lewin _v._ Welsbach Light Co., 81 Fed. 904; Farquhar Co. _v._
National Harrow Co., 99 Fed. 160; Adriance _v._ National Harrow Co.,
121 Fed. 827, 98 Fed. 118; Dittgen _v._ Racine Paper Goods Co., 164
Fed. 85; Electric Renovator Co. _v._ Vacuum Cleaner Co., 189 Fed. 754;
Atlas Underwear Co. _v._ Cooper Underwear Co., 210 Fed. 347; Shoemaker
_v._ South Bend Spark Arrester Co., 135 Ind. 471; Pratt Food Co. _v._
Bird, 148 Mich. 631.

Footnote 560:

St. Johnsbury Co. _v._ Hunt, 55 Vt. 570 (arrest of plaintiff’s
engineer on a malicious and baseless charge, whereby the running of
plaintiff’s train was delayed) _Accord_.

Footnote 561:

Gunter _v._ Astor, 4 Moore, 12; Hartley _v._ Cummings, 5 C. B. 247;
Jones _v._ Blocker, 43 Ga. 331; Wharton _v._ Jossey, 46 Ga. 578; Lee
_v._ West, 47 Ga. 311 (_semble_); Smith _v._ Goodman, 75 Ga. 198;
Bundy _v._ Dodson, 28 Ind. 295; Jones _v._ Tevis, 4 Litt. 25; Tyson
_v._ Ewing, 3 J. J. Marsh, 185; Carew _v._ Rutherford, 106 Mass. 1;
Bixby _v._ Dunlap, 56 N. H. 456; Stille _v._ Jenkins, 3 Green, (N. J.)
302; Scidmore _v._ Smith, 13 John. 322; Covert _v._ Gray, 34 How. Pr.
450; Johnston Co. _v._ Meinhardt, 9 Abb. N. C. 393; Stout _v._ Woody,
63 N. C. 37; Haskins _v._ Royster, 70 N. C. 601; Robinson _v._ Culp, 3
Brev. 302; Daniel _v._ Swearengen, 6 S. C. 297; Fowler _v._ Stonum, 6
Tex. 60; Thacker Co. _v._ Burke, 59 W. Va. 253; Cowper _v._
Macfarlane, 6 Sess. Cas., 4th Series, 683 _Accord_.

See, also, Martinez _v._ Gerber, 3 M. & G. 88.

An action will lie against one who induces a servant to violate his
duty not to communicate the trade secrets of his employer. Jones _v._
Westervelt, 7 Cow. 445; Kerr _v._ Roxburgh, 3 Murr. (Scotland) 126;
Roxburgh _v._ McArthur, 3 Sess. Cas., 2d Series, 556.

Footnote 562:

In Blake _v._ Lanyon, 6 T. R. 221, a journeyman, while his work was
unfinished, left plaintiff and hired with defendant, who then did not
know the facts. Defendant was held liable for retaining the journeyman
after notice. Fawcet _v._ Beavres, 2 Lev. 63; Pilkington _v._ Scott,
15 M. & W. 657; Kennedy _v._ McArthur, 5 Ala. 151; Dacy _v._ Gay, 16
Ga. 203; Everett _v._ Sherfey, 1 Ia. 356; Stowe _v._ Heywood, 7 All.
118; Sargent _v._ Mathewson, 38 N. H. 54; Dickson _v._ Taylor, 1 Murr.
(Scotland) 141 _Accord_. Adams _v._ Bafeald, 1 Leon. 240; Caldwell
_v._ O’Neal, 117 Ga. 775 (if contract is oral only) _Contra_.

It was said also that there was no liability for the hiring of
plaintiff’s journeyman without notice of the facts. Eades _v._
Vandeput, 5 East, 39 n. (_a_); Sherwood _v._ Hall, 3 Sumn. 127;
Ferguson _v._ Tucker, 2 Har. & G. 182; Butterfield _v._ Ashley, 6
Cush. 249; Sargent _v._ Mathewson, 38 N. H. 54; Clark _v._ Clark, 63
N. J. Law, 1; Stuart _v._ Simpson, 1 Wend. 376; Caughey _v._ Smith, 47
N. Y. 244; Bell _v._ Lakin, 1 McMull. 364; Conant _v._ Raymond, 2 Aik.
243 _Accord_.

Footnote 563:

The arguments of counsel are omitted.

Footnote 564:

“The rule which governs the numerous cases upon this subject is, that
where the proximate effect of the criminal connection is an incapacity
to labor, by reason of which the master loses the services of his
servant, such loss of service is deemed to be the immediate effect of
the connection, and entitles the master to his action. The same
principle which gives a master an action where the connection causes
pregnancy or sexual disease applies to all cases where the proximate
consequence of the criminal act is a loss of health resulting in a
loss of service. There may be cases in which the seduction, without
producing pregnancy or sexual disease, causes bodily injury, impairing
the health of the servant, and resulting in a loss of services to her
master. So the criminal connection may be accomplished under such
circumstances, as, for instance, of violence or fraud, that its
proximate effect is mental distress or disease, impairing her health
and destroying her capacity to labor. In either of these cases the
master may maintain an action, because the loss of services is
immediately caused by the connection, as much as in cases of pregnancy
or sexual disease. Vanhorn _v._ Freeman, 1 Halst. 322. But if the loss
of health is caused by mental suffering, which is not the consequence
of the seduction, but is produced by subsequent intervening causes,
such as abandonment by the seducer, shame resulting from exposure, or
other similar causes, the loss of services is too remote a consequence
of the criminal act, and the action cannot be maintained. Boyle _v._
Brandon, 13 M. & W. 738; Knight _v._ Wilcox, 14 N. Y. 413.

