(llflrnfU IGaui ^rl^nnl ICibrary Cornell University Library KF 1249.A51 1919 A selection of cases on the law of torts 3 1924 019 910 276 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019910276 A SELECTION OF CASES ON THE LAW OF TORTS BY JAMES BARR AMES and JEREMIAH SMITH NEW EDITION BY ROSCOE POUND CARTER PROFESSOR OF JURISPRUDENCE I>' HARVARD UNIVERSiry CAMBRIDGE HARVARD UIMVERSITY PRESS 1919 /^ 7 ^ ^■ This edition was first published in four parts. Part I (pp. 1- 167) appeared September 25, 1916; part II (pp. 16S-368), De- cember 1, 1916; part III (pp. 369-618), February 20, 1917, and part IV (pp. 619-1008), April 23, 1917. Copyright, 1893 and 1909, by Jambs Bakr Ames. Copyright, 1S93 and 1909, by Jebemiah Smith. Copyright, 1910, by Richakd 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 coiu'se 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 ana- lytical 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 experi- ence of the late Dean Thayer, who had given the matter anxious con- sideration 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 Inteefekence 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 Non- feasance 120 Section 6. Liability of occupiers of premises . . . 147 Section 7. LiabiUty 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 VI CONTENTS PART II INTERFERENCE WITH GENERAL SUBSTANCE OR INTERESTS IN INTANGIBLE THINGS Chapter IV PAGE 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 r. Chicago R. Co 156 Alden v. Wright 595 Aldrich V. Scribner 576 Allen V. Flood 939 AUsop !■. Allsop 808 Andrews v. Jackson 555 Bachelder v. Heagan 496 Banks v. Braman 340 Barnes v. Campbell 732 Barr v. Essex Trades Council .... 998 Baxrows v. Bell 729 Beach v. Hancock 7 Beals V. Thompson 749 Beehler v. Daniels 225 Beinhom v. Griswold 415 Bell V. Hansley 18 Benedick v. Potts 115 Bemina, The 352 Bird V. Jones 24 BisaiUon v. Blood 370 Black V. New York, N. H. & H. R. Co 129 Blood Bakn Co. v. Cooper 233 BIyth 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 PAGE 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. Cor- rigan 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. Seavems 685 Corcoran v. Corcoran 811 Cordiner v. Loa 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 VIU TABLE OP CASES PAGE 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 !). Standard Oil Co 923 Dyerson v. Union PaciPc R. Co. 324 Eager v. Grimwood 866 Eastern Trust & Banking Co. v. Cunningham 616 Edguigton V. Fitzmaurice 537 E. Hulton & Co. V. Jones 674 England, Maritime Conventions Act, 1911, § 1 274 England, Workmen's Compensa- tion Act, 1906, § 1 (c) 269 Evans v. Walton 868 Fargo Gas & Coke Co. w. Fargo Gas & Electric Co 608 Fechley v. Springfield Traction Co. 364 Filburn v. People's Palace & Aqua- rium Co 422 Fisher v. Bristow 627 Fisher v. Feige 938 Fletcher v. Rylands 452 Flight V. Leman 651 Flint & WalUng Mfg. Co. v. Beck- ett 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. Bnmel 539 Gallagher v. Humphrey 186 PAGE Galveston, H. & S. A. R. Co. v. Spinks 495 Garfield Coal Co. v. Rockland Lime Co 202 Garret v. Taylor ^63 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 In- surance Co 620 Hankinson v. Bilby 661 Hanson v. Globe Newspaper Co. . 665 Hart V. Aldridge 864 Hart V. Allen 42 Hatchard v. M^ge 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 u. J. I. Case Threshing Ma- chine 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. Daw- son 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 TABLE OP CASES IX PAGE Kearney v. London, B. & S. C. R. Co 102 Keeble v. Hickeringill 935 Keffe ('. MUwaukee & 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 !'. Cleveland R. Co 157 Lawless v. Anglo-Egyptian Cotton Co 734 Leathern v. Craig 952 Lewis V. Corbin 849 Iiow V. Bouverie 580 Luetzke i'. Roberts 598 Lumby v. Allday 687 Lumley v. Gye 874 McComb I'. Brewer Lumber Co. . 550 McCord Rubber Co. v. St. Joseph Water Co 493 McNee v. Cobum 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 MarteU 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 PAGE Morse v. Hutchins 604 Munster v. Lamb 697 Nash V. Minnesota Title & Trust Co 572 Nashua Iron & Steel Co. v. Worces- ter & 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 Nooton 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, pi. 85) 19 Noyes v. Colby 404 Gates 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 s/. 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 Pulhnan v. Walter Hill & Co. ... 758 Purcell V. Sowler 727 Quinn v. Leathern 952 Radley v. London & Northwestern R. Co 283 Ratcliffe v. Evans 854 Ravenga v. Mackintosh 634 Read v. Coker 3 TABLE OF CASES PAGE Rice V. Coolidge 710 Richmond F. & P. R. Co. v. Mar- tin'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. 369 Slater Trust Co. v. Gardiner 574 Smith V. BoUes 605 Smith V. Hobson 694 Smith V. Land Corporation 660 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 36 Starkweather v. Benjamin 612 State V. Gordon 535 Stearns v. Sampson 10 Steele v. Burkhardfc 388 iriteinmetz 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 PAGE 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 760 Tracy v. Wo6d 83 Troth D.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 UsiU 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 682 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 68 Williams v. State 658 Williamson v. Freer 763 Willy V. MuUedy 515 Wing V. London General Omnibus Co Ill 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.' ' Smith V. Newsam, 1 Vent. 256; Tombs v. Painter, 13 East, 1; Lewis v. Hoover, 3 Blackf. 407; Handy v. Johnson, 5 Md. 460; People v. Carlson, 160 Mich. 426; Saunders v. Gilbert, 156 N. C. 463; Leach v. Leach, 11 Tex. Civ. App. 699 Accord. 2 STEPHENS V. MYERS [CHAP. I. TUBERVILLE v. SAVAGE In the King's Bench, Trinity Tebm, 1669. Reported in 1 Modem Reports, 3. Action of assault, battery, and wounding.^ 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.^ 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 discus- sion which took place, been very vociferous, and interrupted the pro- ceedings 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 church- warden, 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 1 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." 2 Blake v. Barnard, 9 Car. & P. 626; State v. Crow, 1 Ired. 376; Common- wealth V. Eyre, 1 S. & R. 347; Biggins v. Gulf R. Co., 102 Tex. 417 Accord. Com- pare Handy v. Johnson, 5 Md. 450. Similarly, a mere preparation for a possible assault, but without any act indicat- ing a present intention to do personal violence to another, is not an assault. Law- son 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 la. 694; State v. Painter, 67 Mo. 84; State v. Milsaps, 82 N. C. 549. But compare State v. Hamp- ton, 63 N. C. 13. SECT. I.J READ V. COKER 3 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 abihty, — 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 ad- vancing 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 amoimts 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, Is} READ V. COKER In the Common Pleas, June 1, 1853. Reported in 13 Common Bench Reports, 850. Assault and false imprisonment.^ 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 f oUows : The plaintiff was a paper-stainer, carrying on business in the City Road, upon premises which he rented of one Molineux, at a rent 1 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 {semhle) 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 wiU Mck you before your own servants." Compare People v. Yslas. 27 Cal. 630; State v. Shipman, 81 N. C. 513. 2 Only so much of the case is given as relates to the question of assault. 4 READ V. COKER [CHAP. I. of 8s. per week. In January, 1852, the rent being sixteen weeks in arrear, the landlord employed one HolHwell to distrain for it. Holli- well 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 imable to redeem his goods, on the 23d of February applied to the defendant for assistance. The goods were thereupon sold to the de- fendant by HoUiwell, on the part of Read, for £25 lis. M. ; 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, dis- / missed the plaintiff on the 22d of March. On the 24th, the plaintiff I came to the premises, and, refusing to leave when ordered by the de- ' fendant, 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 jmy to say whether there was an in- tention 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. [Jeevis, 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 de- fined in BuUer'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: TuberviUe 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 cor- SECT. I.] READ V. COKER 5 poral injury to another, as by holding up a fi^t 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. Sparfe) ; 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 jmy that to constitute an assault there must be an attempt, coupled with a present abihty, 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 defend- ant had been guilty of an assault. The evidence was, that the plaintiff was surroxinded 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 abso- ^ lute to its fuH extent; but that, so far as regards the first count of the ; declaration, it must be discharged. If anything short of actual strik- ' ing 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 abihty to/ carry the threat into execution. j Maxjle, J., Cresswell, J., and Talfourd, J., concurring. Rule discharged as to the first count} ' United States v. Kieman, 3 Cranch, C. C. 435; Plonty v. Murphy, 82 Minn. 268; People v. Lee, 1 Wheeler, Grim. Gas. 364; State v. Davis, 1 Ired. 125; Alex- ander V. Blodgett, 44 Vt. 476; Newell v. Whitoher, 53 Vt. 589; Bishop v. Ranney, 59 Vt. 316; Barnes v. Martin, 15 Wis. 240; Keep v. Quallman, 68 Wis. 451 Accord. b OSBORN V. VEITCH [CHAP. I. 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 sajdng, " 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 im- pose. 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.^ 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 assauZi demesne. Issue. The plaintiffs were owners of a field in which the defendants were walking with loaded gims 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, 1 United States v. Myers, 1 Cranch, C. C. 310; Keefe v. State, 19 Ark. 190; Hix- son 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. SECT. I.] BEACH V. HANCOCK 7 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 haK-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 abihty " of doing the act threatened, for it can be done in an instant.' 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 handcTiffing was utterly unlawful. Verdict for the plaintiff. Damages, one farthing. BEACH V. HANCOCK SXJPERIOR COUET 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 ia an angry altercation, the defendant stepped into his ofSce, which was at hand, and brought out a gun, which he aimed at 4he 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 gim 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 threat- ening maimer, at a person three or four rods distant, who was igno- rant 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 assess- ing the damages, it was their right and duty to consider the effect which the finding of Ught or trivial damages in actions for breaches 1 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^is. 662. Compare Nelson v. Crawford, ^2 Mich. 466. 8 BEACH V. HANCOCK [CHAP. I. of the peace would have to encourage a disregard of the laws and disturbances of the pubKc 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 Grim. 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 threat- ening 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.^ Gilchrist, C. J. Several- cases have been cited by the coimsel 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 vmder 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. 1 The argument for the plaintiff is omitted. SECT. I.] BEACH V. HANCOCK 9 483, 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 purport- ing to be a loaded pistol at another, and so near as to have been dan- gerous 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 vmdoubtedly 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 secm-e against imlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpres- sibly more precious than mere forms of government, cannot be en- joyed without the sense of perfect security. We have a right to Hve in society without beiag put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreason- able 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 busi- ness 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 injmy sustained — would certainly lead the ill-disposed to consider an assault as a thing that might be committed with im- punity. But at aU 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} ' 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 waa decided that a defendant who aimed an unloaded pistol at another, although perhaps liable for a civil assault, waa not guilty of a criminal assault. See also 2 Green, Cr. Gas. 271 n.; Territory v. Gomez, 14 Ariz. 139; People v. Sylva, 143 Cal. 62. Such conduct was held to be a criminal assault m State v. Shepard, 10 la. 126; Commonwealth v. White, 110 Mass. 407; State v. Barry, 45 Mont, 598; 10 STEARNS V. SAMPSON [CHAP. I. STEARNS AND Wife v. SAMPSON SiTPKEME 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 furni- ture; the second, for taking and carrjdng away the household furni- ture of the wife; and the third, ^ 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 furni- ture, 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 furni- ture 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 opiaion. The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions, and also filed motions to set aside the verdict as beiag against law and the weight of evidence. Appleton, C. J. There is in the declaration a coimt 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 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 inabihty to commit a I battery, that is material, but what his conduct and the attending circumstances f denote at the time to the party assaulted." Cf . HoweU v. Winters, 58 Wash. 436. ' Only so much of the case is printed as relates to this count. SECT. I.] STEARNS V. SAMPSON 11 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 imlawfuUy attempts to strike, hit, touch, 1 or do any violence to another, however small, in a wanton, wilful, ' angry, or insulting manner, having an intention and existing ability j 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 imlawfuUy 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.! So the acts of the defendant in taking out the windows of ' State V. Daniel, 136 N. C. 571 ; Degenhardt v. Heller, 93 Wis. 662 Accord, i 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, 175 111. \ 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 la. 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 la. 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 // // 12 COLE V. TURNER [CHAP. I. 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 instruc- tion on this point is equally at variance with the common law and the statute of the State.' COLE V. TURNER At Nisi Phius, cobam Holt, C. J., Easter Term, 1704. Reported in 6 Modem Reports, 149. Holt, C. J., upon evidence in trespass for assault and battery declared, — First, That the least touching of another in anger ^ 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.^ 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 strug- gle about the passage to that degree as may do hurt will be a battery. 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 personahty: a right that is recognized by the law of the State as included amongst the natural rights of every freeman. Such an infringe- ment 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. ' Header v. Stone, 7 Met. (Mass.) 147 Accord. See Rex v. Smith, 2 Car. & P. 449; Preiser v. Wielandt, 48 App. Div. 569. 2 HostUe 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. Pisk, 160 Mass. 84. Taking liberties with a woman. Hatchett v. Blacketer, 162 Ky. 266; Timmons ;;. Kenrick, 53 Ind. App. 490. Unauthorized surgical operation. Pratt V. Davis, 224 111. 300; Mohr v. Williams, 95 Minn. 261; Schloendorflf v. Society, 211 N. Y. 125; Rolater v. Strain, 39 Old. 572. But see Bennan v. Parsonnet, 83 N. J. Law, 20. Aliter where authorized by a minor. Bakker v. Welsh, 144 Mich. 632. ' Kerifford's Case, Clayt. 22 pi. 38 Accord. See, also, Steinman v. Baltimore Laundry Co., 109 Md. 62; Courtney v. Kneib, 131 Mo. App. 204. SECT. I.] CO-WARD V. BADDELEY 13 IXXES V. WYLIE At Xisi Pritjs, coram Lord Denman, C. J., February 22, 1844. Reported in 1 Carrington & Kirwan, 257. Assault. Plea : i Not guiltj-. It fxirther 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 poHceman that he acted by order of the defendants. With respect to the alleged assault, the poUceman 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. Erie addressed the jury for the defendant. There is no assault here. The poUceman, 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 Den~nl^>;, C. J. (in summing up). You will say, whether, on I the e^•idence, you think that the poHceman committed an assault on the plaintiff, or was merely passive. If the policeman was entirely passive, Hke a door or a wall put to prevent the plaintiff from enter- ing 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 poHceman take any active measvires to prevent the plaintiff from entering the room, or did he stand in the door-way passive, and not move at aU ? Verdict for the plaintiff. Damages, 40s. COWARD V. BADDELEY In the Exchequer, April 19, 1859. Reported in 4 Hiirlslone &• Xorman, 478. Declaration : That the defendant assaulted and beat the plaintiff, gave bim in custody to a poHceman, and caused him to be imprisoned in a poHce-station for twenty-four hours, and afterwards to be taken in custody along pubHc streets before metropoHtan police magistrates. Pleas: First, Not guilty; third. That the plaintiff, within the Met- ropoHtan PoUce District, assaulted the defendant, and therefore the defendant gave the plaintiff into custody to a poHce officer, who had view of the assault, in order that he might be taken before magistrates and dealt with according to law, &c. ' The statement of the case has been abridged. 14 COWARD V. BADDELEY [CHAP. I. 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, Ishngton, 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 pohceman 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. Where- upon 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 accord- ingly, 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., referrmg 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 groimd of that decision, that there the touch was merely to engage the plaintiff's attention. [Maetin, B. Suppose two persons were walking near each other, and one tiirned 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 nonfacit reum nisi mens sit rea appUes. 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. Peter sdorff, Serjt., and Francis, in support of the rule. The learned judge's direction was defective in introducing the word " hostile." SECT. I.] DE MAEENTILLE V. OLIVER 15 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 prize- fight. Rex ('. Perkins, 4 Car. ifc 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 touch- ing him in anger, or \dolently jostling him out of the way, are batteries in the eye of the law." [Bil^m-s\t;ll, 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 jm-y found that what the plaintiff did was done with the intent to attract the attention of the defendant, not with violence to justify gi-\-ing 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 } There is no f oimdation for the apphcation. M_\ETix, 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 pohce officer. Touching a person so as merelj' 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. Ch.\xxell, B. I am of the same opinion. Looking at the plea, it is ob^■ious that it was not proved. BiuJUWELL, B., concurred Rule discharged. DE M.\RENTILLE v. OLIVER Supreme Court, Xew 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 vio- lence, with a large stick, struck the horse of the plaintiff, on the pub- Uc highway, which said horse was then before a carriage, in which the plaintiff was riding, on the said pubHc highway, to the damage of the 1 Courtney v. Kneib, 131 Mo. App. 204 Accord. Compare Reynolds !'. Pierson, 29 Ind. App. 273. 18 OBERLIN V. UPSON [CHAP. I. 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.' 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; ^ and if so, the justice had no jurisdiction of the action. But if this is to be considered as a trespass on the property, uncon- nected 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 plain- tiff had been put to expense in curing of him, or the hke. All the prec- edents 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 e^ue, could the owner of the horse maintain an action for this act ? I lapprehend 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.^ Under the common law of England as it has been recog- nized 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 soUcitations of the defendant by a betrayal of the love and confidence which had been 1 A part of the case, relating to a point of practice, is omitted. 2 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, 35 111. App. 138; Steinman v. Baltimore Laundry Co., 109 Md. 62 (semble); Respublica v. De Longchamps, 1 Dall. Ill; or cutting a rope connecting the plaintiff with his slave, State v. Davis, 1 Hill (S. C.) 46. ' The statement of the pleadings and the arguments of counsel are omitted. SECT. I.] OBERLIN V. UPSON 17 engendered in her by a period of courtship and by a promise of mar- riage 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; ^ but it is clearly an at- tempt 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 accompUshed his purpose. The case, therefore, presents no exception to the conunon 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 fornica- tion are crimes,^ 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 con- struing 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 appHes. The judgment of the circuit court is Affirmed.^ Speae, C. J., Shatjck, Price, and Johnson, JJ., concur. DoNAHtJE, J., not participating. 1 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, 12 111. 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. Dumham, 46 Minn. 227; Green v. Spencer, 3 Mo. 318; Mussebnan 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. ' But see 4 Blackstone, Commentaries, 65; 1 Bishop, New Criminal Law, § 38. ' Beseler v. Stephani, 71 lU. 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; Mcllvain v. Emery, 88 Ind. 298; Verwers v. Carpenter, 166 la. 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 la. 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. 18 BELL V. HANSLEY [CHAP. I. 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 Count. The plaintiff proved the assault and battery; and there was evi- dence tending to show a mutual affray and fighting by consent. But his Honor was of opinion, and so advised the jury, that not- withstanding 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 con- sent and insisted that this, imder the maxim volenti non fit injuria, appUed. 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 hewas 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.^ 1 Boulter v. Clarke, Bull. N. P. 16; Reg. v. Coney, 8 Q. B. D. 534, 538, 546, 549, 567; Logan u. Austin, 1 Stewart (Ala.) 476; Cadwell u. Farrell, 28 111. 438; Adams V. Waggoner, 33 Ind. 531; Lund v. Tyler, 115 la. 236; McNeil v. Mullin, 70 Kan. 634; Galbraith v. Fleming, 60 Mich. 403; Grotton v. Glidden, 84 Me. 589; Com- monwealth V. Colbiurg, 119 Mass. 350 [semhle); 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 {semhle) ; WUley v. Carpenter, 64 Vt. 212; Shay v. Thompson, 59 Wis. 540; Miller v. Bayer, 94 Wis. 124 (procur- ing an abortion with plaintiff's consent) Accord. Reg. V. Coney, 15 Cox, C. C. 46 {semhle), -per Hawkins J.; Hegarty v. Shine, L. R. 4 Ir. 288, 294 {semhle); Goldnamer v. O'Brien, 98 Ky. 569 (procuring an abortion with plaintiff's consent) ; Lykins v. Hamrick, 144 Ky. 80,,CoraJra. 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, 198 111. 130. As to injury in the course of a " friendly scufBe," see Gibeline v. Smith, 106 Mo. App. 545. SECT. II. J GENNER V. SPARKES 19 Section II Impeisonment 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.' GENNER V. SPARKES In the King's Bench, Trinity Term, 1704. Reported in 1 Salkeld, 79. Genner, a bailiff, haviag a warrant against Sparkes, went to him in his yard, and, beiag 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,^ 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 baihff 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.' 1 McNay v. Stratton, 9 111. App. 215; Price v. Bailey, 66 111. 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., 159 111. 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. 2 Anon. 1 Vent. 306; Anon. 7 Mod. 8; Whithead v. Keyes, 3 All. 495 Accord. ' If the bailiff, who has a process against one, says to him when he is on horse- back 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. Homer v. Battyn, Bull. N. P. 62, 20 WOOD V. LANE [CHAP. I. 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 trans- action 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 inomediately, 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 volun- tarily 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 SECT. 11.] PIKE V. HANSON 21 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 volimtarily with the officer. And in this case, if you can persuade the jmy 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 manoeuvre to make the plaintiff do what he ought, but would not, viz., pay the money which he owed. TixDAL, C. J., in sxmmiing up, told the jury, that, if the plaintiff ' was acting as an imwilling agent, at the time and against his own will when he went to his own house from that of Sanders, it was just as j much an arrest as if the defendants had forced him along. The jury found for the plaintiff. Damages, £10.^ PIKE V. HANSON Stjpebiob Cotxrt of Judicature, New Hampshiee, 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 ap- peared in evidence that the defendants were selectmen of the town of Madbury for the year 1836; that they assessed a hst of taxes upon the inhabitants of said town, among whom was the plaintiff, and com- mitted 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. 1 Chinn v. Morris, 2 Car. & P. 361; Pocock v. Moore, Rv. & M. 321; Peters v. Stanway, 6 Car. & P. 737; Granger v. HUl, 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 beUeve he is not free to get away is not an imprisonment. Macintosh v. Cohen, 24 N. Zeal. L. R. 625. 22 PIKE V. HANSON [CHAP. I. Wilcox, J.' . . . 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 baihff, 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 baiUff had laid hold of hitn. Homer v. Battyn, BuUer'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 suf- ficient imprisonment to support an action. Arrowsmith v. Le Me- surier, 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 consti- tute 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, xmtil actual vio- lence 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 in- tend 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 re- straint, paid the money. This is a sufficient arrest and imprisonment to sustain the action, and there must, therefore, be- Judgment on the verdict.^ • Part of the case, not relating to imprisonment, has been omitted. 2 Johnson v. Tompkins, Baldw. C. C. 571, 601; Collins v. Fowler, 10 Ala. 858; Courtoy V. Dozier, 20 Ga. 369; Hawk v. Ridgway, 33 111. 473; Brushaber v. Stege- mann, 22 Mich. 266; Josselyn v. McAllister, 25 Mich. 45; Moore v. Thompson, 92 SECT, n.] FOTHERINGHAM V. ADAMS EXPRESS CO. 23 FOTHERINGHAiM v. ADAMS EXPRESS CO. In the United States Circuit Court, Eastern District, Missouri, September 24, 1888. Reported in 36 Federal Reporter, 252. Thayer, J} 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 plain- tiff was unlawfully restrained of his hberty from about the 27th or 2Sth 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 detec- tives 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 liis confederates; and that he was subjected to repeated examinations and cross-examinations touching the rob- bery, 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 hbertj^. The jury in all probabihty found (as they were warranted in doing) that during the time plaintiff remained in com- pany 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 distm'b the finding on that issue.* Mich. 49S; Ahem v. Collins, 39 Mo. 145; Strout v. Gooeh, 8 Greenl. 126; Mowry V. Chase. 100 iSIass. 79; Emcrv v. Chesley, IS X. H. 19S; Browning v. Ritten- house, 40 X. J. Law, 230; Hebrew i: Puhs, 73 N. J. Law, 621; Gold i: Bissell, 1 Wend. 210; Van Voorhees i'. Leonard, 1 Thomp. & C. 14S; Searls v. ^'iets, 2 Thomp. & C. 224; Limbeck v. Gerry, 15 Misc. 663; Martin v. Houok, 141 N. C. 317; Huntington v. Shultz, Harp. 4.52; Mead v. Young, 2 Dev. & Batt. 521; Haskins v. Young, 2 Dev. & Batt. 527; Jones v. Jones, 13 Ired. 44S; McCracken v. Anslc_v, 4 Strob. 1; Gunderson v. Struebing, 125 Wis. 173 Accord. Submission to wTongful detention by conductor of a train in consequence of his representation of authority to detain plaintiff was held an imprisonment in 'U'hit- man 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 X. 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. ' A portion of the case, relating to damages, is omitted. 2 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. 24 BIKD V. JONES [CHAP. I. BIRD V. JONES In the Queen's Bench, Tbinitt 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), Piatt, Humfrey, and Hance showed cause, and Sir F. Thesiger, Sohcitor-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 argiunent dehvered judgment seriatim. CoLEBiDGE, J. In this case, in which we have unfortunately been unable to agree in our judgment, I am now to pronoimce the opinion which I have formed; and I shall be able to do so very briefly, be- cause, having had the opportunity of reading a judgment prepared by my Brother Patteson, and entirely agreeing with it, I may content myself with referriag to the statement he has made in detail of those preliminary points in which we all, I beheve, 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 pubhc highway was inclosed, and appropriated for spec- tators 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 poUce- men were then stationed by the defendant to prevent, and they did prevent, him from passing onwards in the direction in which he de- clared his wish to go; but he was allowed to remaia unmolested where he was, and was at hberty 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 pubhc highway and desirous of passing along it in a particular direction, is prevented from doing so by the orders of SECT. II.] BIRD V. JONES 25 the defendant, and that the defendant's agents for the purpose are poUcemen, from whom, indeed, no unnecessary violence was to be anticipated, or such as they believed unlawful, yet who might be ex- pected 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 direc- tion, 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 con- ception only; it may itself be movable or fixed; but a boundary it must have, and that boundary the party imprisoned must be pre- vented 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 wUl or power exterior to our own. In Com. Dig. Imprisonment (G), it is said: " Every restraint of the Kberty of a free man will be an imprisonment." For this the author- ities 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,* in prisona, and says: " Every restraint of the liberty of a freeman is an imprisonment, although he be not within the walls of any com- mon 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, ' Stat. 13 Ed. I. c. 48. 26 BIRD V. JONES [CHAP. I. 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 Uberty 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 imwilling to put any extreme case hypothetically; but I wish to meet one suggestion, which has-been put as avoiding one of the diflaculties 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 amoimt 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 pre- vent 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 con- fined to it. Knowing that my lord has entertained strongly an opinion directly contrary to this, I am imder serious apprehension that I overlook some difiiculty 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.' 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 fheir 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 beheve, it is a wrong one, it may be in some measure accounted for by the circumstances attending the case. A company unlawfully ob- structed a pubhc way for their own profit, extorting money from pas- sengers, and hiring pohcemen 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 puUed by the collar out of the one line and into the other. ' The concurring opinions of Williams and Patteson, JJ., are omitted. SECT. II.] BIRD V. JONES 27 There is some difficulty, perhaps, in defining imprisonment in the abstract without reference to its illegahty; 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 BuUer's Nisi Prius, p. 22, it is said: " Every restraint of a man's hberty imder 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 re- ceived a very large construction, and that there need not.be any touch- ing of the person: a lockiug up would constitute an imprisonment, without touching. From the language of Thorpe, C. J., which Mr. Selfl-yn cites from the Book of Assizes, it appears that, even in very early times, restraint of hberty by force was understood to be the reasonable definition of imprisonment. I had no idea that any person in these times supposed any particu- lar 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 direc- tion. 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 hberty to do something else does not appear to me to affect the question of im- prisonment. 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 son.c- thing 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 im- prisoned, 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 rry necessary affairs should suffer by delay ? It appears to me that this is a total deprivation of hberty 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 hbel 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, 28 BIRD V. JONES [CHAP. I. 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 illegaUty; and the plaintiff did right to resist it as an outrageous violation of the Uberty of the subject from the very first. Rule absolute} ' 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; n-j^ax, „ M,,„^„.,j.,v^ T ^ N. S. W Sup. Ct. R. (Las X'^fi^ (.mnhle) Acrnrd. ^ee Hawk v. Ridgway, 33 I11.~4V3; CUUen')). Dickenson, 33 S. D. 27. To order one to leave a boat which was moored to a wharf and, upon his re- fusal, 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 Exhibi- tion Co., 144 App, Div. 337, lAPTER II liEGLIGENT INTERFERENCE Section I { Negligence as a Grounb of Liability ) WEAVEE V. WARD ^ In the King's Bench, Easter Teem, 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 com m andment of the lords of the council, a trained soldier in Lon- don, 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 mode. 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 hke; because felony must be done animo felonico; yet, in trespass, which tends only to give dam- ages 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 I Gates V. MUes, 3 Conn. 64, 70; Mclntyre i^Sholty, 1 21 lU. 660; Amiek v. O'Hara, 6 Blackf . 258, 259; Cross v. Kent, 32 Ma?" 58 r; ■■ ga J'i).-TJofod6fski, 87 Miss. 727; BuUook 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 la. 333, 343; Chesapeake R. Co. v. Francisco, 149 Ky. 307; Morain v. Devlin, 132 Mass. 87 (nuisance) ; Gibson v. Pollock, 179 Mo. App. 188; JeweU 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 kUled by the " careless, wanton, or maUcious " use of firearms. Young V. Young, 141 Ky. 76. In Mclntyre v. Sholty, supra, Magruder, J., said, p. 664: " It is well settled that, though a limatic is not punishable criminally, he is Uable in a civil action for any tort he may commit. However justly this doctrine may have been originally 30 BEOWN V. KENDALL [CHAP. II. Bhall be excused of a trespass (for this is the nature of an excuse, and not of a justification, prout ei bene licuif), 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 plaiutiff ran across his piece when it was discharging, or had set ^r^ the case with the cir- cumstances so as it had appeared to the comrthat it had been inevi- table, and that the defendant had conunitted no negUgence to give occasion to the hurt.^ BROWN V. KENDALL Supreme Judicial Court, Massachusetts, October Term, 1850. Reported in 6 Citshing, 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 ia. It appeared in evidence, on the trial, which was before Wells, C. J., in the Court of Common Pleas, that two dogs, belongiag to the plain- subject to criticism on the grounds of reason and principle, it is now too firmly sup- ported by the weight of authority to be disturbed. It is the outcome of the princi- ple, 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 de- fence, 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 acci- dental." Burdick, Torts (2d ed.), 60. See also Ames, Law and Morals, 22 Harv. L. Rev. 97, 99-100; Homblower, Insanity and the Law of Negligence, 5 Col. L. Rev. 278. " 827. A person who causes damage to another while in a condition of uncon- sciousness 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. 1 Underwood v. Hewson, 1 Stra. 596; Welch v. Durand, 36 Conn. 182; Atchi- son V. Dullam, 16 lU. App. 42; Hodges v. Weltberger, 6 Monr. (Ky.) 337; Louis- ville 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 prop- erty); Wright V. Clark, 50 Vt. 130. Compare Osborne v. Van Dyke, 113 la. 557. SECT. I.] BROWN V. KENDALL 31 tiff aad 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 defend- ant 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 m 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 part}' 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 defend- ant 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 de- fendant, 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; ff 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 ap- plies, whether the interference of the defendant in the fight of the dogs was necessary or not. If the jury beheve, 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 imnecessary, then the burden of proving extraordinary 32 BROWN V. KENDALL [CHAP. II. 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 plain- tiff; 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 execu- trix has been summoned in. The rule of the common law, by which this action woiold 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 as- sumption, 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 imder what qualifications, the party by whose imconscious 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 imme- diate cause of hurt to another, is a voluntary act, although its partic- ular 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 sub- ject 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 distin- guishable from the question, whether in a given case, any action will he. 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 Ues; if consequential only, and not immediate, case is the proper remedy. Leamez;. Bray, 3 East, 593; Huggett y. 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 he. 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 maintaia an action of trespass, whether the act was lawful or imlaw- ful, 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 neghgent, if not unlawful. In the course of the argument of that case (p. 595), Lawrence, J., said: " There certainly are cases in SECT. 1.] BROWN V. KENDALL 33 the books, where, the injury being direct and immediate, trespass has been holden to He, though the injury was not intentional." The term " injury " imphes 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 supposi- tion. So the same learned judge in the same case says (p. 597), " No doubt trespass hes against one who drives a carriage against another, whether done wilfully or not." But he immediately adds, " Suppose one who is dri\dng 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 tres- pass; " showing what he imderstood 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 injiu'y was unavoidable, and the con- duct 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 ordin- ary 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 defend- ant 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 pru- dent 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, j 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 circum- : spection and care, than if he were to do the same thing in an inhabited i 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 dis- tinction between acts which it was lawful and proper to do, and acts of legal duty. There are cases, imdoubtedly, in which officers are 34 BROWN V. KENDALL [CHAP. II. bound to act xmder process, for the legality of which they are not re- sponsible, 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, usiag due care and all proper precautions neces- sary 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 imavoidable, and therefore the action would not he. Of if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with neghgence, 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 be- lieved, 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 imintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not Hable, 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 estabUsh 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 dili- gence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use imder hke 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 SECT. I.J STANLEY V. POWELL 35 the defendant; the question of due care, or want of care, may be essen- tially 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, negU- gence, carelessness, or want of prudence, the plaintiff fails to sustain the bm-den of proof, and is not entitled to recover. New trial ordered ^ STANLEY v. POWELL In the Queen's Bench Division, No^':EMBER 3, 1890. Reported in [1S91] 1 Queen's Bench, 86. Denm.\n, J. This case was tried before me and a special jury at the last ^Maidstone Summer Assizes.^ In the statement of claim the plaintiff alleged that the defendant had negligently and wrongfidly 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 neghgence 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 neghgence 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 sapKngs 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 walldng 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 con- flict of evidence as to details; but the jury must, I think, be taken to ' Nitro-Glycerine Case, 15 WaU. 524, 538 (semhle) ; Morris v. Piatt, 32 Conn. 75, 84^90 (defendant in defending himself lawfully against A. iired a pistol at A., but accidentally hit the plaintiff); Paxton v. Beyer, 67 111. 132 (facts similar to those in Morris v. Piatt, supra); Crabtree v. Dawson, 119 Ky. 148 Accord. ' Only the opinion of the court is given. 36 STANLEY V. POWELL [CHAP. II. 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 con- siderable extent from the direction in which the guir 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 dif- ferent; but I think it must be held that the jilry 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 hberty to the court to draw inferences of fact, and that the damages should be assessed contingently. The jmy 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 amend- ment 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 conten- tion; 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 gim fired at a bird by B., an action of trespass will necessarily lie, even though B. is proved to have fired the gun without negUgence and without intending to injure the plaintiff or to shoot in his direction. The jury having found that there was no neghgence on the part of the defendant, the most favorable way in which it is now possible to put the case for the plamtiff is to consider the action as brought for_a trespass, and to consider that the defendant has put upon the record SECT. I.] STANLEY V. POWELL 37 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 neghgence estabhshed by the jury, amount to an excuse in law. The earhest 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 pres- ently, 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 rehed on are, " Mes ou on tire a les huts et blesse un home, coment que est incontre sa volonte, il sera dit un trespasser 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 fade a trespass may be excused. The next case in order of date rehed 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 imintentional injury by acts which are prima fade 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 aU, only decided that where the plain- tiff and defendant were skirmishing as soldiers of the train-band, and the one, " casualiter, et per infortunium, et contra voluntatem suxim " (which must be translated " accidentally and involuntarily ") shot the other, an action of trespass would He, unless he could show that such involuntary and accidental shooting was done imder such cir- cumstances as utterly to negative neghgence. Such cases may easily be supposed, in which there could be no two opinions about the mat- ter; 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 deddendi of that case, 38 STANLEY V. POWELL [CHAP. II. < 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 reUed upon as an authority by way of dictum in favor of the plaintiff, and the latter may be fairly rehed 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 involun- tary 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 dis- charging a gun is voluntary, but the result injurious without negh- gence, an action of trespass can nevertheless be supported as against a plea pleaded and proved, and which the jury find estabhshed, to the effect that there was no neghgence on the part of the defendant. The case of Underwood v. Hewson, 1 Str. 596, decided in 1724, was rehed 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 hes 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 deahng 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 coxiit that it was inevitable, and that he committed no neghgence 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 imcock his gim 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 distmction is drawn between an act SECT. I.] STANLEY V. POWELL 39 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 neghgently 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 couasel was Leame v. Bray, 3 East, 593. That was an action of tres- pass in which the plaintiff complained that the defendant with force and arms drove and struck a chaise which he was driving on the high- way 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 hfe, was in- jured. 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 e^ddence upon which the jury might have found negUgence, 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 den3dng any negUgence, and the jury had foimd that the defendant was not guilty of any neghgence, 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 intel- ligible enough: if the act that does an injury is an act of direct force 40 STANLEY V. POWELL [CHAP. 11. 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 rea- sons, 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 com- plained of lawful " (by which I understand justifiable even if pur- posely 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 complaiued of was accidental " (by which I understand, " that the injury was un- intentional "), " but Kkewise 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 pre- tence for saying that it was intentional so far as any injury to the plaintiff was concerned, — and the jury negatived such neghgence. It was argued that nevertheless, inasmuch as the plaintiff was injured by a shot from the defendant's gun, that was an injiuy 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 neghgence. In other words, I am of opinion that if the case is regarded as an action on the case for an injury by neghgence 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 denjdng neghgence and estabhshing 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, imless the defendant foregoes his right. Judgment for the defendant.^ 1 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. Bartoh, 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 tres- pass qiuire clausum fregit, irrespective of negligence. Central Co. v. Vandeiieuk, SECT. I.J SULLIVAN V. OLD COLONY STREET RAILWAY 41 SULLIVAN t'. 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 neghgence, " 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 deraihnent, 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 r ulin g- — "1. Upon aU 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.' Sheldon, J. No question was made at the trial but that the de- fendant was Kable 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 neghgence, then he would not be entitled to recover. Although there has been neghgence 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 Neghgence (2d ed.), sect. 3. In cases of neghgence, 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.^ Accordingly, 147 Ala. 546; Bessemer Co. v. Doak, 152 Ala. 166; Sloss Co. v. Salser, 158 Ala. 511; Birmingham Co. ;;. 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 appUed to trespass to the person by blasting. Sullivan v. Dunham, 161 N. Y. 290; Turner v. Degnon Co., 99 App. Div. 135. 1 Only so much of the report is given as relates to the first count. 2 See The Mediana, [1900] A. C. 113, 116-118; Columbus Co. v. Clowes, [1903] 1 K. B. 244. 42 HAKT V. ALLEN [CHAP. II. the first and second of the plaintiff's requests for ruUngs could not have been given, and the rulings made were all that the plaintiff was entitled to. Exceptions overruled} HART V. ALLEN Supreme Cotikt, Pennsylvania, October Term, 1833. Reported in 2 Waits, 114. Action on the case against owners of a vessel.^ Plaintiff put in evidence a bill of lading of chests of tea shipped on board defendant's vessel; " to be dehvered in good order, unavoidable accidents and the dangers of the river excepted. ..." Plaintiff also proved that the teas were dehvered 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 weU 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 acci- dent 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 re- sponsibihty 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 insuffi- cient; 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 abihty, and that " failing in these particulars, though. the loss be occasioned by 1 Bnmsden v. Humphrey, 14 Q. B. D. 141, 150 (semhle); Vogrin v. American Steel Co., 179 lU. 