“In the case at bar, as the ruling appears to have been general that
the action could not be maintained unless pregnancy or sexual disease
was proved, we think a new trial should be granted.” Morton, J., in
Abrahams _v._ Kidney, 104 Mass. 222. See to the same effect Blagge
_v._ Ilsley, 127 Mass. 191; Clark _v._ Clark, 63 N. J. Law, 1; White
_v._ Nellis, 31 N. Y. 405; Ingerson _v._ Miller, 47 Barb. 47.

Footnote 565:

The father can maintain no action in such a case: Goodwin _v._
Thompson, 2 Greene, 329; Jones _v._ Tevis, 4 Litt. 25; Hervey _v._
Moseley, 7 Gray, 479; Beard _v._ Holland, 59 Miss. 161, 164; Wilkinson
_v._ Dellinger, 126 N. C. 462. Unless the daughter was induced to
marry the defendant by the latter’s fraud. Hills _v._ Hobert, 2 Root,
48; Goodwin _v._ Thompson, _supra_.

Footnote 566:

A part of the argument and the concurring opinion of Montague Smith,
J., with which Keating, J., agreed, are omitted.

Footnote 567:

Whether it is an excess of fair competition to induce a servant at
will to leave the plaintiff, and enter the service of the defendant,
cannot be said to be definitely settled. In Salter _v._ Howard, 43 Ga.
601, the plaintiff prevailed; but in Campbell _v._ Cooper, 34 N. H.
49, the defendant was successful. The other cases commonly cited for
the plaintiff are distinguishable. In Sykes _v._ Dixon, 9 A. & E. 693,
and Peters _v._ Lord, 18 Conn. 337, the servant had left the plaintiff
of his own head before entering the service of the defendant. In Keane
_v._ Boycott, 2 H. Bl. 512, the defendant, a recruiting officer,
officiously induced the servant to leave the plaintiff, in order to
enlist as a soldier. In Speight _v._ Oliviera, 2 Stark. 493; Morgan
_v._ Molony, 7 Ir. L. R. N. S. 101, 240; Ball _v._ Bruce, 21 Ill. 161;
and Noice _v._ Brown, 39 N. J. Law, 569, as in the principal case, the
enticement was for an immoral purpose. In Cox _v._ Muncey, 6 C. B. N.
S. 375, a father induced an apprentice at will to leave the master,
but the motive of the father does not appear.

“[Keane _v._ Boycott, 2 H. Bl. 512] seems contrary to the general
principle and is certainly opposed to the decision of the Court of
Appeals in DeFrancesco _v._ Barnum, 45 Ch. D. 430. The defendant there
had enticed away an apprentice of the plaintiff. But the indenture
contained unreasonable stipulations, and it was held that it might be
avoided by the apprentice, and that it was not unlawful for the
defendant to persuade the apprentice to do that which was lawful. It
is different, however, if malice, force or fraud be used to take or
decoy the servant away. In that case the master has a right of action,
even though the servant be under no binding obligation. Per _Willes_,
J., Evans _v._ Walton, L. R. 2 Com. PL., pp. 621–622.” Clerk and
Lindsell, Torts, 5 ed. 227.

To induce a servant who is under contract with the plaintiff to leave
the latter at the expiration of the term of service, and to enter the
defendant’s service, is no more than lawful competition. Nichol _v._
Martyn, 2 Esp. 732; Boston Manufactory _v._ Binney, 4 Pick. 425.

Footnote 568:

The statement of the case and the arguments of counsel are omitted.

Footnote 569:

The learned judge here discussed and approved of Blake _v._ Lanyon, 6
T. R. 221.

Footnote 570:

The rest of the opinion on this point is omitted.

Footnote 571:

See note (4) to Skinner _v._ Gunton, 1 Wms. Saund. 230.—Reporter’s
note.

Footnote 572:

Only the opinion of Coleridge, J., on this point is given. It is now
generally admitted that this learned judge, although wrong on this
point, was right in maintaining that the actress was not a servant.

Footnote 573:

William Hankford, Justice of the Common Pleas in 1398, afterwards, in
1414 (1 H. 5), Chief Justice of England.—Reporter’s note.

Footnote 574:

Cattle _v._ Stockton Co., L. R. 10 Q. B. 453, 458 (_semble_); Angle
_v._ Chicago R. Co., 151 U. S. 1; Bitterman _v._ Louisville R. Co.,
207 U. S. 205, 222–23; Dr. Miles Medical Co. _v._ Park & Sons Co., 220
U. S. 373, 394 (_semble_); Heaton Co. _v._ Dick, 55 Fed. 23, 52 Fed.
667; Heath _v._ American Book Co., 97 Fed. 533; Tubular Co. _v._
Exeter Co., 159 Fed. 824; Motley _v._ Detroit Co., 161 Fed. 389;
Chipley _v._ Atkinson, 23 Fla. 206; Doremus _v._ Hennessy, 176 Ill.
608; Heywood _v._ Tillson, 75 Me. 225, 236 (_semble_); Knickerbocker
Ice Co. _v._ Gardiner Dairy Co., 107 Md. 556; Walker _v._ Cronin, 107
Mass. 555; Beekman _v._ Marsters, 195 Mass. 205; Joyce _v._ Great
Northern R. Co., 100 Minn. 225; Mealey _v._ Bemidji Lumber Co., 118
Minn. 427; Lally _v._ Cantwell, 30 Mo. App. 524; Van Horn _v._ Van
Horn, 52 N. J. Law, 284; Haskins _v._ Royster, 70 N. C. 601; Jones
_v._ Stanly, 76 N. C. 355; Flaccus _v._ Smith, 199 Pa. St. 128; Delz
_v._ Winfree, 80 Tex. 400, 405; Raymond _v._ Yarrington, 96 Tex. 443;
Brown Co. _v._ Indiana Stove Works, 96 Tex. 453; Duffies _v._ Duffies,
76 Wis. 374, 377 (_semble_); Martens _v._ Reilly, 109 Wis. 464; Hewitt
_v._ Ontario Co., 44 Up. Can. Q. B. 287 _Accord_.