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 !;. 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. ' Statement condensed. Only part of opinion is given. SECT. I.] HAET V. ALLEN 43 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 event- ually 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 hy 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 suffi- cient, or if she were not under the control of a master or pilot suf- ficiently 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 BeU 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 dis- aster, which is admitted to have been produced, in this instance, by causes imconnected 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 con- tract ? A carrier is answerable for the consequences of negligence, not the abstract existence of it. Where the goods have arrived safe, no action Hes 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 reqiiire much to reconcile to any principle of poHcy or justice, a measure of responsibihty 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 negHgence, but, like that imputed to the carrier in the case before us, such as could have had no imaginable effect on the event. A car- rier is an insurer against all losses without regard to degrees of negli- gence 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 ? Un- doubtedly to subserve the purposes, not of justice in the particular instance, but of policy and convenience: of pohcy, by removing from him aU temptation to confederate with robbers or thieves — and of convenience, by relieving the owner of the goods from the necessity of proving actual negHgence, which, the fact being pecuUarly 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, 44 HAET V. ALLEN CCHAP. 11. or to speak more properly, narrow the exception far beyond the ex- igencies of policy or convenience, did we hold him an insiu-er against even the acts of providence, as a punishment for an abstract delin- quency, where there was no room for the existence of a confederacy, or the operation of actual neghgence; and to carry a responsibihty, founded in no principle of natiiral 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 saUs, would undoubtedly be attended with different consequences; for as it would be impossible to ascertain the exact effect of the delin- quency 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 ele- ments, is chargeable with all the mischief that may ensue : as in Tiu-- berville v. Stamp, Skin. 681, where it was adjudged, that the negligent keeping of fire in a close would subject the party to all the conse- quences, 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 con- stituent part of seaworthiness, and the omission of them an undoubted neghgence. The first question, therefore, will be, whether the captain and crew of the boat had the degree of abihty 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 dis- aster : 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} 1 Carlisle Banking Co. v. Bragg, [1911] 1 K. B. 489; Jackson v. Metropolitan R. Co., 2 C. P. D. 125; Steel Car Co. v. Cheo, 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. u. Lindsay, 109 111. App. 533; City v. Martin, 74 Ind. 449; Hart v. Brick Co., 154 la. 741; Coins v. North Coal Co., 140 Ky. 323; County V. Collison, 122 Md. 91; lutein v. Hurley, 98 Mass. 211; McNally v. ColweU, 91 Mich. 527; Harlan v. St. Loui.s R. Co., 65 Mo. 22; Wallace v. Chicago R. Co., 48 Mont. 427; Brotherton t'. 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. SECT. II.] SPADE V. LYNN & BOSTON E. CO. 45 Section II Interests Secured SPADE V. LYNN & BOSTON R. CO. Supreme Judicial Court, Massachusetts, May 19, 1897. Reported in 168 Massachusetts Report':, 285. Tort, for personal injuries occasioned to the plaintiff by the alleged neghgence of the defendant. The declaration contained three counts. The third count ^ alleged that while the plaintiff was a passenger in the defendant's car, and in the exercise of due care, " one of the de- fendant'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, neghgence, and with the use of such unnecessary force, that said agent and servant, acting thus negUgently, 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 occa- sioned 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 ' 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. 46 SPADE V. LYNN & BOSTON K. CO. [CHAP. II. 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 comjnunicates 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 pur- pose 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 plaiatiLf. Allen, J. This case presents a question which has not heretofore been determined in this Commonwealth, and ia respect to which the decisions elsewhere have not been imiform. It is this: whether in an action to recover damages for an injury sustained through the negli- gence 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 occa- sioned by the negligence of another, which does not result in bodily injury,"^ 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 aU the pain, mental or otherwise, which may arise out of that bodily injury. 1 Western Co. v. Wood, 57 Fed. 471 ; Kyle v. Chicago R. Co., 182 Fed. 613; Mc- Cray 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 lU. App. 46; Kalen v. Terre Haut« Co., 18 Ind. App. 202; Zabron v. Cunard Co., 151 la. 345; Kentucky Traction Cc. v. Bain, 161 Ky. 44; Wynaan v. Leavitt, 71 Me. 227; Wilson v. St. Louis R. Co., 160 Mo. App. 649; Arthur v. Henry, 157 N. C. 438; Samarra v. AUegheny 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. SECT. II.] SPADE V. LYNN & BOSTON R. CO. 47 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 plamtifE in consequence of a defective bridge, that he could not re- cover if he sustained no injury to his person, but merely incurred risk and perU 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 groimd, 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 Habihty or non-habihty of a defendant guilty of negligence in a case hke the present depends. The exemption from UabiUty 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 s^offering, and to a greater or less extent disqualify one for the time being from doing the duties of Kfe. 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 caimot 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 prob- ably 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 ap- plication. But as the law is a practical science, having to do with the affairs of Hfe, any rule is unwise if in its general appUcation 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 48 SPADE V. LYNN & BOSTON R. CO. [CHAP. II. in niles 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 iajured person to receive, to afford just compensation for his icLJiuy, 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 uniatended 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 pas- sengers and the runniag 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 hable to be affected thereby are not pecuharly sensitive, and are of ordinary physical and mental strength. If, for example, a traveller is sick or infirm, dehcate iu health, specially nervous or emotional, liable to be upset by sKght causes, and there- fore requiring precautions which are not usual or practicable for travellers ia general, notice should be given, so that, if reasonably practicable, arrangements may be made accordingly, and extra care be observed.' 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 Ka- biUty for injury of another description is intimated in AUsop v. AUsop, 5 H. & N. 534, 538, 539. One may be held boimd to anticipate and guard against the probable consequences to ordinary people, but to carry the rule of damages further imposes an undue measure of respon- sibihty 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 apphcation, and has often been expressed and apphed. Lombard v. Lennox, 155 Mass. 70; White V. Dresser, 135 Mass. 150; Fillebrown v. Hoar, 124 Mass. 580; Derry v. Fhtner, 118 Mass. 131; Milwaukee & St. Paul Railway v. Kellogg, 94 U. S. 469, 475; Wyman v. Leavitt, 71 Maine, 227; EUis V. Cleveland, 55 Vt. 358; Phillips v. Dickerson, 85 lU. 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 HiU, 9 P. D. 105; Hobbs V. London & Southwestern Railway, L. R. 10 Q. B. Ill, 122. The law of negligence in its special apphcation to cases of accidents has received great development in recent years. The number of * " 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. SECT. II.] SPADE V. LYNN & BOSTON R. CO. 49 actions brought is very great. This should lead courts well to con- sider 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. Pitts- burg, 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 Rail- way, 48 Minn. 134; Fitzpatrick v. Great Western Railway, 12 U. C. Q. B. 645. See also Beven, NegHgence, 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 ex- ample, in cases of seduction, slander, maUcious prosecution or arrest, and some others. Xor do we include cases of acts done with gross carelessness or recklessness, showing utter indifference to such conse- quences, 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 ei^ry therefore must be j^^ ^^ j^^xcepfo'ons sustained} 1 Victorian Commissioners v. Coultas, /§~S^. Cas.^22; Haile v. Tex. Co., 60 Fed. 557; St. Louis Co. v. Bragg, 6'0'Ark;. 402; Braun v. Craven, 175 111. 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; Snaith v. Postal Co., 174 Mass. 576; Romans 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; RawKngs 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 jj.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. 50 DULIETJ V. WHITE AND SONS [CHAP. II. 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.^ 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 hus- band's said public-house, she being then pregnant, when the defend- ants by their servant so negligently drove a pair-horse van as to drive it into the said public-house. 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., 155 111. App. 601; Pittsburgh Co. v. Sponier, 85 Ind. 165; McChntic 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; DriscoU V. Gaffey, 207 Mass. 102; Conley v. United Drug Co., 218 Mass. 238; Smith V. St. Paul Co., 30 Minn. 169; HoDingshed 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. o. 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'Fla- herty 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 ;;. Pittsburgh Co., 147 Pa. St. 40 (semble); Linn v. Du- quesne 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, 62 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. KUne v. Kline, 158 Ind. 602; Williams v. Underbill, 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. 51Q. 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 t). 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 shook comes through the battery or along with it. Even were it otherwise, recognizing as we must the logic in favor of the plain- tiff when a remedy is denied because the only immediate wrong was a shock to the nerves, we think that when the reaUty of the cause is guaranteed by proof of a sub- stantial 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. lAability for frightening an Animal to Death. The doctrine of the principal case was carried so far in Lee v. Burlington, 113 la., 356, that no recovery was allowed for the death of a horse from fright caused by the careless conduct of the defend- ant. But the opposite view prevailed in LomsviUe R. Co. v. Melton, 158 Ala. 509, aad Conkhn v. Thompson, 29 Barb. 218. ^ Portions of the statement of facts have been omitted. SECT. II.] DXJLIEU V. WHITE AND SONS 51 "3. The defendants were also negligent in entrusting the driving of the said horses and van to their said servant, who had no knowl- edge 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 I 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 negUgence will he where there is no immediate physical injury resulting to the plaintiff. This is an action on the case for neghgence — that is to say, for \ a breach on the part of the defendant's servant of the duty to use 1 reasonable and proper care and skiU in the management of the de- fendant's van. In order to succeed, the plaintiff has to prove resulting I damage to herself and " a natural and continuous sequence uninter- i ruptedly connecting the breach of duty with the damage as cause and effect." Shearman and Redfield, NegUgence, cited in Beven, Negh-' gence 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, Hke 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 52 DTJLIETJ V. WHITE AND SONS [CHAP. 11. of ' Voleuti 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 obhgations if the man in either case is made ill in body by such neghgent 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 neghgent 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 child- birth, 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 inter- changeable epithets on the authority of the judgment of the Privy Council in Victorian Railways Conamissioners 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, Neghgence in Law, 2d ed. p. 77. ■ Now, these being the assmned 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 itseK 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, blind- ness, 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 neghgence. 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 neghgence has caused me neither injury to property nor physical mischief, but only an unpleasant emotion of more or less transient duration, an essential SECT. II.] DULIEU V. WHITE AND SONS 53 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 unHkely 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 im- pact 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 neghgence 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 he just as well as it hes where there has been an actual impact ? It is not, however, to be taken that in my view every nervous shock occa- sioned by neghgence and producing physical injury to the sufferer gives a cause of action. There is, I am inchned 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 neghgence towards C, or towards the property of B. or C. The limitation was applied by Wright and Bruce, JJ., in the imreported case of Smith v. Johnson & Co., referred to by Wright, J., at the close of his judgment in Wilkinson v. Down- \ ton, [1897] 2 Q. B. 57, at p. 61. In Smith v. Johnson & Co. (unre- j ported), a man was kUled by the defendant's neghgence in the sight / of the plaintiff, and the plaintiff became iU, not from the shock pro- ( duced 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 con- j sequence of the neghgence.' I should myself, as I have aheady indi- i ' See to the same effect Phillips v. Dickerson, 85 III. 11; Cleveland Co. v. Stewart, 24 Ind. App. 374; Gaskins v. Runkle, 25 Ind. App. 584; Mahoney v. Dankwart, 108 la. 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 North- em 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. 683 (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. 54 DULIEU V. WHITE AND SONS [CHAP. II. cated, have been inclined to go a step further, and to hold upon the facts in Smith v. Johnson & Co. that, as the defendant neither in- tended 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 circimastances which Willes, J., in Vaughan v. Taff Vale Ry. Co., (1860) 5 H. &. N. 679, at p. 688, gave as a definition of negUgence. 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 pro- duced, 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 deter- mine 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 follow- ing sentence : " Damages arising from mere sudden terror unaccom- panied 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 neghgence of the gate-keeper." Why is the accompaniment of physical injury essential ? For my own part, I should not like to assimie 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 physiQ9,l 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 contem- poraneously ? " As well might it be said " (I am quoting from the judgment of Palles, C. B., 26 L. R. Jr. at p. 439) " that a death caused SECT. II.] DULIEXJ V. WHITE AND SONS 55 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 inabihty 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 daniages in actions of neghgence, 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 sequelae. [As to Mitchell v. Rochester Ry. Co., 151 N. Y. 107, cited by defend- ant.] 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 imusually weak heart. [After commenting on the opinion in Spade v. Lynn & Boston R. R., 168 Mass. 285.] Natiu-ally 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 imphes 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 56 DULIETJ V. WHITE AND SONS [CHAP. II. weighing the Uke evidence as to the effects of nervous shock through a railway colhsion or a carriage accident, where, as often happens, no palpable injury, or very sUght 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 in- dicated, 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 apphcabihty 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 dehcate, or pecuHarly ner- vous or hable 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 coextensive with the other in the rights which it gives and the corresponding habilities 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 rhind. 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 hable for these injiu-ies, 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 Commis- SECT. II.] DULIEXJ V. WHITE AND SONS 57 sioners 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 con- sequences thereby befell her. If these averments be proved, I think that there was a breach of duty to her for which she can have dam- ages. 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 Knk 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.^ 1 Pullman Co. v. Lutz, 154 Ala. 517; Speannan v. McCrary, 4 Ala. App. 473; Sloane v. So. Co., Ill Cal. 668; Watson v. Dilts, 116 la. 249; Cowan v. Tel. Co., 122 la. 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. Mur- dock, 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 NegUgence without Impact, 41 Am. L. Reg. & Rev. 141. Mental Anguish caused hy Negligence in Transmission of Telegrams. In a few states the addressee is allowed to recover damages for mental anguish resulting from the neghgent failure of a telegraph company to make seasonable delivery of a message. Mentzer v. Western Co., 93 la. 752; Cowan v. Western Co., 122 la, 379; Hurlburt v. Western Co., 123 la. 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; Raiboad v. Griffin, 92 Tenn. 694; 58 WILKINSON V. DOWNTON [CHAP. II. WILKINSON V. DOWNTON Queen's Bench Division, May 8, 1897. Law Reports, [1897] 2 Queen's Bench, 57. Weight, J.' In this case the defendant, in the execution of what he seems to have regarded as a practical joke, represented to the plain- tiff 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 sytem, 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 weU as ex- pense to her husband for medical attendance. These consequences were not in any way the result of previous iU-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 Is. 10}4.d- for the cost of railway fares of persons sent by the plaintiff to Leytonstone in obedience to the pretended message. As to this Is. lOJ^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 lOOZ., the greatest part of which is given as compensation for the female plaintiff's illness and suffering. 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; StanseU 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. z/. Saunders, 32 Fla. 434; Chapman v. Western Co., 88 Ga. 763; Giddens v. Western Co., Ill Ga. 824; Western Co. v. Haltom, 71 111. App. 63; Western Co. v. Ferguson, 157 Ind. 64 (ovemiUng 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; New- man 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 ;;. 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. 670; Davis v. Western Co., 46 W. Va. 48; Summerfield v. Western Co., 87 Wis. 1: Koerber v. Patek, 123 Wis. 453, 464 (semble). • Only the judgment of the court is printed. SECT. II.] WILKINSON V. DOWNTON 59 It was argued for her that she is entitled to recover this as being dam- age 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 m law mahcious, although no mahcious piirpose 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 prop- osition 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 circmnstances 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 ques- tion, 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 sup- posed to have laid down that illness through mental shock is a too remote or imnatural 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 Coimcil 60 WILKINSON V. DOWNTON [CHAP. II. that illness which was the effect of shock caused by fright was too remote a consequence of a neghgent 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 inconsist- ent 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 in). 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 Com- missioners 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, BramweU, and Wilde, BB., that illness caused by a slanderous imputation of imchastity in the case of a married woman did not con- stitute 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 innmnerable 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 apphcable to the present case. Nor could such a rule be adopted as of general appUcation 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 hve. 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 EngUsh 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 groimd, namely, that the damage which immediately resulted from the act of the pas- senger 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, SECT. II. 3 YATES V. SOUTH KIRKBY COLLIERIES 61 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 conse- quence of the negligence. But that was a very different case from the present. There must be judgment for the plaintiff for lOOZ. Is. 103^. Judgment for plaintiff} 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 Ponte- fract 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 " ac- cident " which entitled him to compensation imder the Workmen's Compensation Act, 1906. The facts as found by the county court judge were as follows: — In October, 1909, the appKcant, — a coU ier. forty-six years of age, wha had_beeii engag yd in coaJ mining all his life, and for twenty- seven years had been working at the face of the coal in the pit belong- ing to the respondents, — while working as jisi ja.lj hpa i ^YJ^ a^sViriiij, for help froTP t hfineyj|_wn rkirig p jg.ne. He ranaround his loose end at once and foun3"a7ellow 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 apphcant 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 imder-manager on the Monday following, but on neither occasion was he able to do work, 1 Hall V. Jackson, 24 Col. App. 225; Dunn v. Western Co., 2 Ga. App. 845; Goddard v. Waiters, 14 Ga. App. 722 (semble); Watson v. Dilts, 116 la. 249, 124 la. 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 isembU); 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); SheUa- barger v. Morris, 115 Mo. App. 566; Wilson v. St. Louis R. Co., 160 Mo. App. 649; HiU 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 Ste- vens V. Steadman,'140 Ga. 680; Degenhardt v. Heller, 93 Wis. 662. 62 YATES V. SOUTH KIRKBY COLLIERIES CCHAP. II. and after describing to the under-manager and the Government in- spector on the Monday the details of what happened on the Satiu-day 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 as- sistance 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 coimty coiut judge accord- ingly awarded the apphcant compensation at 19s. a week to the date of the award, and 10s. a week till further order. The respondents appealed.^ Fabwell, 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 fel- low 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 apphcant sus- tained in October last. In my opinion nervous shock due to accident which causes personal incapacity to work is as much " personal in- jury by accident " as a broken leg, for the reasons already expressed by this court in the case of Eaves v. Blaenclydach ColUery 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 acci- dent 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 debris and breaks his leg.^ The difficulty is to prove the facts so as to avoid the risk of maUngering, 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 coimty court judge must be affirmed. 1 The opinion of Cozens-Hardy, M.R., sustaining the award is omitted. 2 " On principle, the distinction between cases of physical impact or lesion being necessary as a ground of UabiUty 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 Umb, on what principle can it be denied if the same occurrence has caused unhing- SECT. III. J VAUGHAN V. MENLOVE 63 Kennedy, L. J. I am of the same opinion. It is beyond question that the incapacity of the appUcant 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 treat- ment 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 withic 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 hable and likely to ignite, and thereby was dangerous to the plaintiff's cottages; that the defendant, well knowing the premises, wrongfully and neghgently 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. ing 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 modem physiology or pathology with instant challenge." Lord Shaw in Coyle v. Watson, [1915] A. C. 1, 14. 