Boyson _v._ Thorn, 98 Cal. 578; Barron _v._ Collins, 49 Ga. 580
(_semble_); Chambers _v._ Baldwin, 91 Ky. 121; Bourlier _v._ Macauley,
91 Ky. 135; Kline _v._ Eubanks, 109 La. 241 (_semble_); Ashley _v._
Dixon, 48 N. Y. 430; De Jong _v._ Behrman, 148 App. Div. 37; Laskey
Feature Play Co. _v._ Fox, 93 Misc. 364; Swain _v._ Johnson, 151 N. C.
93; Sleeper _v._ Baker, 22 N. D. 386 _Contra_.

It was decided before the case of Lumley _v._ Gye that an action for
slander of title was maintainable where the only special damage laid
was the breach by a third person of his contract with the plaintiff.
Green _v._ Button, 2 C. M. & R. 707. But see, _contra_, Kendall _v._
Stone, 5 N. Y. 14; Brentman _v._ Note, 3 N. Y. Sup. 420 (N. Y. City
Court).

So an action would doubtless lie for defamatory words, not actionable
_per se_, which induced a third person to break his contract to marry
the plaintiff. But compare Davis _v._ Condit, 124 Minn. 365 (seduction
of plaintiff’s fiancée).

As to justification, see Leonard _v._ Whetstone, 34 Ind. App. 383.

On the general subject, see also Sweeney _v._ Smith, 167 Fed. 385;
Mahoney _v._ Roberts, 86 Ark. 130; Citizens’ Light, &c. Co. _v._
Montgomery Light, &c. Co., 171 Fed. 553, 560, 561; McGurk _v._
Cronenwett, 199 Mass. 457; Globe Ins. Co. _v._ Fireman’s Ins. Co., 97
Miss. 148; Biggers _v._ Matthews, 147 N. C. 299; Thacker Coal Co. _v._
Burke, 59 W. Va. 253; Huffcutt, Interference with Contracts and
Business in New York, 18 Harvard Law Rev. 423.

Footnote 575:

The statement of facts and the dissenting opinion of Lord Coleridge,
C. J., are omitted.

Footnote 576:

“That this was a wrongful interference on the part of the Omaha
Company, and that it resulted directly in loss to the contractor and
to the Portage Company, is apparent. It is not an answer to say that
there was no certainty that the contractor would have completed his
contract, and so earned these lands for the Portage Company. If such a
defence were tolerated, it would always be an answer in case of any
wrongful interference with the performance of a contract, for there is
always that lack of certainty. It is enough that there should be, as
there was here, a reasonable assurance, considering all the
surroundings, that the contract would be performed in the manner and
within the time stipulated, and so performed as to secure the land to
the company.

“It certainly does not lie in the mouth of a wrong-doer, in the face
of such probabilities as attend this case, to say that perhaps the
contract would not have been completed even if no interference had
been had, and that, therefore, there being no certainty of the loss,
there is no liability.” Brewer, J., in Angle _v._ Chicago R. Co., 151
U. S. 1, 12.

Footnote 577:

Statement abridged. Arguments omitted; also part of opinions.

Footnote 578:

As to the distinction between intent and motive, see Smith, Crucial
Issues in Labor Litigation, 20 Harvard Law Rev. 253, 256–259.

Footnote 579:

Compare Tunstall _v._ Sterns Coal Co., (C. C. A.) 192 Fed. 808.
Section 3 of the Trade Disputes Act, 6 Edward 7, Chap. 47, enacted
Dec. 21, 1906, is as follows:—

“Sect. 3. An act done by a person in contemplation or furtherance of a
trade dispute shall not be actionable on the ground only that it
induces some other person to break a contract of employment or that it
is an interference with the trade, business, or employment of some
other person, or with the right of some other person to dispose of his
capital or his labor as he wills.”

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev.
253, 345, 429.

Footnote 580:

Only the opinion of Bowen, L. J., is given. Fry, L. J., concurred, but
Lord Esher, M. R., dissented. The decision was afterwards affirmed in
the House of Lords, [1892] A. C. 25.

Footnote 581:

Payne _v._ Railroad Co., 13 Lea, 507 (Freeman and Turney, JJ.,
dissenting); South Royalton Bank _v._ Suffolk Bank, 27 Vt. 505; Delz
_v._ Winfree, 80 Tex. 400, 405 (_semble_) _Accord_. See Lough _v._
Outerbridge, 143 N. Y. 271.

Footnote 582:

Statement rewritten.

Footnote 583:

See Boggs _v._ Duncan Furniture Co., 163 Ia. 106; Rogers, Predatory
Price Cutting as Unfair Trade, 27 Harvard Law Rev. 139.

Footnote 584:

The arguments are omitted.

Footnote 585:

In Holbrook _v._ Morrison, 214 Mass. 209, a land owner put a sign on
her land reading, “For Sale. Best Offer From Colored Family.”
Defendant wished to sell but was also moved by ill will toward
plaintiffs, whose real estate business was seriously interfered with
by the threatened sale. See Ames, How Far an Act May Be a Tort Because
of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 420;
Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 429,
453, 455.

Footnote 586:

In this case, however, the means used by defendant involved trespasses
and fraud. See American Waltham Watch Co. _v._ United States Watch
Co., 173 Mass. 85.

Footnote 587:

See Faloon _v._ Schilling, 29 Kan. 292.

“_Spite fence._” Malicious use of property to the injury of a neighbor
was held not actionable in Capital Bank _v._ Henty, 7 A. C. 741, 766
(_semble_); Giller _v._ West, 162 Ind. 17; Brostrom _v._ Lauppe, 179
Mass. 315; Bordeaux _v._ Greene, 22 Mont. 254; Mahan _v._ Brown, 13
Wend. 261; Auburn Co. _v._ Douglass, 9 N. Y. 444 (_semble_); Pickard
_v._ Collins, 23 Barb. 444; Levy _v._ Brothers, 4 Misc. 48; Letts _v._
Kessler, 54 Ohio St. 73; Koblegard _v._ Hale, 60 W. Va. 37; Metzger
_v._ Hochrein, 107 Wis. 267.

_Contra_ Norton _v._ Randolph, 176 Ala. 381; Burke _v._ Smith, 69
Mich. 380; Flaherty _v._ Moran, 81 Mich. 52; Kirkwood _v._ Finegan, 95
Mich. 543; Peek _v._ Roe, 110 Mich. 52; Barger _v._ Barringer, 151 N.
C. 433. See Wilson _v._ Irwin, 144 Ky. 311; Metz _v._ Tierney, 13 N.
M. 363; Smith _v._ Speed, 11 Okl. 95; Haverstick _v._ Sipe, 33 Pa. St.
368; Shell _v._ Kemmerer, 13 Phila. 502; McCorkle _v._ Driskell,
(Tenn.) 60 S. W. 172.

_Malicious diversion of percolating water_ was held to give no right
of action in Corporation of Bradford _v._ Pickles, [1895] A. C. 587;
Meeker _v._ East Orange, 76 N. J. Law, 435; Phelps _v._ Nowlen, 72 N.
Y. 39; Chatfield _v._ Wilson, 28 Vt. 49; Huber _v._ Merkel, 117 Wis.
355.

_Contra_ Chasemore _v._ Richards, 7 H. L. Cas. 349, 388 (_semble_);
Roath _v._ Driscoll, 20 Conn. 533, 540–44 (semble); Chesley _v._ King,
74 Me. 164 (_semble_); Stevens _v._ Kelley, 78 Me. 445, 452; Greenleaf
_v._ Francis, 18 Pick. 119 (_semble_); Swett _v._ Cutts, 50 N. H. 439,
447 (_semble_); Wyandot Club Co. _v._ Sells, 3 Ohio N. P. 210;
Wheatley _v._ Baugh, 25 Pa. St. 528, 533 (_semble_); Haldeman _v._
Bruckhart, 45 Pa. St. 514 (_semble_); Lybe’s Appeal, 106 Pa. St. 626
(_semble_); Williams _v._ Laden, 161 Pa. St. 283 (_semble_); Miller
_v._ Black Rock Co., 99 Va. 747 (_semble_).

But cases of this type are now coming to be treated on a different
principle of waste or unreasonable use of water underlying neighboring
tracts. Gagnon _v._ French Lick Hotel Co., 163 Ind. 687; Barclay _v._
Abraham, 121 Ia. 619; Stillwater Water Co. _v._ Farmer, 89 Minn. 58;
Springfield Waterworks Co. _v._ Jenkins, 62 Mo. App. 74.

(1) Has the owner of land the same ownership and control of
percolating water (water passing, or filtering, through the ground
beneath the surface of the earth, without flowing in definite
channels), that he has of the soil, _e. g._, the sand and the rocks?

Or (2) has he only a limited and qualified right in the percolating
water; a right of reasonable user limited by the correlative rights of
his neighbors?

On those questions there is, in recent cases, a conflict of authority.
For illustrative cases endorsing the first theory, see Acton _v._
Blundell, 12 M. & W. 324; Mayor of Bradford _v._ Pickles, [1895] A. C.
587; Meeker _v._ East Orange, 76 N. J. Law, 435. For illustrative
cases favoring the second theory, see Bassett _v._ Salisbury Mfg. Co.,
43 N. H. 569 (where the question related to the right of the defendant
to prevent water percolating under the surface of plaintiff’s land
from passing off through defendant’s land); Katz _v._ Walkinshaw, 141
Cal. 116, 140, 141.

We are concerned here only to point out how the adoption of one or the
other of the above conflicting views may affect the materiality of the
landowner’s motive in the use of percolating water.

If the first theory is adopted, then, in some jurisdictions, the
landowner would not be held liable, even though actuated by bad motive
(Mayor of Bradford _v._ Pickles, [1895] A. C. 587); and, in all other
jurisdictions, he would be liable only when, and because, he was
actuated by bad motive.