64 VATJGHAN V. MENLOVE [CHAP. II. 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 chim- ney 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 commimicated 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 occa- sioned by gross negUgence on the part of the defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man would have exercised imder such circmnstances. A verdict having been found for the plaintiff, a rule nisi for a new trial was obtained, on the groimd that the jury should have been di- rected to consider, not whether the defendant had been guilty of a gross neghgence with reference to the standard of ordinary prudence, a standard too imcertain to afford any criterion, but whether he had acted bond 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.* Talfourd, Serjt., and Whately, showed cause. The pleas having expressly raised issues on the neghgence 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 negUgently and im- properly 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 estabhshed, that a man must so use his own property as not to injm-e 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 neghgence, 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. ' Statement abridged. SECT. III. J VATJGHAN V. MENLOVE 65 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 imphed 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 bond fide to the best •f his judgment; if he has done that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross neghgence. At all events what would have been gross neghgence ought to be esti- mated 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 neghgence with refer- ence to the standard of what is called ordinary prudence. In Crook v. Jadis, 5 B. & Adol. 910, Patteson, J., says, " I never could imderstand 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." . . . Testdal, C. J. I agree that this is a case primoe 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 hke, where the bailee is responsible in consequence of the remuneration he is to receive: but_thereJs_a rule of law which says you must so enjoy your own property as not to^Jm-e that ofanottier'p'and'accDrdijig-tortliat rule the"defendantis habTe fui' thti (JUlli>uqucuLe of his own neglect : and though the defend- ant did not himself hght 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 bums weeds so near the boundary of his own land that damage ensues to the property of his neighbor, he is hable to an action for the amount of injury done, unless the accident were occasioned by a sudden blast which he could not foresee. Tur- berville v. Stamp, 1 Salk. 13. But put the case of a chemist making experiments with ingredients, singly innocent, but when combined hable 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 he ? It is contended, however, that the learned judge was wrong in leav- ing this to the jury as a case of gross neghgence, and that the question of neghgence 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 ough to have been whether the defendant had acted honestly and bond fidi 66 VAUGHAN V. MENLOVE [CHAP. II. tothebestof his own judgment. That ^however, would leave so vapue - a line as tn a.fFnrd ri n^ rule at all, the degree of judgment bel onging to each individual heingi nfinitely various: and thoug hit has Seenurged that the^cjare-wKTch a paident man would takeTisnol d,n itSein^ble 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 lend- ing gratis, the borrower is boimd 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 wiU 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 opportimity 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 difiB- culty of applying it, a jvuy has always been able to say, whether, taking that rule as their guide, there has been negUgence on the occasion in question. Instead, therefore, of saying that the Hability for neghgence should be coextensive 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.^ That was in sub- stance the criterion presented to the jvuy in this case, and therefore the present rule must be discharged. [Concm-ring opinions were delivered by Paek, and Vatjghan, J J. Gaselee, J. concm-red in the result.] Rule discharged. ' 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 ni. 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. Fitehbm-g 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. 649; Nashville R. Co. i>. 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 neghgent 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 circum- stances, and the employer is Uable if he fail to do this and injxuy results to an employ^." Bessemer Land Co. v. Campbell, 121 Ala. 50, 60. Also it is erroneous to charge the jury that failtire to exercise the care of " an ordinary man imder like circumstances " or of " a person under similar circum- SECT. III.] BLYTH V. BIRMINGHAM WATERWORKS CO. 67 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 eight- een inches beneath the surface of the soil. By the 89th section, the mains were at aU times to be kept charged with water. The defend- ants 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 imder 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 pro- jected 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 haying 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. stances " 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. 68 BLYTH V. BIRMINGHAM WATERWORKS CO. [CHAP. II. On the 24th of February, a large quantity of water, escaping from the neck of the main, forced its way through the groimd into the plain- tiff'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 brick- work 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 in- crusted 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 con- tinued until after the accident in question. An incrustation of ice and snow had gathered about the stopper, and in the street aU 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 jmy 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 suffi- cient 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 easUy 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. East- em 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. [Maktin, 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 insvirers; that they were Kable for aU the con- sequences.' I invited coimsel 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 injmy is done to any one by 1 "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.] SECT, m.] BLYTH V. BIKMINGHAM WATERWOEKS CO. 69 it. An action has been held to he for so neghgently 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. [Alder- son, 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 col- lected 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. Negli- gence 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.* The defendants might have been hable for neghgence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person tak- ing reasonable precautions would not have done. A reasonable man would act with reference to the average circumstances of the tempera- ture 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 neghgence, because their precau- tions proved insuJBScient against the effects of the extreme severity of the frost of 1855, which penetrated to a greater depth than any which ordinarily occiirs south of the polar regions. Such a state of circum- stances constitutes a contingency against which no reasonable man can provide. The result was an accident for which the defendants cannot be held hable. Majrun, B. I think that the direction was not correct, and that there was no evidence for the jury. The defendants are not respon- sible, unless there was neghgence on their part. To hold otherwise would be to make the company responsible as insurers. > 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 0. New York R. Co., 53 Conn. 461; Wolf Mfg. Co. v. Wilson, 152 lU. 9; Cincin- nati R. Co. V. Peters, 80 Ind. 168; Galloway v. Chicago R. Co., 87 la. 458; Schnei- der V. Little, 184 Mich. 316; Lauritsen v. Bridge Co., 87 Minn. 618; McGraw v. Chicago R. Co., 59 Neb. 397; Roberts v. Boston R. Co., 69 N. H. 364; Drake v. Mount, 33 N. J. Law, 441; Chicago R. Co. v. Watson, 36 Okl. 1; Ahem v. Oregon Co., 24 Or. 276; Houston R. Co. v. Alexander, 103 Tex. 694; Washington v. Balti- more R. Co., 17 W. Va. 190 Accord. 70 YEEKES V. NOHTHERN PACIFIC R. CO. CCHAP. II. 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 obhgation to remove the ice and snow which had ac- cumulated, 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} YERKES V. NORTHERN PACIFIC R. CO. Supreme Court, Wisconsin, November 29, 1901. Reported in 112 Wisconsin Reports, 184. Dodge, J. . . . PlaintiEf assigns as error the definition of the due care which plaintiff was bound to exercise to avert the charge of con- tributory negUgence, 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." ^ That this was an incorrect and misleading definition of " ordinary care " has been declared so often by this court as to make further dis- cussion 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 ele- ment.' Ordinary care is the car e ordinarily exercisedj33t-the-^6at 1 Sharp V. Powell, L. R. 7. C. P. 253; Pearson v. Cox, 2 C. P. D. 369; Gregg v. lUinois R. Ck)., 147 lU. 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 h«ve imagined the conse- quences which followed or that injury could resxilt to person or property there- from "); Consumers Brewing Co. v. Doyle, 102 Va. 399; Lippert v. Brewing Co., 141 Wis. 453 Accord. 2 Only that part of the opinion which relates to this instruction is given. ' ' "There is no absolute or intrinsic negUgence; it is alwajrs relative to some cir- cumstances 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. ». Moore, 8 Ga. App. 185; ChicagoR.Co.w.Johnson, 103111. 512; Parks w. Yost, 93 Kan. 334; Sheridan V. Baltimore R. Co., 101 Md. 50; Kelly v. Michigan R. Co., 65 Mich. 186; De Bolt SECT. III. J HILL V. GLENWOOD 71 mass of mankind, or its type, the ordinari l y prudent person, under the ,-same or smular circumstances, and the oinission of the last qualifica- tion, " under the same or similar circumstances," or " under like cir- cumstances," 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 quahfication 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, decHning, 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 con- tributory negligence, and the instruction to them on the subject was therefore misleading and erroneous. HILL V. GLENWOOD Supreme Coukt, Iowa, July 13, 1904. Re-ported in 124 Iowa Reports, 479. Weaver, J.' The plaintiff claims to have been injured upon one of the pubHc 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 neghgent, but a reversal is sought on other grounds. It was shown without dispute that plaintiff had been bhnd 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 negUgence, said : " (3) Negligence is defined to be the want of ordi- nary care; that is, such care as an ordinary prudent person would exercise under like circimistances. There is no precise definition of 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. L?w, 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 per- son uses in the transaction of the ordinary affairs of life." Hennesey v. Chicago R. Co., 99 Wis. 109. 1 Only part of the opinion ig given. 72 HILL V. GLENWOOD [CHAP. II. 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 apphes ahke 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 happerdng of the accident in question by any negUgence on his part; that is, by his own want of ordinary care. The plaintiff, on his part, was under obhgation to use ordinary care to prevent injury when passiag over any sidewalk; and if he faUed 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 con- sidered 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 neghgence and con- tributory neghgence as apphed to the ordinary case of sidewalk acci- dent, 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 pubhc street " must exercise a higher degree of care and caution than a person ordinarily would be expected or re- quii;pd to use had he fuU possession of his sense of sight." We cannot give this proposition oxir assent. It is too well estabHshed 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 exer- cise 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 pubhc 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 deter- mining what is reasonable or ordinary care we must look to the cir- cumstances and surroimdings of each particular case. As said by us in Graham v. Oxford, 105 Iowa, 708: " There is no fixed rule for deter- mining what is ordinary care appUcable 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, SECT. III. J KEITH V. WORCESTER STREET R. CO. 73 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 neghgence of the city, and without contributory neghgence 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 indi- cated, to consider his bhndness, and in view of that condition, and all the surrounding facts and circumstances, find whether he exercised or- dinary care and prudence. If he did, he was not guilty of contributory neghgence. This view of the law seems to be fairly embodied in the instructions to which exception is taken. If the appellant beUeved, as it now argues, that the charge should have been more specific, and dwelt with greater emphasis upon the fact of plaintiff's bhndness as an element for the consideration of the jiuy in finding whether he exercised rea- sonable 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.' 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 plain- tiff's intestate caused by her falling when stepping across street rail- way rails which were piled by the defendant street railway company on the highway next to the ciu-bing, 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.^ 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. 1 Rosenthal v. Chicago R. Co., 255 111. 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. 2 Statement abridged. Part of opinion omitted. 74 KEITH V. WORCESTER STREET R. CO. [CHAP. II. At the trial in the Superior Court, defendants requested the follow- ing 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 ]wry, the presiding judge stated: " The plain- tiff contends and has got to show by a fair preponderance of the evi- dence that Mrs. Keith was injured, and that she was injured while she was using ... a degree of care that a reasonably prudent and care- ful person, acting prudently and carefiilly 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 ex- ternal 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 boimd 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 imder 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 miist 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 neces- sarily 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 SECT. III.] KEITH V. WORCESTEK STREET R. CO. 75 given. 1 We see no reason for modifying the decision in Winn v. Lowell, nor is it inconsistent with subsequent cases. The standard of care estabhshed 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 & North- em Street Railway, 191 Mass. 14; Vecchioni v. New York Central & Hudson River Railroad, 191 Mass. 9; Hawes v. Boston Elevated Railway, 192 Alass. 324; Hamilton v. Boston & Northern Street Rail- way, 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 disabihties, 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 obHged 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 re- quires. It may depend in some shght 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 inJSrmities. This was the coiu'se pur- sued by the Superior Court. Neff v. WeUesley, 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 stand- ard estabhshed by the law for all persons alike, whether they be weak or strong, sound or deficient. Exceptions overruled^ 1 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 re- quired of her greater care in walking upon the streets, and avoiding obstructions, than is required of persons of good sight." 2 Compare Fenneman v. Holden, 75 Md. 1; Karl v. Juniata, 206 Pa. St. 633; Thompson v. Salt Lake Co., 16 Utah 281. 76 MEREDITH V. REED [CHAP. II. MEREDITH v. REED Supreme CotrBT, 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 staUion, and had never been known by the owner to be guilty of any vicious acts. Not being ia use, he had been kept up iQ a stable for four or five months. He was secured in the stable by a strong halter and chaiu 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 to- gether 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 sur- rounding 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 foimd open, with the log prop lying some distance to one side, and the chaLa 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 S not, in our opinion, so presented as to entitle them to consideration in j this Court. So far as the substantial rights of the appellant are in- [ volved, all the questions properly presented resolve themselves into the inquiry as to the nature and extent of the Uabihty 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 liabihty. Ordinary care is all that the law required in the case in judgment. What is ordi- nary care in some cases would be carelessness in others. The law re- gards the circumstances surrounding each case, and the nature of the animal or machinery imder 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 SECT. III.] DENVER ELECTRIC COMPANY V. SIMPSON 77 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 pubhc alley, by his coming in contact with one of defendants' wires heavily charged with electricity, which had become detached from its over- head 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 neghgence of the defendants, ^'erdict 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.^ Campbell, J. . . . This court does not recognize any degrees of neghgence, such as sHght or gross, and logically it ought not to recog- nize any degrees in its antithesis, care.^ The court instructed the jtuy 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 dih- gence in the construction and maintenance of its lines of wire and other appm-tenances, 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 dihgence, be secured. If it observed such degree of care, it was not hable; if it failed therein, it was hable for injuries caused thereby. We think the court was unfortunate in attempting to draw any dis- tinctions in the degrees of care or neghgence. It would have been safer and the better practice to instruct the jury, — which ought here- ' Statement abridged. Only so much of the opinion is given as relates to a single point. ' 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; LouisviUe R. Co. v. Shanks, 94 Ind. 598; Denny v. Chicago R. Co., 150 la. 460; Raymond v. Portland R. Co., 100 Me. 529; McPheeters v. Hannibal R. Co., 45 Mo. 22; Reed v. Tele- graph 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." 78 DENVER ELECTRIC COMPANY V. SIMPSON [CHAP. II. after 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 ia question is attended with great peril to the public, the care to be exercised by the person cOnductiug 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 re- quired 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 measm-e 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 per- son or corporation engaged in the equally, if not more, dangerous busi- ness 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 pubUc. In those courts where degrees of negligence are not countenanced, nevertheless, in cases where the duty of a common carrier of pas- sengers 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 wiQ hold every reasonably prudent and careful man to the exercise of the utmost care and diligence in protect- ing the pubKc 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 hke the one we are now considering — in regarding the carrying on of a business as fraught with peril to the pubHc 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} 1 Maryland R. Co. v. Tucker, 115 Md. 43; Gates v. Hall, 171 N. C. 360; Lundy V. Southern Tel. Co., 90 S. C. 25 Accord. SECT. III. J LAKE ERIE & WESTERN R. CO. V. FORD 79 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.' Appellant complains of appellee's instructions five and six, which were given by the court ui the order uidicated by their numbers. They are as follows: " (5) It is the duty of a raikoad 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 defend- ant's track and in close proximity thereto, including the bam or stable of said Alehssa McFaU in the town of Hobbs, and at such time it was, and for some time prior thereto it had been, unusually dry, thereby See various forms of stating this geDeral doctrine in 2 Hutchinson on Carriers, (3d. ed.) §§ 895, 896; -1 Elliott on Railroads (1st ed.) § 1585; 1 Shearman & Red- field on Negligence (6th ed.) § 51. In Wharton on Negligence (1st ed.) §§ 636. 637, the author says that the dili- gence 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 com- mon 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 jiirisdictions, 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 thesame idea mean simply that the carrier is bound to use the utmost care consistent with the nature of his imdertaking 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 aU 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. ' Only so much of the case is given as relates to a single point. 80 LAKE EEIE & WESTERN R. CO. V. FORD [CHAP. II. rendering such wood buildings and structures, including the bam 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 wiad blowing continuously across the defendant's track, in the direction of the bam 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 buildiags by sparks and coals of fire emitted or thrown from its engine in pass- ing through said town, over ordinary times and conditions, and all of which facts and conditions the defendant knew at the time, the de- fendant, 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 buildiags or property by sparks or coals of fire emitted or thrown from its engine, than it would at ordinary times and imder ordinary conditions." Assumiug, 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," ' 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 measm-ed by a fixed standard, which was to be fully comphed with (Wharton, NegUgence [2d ed.], § 46), that it was proper to use the expression " all reasonable precau- tion," 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 hypotheticaUy 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 hypotheticaUy the conditions which existed, leaving it to them to determine whether the danger was increased, that, in the event they so foimd, 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 cor- rectness of the old doctrine as to degrees of negligence. New York Central R. Co. v. Lockwood, (1873) 17 WaU. 357, 21 L. Ed. 627 Steamboat New World v. Kmg, (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 & ' "Due care," "reasonable care," and "ordinary care" are S3Tion3Tnoiis terms. Neal V. Gillett, 23 Conn. 437; Baltimore R. Co. v. Faith, 175 HI. 58; Raymond v. Portland R. Co., 100 Me. 529; Durant v. Palmer, 29 N. J. Law, 544. SECT. III.] LAKE ERIE & WESTERN R. CO. V. FORD 81 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 imderstood as mihtating against the view that the legal standard of care is not the same in all relations, or to discountenance the prac- tice of charging the jury in terms that indicate the extent of care required, as great, ordinary, or slight (1 Shearman & Redfield, Negli- gence [5th ed.], § 47) , yet the point which we wish to enforce now is that in all cases negUgence 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 appKcable to all circmnstances, that all reasonable precaution must be used ? We think that in such a case the jury would imderstand that more than ordinary care was required, and it is not improbable that the effect of giving such an instruction, following an instruction hke 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 ordinaiy care in some cases, would be carelessness in others. The law regards the circimn stances 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 manage- ment 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 re- quired in a particular relationship is always the same, although the amount of care thus required depends upon the particular circum- stances. 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 modem writer: " This standard may vary in fact, but not in law." 2 Jaggard, Torts, p. 819. In an article in 3 [6] Al- bany, 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 illustra- tion], it would be only necessary to apply the same rule to varying circumstances and persons, to demand the same ratio between vary- ing extremes. And it is not too much to assert that all the perplexity and misunderstanding on the subject of diligence and negligence are 82 LAKE ERIE & WESTERN R. CO. V. FORD [CHAP. II. 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 pre- vent injuries to others from fire, impHes 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 reqmred 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 foimd 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.^ 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.^ • " 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., m Com. v. HorsfaU, 213 Mass. 232, 235. 