But if the second theory is adopted, the landowner might frequently be
held liable, irrespective of motive. On the second theory percolating
water might be regarded as, in a certain sense, the common property of
the adjoining owners (bearing some analogy to an underground lake);
and it would be held that each owner is entitled to only a reasonable
share, and is entitled to use that share only for certain purposes.
See 3 Farnham, Waters, § 935. Upon this view an owner who uses more
than his share, or who uses it for purposes outside those legally
allowable, would be liable entirely irrespective of motive. “Later
American cases,” says Professor Huffcut, “transfer the emphasis from
the showing of ‘malice’ to a showing of ‘unreasonable user,’ which may
or may not be accompanied by malice.” 13 Yale Law Journal, 222.

We may add that if bad motive should not be held, in itself, a
substantive ground of liability, yet the existence of bad motive might
be a piece of evidence bearing upon the question of reasonable user.
User for the sole purpose of gratifying ill will might not be deemed
reasonable.

On the general question of liability for malevolent acts in reference
to percolating water, see, Ames, How Far an Act May Be a Tort Because
of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415;
Huffcut, Percolating Waters: the Rule of Reasonable User, 13 Yale Law
Journ. 222.

Footnote 588:

Statements abridged. Portions of opinion omitted.

Footnote 589:

In Rideout _v._ Knox, 148 Mass. 368, where a similar statute was held
constitutional, it was held error to charge that defendant could not
justify building the fence unless his sole motive was a legitimate
use; malice must be the dominant motive. See also Ingwerson _v._
Barry, 118 Cal. 342; Gallagher _v._ Dodge, 48 Conn. 387; Holmes _v._
Fuller, 68 Vt. 207; Karasek _v._ Peier, 22 Wash. 419; Jones _v._
Williams, 56 Wash. 588; Ames, How Far an Act May Be a Tort Because of
the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415.

Footnote 590:

The rest of the opinion is omitted. This case was followed in
Carrington _v._ Taylor, 11 East, 571. See Lamprey _v._ Danz, 86 Minn.
317; Whittaker _v._ Stangvick, 100 Minn. 386; Meredith _v._ Triple
Island Gun Club, 113 Va. 80.

Footnote 591:

Only the opinion of Bramwell, B., is given. Pollock, C. B., Martin and
Pigott, BB., concurred.

Footnote 592:

Statement rewritten. Only so much of the case is given as relates to a
single point.

Footnote 593:

Statement rewritten. Arguments omitted. Some of the opinions are
entirely omitted, and none are given in full.

Footnote 594:

... “The litigants are members of two rival associations of
workingmen, registered under the Trade Unions Act of 1871.”... Lord
Watson, [1898] A. C., p. 90. “It is not a dispute between employers
and employed,—between capital and labor,—but rather one between the
members of one trade union and of another trade union.”... Lord
Ashbourne, _ibid._ p. 109. “Each party had the financial support of
their union.” Lord Macnaghten, p. 147.

Footnote 595:

As to the terms of the ironworkers’ employment, see Lord Watson, pp.
90, 99, and Lord Herschell, p. 130.

Footnote 596:

See Lord Macnaghten, p. 146.

Footnote 597:

It was _held_, both by Kennedy, J., and by the Court of Appeal, that
Jackson and Knight were not liable. Upon this branch of the case there
was no appeal to the House of Lords.

Footnote 598:

See Lord Macnaghten, p. 148.

Footnote 599:

The statement here given is compiled from extracts recited in the
opinions of Lord Shand, p. 162, Lord Halsbury, p. 82, and Lord
Macnaghten, p. 149.

Footnote 600:

See Veeder, Advisory Opinions of the Judges in England, 13 Harv. Law
Rev. 358.

Footnote 601:

... “There is no ground for even a suggestion that the defendant’s
acts were due to competition in trade or employment. There could be no
competition between the two sets of men in the circumstances under
which they were then working, the one at wood, the other at iron only;
and even if they were competing, the plaintiffs were working well
within their right.” Hawkins, J., p. 23. “Now, although according to
the principles of the Mogul Case the action of Allen might have been
justified on the principles of trade competition, if it had been
confined to the time when the respondents were doing ironwork, and
were therefore acting in competition with the boilermakers, it appears
to me that as soon as he overstepped those limits, and induced their
employers to dismiss them by way of punishment, his action was without
just cause or excuse, and, consequently, malicious within the legal
meaning of that word.” Cave, J., p. 37. “This action was not an
effort, by competition, to enable the boilermakers to get the work
instead, but to punish the plaintiffs by causing the employment of
other shipwrights in their room.” Lord Ashbourne, p. 111.

Footnote 602:

GERMAN CIVIL CODE, §§ 226, 826.

226. The exercise of a right is not permitted, when its sole object is
to injure another.

826. Whoever intentionally inflicts damage upon another in a morally
reprehensible manner is bound to compensate the other for the damage.

See also Digest, xxxix, 3, 1, § 12, xxxix, 3, 2, § 9; L. 17, 55;
Domat, Civil Law (Cushing’s ed.) § 158; Erskine, Institutes of the Law
of Scotland, Bk. II, tit. 1, § 2; Bell, Principles of the Law of
Scotland, § 966; Planiol, Traité Elémentaire de droit civil, (4 ed.),
II, §§ 870–72; Windscheid, Lehrbuch des Pandektenrechts, I, § 121;
Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of
the Actor, 18 Harvard Law Rev. 411; Walton, Motive as an Element in
Torts in the Common and in the Civil Law, 22 Harvard Law Rev. 349.

Footnote 603:

Some opinions are omitted. None are given in full. Arguments omitted.

Footnote 604:

Read by Lord Davey in Lord Lindley’s absence.

Footnote 605:

[1895] 2 Q. B. 22, 23; [1898] A. C. 3.

Footnote 606:

[1898] A. C. p. 19, Lord Watson; p. 115, Lord Herschell; pp. 147–150,
Lord Macnaghten; pp. 161, 165, Lord Shand; p. 175, Lord Davey; p. 178,
Lord James.

Footnote 607:

ENGLAND, TRADE DISPUTES ACT, 1906, 6 Ed. 7, c. 47.

1.—The following paragraph shall be added as a new paragraph after the
first paragraph of section three of the Conspiracy and Protection of
Property Act, 1875:—

“An act done in pursuance of an agreement or combination by two or
more persons shall, if done in contemplation or furtherance of a trade
dispute, not be actionable unless the act, if done without any such
agreement or combination, would be actionable.”

2.—(1) It shall be lawful for one or more persons, acting on their own
behalf or on behalf of a trade union or of an individual employer or
firm in contemplation or furtherance of a trade dispute, to attend at
or near a house or place where a person resides or works or carries on
business or happens to be, if they so attend merely for the purpose of
peacefully obtaining or communicating information, or of peacefully
persuading any person to work or abstain from working.

(2) Section seven of the Conspiracy and Protection of Property Act,
1875, is hereby repealed from “attending at or near” to the end of the
section.

3.—An act done by a person in contemplation or furtherance of a trade
dispute shall not be actionable on the ground only that it induces
some other person to break a contract of employment or that it is an
interference with the trade, business, or employment of some other
person, or with the right of some other person to dispose of his
capital or his labor as he wills.

4.—(1) An action against a trade union, whether of workmen or masters,
or against any members or officials thereof on behalf of themselves
and all other members of the trade union in respect of any tortious
act alleged to have been committed by or on behalf of the trade union,
shall not be entertained by any court.

(2) Nothing in this section shall affect the liability of the trustees
of a trade union to be sued in the events provided for by the Trades
Union Act, 1871, section nine, except in respect of any tortious act
committed by or on behalf of the union in contemplation or in
furtherance of a trade dispute.

5.—(1) This Act may be cited as the Trade Disputes Act, 1906, and the
Trade Union Acts, 1871 and 1876, and this Act may be cited together as
the Trade Union Acts, 1871 to 1906.

(2) In this Act the expression “trade union” has the same meaning as
in the Trade Union Acts, 1871 and 1876, and shall include any
combination as therein defined, notwithstanding that such combination
may be the branch of a trade union.

(3) In this Act and in the Conspiracy and Protection of Property Act,
1875, the expression “trade dispute” means any dispute between
employers and workmen, or between workmen and workmen, which is
connected with the employment or non-employment, or the terms of the
employment, or with the conditions of labor, of any person, and the
expression “workmen” means all persons employed in trade or industry,
whether or not in the employment of the employer with whom a trade
dispute arises; and, in section three of the last-mentioned Act, the
words “between employers and workmen” shall be repealed.

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev.
345, 351, note 3.

Footnote 608:

The statement has been abridged.

Footnote 609:

“The defendant associations had the absolute right to threaten to do
that which they had the right to do.” Parker, C. J., in National
Protective Association _v._ Cumming, 170 New York, 315, p. 329.

“It will be said that a man has the absolute right to threaten to do
that which he has a right to do. Granted that what you may absolutely
do you may absolutely threaten to do (give unqualified notice of your
intention to do). But it does not follow that you may conditionally
threaten to do it. The right to absolutely refuse to work and the
right to conditionally refuse do not, as against third persons, _i.
e._, persons other than the employer, stand to each other in the
relation of the greater to the less. The former does not necessarily
include the latter. They are distinct from each other; and the latter
may sometimes be the more important and the more dangerous right of
the two.” 20 Harvard Law Rev., p. 273.

“The right to quit an employment which is terminable at will may
include a right to give absolute and unqualified notice of intention
to leave.”

“It may also include, _as against an employer_, a right to annex any
possible condition to an offer to work or to a threat to refrain from
working. By ‘right as against an employer’ we mean that an employer
could not maintain an action against a laborer for annexing such
conditions. The employer is not legally damaged by such an offer. He
is not bound to accept it. As between B and C, the person with whom B
is directly dealing, it may be true that ‘the right to refuse to deal
involves the right to name any terms which one pleases, and to refuse
to deal except on these terms.’ C cannot maintain an action against B
for insisting on unreasonable terms. But the terms or conditions
annexed to an offer may relate to the offeree’s relations to a third
person, and [if the offeree accepts and performs the conditions] that
may raise a question whether such third person has any ground of
complaint.”

“We think that the right to work or not to work does not include, _as
against third persons_, the right to annex any possible condition to
an offer to work or to a notice of intention to refrain from work.
Suppose that B offers to work for C on condition that C commits a
battery on A. Could B effectively deny that he instigated the
commission of the battery? Could B escape liability to A on the ground
that he was merely stating to C the conditions on which he was willing
to exercise his right to labor or not to labor?” 20 Harvard Law Rev.
270–271.