2 " The rule, that due dihgence 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 imdertakes 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 orcEnary 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-carriei;. Each contracts to provide the reasonable ordinary skill and attention which a man in his position womd exercise under Uke 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 SECT. III.] TRACY V. WOOD 83 TEACY V. WOOD United States Cikcuit Court, District of Rhode Island, November Term, 1822. Reported in 3 Mason {U. S. Circuit Court), 132. Assumpsit for negligence in losing 7643^ 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 de- fendant, 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 vahse in the cabin, for a few mo- ments 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 de- fendant'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 vahse. 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, imder lock and key. There were many other circum- stances in the case. The argument at the trial turned wholly on the question of gross neghgence, and all the facts were fully commented on by counsel. But as the case is intended only to present the discus- sion on the question of law, it is not thought necessary to recapitulate them.' 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 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 misunder- standing on the subject of diligence and neghgence are due to the habit of con- founding 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 dili- gence, and renders such a contract a special and extraordinary one. The law never requires such a special, positive intention. . . ." 6 Albany Law Joum. 313, 314. ' Arguments omitted. 84 TRACY V. WOOD [CHAP. II. liable only for gross negligence. Such are depositaries, or persons re- ceiving 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 imder- took to carry the gold in question for the plaintiff, gratuitously, from New York to Providence, and he is not responsible imless he has been guilty of gross negligence. Nothing in this case arises out of the per- sonal 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 dihgence 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 neghgence, or not, is sometimes loose and inaccurate from the general manner in which propositions are stated. When it is said, that gross negligence is equiv- alent to fraud, it is not meant that it cannot exist without fraud. There may be v£ry gross negligence in cases where there is no pretence that the party has been guilty of fraud, though certainly such negli- gence 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 pro- portional 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 natiu-e to be kept with peculiar care, under lock and key; it would, therefore, be gross neghgence 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. Home, 2 Moore's R. 18, it was held to be gross negligence in the case of a car- rier, 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 Bam. & Aid. 59, it was held gross neghgence in a gratuitous bailee to put a horse into a dangerous pasture. In Batson v. Donovan, 4 Bam. & Aid. 21, the general doctrine was admitted in the fullest terms. It appears to me that the true way of considering cases of this nattire 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 SECT. III.] TRACY V. WOOD 85 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 shght negligence; nor whether he has omitted that care which prudent persons ordinarily take of their own property, for that would be but ordinary neghgence : but whether there be a want of that care, which men of common sense, however inatten- tive, usually take, or ought to be presumed to take of their property, for that is gross neghgence. 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 neghgence. The present is a case of a mandatary of money. Such property is by all persons, neghgent 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 dihgence. 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, imder such circum- stances, he has been guilty of gross negligence. Verdict for the plaintiffs for 15700, the amount of one hag of the gold; for the defendant as to the other bag} ' A fuller statement of the views of the learned judge may be found in the extracts, which follow, from his work on BaUments: " 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 dihgence, and a shght degree of dihgence: . " " Common or ordinary dihgence is that degree of dihgence which men in general exact in respect to their own concerns. . . . That may be said to be common or ordinary dihgence, 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 Hve." " Section 16. Having thiis 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 dihgence, or that which very prudent persons take of their own concerns; and low or shght dihgence is that which persons of less than com- mon prudence, or indeed of any prudence at all, take of their own concerns. Sir WUham Jones considers the latter to be the exercise of such dihgence as a man of common sense, however inattentive, takes of his own concerns. Perhaps this is ex- pressing the measure a httle 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 dihgence 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 dihgence, we are naturally led to those of neghgence, which correspond thereto; for neghgence may be ordinary, or less than ordinary, or more than ordinary. Ordinary negligence may be defined to be the want of ordinary dihgence, and shght neghgence to be the want of great dihgence, and gross negligence to be the want of shght dihgence. For he who is only less dihgent than very careful men cannot be said to be more than shghtly inattentive; he who omits ordinary care is a httle more neghgent than men ordinarily are; and he who omits even shght diligence fails in the lowest degree of 86 DOLPHIN V. WORCESTER STREET R. CO. [CHAP. II. DOLPHIN V. WORCESTER STREET R. CO. SuPBEME Judicial Couet, Massachusetts, Octobee 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.^ 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 lU. App. 642; Union R. Co. v. Henry, 36 Kan. 565; French v. Bufialo 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 neghgence described by the terms sUght, 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 orJymaybe 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 Su- preme Court of Maine says: ' How much care wiU, in a given case, reheve 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 circum- stances 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 diUgence by legal definitions, and have com- plained of the impracticabihty 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 neghgence, which is apparent in perusing such cases as Tracy et al. ;;. Wood, 3 Mason 132, and Foster v. The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these com- plaints. 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 diUgence, as unfounded in principles of natural justice, useless in prac- tice, and presenting inextricable embarrassments and difficulties. See TouUier'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 neghgence as a positive instead of a nega- tive 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 neghgence. A person who undertakes to do some work for re- ward to an article must exercise the care of a skilled workman, and the absence of such care in him is neghgence. 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 neghgence, instead of the equivalent, a want of due care and skiU in navigating the vessel, which was again and again used by the Lord Chief Justice in his summing up." WiUes, J., in GriU v. General CoUier Co., L. R. 1 C. P. 600. As to the standard for physicians, see McNevins v. Lowe, 40 111. 209; Small v. Howard, 128 Mass. 131; Luka«. Lowrie, 171 Mich. 122; Booth v. Andrus, 91 Neb. 810; McCandless v. McWha, 22 Pa. St. 261. ' Statement rewritten. Only part of case is given. SECT. III.] DOLPHIN V. WORCESTEE STREET R. CO. 87 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 negh- gence of its agents or servants, while engaged in its business,! 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 indict- ment," 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 hable in damages in the smn of not less than five hundred nor more than five thousand dollars, which shall be assessed with reference to the degree of culpabihty of the corporation or of its ser- vants 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 in- cumbent upon the defendant, any failure upon the part of its servants to exercise that degree of care is gross neghgence. " 7. The term ' gross ' in the allegation gross neghgence, 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 sUght negligence. 3. The seventh ruling requested was wrong. The term " gross neg- ligence " 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.' 4. There are degrees of care in cases under R. L. c. Ill, § 267, by force of that act.^ Exceptions overruled. ^ The word gross was struck out by chap. 375, Acts of 1907, § 1. ' Compare Martin v. Boston R. Co., 205 Mass. 16; Devine v. New York R. Co., 205 Mass. 416. ' For other cases of statutory degrees of neghgence, see Seaboard R. Co. v. Cau- then, 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 neghgence gross in degree, see Birmingham R. Co. v. Pinckard, 124 Ala. 372; Denman v. 88 CLEVELAND EOLLING MILL CO. V. CORRIGAN [CHAP. 11. CLEVELAND ROLLING MILL CO. v CORRIGAN Supreme Coubt, Ohio, Febhuart 26, 1889. Reported in 46 Ohio State Reports, 283. Eebok 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 dam- ages suffered while in the defendants' employ, and which he alleged were caused by their neghgence. 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.^ 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 cir- cumstances," 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 con- tributory neghgence of infants, or the measure of care required of them. Elsewhere the decisions are conflicting. Each of three differ- ent rules on the subject has found judicial sanction. One rule requires of children the same standard of care, judgment, and discretion, in an- ticipating and avoiding injury, as adults are boimd to exercise.^ An- Johnston, 85 Mich. 387; Banks v. Braman, 188 Mass. 367; Southern Mfg. Co. v. Bradley, 52 Tex. 587; Barlow v. Foster, 149 Wis. 613. ' Statement of facts abridged. Only so much of the case is given as relates to one point. Arguments omitted. 2 E. g., Neal v. GiUett, 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 lU. 601; Indianapolis R. Co. v. Wilson, 134 Ind. 95; McMillan v. Burlington R. Co., 46 la. 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 Naviga- tion Co., 76 Tex. 353; Roth v. Union Depot Co., 13 Wash. 525. SECT. III.] CLEVELAND ROLLING MILL CO. V. CORRIGAN 89 other 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 usu- ally 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 NegUgence, sec. 46, it is thus expressed: " An infant plaintiff who, on the one hand, is not so young as to escape entirely aU legal accountabiUty, 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 neghgence, to be held re- sponsible 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 chil- dren are to be held responsible only for such degree of care and pru- dence as may reasonably be expected of them, taking due accoimt of their age and the particular circumstances, are very nimaerous. " It is well settled," says Mr. Justice Hunt in RaUroad 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 circum- stances of that case." In Shearman & Redfield on Neghgence, 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 de- gree of care which persons of ordinary care and prudence are accus- tomed 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 pru- dence of children, and no greater degree of care should be required of them than is usual under the circumstances among careful and pru- dent persons of the class to which they belong. We think it a sound rule, therefore, that in the apphcation 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 90 STONE V. DRY DOCK R. CO. [CHAP. II. 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 imder similar circumstances. That portion of the charge of the Court under discussion is in sub- stantial conformity to this conclusion. The care and prudence which a boy of the plaintiff's age of ordinary care and prudence " would use under hke and similar circvimstances," 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} 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 neghgence 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 opifuon.^ 1 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 PennewUl, 306; Elwood R. Co. v. Ross, 26 Ind. App. 258; Wyman v. Berry, 106 Me. 43; Munn v. Reed, 4 AH. 431; Rasmussen v. Whipple, 211 Mass. 546 (but see Angelary v. Springfield R. Co., 213 Mass. 110); LucareUi v. Boston R. Co., 213 Mass. 454; Strudgeon v. Village, 107 Mich. 496; ConsoUdated 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 com- pare Mulligan v. Burrough, 243 Pa. St. 361) ; Texas R. Co. v. PhiUips, 91 Tex. 278; Christensen v. Oregon R. Co., 29 Utah, 192; Blankenship v. Chesapeake R. Co., 94 Va. 449; Deputy v. KimmeU, 73 W. Va. 595 Atxord. Children are seldom made defendants in actions for negligence. Most of the dis- cussions 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 contribu- tory'negUgence of the child. A good discussion where defendant was an infant may be found in Briese v. Maechtle, 146 Wis. 89. 2 Arguments and part of opinion omitted. SECT. III.] STONE V. DRY DOCK R. CO. 91 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 cross- ing the street in front of the approaching car was neghgence on her part, which contributed to her death, and barred a recovery. We think the case should have been submitted to the jury. The neghgence 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 neghgent. Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Raih-oad 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 neghgence. 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 inca- pable 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 inteUigence and maturity of judgment suiEcient to render him capable of harbor- ing 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; PaUon 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 earUer than others. It depends upon many things, such as natural capacity, physi- cal conditions, training, habits of hfe, and surrounduigs. These and other circumstances may enter into the question. It becomes, there- fore, 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 Raih-oad 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 contribu- 92 STONE V. DRY DOCK R. CO. [CHAP. II. tory 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 encoimtered the danger which resulted in his death. The boy was familiar with the crossing, and, eluding the flagman who tried to bar his way, at- tempted to run across the track in front of an approaching train in plain sight, and unfortunately slipped and fell, and was rim 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 occasiofis 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 neghgence, 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 upod 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 negUgence 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 infer- ence that the child was incapable of exercising any degree of care. But, assuming that the child was chargeable with the exercise of some de- gree of care, we think it should have been left to the jury to determine whether she acted with that degree of prudence which might reason- ably 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.i r j . Judgment reversed. ' 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, 203 111. 295, 104 111. App. 600 (seven); Fishbum ;;. Burbngton R. Co., 127 la. 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. Lav^ 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. SECT. III. J ILLINOIS IRON AND METAL COMPANY V. WEBER 93 ILLINOIS IRON AND METAL COMPANY v. WEBER Supreme Court, Illinois, April 16, 1902. Reported in 196 Illinois Re-ports, 526. Appeal by original defendants from the decision of the Appellate Court for the First District; 89 111. 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 pro- cession 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 woimd. 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. A few jurisdictions have an absolute rule as to children under seven. Govern- ment R. Co. V. Hanlon, 53 Ala. 70; Chicago R. Co. v. Tuohy, 196 111. 410; Reichle t. Transit Co., 2-11 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 chil- dren 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; RoUn v. Tobacco Co., 141 N. C. 300; Dowlen v. Texas Power Co., (Tex. Civ. App.) 174 S. W. 674; City v. ShuU, 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, fore- sight, and restraint, and that their curiosity and restlessness have a tendency to get them into positions of danger. There is some point in every hfe where these condi- tions 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 dif- ferent 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 neghgence. 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 negh- gence. Tucker v. Buffalo Cotton MiUs, 76 S. C. 539, and cases cited. TutwUer 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 neghgent as a matter of law. It has generally been held that children under six are not to be charged with negh- gence. 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 DiU. 96; Louisville R. Co. v. Arp, 136 Ga. 489; Indianapohs R. Co. v. Bordenchecker, 33 Ind. App. 138; Fink v. City, 115 la. 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); CampbeU v. Ord, 11 Sc. L. R. 54; McGregor v. Ross, 20 Sc. L. R, 462. 94 ILLINOIS IRON AND METAL COMPANY V. WEBER [CHAP. II. Under instructions, the substance of which is stated in the opinion, the jury found a verdict for plaintiff.^ Caetweight, J. . . . The first two instructions each directed the jury to find the defendant guilty, provided they should beheve, 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 instruc- tions informed the jury that the fact was proved if he was in the exer- cise 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 neghgent and the injury resulted. That was not a correct rule of law, since the ques- tion of care was not to be determined alone by the plaintiff's age, but also from his intelligence, experience, and abihty 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 negUgence in riding where he did, in a procession of teams, outside of the box, be- hind the end-gate of the wagon. The position was a dangerous one, not provided or used for passengers or intended for such use. Plain- tiff 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 diflScult, 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 fuU 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 assimiing the posi- tion 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 neghgence 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 neghgence. 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 Thomp- son, 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 • Statement abridged. Only so much of the opinion is given as relates to a single point. SECT. III. J BULLOCK V. BABCOCK 95 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, — cir- cumstances with reference to which each party has the right to intro- duce evidence, which evidence is to be considered by the jury." The rule established by om- own decisions is, that age is not the only ele- ment to be considered, but that intelhgence, capacity, and experience are also to be taken into account. Weick v. Lander, 75 111. 93; City of Chicago v. Keefe, Hi Id. 222; Illinois Central Raihoad Company V. Slater, 129 Id. 91. Reversed and remanded.^ BULLOCK V. BABCOCK SXIPEEME COXIRT OF JUDICATUEE, 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, shoot- ing 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, 1 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. Connecti- cut Co., 86 Conn. 314; Herrington v. City, 125 Ga. 58; Elk Mills v. Grant, 140 Ga. 727; Keller v. GaskiU, 9 Ind. App. 670; Cole v. Searfoss, 49 Ind. App. 334; Louis- ville R. Co. V. AUnutt, 150 Ky. 831; Van Natta v. Peoples R. Co., 133 Mo. 13 SpiUane v. Missouri R. Co., 135 Mo. 414; MoeUer 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 Stem V. Bensieck, 161 Mo. 146. Section 2901 of the Georgia Civil Code is as follows : — " Due care in a chUd of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situa- tion 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 diUgence 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. 96 BULLOCK V. BABCOCK [CHAP. 11. " 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 plain- tiff 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 neghgent and imjustifiable; and that, if the jury thought so, they ought to find a verdict for the plaintiff, with damages. The defendant excepted. The jiuy found for the plaintiff, with $180 damages, and a motion was now made to set aside the verdict. By the Coukt, Mabct, 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 shoot- ing the arrow in the school-room, where there were a nimiber of schol- ars, 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 imavoidable accident, the person by whom it is inflicted is hable to respond in dam- ages 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 hable 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 plain- tiff, 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 he. In that case, the blame im- putable 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 wiU be per- ceived, must have been shght indeed, as it certainly was in the case of the injury done by the glancing of the arrow when shooting at a mark SECT. III.] BULLOCK V. BABCOCK 97 (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 apphed to this case different from that apphcable 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 hable for trespass, slander, assault, &C.1 Bing. on Infancy, 110; 8 T. R. 335; 16 Mass. Rep. 389; 1 The liability of an infant for Ms torts is universally recognized. Trespass. Y. B. 35 Hen. VI. f. 11, pi. 18; Burnard v. Haggis, 14 C. B. n. s. 45; Neal V. Gillett, 23 Conn. 437; Wilson v. Garrard, 59 III. 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 m. App. 388; Lewis v. Littlefield, 15 Me. 233; Caswell v. Parker, 96 Me. 39 (sembk); 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. GrisseU, Noy, 129; Drane w . Pawley, 8 Ky. Law Rep. 530; Fears v. Riley, 148 Mo. 49. Negligence. Jennings v. RundaU, 8 T. R. 335; Dixon v. BeU, 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. Tifit, 4 Denio, 177. The minor is not exempt from UabiUty, 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 injvmction to children of obedience, to their parents, invoked in defence. No such construction can be given to the conmiand, ' 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 ;;. 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 hmited to cases where the infant acts under such circiimstances that he must know or he 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 ? WiU it not also tend to subject liiTTi to embarrassment and insolvency when he shall arrive at full age ? If all the members of a family under age are to be held hable in trespass or trover for the food which they eat, when that food is in fact the property of another, but, being set be- fore them, they partake of it, in ignorance of such fact, by the command or direc- tion of the parent, and under the behef that it is his, wiU not such a doctrine be in conflict with the principle that the coromon law is intended as a shield and protec- tion 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 ex- tending it, and appljdng it to cases hke the one before us ? In all the cases which I have examined in which infants have been held liable, the proof shows acts of 98 METROPOLITAN RAILWAY COMPANY V. JACKSON [CHAP. II. 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 Hability to answer in damages for tres- pass 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.^ Section IV Pboof of Negligence * METROPOLITAN RAILWAY COMPANY v. JACKSON In the House of Lokds, Decembek 13, 1877. Reported in 3 Appeal Cases, 193. The Lord Chancellor (Lord Cairns) : ' • — My Lords, in this case an action was brought by the respondent against the Metropohtan Railway Company for neghgence 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 negli- gence which ought to have been left to the jury ? The Court of Com- mon 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. 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." 1 Welch V. Durand, 36 Cbnn. 182; FUnn v. State, 24 Ind. 286; Peterson v. Haff- ner, 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. ' 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 imiderstand the ground of decision in some of the cases on the general subject of neghgence. ' Statement, arguments, and parts of opinions omitted. SECT. IV.] METROPOLITAN RAILWAY COMPANY V. JACKSON 99 The facts of the case are very short. The respondent in the eve- ning 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 pei-sons 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 mmiber 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 com- partment 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 compart- ment 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 for- ward 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 estabHshed by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, neghgence 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, impimctual, and irregular in its service; badly equipped as to its staff; unaccommodating to the public; notorious. 