The contrary view is open to several objections:—

“1. It assumes that, if certain conduct of B does not violate any
legal right of C, it cannot infringe a legal right of A.

“2. It overlooks the distinction between unconditionally exercising a
right, and offering to exercise it (or to refrain from exercising it)
on condition that the offeree shall take action which is intended to
produce (and does produce) damage to a third person.

“3. It assumes that one who intentionally instigates a second person
to inflict damage on a third person can escape responsibility by
putting the instigation in the form of a conditional offer to
exercise, or to refrain from exercising, a right which he had against
the second person.” 20 Harvard Law Rev. 269.

Footnote 610:

“In many of the cases the element of combination or conspiracy is
found. If the act be lawful, the combination or conspiracy to commit
it does not make the act unlawful; if it be unlawful, the combination
to commit it may render its commission easier and may aggravate the
injury; but it does not change the character of the act. The fact of
combination is treated by the courts as of great evidentiary value in
deciding the question of coercion or duress.” Burke, J., in Sumwalt
Ice Co. _v._ Knickerbocker Ice Co., 114 Md. 403, 414.

“The gist of a civil action of this sort is not the conspiracy but the
deceit or fraud causing damage to the plaintiff, the combination being
charged merely for the purpose of fixing joint liability on the
defendants.” Rugg, J., in New England Foundation Co. _v._ Reed, 209
Mass. 556.

See also Romer, L. J., in Giblan _v._ National Amalgamated Union,
[1903] 2 K. B. 600, 619–620. But compare Henshaw, J., in Vallejo Ferry
Co. _v._ Solano Club, 165 Cal. 255.

Footnote 611:

_Intimidation._ See Springhead Co. _v._ Riley, 6 Eq. 551 (intimidating
placards); Southern R. Co. _v._ Machinists Union, 111 Fed. 49; Knudsen
_v._ Benn, 123 Fed. 636; Atchison R. Co. _v._ Gee, 139 Fed. 582; Pope
Motor Co. _v._ Keegan, 150 Fed. 148 (collection of large crowd); Allis
Chalmers Co. _v._ Iron Molders’ Union, 150 Fed. 155 (crowds);
Goldfield Consolidated Mines Co. _v._ Goldfield Miners’ Union, 159
Fed. 500; Kolley _v._ Robinson, (C. C. A.) 187 Fed. 415; Fortney _v._
Carter, (C. C. A.) 203 Fed. 454; Bittner _v._ West Virginia Coal Co.,
(C. C. A.) 214 Fed. 716; Goldberg _v._ Stablemen’s Union, 149 Cal.
429; Underhill _v._ Murphy, 117 Ky. 640; Sherry _v._ Perkins, 147
Mass. 212 (intimidating banner); Ideal Mfg. Co. _v._ Ludwig, 149 Mich.
133 (crowd); Baltic Mining Co. _v._ Judge, 177 Mich. 632; Minnesota
Stove Co. _v._ Cavanaugh, 131 Minn. 458; Jones _v._ Maher, 62 Misc.
388; O’Neil _v._ Behanna, 182 Pa. St. 236; Jensen _v._ Cooks’ Union,
39 Wash. 531; Commercial Printing Co. _v._ Tacoma Typographical Union,
85 Wash. 234.

_Picketing_, see American Steel Co. _v._ Wire Drawers’ Union, 90 Fed.
608; Iron Molders’ Union _v._ Allis Chalmers Co., (C. C. A.) 166 Fed.
45; Sona _v._ Aluminum Castings Co., (C. C. A.) 214 Fed. 936; Karges
Furniture Co. _v._ Woodworkers’ Union, 165 Ind. 421; Beck _v._
Teamsters’ Union, 118 Mich. 497.

_Annoyance of workers resorting to plaintiff._ Union P. R. Co. _v._
Ruef, 120 Fed. 102; Frank _v._ Herold, 63 N. J. Eq. 443; Jonas Glass
Co. _v._ Glass Blowers’ Ass’n, 77 N. J. Eq. 219.

_Inducing employer to break contracts._ Read _v._ Friendly Society,
[1902] 2 K. B. 732; Jonas _v._ Glass Blowers’ Ass’n, 77 N. J. Eq. 219;
Flaccus _v._ Smith, 199 Pa. St. 128.

_Inducing employees to break contract._ Hardie Tynes Mfg. Co. _v._
Cruse, 189 Ala. 66; Folsom _v._ Lewis, 208 Mass. 336; Jonas Glass Co.
_v._ Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Grassi Contracting Co.
_v._ Bennett, 160 N. Y. Suppl. 279.

Footnote 612:

This section is as follows: “No person shall, by intimidation or
force, prevent or seek to prevent a person from entering into or
continuing in the employment of any person or corporation.”

Footnote 613:

In accord with the prevailing opinion, see Tunstall _v._ Stearns Coal
Co., 192 Fed. 808; Folsom _v._ Lewis, 208 Mass. 336; Burnham _v._
Dowd, 217 Mass. 351; Fairbanks _v._ McDonald, 219 Mass. 291;
Cornellier _v._ Haverhill Mfr’s Assn, 221 Mass. 554; Blanchard _v._
Newark District Council, 77 N. J. Law, 389; Ruddy _v._ United
Journeyman Plumbers, 79 N. J. Law, 467, 81 N. J. Law, 574. Compare
Giblan _v._ National Amalgamated Union, [1903] 2 K. B. 600; National
Fire Proofing Co. _v._ Mason Builders’ Ass’n, 169 Fed. 259; Gill
Engraving Co. _v._ Doerr, 214 Fed. 111.

_Contra_, Kemp _v._ Division No. 241, 255 Ill. 213.

_Purpose of gaining control of the labor market._ New England Cement
Co. _v._ McGivern, 218 Mass. 198; Jacobs _v._ Cohen, 183 N. Y. 207;
McCord _v._ Thompson Starrett Co., 129 App. Div. 130; Schwarcz _v._
International Union, 68 Misc. 528; Newton _v._ Erickson, 70 Misc. 291.

Compare Reynolds _v._ Davis, 198 Mass. 294.

Footnote 614:

See majority and minority opinions in the later case of Willcut & Sons
Co. _v._ Driscoll, 200 Mass. 110, also Booth _v._ Burgess, 72 N. J.
Eq. 181. Compare Rhodes _v._ Musicians’ Union, 37 R. I. 281.

Footnote 615:

The following condensed statement is taken from 20 Harvard Law Review,
445–447.

Footnote 616:

Loring, J., p. 583.

Footnote 617:

Ibid.

Footnote 618:

Only a part of the opinion is given (pp. 587–88).

Footnote 619:

Bossert _v._ Dhuy, 166 App. Div. 261, 221 N. Y. 342 _Accord_. But see
Grassi Contracting Co. _v._ Bennett, 160 N. Y. Suppl. 279.

In Bohn Mfg. Co. _v._ Hollis, 54 Minn. 223, “a large number of retail
lumber dealers formed a voluntary association, by which they mutually
agreed that they would not deal with any manufacturer or wholesale
dealer who should sell lumber directly to consumers not dealers, at
any point where a member of the association was carrying on a retail
yard; and they provided in their by-laws that, whenever any wholesale
dealer or manufacturer made any such sale, the secretary should notify
all the members of the fact. The plaintiff, a wholesaler, having made
such a sale directly to a consumer, the secretary threatened to send
notice of the fact, as provided in the by-laws, to all the members of
the association.” (This statement is copied from 17 Green Bag, 218.
See also statement by Professor Lewis, 44 Am. L. Reg. N. S. 469.) The
court refused to grant an injunction against sending out the notice.
Here the retail dealers did not threaten to cease dealing with any one
except their competitors, _i. e._, wholesale dealers who should
attempt to sell directly to consumers. They used no lever but their
own conduct. They did not threaten to induce outsiders to refrain from
working for, or selling goods to, the wholesalers. And even as to
their own conduct, they did not threaten to abstain from dealings with
wholesalers in all matters, but only in the purchase of lumber. Much
less did they threaten to abstain from dealing with persons who dealt
with the wholesalers. In a subsequent case the same court said: “It is
to be noted that the defendants in the Bohn case had similar
legitimate interests to protect which were menaced by the practice of
wholesale dealers in selling lumber to contractors and consumers; and
that the defendants’ efforts to induce parties not to deal with
offending wholesale dealers were limited to the members of the
association having similar interests to conserve, and that there was
no agreement or combination or attempt to induce other persons not
members of the association to withhold their patronage from such
wholesale dealers.” Ertz _v._ Produce Exchange Co., 79 Minn. 140, 144.
See also Jackson _v._ Stanfield, 137 Ind. 592; Brown _v._ Jacobs
Pharmacy Co., 115 Ga. 429; and other cases collected by Professor
Wyman, 17 Green Bag, 210, 222.

_Strike unless plaintiff is discharged, as a means toward better
conditions in the shop_, see Minasian _v._ Osborne, 210 Mass. 250.

_Strike to get rid of personally objectionable foreman._ De Minico
_v._ Craig, 207 Mass. 593.

Footnote 620:

Statement abridged. Portions of opinion omitted.

Footnote 621:

Gompers _v._ Bucks Stove & Range Co., 221 U. S. 418; Baldwin _v._
Escanaba Dealers’ Ass’n, 165 Mich. 98; Fink _v._ Butchers’ Union, 84
N. J. Eq. 638; McCormick _v._ Local Unions, 32 Ohio Cir. Ct. R. 165
_Accord_.

Compare _Ex parte_ Heffron, 179 Mo. App. 639.

Footnote 622:

Bossert _v._ Dhuy, 221 N. Y. 342; Cohn & Roth Electric Co. _v._
Bricklayers’ Union, 92 Conn. 161 _Accord_. See Iron Molders’ Union
_v._ Allis Chalmers Co., (C. C. A.) 166 Fed. 45. Also Wigmore, The
Boycott as Ground for Damages, 21 American Law Rev. 509, and
Interference with Social Relations, 21 American Law Rev. 764.

------------------------------------------------------------------------

TRANSCRIBER’S NOTES

1. P. 403, changed “Holden v. McGillicuddy, 213 Mass. 563” to “Holden
v. McGillicuddy, 215 Mass. 563”.
2. P. 552, changed “they avoid the contract” to “they void the
contract”.
3. P. 840, changed “by continued user in connection” to “by continued
use in connection”.
4. Silently corrected obvious typographical errors and variations in
spelling.
5. Retained archaic, non-standard, and uncertain spellings as printed.
6. Re-indexed footnotes using numbers and collected together at the end
of the last chapter.
7. Enclosed italics font in _underscores_.

*** End of this LibraryBlog Digital Book "A Selection of Cases on the Law of Torts" ***

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