100 METROPOLITAN RAILWAY COMPANY V. JACKSON [CHAP. H. perhaps for accidents occurring on the hne; and when an action was brought for the consequences of an accident, jurors, if left to them- selves, might, upon evidence of general carelessness, find a verdict against the company in a case where the company was really blame- less. 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 apphcation, 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 boxmd to say that I do not find any evi- dence from which, in my opinion, neghgence could reasonably be inferred. The neghgence must in some way connect itself, or be con- nected by evidence, with the accident. It must be, if I might invent an expression foimded upon a phrase in the civil law, incuria dans locum injuriae. In the present case there was no doubt neghgence in the company's servants, in allowing more passengers than the proper nimiber to get in at the Gower Street Station; and it may also have been neghgence if they saw these supernumerary passengers, or if they ought to have seen them, at Portland Road, not to have then re- moved them; but there is nothing, in my opinion, in this neghgence 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 neghgence connected with the accident, or in- deed of any neghgence whatever. The officials cannot, in my opinion, be held bound to prevent intending passengers on the platform open- ing 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 tvumel, he could not shut it otherwise than quickly or in this sense violently. . . . Lord Blackbuen: — • My Lords, I also am of opinion that in this case the judgment should be reversed, and a nonsuit entered. On a trial by JTory it is, I conceive, imdoubted 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. SECT. IV.] METROPOLITAN RAILWAY COMPANY V. JACKSON 101 But I think it has always been considered a question of law to he 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 beheved, would estabUsh the facts in controversy. It is for the jury to say whether and how far the evidence is to be beheved. 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 dehvering the considered judgment of the Exchequer Chamber ia Ryder v. WombweU, 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 ontis of proof hes. If there is not, the judge ought to withdraw the question from the jiuy, 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 JeweU v. Parr, 13 C. B. 909, 916, ' not whether there is hteraUy no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is estabhshed.' " He afterwards observes. Law Rep. 4 Ex. 42, very truly in. my opinion, " There is no doubt a possibihty 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 de- cision 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 aU tribimals." I quite agree that this is so, and it is an evU. But I think it a far shghter evU than it would be to leave in the hands of the jury a power which might be exercised in the most arbitrary manner. . . . [The conciu-ring 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} 1 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 102 KEAENEY V. LONDON R. CO. CCHAP. II. KEARNEY v. LONDON, BRIGHTON & SOUTH COAST R. CO. In the Queen's Bench, Jxjne 15, 1870. Reported in Law Reports, 5 Qiieen's Bench, 411. Declahation, that the defendants were possessed of a bridge over a certain pubHc highway, and it became their duty to maiatain and keep ia repair the bridge, so that it should not be injurious to any person passing imder it; yet the defendants so negligently maintaiued 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. the door " of a compartment car. See the cases cited in 21 Halsbury, Laws of England, 445. A Uke question, much discussed in the United States, is: A man, without look- ing or listening, attempts to cross the track of a steam railway, and is hit by a negMgently managed engine. Should the judge rule that crossing without loolmg and Ustening (or crossing without stopping, looking, and listening) is, as matter of law, negUgent conduct ? Or should tJEie judge teU 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 discus- sion 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, especiaUy §§ 1640, 1649, 1650, 1653; 33 Cyc. 1116 £f.; 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. 2972Ardison v. Illinois R. Co., 249 111. 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; Cumberiand 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. MetropoHtan 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 lU. 456; Chicago Traction Co. v. Lundahl, 215 111. 289; Pence v. Wabash R. Co., 116 la. 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; HuE v. Minneapolis R. Co., 116 Minn. 349; Nolan v. Metropolitan R. Co., 260 Mo. 602. Standing on platform or running board: Texas R. Co. v. Lacey, 185 Fed. 225; Central R. Co. ;;. Brown, 165 Ala. 493; HoUoway v. Pasadena R. Co., 130 Cal. 177; Augusta R. Co. v. Snider, 118 Ga. 146; Chicago R. Co. v. Newell, 212 HI. 332; Math V. Chicago R. Co., 243 HI. 114; Louisville R. Co. v. StiUwell, 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 ti. Minneapolis R. Co., 118 Minn. 301; Setzler i). 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; German- town 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. SECT. IV. ] KEARNEY V. LONDON R. CO. 103 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 evi- dence, that the plaintiff, on the 20th of January, 1869, was passing along the Blue Anchor Road, Bermondsey, imder 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 restiag on iron piers, on one side, and on a per- pendicular 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,^ but rested their defence on there being no evidence of neghgence ia 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 e\'idence of negUgence, the learned judge told the jury that if they thought the bare circiunstance of a brick falling out was not evidence of neghgence, they would find for the defendants; if they thought otherwise, for the plaintiff; and the court would determuie 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 25Z. A rule was obtained to enter a nonsuit, on the ground that there was no evidence of neghgence to leave to the jury.^ CocKBUKN, 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, there- fore, 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 apphcable, 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 apphcable; and my reason for saying so is this. The company who have constructed this bridge were bound to con- struct it in a proper manner, and to use all reasonable care and dih- gence 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 pubhc having a right to pass imder it. Now we have the fact that a brick falls out of this structure, and mjures the plaintiff. The proxi- mate cause appears to have been the looseness of the brick, and the vibration of a train passing over the bridge, acting upon the defective 1 But see L. R. 6 Q. B. 760-761. ,. ^ t j .u j- * 2 Arguments omitted; also the concurring opinion of Lush, J., and the dissent- ing opinion of Hannen, J. 104 KEAENEY V. LONDON R. CO. CCHAP. II. 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 incum- bent 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 possibiHty of any dili- gence 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 condi- tion of the brickwork, which it was their duty to keep in a proper condition of repair, even if such evidence were but sHght, 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 incimibent upon them to show that they used that reasonable care and dihgence T^ch 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 sHght it may have been, of this accident having arisen from the negUgence of the defendants; and it was incumbent on the defendants to give SECT. IV.] KEARNEY V. LONDON R. CO. 105 evidence rebutting the inference arising from the undisputed facts; that they have not done, and I therefore think this rule must be dis- charged. [Lush, J., dehvered a concurring opinion. Hannen, J., delivered a dissenting opinion.] EuU discharped.'- 1 Affirmed in the Exchequer Chamber, L. R. 6 Q. B. 759. Byrne !•. Boadle, 2 H. & C. 722; Scott v. London Docks Co., 3 H. & C. 596; Skmner v. London R. Co., 5 Ex. 787; The Joseph D. Thomas, 81 Fed. 578; Has- torf V. Hudson River Co., 110 Fed. 669; Cincinnati R. Co. v. South Fork Coal Co., 139 Fed. 528; Kahn ;>. Cap Co., 139 Cal. 340; Armour v. Golkowska, 202 111. 144; Talge V. Hockett, 55 Ind. App. 303; Nicoll v. Sweet, 163 la. 683; Melvin v. Penn- sylvama 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 »— -"- T- -^ — •- - . -Q2; Mullen t). St. John, Griffen v. Manice, 166 SpllPlflPr J} ATTlPTlPflTl Bridge Co., 78 App. Div. 163; Travers v. Murray, 87 App. Div. 552;' Connor v. Koch, 89 App. Div. 33; Larkin .,. 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. Mclntire, 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; CarroU v. Chicago R. Co., 99 Wis. 399; KUtzke 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 particu- lars of the accident but not the particulars of the alleged negUgence, plaintiff may rely upon this doctrine, if the accident is of such a kind as to indicate that it would not have happened without neghgence 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., 156 111. App. 563; Parsons v. Hecla Iron Works, 186 Mass. 221; Cohen v. Farmers' Co., 70 Misc. 548T^leajns v. Spinning Co., 184 Pa. St. 519; gcarpelh" ;^ Washmg^t.f>n Power Co., 63 Wash. 18. By plaintiff showing by his own witnesses jusETTow 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. Edis.on 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 neghgence; 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 in- sufficient repair or negligent handhng 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; MuUen V. St. John, 57 N. Y. 567; Volkmar v. Manhattan R. Co., 134 N. Y. 418; McCar- ragher 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 . . . conffict in the shghtest degree with numerous authorities that go on another prin- ciple, just as weU-recognized and firmly established, to the effect that undisputed proof of freedom of the machine from all discoverable defects, either in construc- tion 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 Spaiilding 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. 106 MAECEAU V. RUTLAND R. CO. [CHAP. II. 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 loqui- tur.^ . . . 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 neghgence. The inference of negUgence is deducible, not from the mere happening of the accident, but from the attendant cir- cumstances. " It is not that, in any case, neghgence can be assxmied 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 circum- stances may themselves furnish all the proof of neghgence that the injured person is able to offer, or that it is necessary to offer." Shear- man & Redfield on Neghgence, § 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 apphcation 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 neghgence, 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 suffi- cient 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 appHcable to all cases or why the probative force of the evidence depends on the relation of the parties. Of coiu-se, the relation of the parties may determine the fact to be proved, whether it be want of the highest care or only want of ordi- nary care, and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to estabhsh the want of ordi- nary care, though sufficient to prove absence of the highest degree of 1 The arguments of counsel and a part of the opinion are omitted. SECT. IV.] MARCEAU V. RUTLAND R. CO. 107 diligence. But the question in every case is the same whether the cii-cumstances 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 apphcation of the maxun 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 Robmson v. Consohdated 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.^ While it is, therefore, the settled law that the maxim is appHcable to any case where the facts warrant its apphcation, it is apparent that the employee who invokes it against his employer encounters difficul- ties that do not hamper the wayfarer in a pubhc 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 flymg 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 imder 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 coUided 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 pubhc streets shall not be injured by falling walls or missiles. The common carrier is imder the strict duty to its passenger to keep its cars and tracks in a safe con- dition, and in all such cases where the plaintiff " has shown a situation which could not have been produced except by the operation of ab- normal causes, the onus then rests upon the defendant to prove that the injiuy 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 wajrfarer or passenger. It is to be emphasized, however, that ' There is a conflict of authority upon the question whether the maxim res ipsa loquitur is apphcable in an action by a servant against a master. See cases col- lected 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. 108 MAKCEAU V. KUTLAND R. CO. [CHAP. II. the difference is one of degree and not of kind. This more onerous burden which is placed upon the employee is the natiu-al concomitant of the relation of the parties and of their resultant obhgations. The employer is bound merely to the exercise of reasonable care in provid- ing 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 em- ployee sues at conunon law and seeks to invoke the maxim, he must necessarily make proof of facts and cucimastances which, imder 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 neghgence; 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 exer- cised the degree of care required of him by the common law. The same rule apphes, in a modified degree, where the employee sues under the Employers' LiabiHty Act, as the plaintiff in this case has done. In such a case the plaintiff must estabUsh facts and circumstances which, imder the statute, would entitle him to recover in the absence of a suflBcient explanation by the defendant, absolving him from the im- putation of negligence. The proof must not be conjectural or specula- tive, but must consist of evidence which, tested by the ordinary rules of experience and observation, points to the single conclusion that the em- ployer's omission of a duty which he owes to his employee was the sole efficient cause of the accident. Ferrick v. Eidhtz, 195 N. Y. 248, 252. The next question, in logical progression, is whether the plaintiff has established his case by facts and circinnstances which negative the existence of any cause for the accident by which he was injured, save the neghgence 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 at- tached to a train, and a start was made for the return to Malone. Sud- denly there occiured an explosion in the fire box of the engine which drove the doors from their fastenings, and expelled fire and boihng water into the cab, and burned and scalded the plaintiff, and blew him out of the cab to the groimd with such force as to bruise him. Al- though this accident was of an imusual 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 appHcation 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 neghgence of the plaintiff, or without any neghgence at all. SECT. IVj MARCEAU V. RUTLAND R. CO. 109 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 circmnstances 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 therh out. The engineers are charged with the duty of making a report of each trip which shaU specify any needed repahs that come imder 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 tiuTiing in wiitten 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 de- fendant's witnesses showing that the engine was inspected by the fore- man 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 an- other 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 gener- ated. There were 342 of these flues which were each If 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, hke electricity, is a capricious and fickle agency which sometimes causes imexpected and unexplainable accidents. If the plaintiff's case were wholly dependent upon evidence 110 MAKCEAU V. RUTLAND R. CO. [CHAP. II. 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 ordiuarily occur where the party charged with responsibihty 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 un- disputed 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 defend- ant'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. Coimsel for the defendant contends that such an explanation has been made. In that regard it appears that the locomotive was of a modem 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 fol- lowed by prompt inspection and complete repair. This was an expla- nation 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. WiLLAED Baktlett, Ch. J., CoLLm, Ctjddeback, Hogan, and Caedozo, JJ., concur; Hoknblower, J., not sitting. Judgment affirmed.^ ' " 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 SECT. IV.] WING V. LONDON GENERAL OMNIBUS CO. lU WING V. LONDON GENERAL OMNIBUS CO. In the Couet of Appeal, July 16, 1909. Reported in [1909] 2 King's Bench, 652. Fletcher Moulton, L. J., read the following judgment: ' — 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 plain- tiff sued for damages resulting from an accident which occurred while she was a passenger in a motor omrdbus 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 neghgence causing the accident, and (2) that the motor omnibus was itseK a dangerous machine, and that the defendants were liable for ha\Tng placed it upon the roadway, thereby creating a nuisance, whereby the plaintiff suffered damage. 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 negli- gence must prove the fact, but relates only to the mode of proving it. The fact of the accident furrdshes 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 reUeve the plaintiff of the burden of showing neghgence, nor does it raise any pre- sumption 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 neghgence. 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 jiiry 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 apphcation of the principle, so that they wiU 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 hap- pened 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 Umits of the doctrine and what is the true reason for its adoption, we will not now undertake to decide. It is estabUshed in the law as a rule for our guidance and must be enforced whenever apphcable, and to the, extent that it is apphcable, 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 biu'den of going forward. Sweeney v. Erving, 228 U. S. 233; Terrier v. Chicago R. Co., 185 III. App. 326; Bigwood V. Boston R. Co., 209 Mass. 345; Alabama R. Co. v. Groome, 97 Miss. 201; Kay v. Metropohtan R. Co., 163 N. Y. 447. • The arguments of counsel, concurring opinion of Vaughan-WiUiams, L. J., and dissenting opinion of Buckley, L. J., and part of the opinion of Moulton, L. J., dealing with another point, are omitted. 112 WING V. LONDON GENERAL OMNIBUS CO. [CHAP. II. The evidence given at the trial as to the natiu-e 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 some- thing, and that she heard something fall. She tried to get out, and, in so doing, hvu*t her foot. No other witness was called who was pres- ent at the time of the accident, but evidence was given on her behalf by a poHce 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 shghtly 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 coimsel 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 neghgence or of nuisance, to go to the jmy, and the learned judge gave partial effect to that contention by withdrawing from the jiuy the question of neghgence 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 neghgence on the part of the servants of the defendants who were in charge of the omnibus, imless the mere occurrence of the accident amoimts to such evidence. In my opinion the mere occurrence of such an accident is not in itself evidence of neghgence. Without attempt- ing to lay down any exhaustive classification of the cases in which the principle of res ipsa loquitur apphes, it may generally be said that the principle only apphes when the direct cause of the accident, and so much of the surrounding circumstances as was essential to its occur- rence, were within the sole control and management of the defendants, or their seri-^ants, so that it is not unfair to attribute to them a prima facie responsibihty 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 beha\'iour 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 evi- dence 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 hght upon the question on SECT. ly.J CARMODY V. BOSTON GAS LIGHT CO. 113 whom the responsibiUty hes, but there is nothing of the kind here. The colHsion with the electric standard was due to the omnibus skid- ding, 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. T here is ce rtainlv no evidence to negative such -a-orob- able explan ation ot^gha^-actuallxha ppened, and it is impossible to say ^^that thislpbints to negUgence.jrthat i testabljah"' *^'^t n. pv nef rlifrerTt a ct of the defendants' servant was ttie c^aiiseof the n,cciden t. I am therefore of opmion that the learned judge acted rightly in withdraw- ing 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.^ CARMODY V. BOSTON GAS LIGHT CO. Stjpeeme 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 in- haled the gas while asleep; and that the escape was due to the defec- tive 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 neghgence 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 groimd that it was boimd 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 hability of the company. It is evidence for you to consider upon the question of neglect; but there is other evi- dence 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 ' Bdnham v. Winchester Arms Co., 179 111. App. 469; Prestolite Co. v. Skeel, 182 Ind. 593; Rice v. Chicago R. Co., 153 Mo. App. 35; DalzeU 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. 114 CAEMODY V. BOSTON GAS LIGHT CO. [CHAP. II. 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 fade evi- dence,' imless the defendant consents to it. I have already told the jiu-y that it was evidence of neglect, or of neghgence, on the defend- ant's part, and evidence the force of which it was for them to deter- mine 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.' Baekeb, 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 apphed 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 neghgent, and the presid- ing justice was not bound to give a ruling which, as appHed to the case upon trial, might have been so imderstood. Nor was he boimd 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 e^ddence 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 UabiUty of the company," was incorrect. But there was evidence with which • Statement abridged. SECT. IV.] BENEDICK V. POTTS 115 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 per- sons of wliich 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 imderstood by the jxiry as forbidding them to draw the inference of neghgence 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 apphed 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 neghgence from those circumstances, but it is for them to say whether they wiU do so ; and, if there are other circimistances bearing on the question, they must weigh them all. Instructions that evidence " is sufficient to show," or " has a tend- dency 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 Uberty 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 estabhsh the fact, coupled with expKcit 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} BENEDICK V. POTTS Court of Appeals, Maetland, June 28, 1898. Reported in 88 Maryland Reports, 52. Appeal from Circuit Court, where judgment was entered on a ver- dict for defendant, ordered by the court. Defendant owned and operated, at a pleasure resort, a mimic rail- way, which was a wooden structure. Open cars were hoisted up an incline to the highest point of the railway, and were then rxm by grav- ^ " The maxim res ipsa loquitur is simply a rule of evidence. The general rule is that neghgence is never presimied from the mere fact of in- jury, yet the manner of the occurrence of the injury complained of, or the attend- ant circumstances, may sometimes well warrant an inference of neghgence. It is sometimes said that it warrants a presumption of neghgence, but the presumption referred to is not one of law, but of fact. It is, however, more correct and less con- 116 BENEDICK V. POTTS [CHAP. II. ity down and around a circular track to the ground. The length of the spiral track was about two thousand feet, and it made three cir- cuits 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 timnel was one hundred and fifty feet long, and completely incased that portion of the track, and hid the cars and their occupants from aU 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 groimd 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 uncon- scious 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 injmy. 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 tuimel. 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 neghgence; and the verdict and judgment were accordingly entered for defendant. Plaintiff brought up the record by appeal.^ McSheret, C. J. This is an action to recover damages for a per- sonal injury, and the single question which the record presents is whether there was legally sufficient evidence of the defendant's im- puted neghgence 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 injmy but that the defendant has been guilty of some neghgence which produced that particular injury. The neghgence 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 occm* from fusiflg 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 Pahner 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. 1 Statement abridged. SECT. IV. J BENEDICK V. POTTS 117 causes other than the negligence of the party sued, it is obvious that before a liabihty on account of that injury can be fastened upon a par- ticular 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 neghgence that produced or occasioned the injury. In no instance can the bare fact that an injury has happened, of itself and divorced from aU the surrounding circumstances, justify the inference that the injury was caused by neghgence. It is true that direct proof of neghgence is not necessary. Like any other fact, neg- hgence 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 circum- stances sm-rounding an occurrence and giving a character to it are held, if unexplained, to indicate the antecedent or coincident exist- ence of neghgence as the efficient cause of an injury complained of. These are the instances where the doctriae of res ipsa loquitur is ap- phed. This phrase, which hteraUy translated means that " the thing speaks for itself," is merely a short way of saying that the circum- stances attendant upon an accident are themselves of such a character as to justify a jury in inferring neghgence as the cause of that acci- dent; and the doctrine which it embodies, though correct enough in itself, may be said to be apphcable to two classes of cases only, viz., " first, when the relation of carrier and passenger exists and the acci- dent 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 quahty as, in the first instance at least, to permit no inference save that of neghgence 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 indi- cate the cause of that injury — it is colorless; but the act that pro- duced the injury being made apparent may, in the instances indicated, furnish the ground for a presumption that neghgence 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 neghgence superinduced it may be drawn as a legitimate deduc- tion of fact. It permits an inference that the known act which pro- duced the injury was a negUgent act, but it does not permit an infer- 118 BENEDICK V. POTTS [CHAP. II. ence 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 de- fendant 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 neghgence in the act that did produce the injiu^y. To the first category the maxim res ipsa loquitur has no apphcation; it is confined, when applicable at all, solely to the second. In no case where the thing which occasioned the injury is imknown has it ever been held that the maxim appHes; be- cause when the thing which produced the injm-y is imknown it cannot be said to speak or to indicate the existence of causative neghgence. In all the cases, whether the relation of carrier and passenger existed or not, the injury alone furnished no evidence of neghgence — some- thing 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 neghgence on the part of the carrier untU something further be shown. If the witness who swears to the injury testifies also that it was caused by a crash in a colhsion with another train of cars belonging to the same carrier, the presmnption of neghgence 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 neghgence 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 falHng from a moving train upon the plaintiff who was walking by the side of the track, and the presimiption of neghgence was allowed, not as an inference deducible from the injury itself, but as a conclusion resulting from the method in which and the instru- mentahty by which the injury had been occasioned. In the recent case of Consohdated Traction Co. v. Thalheimer, Court of Errors and Appeals, N. J., 2 Amer. Neg. Rep. 196,^ 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 ahght, 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 unhkely to occur if proper care had been exercised, brings the cage within the maxim res ipsa loquitur." The inference of negli- gence arose not from the injury to the passenger, but from the act that 1 59 N. J. Law, 474. SECT. IV.] BENEDICK V. POTTS 119 caused the injury. In B. & 0. 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 pre- sumption, but that the injury caused in the way and under the cir- cumstances shown indicated actionable neghgence unless satisfactorily explained. Whether, therefore, there be a contractual relation between the par- ties or not, there must be proof of neghgence or proof of some circum- stances from which neghgence may be inferred, before an action can be sustained. And whether you characterize that inference an ordi- nary presiunption of fact, or say of the act that caused the injury, the thing speaks for itself, you assert merely a rebuttable conclusion de- duced 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 neg- Hgent act; and neither the doctrine of res ipsa loquitur nor any other principle of presumption can be invoked to fasten a habihty upon the party charged with having by neghgence 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, carr3Tng the other occupants. There is no evidence that the roof of the timnel struck the appellant, or that the fact that a small part of the central plank of the timnel roof had been slabbed off had the most remote connection with the accident. It is a case presenting not a single cir- cimistance showing how or by what agency the injury occurred, and in which, with nothing but the isolated fact of the injury having hap- pened, 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 estabhshed, that there was actionable neg- hgence. It is not an attempt to infer neghgence from an apparent cause, but to infer the cause of the injury from the naked fact of in- jury, and then to superadd the fm-ther inference that this inferred cause proceeded from neghgence. If in Howser's case, supra, there had been no other evidence than the mere /ad 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 foimd in an imconscious state in the timnel. 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 120 FLINT & WALLING MANUF. CO. V. BECKETT [CHAP. II. 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. AU 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 neghgence; 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} Section V Tke Duty of Caee — Misfeasance and Nonfeasance FLINT & WALLING MANUFACTURING CO. v BECKETT SuPBEME Court, Indiana, December 18, 1906. Reported in 167 Indiana Reports, 491. Beckett brought this action against the Flint & Walling Manufac- turing 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 maimer. The defendant erected the windmill in a negUgent 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 bam. Trial in the Circuit Court. Verdict for plaintiff and judgment thereon. Defendant company appealed.^ 1 Actiesselskabet Ingrid v. Central R. Co., 216 Fed. 72; Huneke v. West Brigh- ton Amusement Co., 80 App. Div. 268; De Glopper v. NaahviUe R. Co., 123 Tenn. 633 Accord. ' Statement abridged. Part of opinion omitted. SECT. V.J FLINT & WALLING MANXJF. CO. V. BECKETT 121 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 emplosonent, its obHgation 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 obKgation exists, no action can be main- tained in tort for an omission properly to perform the undertaking. It by no means follows, however, that this common-law obhgation may not have its inception in contract. If a defendant may be held Uable for the neglect of a duty imposed on him, independently of any contract, by operation of law, a fortiori ought he to be Uable where he has come vmder an obhgation to use care as the result of an undertak- ing founded on a consideration. Where the duty has its roots in contract, the undertaking to observe due care may be impKed 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 com- mon-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 Negh- gence, A 4, p. 418, that " if a man neglect to do that, which he has imdertaken to do, an action upon the case Hes. . . . But, if there be not any neglect in the defendant, an action upon the case does not He against him, though he do not perform his undertaking." Professor PoUock 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 appKcations, ' those who go personally or bring property where they know that they or it may come into col- lision 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 Habihty may coexist with a habihty 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 circiunstances and opportimities 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 hable on the contract. The two duties are distinct, except so far as the same party cannot be com- pensated twice over for the same facts, once for the breach of contract and again for the wrong. Historically the Kabihty 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 con- tracts, was brought into use. ' If a smith prick my horse with a nail. 122 FLINT & WALLING MANITF. CO. V. BECKETT CCHAP. II. 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 PoUock, Torts, 533-536. This general thought also finds expression in Mr. Street's valuable work (1 Street, Foundations of Legal Liabil- ity, 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 coiu-se he is imder an imphed 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 hable for any damage that results to another just as if he had bound himself by an obhgatory promise to exercise the required degree of care. In this view, statements so frequently seen in neghgence cases, to the effect that men are boimd 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. 635; 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, Neghgence (2d ed.), § 5; 1 Shearman & Redfield, Neghgence (5th ed.), §§ 9, 22; Saunders, Negligence, 55, 121; 6 Cyc. Law and Proe. 688. The position in which appellant placed this large and heavy struc- ture, 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 Hght 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 ordi- nary 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 im- pUedly held itself out as exercising (a circumstance calculated to throw appellee off his guard), and from the fact that an examination SECT, v.] FLINT & WALLING MANUP. CO. V. BECKETT 123 was difiBicult, 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 DevUn v. Smith, (1882) 89 N. Y. 470, 42 Am. Rep. 311, appellee owed no duty, so far as appel- lant was concerned, to examiae the tower. The contrivance was in- herently dangerous, and the circxmistances of placing it upon the barn, as shown, made it calculated to eventuate ia 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, Neghgence (2d ed.), §438; 1 Beven, Negh- gence (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 neces- sary to consider the extent to which contracts may impose obhgations 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 liabihty in tort, in such a case as this, the following general state- ments in 1 Shearman & Redfield, Neghgence (5th ed.), § 117, with reference to the Habihty for selling dangerous goods: " But one who knowingly seUs an article intrinsically dangerous to human life or health, such as poison, explosive oils or diseased meat, conceahng 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 cotmsel 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 com- plaint. 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 neghgence, the purpose of the pleader was to rely upon a breach of contract or to charge negli- gence in the violation of the imphed duty which was created by the undertaking of the defendant. It is true that in an action on the case for neghgence, 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 imder- taking was performed, or, in other words, on some misfeasance or mal- feasance, 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 124 FLINT & WALLING MANUF. CO. V. BECKETT CCHAP. II. regarded as one in case for a violation of the common-law duty which the circumstances had imposed upon the defendant. 1 Chitty, Plead- ing, *135; Dickson v. Clifton, 2 Wils. 319; Watson, Damages for Per. Inj., § 570; 21 Ency. PI. and Pr., 913. We are especially impressed with the view that in code pleading, which was designed preeminently 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 Rich- mond, (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 sup- plemental or subsidiary agreement as weU, 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 impKed from the allegations of negHgence; he alleges damages " by reason of the defendant's negHgence, 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 negHgence and failure of duty as hereia aUeged," and he avers that he " had no notice or knowledge of the faulty, negUgent, and unskilful erection of said mill," and that he himself was without fault or negHgence 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 wiU give effect to all of its material aUegations is to be preferred, wherfe 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 corn-t 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 appeUant. Lake Erie, etc., R. Co. V. Acres, (1886) 108 Ind. 548; Diggs v. Way, (1899) 22 Ind. App. 617. Judgment affirmed} > Carpenter v. Walker, 170 Ala. 659; MiEer v. Fletcher, 142 Ga. 668; Zabron v. Cunard Co., 151 la. 345; Randolph v. Snyder, 139 Ky. 159; Sprin^eld 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. SECT, v.] KELLY V. METROPOLITAN R. CO. 125 KELLY V. METROPOLITAN R. CO. In the Coukt of Appeal, Apeil 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 state- ment of claim alleged an agreement by the defendants to carry the plaintiff safely, and a breach of that agreement in negUgently and improperly managing the train in which he was, so that it ran into the wall at Baker Street Station, whereby the plaiatiff sustained injury. It was admitted by the defendants that the accident occurred by the neghgence of the engine-driver in not turrdng off steam in time to prevent the traia numing into the dead-end at the station. A sum of 20Z. was paid into coin-t, and the jury returned a verdict for the plaintiff for 251. When the plaiatiff's costs were taken in to be taxed, the master was of opinion that, on the authority of Taylor v. Manchester, Shef- field, and Lincohishire Ry. Co., [1895] 1 Q. B. 134, the act of the engine-driver being one of omission, the action was founded on con- tract, and that therefore the plaintiff was only entitled to costs on the coimty 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 plaiatiff. 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 hable 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 Lincohishire Ry. Co., [1895] 1 Q. B. 134, and the present case comes within that authority. [They also cited Foulkes v. MetropoUtan District Ry. Co., 4 C. P. D. 267; 5 C. P. D. 157.] A. L. Smith, L. J., read the following judgment: ^ 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 opinion of Lord Esher, M. R., is omitted. 126 KELLY V. METROPOLITAN R. CO. CCHAP. II. The plaintiff in the present case was a passenger on the defendants' railway, and whilst lawfully riding ia one of their carriages was in- jured by its beiag neghgently run into a dead-end by the defendants' driver. It has been thought by the master, and also by Day, J., that, be- cause the neghgence 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 251. and no more he was only entitled to coimty court costs. 1 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 neghgently turned on steam or neghgently hoisted a signal, or whether he has neghgently 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 rela- tionship, irrespective of contract, to take due care, and the defendants are neghgent, then the action is one of tort, and as regards the Coimty Court Acts and costs this is what was laid down in the above-men- tioned case. The appeal should be allowed with costs here and below. j RiGBT, 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 con- sequence of the train being neghgently brought into coUision with the dead-end. The proper description of what was done is that it was a neghgent 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 aUowed} ' 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. SECT. V.J SOVTHERN RAILWAY COMPANY V. GRIZZLE 127 SOUTHERN RAILAYAY COMPANY u. GRIZZLE SuPHEME 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 kiUed 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 pubhc-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 ^ were en- tirely disregarded by the engineer. To this petition O'Neal demurred on several grovmds. The demurrer was overruled, and O'Neal excepted.^ 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, Hable to third persons for misfeasance.' Nonfeas- ance 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 dihgence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. The agent's Kability in such cases is not based upon the groimd 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 commis- sion 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 & 1 Sect. 2222. " There must be fixed on the hue 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 pub- Uc 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. ^ Only so much of the case is given as relates to a single point. Statement abridged. Part of opinion omitted. ' But see Mayer v. Thompson, 104 Ala. 611; Carter v. Atlantic R. Co., 84 S. C. 456; Lough v. Davis, 30 Wash. 204. 128 SOUTHERN RAILWAY COMPANY V. GRIZZLE CCHAP. H. 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 per- formance of his xmdertaking does not do something which it is his duty to do mider 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 com- mon 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 Obsome 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 HabUity to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance or doing nothii^, but it is misfeasance, doing improperly." In that case the agent was held Uable by the fall of a tackle-block and chains from an iron rail suspended from the ceDing 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 strength- ened by the fact that the blow-post law renders the engineer indict- able for failure to comply with its provisions. The allegations of the SECT. V.J BLACK V. N. Y., N. H., AND HARTFORD R. CO. 129 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.' BLACK V. NEW YORK, NEW HAVEN, AND HARTFORD R. CO. SuPBEME Judicial Court, Massachusetts, January 2, 1907. Reported in 193 Massachusetts Reports, 448. ToKT for personal injuries alleged to have been caused by the neghgence 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 plain- tiff'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 neghgence of the defendant's serv- ants. 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 occiirred 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 Ash- mont, 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 • Stiewel v. Borman, 63 Ark. 30; Owens v. Nichols, 139 Ga. 475- Baird v. Ship- man, 132 III. 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; EUis v. McNaughton, 76 Mich. 237; Orcutt v. Century Bldg. Co., 201 Mo. 424; Hagerty V. Montana Ore Co., 38 Mont. 69; Homer v. Lawrence, 37 N. J. Law, 46; Schlos- ser V. Great Northern E. Co., 20 N. D. 406, 411; Greenberg v. Whitcomb, 90 Wis. 225 Accord. 130 BLACK V. N. T., N. H., AND HARTFORD E. CO. [CHAP. II. 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. Bkck sort of balanced himself there just a minute and then feU completely backward. He turned a complete somersault and struck on the back of his head. The raUroad men just had time to get down to the foot of the steps. There was a raHing 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 raihng. 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 in- toxicated 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 obhgation to remove him from the car, or to provide for his safety after he left the car. But they volimtarily undertook to help him from the car, and they were bomid to use ordi- nary 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 then- duty to have reasonable regard for his safety in view of his manifest condition. The jury might have fotmd that they were negUgent in leaving him on the steps, where a fall wotild be likely to do him much harm. Moody v. Boston & Maiae Raihoad, 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 volimtary 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, weU 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 negUgence that was a direct and proximate cause of the injury. Exceptions sustained} 1 Norfhem R. Co. v. State, 29 Md. 420 f Dyche v. Vicksburg R. Co., 79 Miss. 361; Bresnahan v. Lonsdale Co., (R. I. 1900) 51 Atl. 624 Accord. SECT, v.] UNION PACIFIC KAILWAY COMPANY V. CAPPIER 131 UNION PACIFIC RAILWAY COMPANY v. CAPPIER Supreme Court, Kansas, April 11, 1903. Reported in 66 Kansas Re-ports, 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 neghgence. 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 serv- ants of the railwaj' 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 neghgence 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 manwas_clearof_±he_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 tele- phone. 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 pohce headquarters for help for the injured man; that the ambulance started at 6.05 p. m. and reached the nearest hospital with EzeUe 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 acci- dent happened ? Ans. No." See also Willes, J., in Skelton v. Lordon R. Co., L. R. 2 C. P. 631, 636; Bailey v. Walker, 29 Mo. 407; Thome v. Deas, 4 Johns. 84, 96; Hyde v. Moffat, 16 Vt. 271. 132 UNION PACIFIC EAILWAY COMPANY V. CAPPIER [CHAP. II. 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. Coimsel for defendant in error quotes the language found in Beach on Contributory Neghgence (3d ed.), § 215, as follows: — " Under certain circumstances, the railroad may owe a duty to a trespasser after the injiuy. 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 injxu'ed person looked after; and, when it seems necessary, removed to a place of safety, and carefuUy nursed, untU 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 evi- dence enough to justify the jury in fimding that the operatives of the train were neghgent in nmning it too fast over a road-crossing without sounding the whistle, and that the number of brakemen was insuffi- cient to check its speed. Such neghgence 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 coUision 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 hmnanity. In that case the injured per- son 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 foimd 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 Neghgence. 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. SECT. Vj UNION PACIFIC RAILWAY COMPANY V. CAPPIER 133 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, how- ever, to approve the doctrine that when the acts of a trespasser him- self 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 neg- lect 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 f aihng 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 obhgation will not be enforced in the courts. Bishop states that some of the older authorities recognize a moral obhgation as vaUd, 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 in- cumbents 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 an- other 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 circimistances of the case at bar ? In Barrows on Neghgence, 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 con- cerned; . . . 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 obhgations imposed by charity, gratitude, generosity, and the kin- dred virtues. The moral law would obhgate an attempt to rescue a person in a perilous position, — as a drowning child, — but the law of the land does not requu-e it, no matter how little personal risk it might involve, provided that the person who declines to act is not respon- sible for the peril." (See, also, Kenney ;;. The Hannibal & St. Joseph Railroad Company, 70 Mo. 252, 257.) 134 HUNICKE V. MERAMEC QUAKRY COMPANY [CHAP. II. 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 foiuid 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.^ 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 ewer- gency, 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 beheve 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 pro- curing 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 master's 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 at- tention, 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 1 Allen V. Hixson, 111 Ga. 460; Griswold v. Boston R. Co., 183 Mass. 434; Stager v. Laundry Co., 38 Or. 480, 489; SchoU v. Belcher, 63 Or. 310; Ollett v. Pennsylvania R. Co., 201 Pa. St. 361; King v. Interstate R. Co., 23 R. I. 683; Riley v. GuK 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. Vicksbuig R. Co., 79 Miss. 361. SECT, v.] HUNICKE V. MERAMEC QUARRY COMPANY 135 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 pro- posed treatment would do no good. He then telephoned to Dr. Kirk, at Kimswick, the condition of the injured man, Hunicke, and re- quested 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 in- jured 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 ior treat- ment. For some reason not made clear, the superintendent decUned 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 fom"teen miles distant, who telephoned back to the super- intendent 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 horn's 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 aU the other facts and circumstances shown by the evidence, we 136 HTXNICKB V. MEBAMEC QUARRY COMPANY [CHAP, II. have reached the conclusion that this, as well as the question of negli- gence in delaying the procurement of a surgeon, was for the jury, and that the evidence introduced was sufficient to make out a prima fade case for the plaintiff. In other words, we are of the opinion that the evidence tended to show that the company was guilty of neghgence in not using more dihgence in procuring medical and surgical treatment for this party; also that it tended to show that said neghgence was the proximate cause of his death. In my opinion there is no possibihty 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 imderstanding existing between them to the effect that when- ever any one in such a case is so injured that he cannot care for himself, then the employer wiU 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 today; and that has been the custom and usage among men from the dawn of civiUzation down to the present day, and wiU continue to be practised in the future, just so long as the human heart beats in sympathy for the unfortimate, and desires to aid suffering hmnanity. The same principle imderhes all other avocations of life. Even armies whUe engaged in actual warfare observe and obey this rule when pos- sible. 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 feel- ing 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 Uves 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 em- SECT, v.] DEPUE V. FLATATJ 137 ploy 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 instrumentahties with which to labor. So universally true was that custom that the law read into all contracts of labor an im- phed 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 apphances 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, Kke 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 himiane 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,^ DEPUE V. FLATAU Supreme Coukt, 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. ' 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^ 138 DBPUE V. FLATAU [CHAP. II. From an order denying a motion for a new trial, plaintiff appealed. Reversed. Bkown, 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 fanners. 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 remain- ing over night, to the end that a bargain might be made understand- ingly 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 defend- ants repaired to the sitting-room of the house, and plaintiff made prep- aration 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 fioor. He remembers very Httle 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 stimibled against a parti- tion 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 attendiag to other details preparatory to start- ing 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 iU 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, 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. MetcaK, 107 N. Y. 211. SECT, v.] DEPUE V. FLATAU 139 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 Madeha. 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 re- mained the entire night. He was discovered by a passing farmer, taken to his home, and revived. The result of his experience neces- sitated 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 wrong- ful conduct in refusing him accommodations for the night, and, know- ing 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 dis- missed 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 neghgently violated; and (2) whether the evidence is sufficient to take the case to the jury upon the question whether defendants knew, or imder 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 enter- tain him during the night in question, and were not guilty of any neghgent misconduct in refusing him accommodations, or in sending him home imder 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 Sa- maritan to minister to the needs of the sick and wounded at the road- side, but the law imposes no such obligation; and suffering hmnanity 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 im- poses the duty of providing the necessary relief, there is neither obliga- 140 DEPXJE V. FLATAU [CHAP. II. tion 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 appKcable 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 prin- ciple 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 hable 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 hcensee, 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 obHgation 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. Bar- rows, Neg. 304. The rule stated is supported by a long Hst of authori- ties both in England and this coimtry, 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 proposi- tion which these recognized cases suggest, and which is, therefore, to be deduced from them, is that, whenever one person is by circum- stances 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 skiU in his own conduct with regard to those circumstances he would cause danger of injiuy to the person or prop- erty 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 dis- abled persons, and numerous analogous cases are collected and analyzed. In the case at bar defendants were under no contract obhgation to minister to plaintiff in his distress; but himianity demanded that they do so, if they understood and appreciated his condition. And, though SECT. V.J DEPUE V. FLATAXJ 141 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 em- ployees 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 tie tracks. The court held the railway company Hable; that, under the circimistances 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 injur- ing 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 phys- ical 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 defend- ants 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. 142 DEPUE V. FLATATT CCHAP. II. 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 ap- preciated his condition, their act in sending him out to make his way to MadeUa the best he could was wrongful and rendered them liable in damages. We do not wish to be understood as holding that de- fendants 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 deter- mined from a fuU view of the evidence disclosing their situation, and their facilities for com m imicating 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 neghgence appHcable to the case, defendants neglected any duty they owed plaintiff. Order reversed.^ Dtjtch Penal Code, Aet. 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 fol- lows, by a detention of three months at most and an amende of three hundred florins at most. German Civil Code, section 826. One who wUfully brings about damage to another in a manner running coimter to good morals is bound to make reparation to the other for the damage. Stammlee, Lehre von DEM BiCHTiGEN 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, habUity under section 826 cannot be denied." [Liszt, Die DehktsobUgationen des B. G. B., 72.] Surely not. Planck, Btjegerliches 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. 1 See also Weymire v. Wolfe, 52 la. 533; Trout v. Watkins, 148 Mo. App. 621. Compare Texas R. Co. v. Greraldon, 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. SECT, v.] DEPUE V. FLATAXT 143 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 obUgation 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 indi\'idual seeing the clothes of the first catch fire, and doing notliing towards extinguishing them: the crime would be greater if he refrained from acting not simply from idleness, but from maUce 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 Uniits of the law on this head seem, however, to be capable of being ex- tended 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 everi' 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.^ Bextham. Theory of Legislation, transl. by Hildreth (5th ed.), pp. 65- 66. As to beneficence, some distinctions are necessary. The law may be ex- tended to general objects, such as the care of the poor; but, for details, it is necessari' to depend upon private morahty. . . . However, instead of having done too much in this respect, legislators have not done enough. Thej' ought to erect into an offence the refusal or the omis- sion of a service of humanity when it would be easy to render it, and when some distinct iU clearly results from the refusal; such, for example, as aban- doning a wounded man in a solitary road without seeking any assistance for him; not giving information to a man who is negligently meddUng with poisons; not reaching out the hand to one who has fallen into a ditch from which he cannot extricate himseK; in these, and other sinular 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 ? LmxGSTON, Dhait Code of Chimes 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 per- mitting 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 dan- ' A woman's head-dress catches fire : water is at hand : a man, instead of assist- ing 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 Ues 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 misappUed ? — Author's Note. 144 DEPTXE V. FLATAU [CHAP. II. ger 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.' Macatjlat, Notes to Draft op Indian Penal Code. Penal Code Pre- pared by the Indian Law Commissioners.'' Chapter xviii [page 76]. Of Offences Affecting the Human Body. Of Offences Affecting Life. 294. TMioever 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 hkely 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.' On Offences Against the Body. Notes to Draft of Penal Code, 53-56; Macaulay's Complete Works (Enghsh 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 Ufe; 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 defi- nition of voluntary culpable homicide. These words, or other words tanta- mount 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 Kkely 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: sec- ondly, that aU these omissions ought not to be punished. It will hardly be dis- puted 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 mur- derer 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 * This proposed code was not enacted. 2 A Penal Code prepared by the Indian Law Commissioners, and published by command of the Governor-General of India in Council; Calcutta, 1837. ' 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. SECT, v.] DEPUE V. FLATAU 145 was likely to be the effect of the omission. It wiU 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 foot- ing 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 Une of demarcation may be drawn it will, we fear, include some cases which we might wish to exempt, and wOI exempt some which we might wish to include. Mr. Li%ingston's Code provides that a person shall be considered as guilty of homicide who omits to save hfe, which he could save " without personal danger or pecuniary loss." This rule appears to us to be open to serious objec- tion. 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 joume^-ing to the Upper Provinces than by continuing to reside in Bengal. But he is about to proceed to Europe immediately, or he expects some mem- bers 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 refus- ing, 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 whoUy unpunished a man who, enjoying ample wealth, should refuse to disburse an anna to save the hfe 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 Une 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 wiU operate too severely, and cases in which it wiU 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 146 DEPTJE V. FLATAtr [CHAP, II. 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 vol- untarily 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 invahd, 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 obU- gation to furnish Z, during the continuance of the confinement, with neces- saries. 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 wiQ 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 hne. 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 miu-derer for refusing to save the beggar's life at the cost of a httle 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 wiU 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 inteUigible. 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 jf he does SECT. VlJ MAYNAKD V. BOSTON AND MAINE RAILEOAD 147 not go fifty yards through the sun of Bengal at noon in May in order to cau- tion 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 en- dure ? The distinction between the guide who is bound to conduct the travel- ler as safely as he can, and a mere stranger, is a clear distinction. But the dis- tinction 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, iadeed, 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 keep- ing men from doing positive harm, and must leave to pubUc 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 moraUty would pronounce reprehen^ sible, 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 ap- pears to us so well fitted to be the mark as the circumstance which we have selected. It wiU generally be found ia the most atrocious cases of omission; it wiU scarcely ever be found ia 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 LlABILITT OF OCCUPIEES OF PREMISES MAYNAED v. BOSTON AND MAINE RAILROAD Supreme Judicial Court, Massachusetts, September 4, 1874. Reported in 115 Massachusetts Reports, 458. Tort for the kiUing of a horse on a railroad by a locomotive engine. Upon the trial, the plaintiff admitted that the horse must be con- sidered 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 evi- dence to control this, and tending to show that they did all they rea- sonably 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 Uable, unless the plain- 148 MAYNARD V. BOSTON AND MAINE RAILKOAD CCHA.P. II. tiff proved a reckless and wanton misconduct of their employees in the management of the train when the horse was killed. The presid- ing 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 reason- able 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 hable. The jury found for the plaintiJBf, and the defendants alleged exceptions.' Grat, 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 RaUroad v. Hunger, 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 Rail- road, 2 R. I. 404; Cincinnati, Hamilton & Dayton Railroad v. Water- son, 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 obhgation to the plaintiff as if his horse had been rightfully on their land; and made their paramoimt duty to the pubhc of nmning 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 RaUroad, 98 Mass. 560, 563, were reUed on by the plaintiff's coimsel at the argu- ment, 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 neghgence or misconduct in the management of the train, and an exact definition of the defendants' liability, by reason of such negh- gence 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} ' Statement abridged. Arguments of counsel omitted. 2 Grand Trunk R. Co. v. Bamett, [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, 199 111. 383; Neice i;. Chicago R. Co., 254 III. 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. Collms, 80 N. J. Law, 425; Gulf R. Co. v. Dees, 440kl. 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 Accm-d. SECT. VI. J HERRICK V. WIXOM 149 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 plain- tiff 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 fire- cracker 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 invi- tation 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 defend- ant owed him no duty that would enable him to recover under the declaration and proofs in this case." ... So in case of persons wrongfully upon engines, cars, or trains. Chicago R. Co. V. McDonough, 112 IE. App. 315; Handley v. Missouri R. Co., 61 Kan. 237; Planz V. Boston R. Co., 157 Mass. 377; Bjomquist v. Boston R. Co., 185 Mass. 130; Fee- back 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 la. 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 wiUingness 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 ex- pected to occiir, 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 injiiry 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 infficting 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 BoUn 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, 150 CINCINNATI & ZANESVILLE K. CO. V. SMITH [CHAP. II. Verdict of no cause of action. Judgment for defendant. Plaintiff brought error.^ Montgomery, J. [After stating the case.] We think this instruc- tion faulty, in so far as it was intended to preclude recovery ia any event if the plaintiff was foimd 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 neghgence resulting in injury wiU render the person guilty of negligence Hable to respond in damages. Beach, Contrib. Neg. § 50; Whart. Neg. § 346; Marble v. Ross, 124 Mass. 44; Houston, etc., R. Co. v. Sjnoipkins, 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; Da vies v. Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. In this case the negligent act of the defend- ant's servant was committed after the audience was made up. The presence of plaintiff was known, and the danger to him from a negh- gent act was also known. The question of whether a dangerous experi- ment 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 himaanity revolts at such a suggestion. For this error the judgment will be reversed, and a new trial ordered.^ 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 Coimty, reserved in the District Court.' The plaintiff below, Richard Smith, sued the defendant below, the Cincinnati & ZanesviQe Railroad Company, to recover the value of ' Statement abridged. Part of opinion omitted. 2 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 i: 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. «. 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 ni. 138; Krenzer v. Pittsburgh R. Co., 151 Ind. 587; Glenn v. LKJuis- viUe R. Co., 28 Ky. Law Rep. 949. To trespasser observed in a dangerous posi- tion, see Haley v. Kansas City R. Co., 113 Ala. 640; Atkinson v. KeUey, 8 Ala. App. 571; St. Louis R. Co. v. Townsend, 69 Ark. 380, 383; Chicago R. Co. v. Kotoski, 199 lU. 383; Richardson v. Missouri R. Co., 90 Kan. 292; Whitehead ti. St. Louis R. Co., 99 Mo. 263; Mathews v. Chicago R. Co., 63 Mo. App. 569; Omaha R. Co. v. Cook, 42 Neb. 377. ' Statement rewritten; part oj case omitted; argument omitted. SECT. VlJ CINCINNATI & ZANESVILLE R. CO. V. SMITH 151 two hoi-ses 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 foUows : — The defendant's servants in this case were not bound to use extraor- dinary care or extraordinary means to save the plaintiff's horses. But they were bound to use what, in that peculiar business, is ordi- nary 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 hable. The defendant had the right to the free and unobstructed use of its railroad track. And the paramount duty of the employees is the pro- tection of the passengers and property in the train, and the train itself. But this being their paramount duty, they are bound to use ordi- nary care and dihgence, so as not unnecessarily to injure the property of others. Under the circmnstances of the case, could and would reasonably prudent men, skilled in that kind of business, keeping in view as their paramoimt duty the protection and safety of the train, its passengers, and the property on and about it intrusted to their care, in the exer- cise 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 hable in this case; otherwise the defendant is not hable. 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 pas- sengers and property of the train, — such as gauging his steam, watch- ing time-table, regulating his supply of water, examining his ma- chinery, 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 circimistances 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 evi- dence 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. 152 CINCINNATI & ZANESVILLE R. CO. V. SMITH [CHAP. II. 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 boimd to look out for trespassers except for the safety of passengers or prop- erty 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 ia determining whether the em- ployees exercised ordinary care in the management of the traiu. 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 hable for their loss to the plaintiff.^ White, J. The whole charge is set out m 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 be- half 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 jmy that the defendant had the right to the free and unobstructed use of its railroad track, and that the para- mount 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 boimd to use ordinary care and diMgence so as not unnecessarily to injure the property of others. We think the charge stated the law correctly. We see no good rea- son, 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. ' The above portions of the instructions are set out in the argument of counsel, pp. 235-237. SECT. YI.] CINCINNATI & ZANESVILLE B. CO. V. SMITH 153 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. Aliddlesworth, 46 lU. 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 rehed upon by the counsel of the plain- tiff 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 Kability 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 ordi- nary care to avoid injuring animals on the track, they were, of course, boimd 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 negUgence in not looking ahead and discovering the danger in time to avoid it. The fact that the road was fenced ren- dered 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 keepiag 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. Wain- scott, 3 Bush, 149.^ Judgment affirmed. I Schmidt v. Michigan Coal Co., 159 Mich. 308; Myers v. Boston R. Co., 72 N. H. 176; 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. 154 SHEEHAN V. ST. PAUL & DULUTH R. CO. [CHAP. II. SHEEHAN V. ST. PAUL & DULUTH R. CO. United States CrRcuiT Court of Appeals, Seventh Circuit, October 16, 1896. Reported in 46 U. S. Appeals, 498. Seaman, J.' 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 pubhc were Ucensed to travel, but upon the undisputed facts was a mere intruder on the tracks of the defendant, technically a tres- passer; and this record excludes any of the elements of impHed hcense 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 tres- passer 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 obHgation is placed upon the company to exercise some degree of care when the danger becomes apparent. Is it, however, bound to foresee or assiune 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 probabihty which is imposed for pubhc crossings ? There are cases which would seem to hold this strict requirement (see note, 1 Thompson on NegH- gence (1880), 448; East Tennessee and Georgia RaUroad Co. v. St. John, 5 Sneed, 524) ; but by the great preponderance of authority, in this country and in England, the more reasonable doctriae is pro- noimced, in effect, as follows: That the raihoad 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 RaUroad, 129 Mass. 440; Philadelphia and Reading Railroad Company v. HummeU, 44 Penn. St. 375. The decision by this court, ia Cleveland, Cincinnati, Chicago and St. Louis Railway Company v. Phihps' Administrator (1), 24 U. S. Appeals, 489, adopts the view held in this hne of cases, citing the authorities of which repetition here is unneces- sary. 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 negUgence in not trying to avoid it as to evince a reckless disregard of ' The statement and part of the opinion are omitted. SECT, -\^.] SHEEHAN V. ST. PAUL & DULTJTH R. CO. 155 human life; " and the opinion gives this further exposition of the rule: " The defendant's engineer was under no obhgation 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 hfe." So in Wisconsin, in Anderson v. Chicago, St. Paul, Minneapolis & Omaha Railway Com- pany, S7 Wisconsin, 195, 204, it is said: " The use of a railroad is ex- clusively 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 dihgence 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 iadiscretion or negligence." The well-estabhshed and just rule which holds the railroad com- pany to the exercise of constant and strict care against injury through its means is appHcable only to the relation on which it is founded, of an existing duty or obhgation. This active or positive duty arises in favor of the pubhc at a street crossing or other place at which it is presimaable 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 law- ful 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 im- poses the positive duty to exercise care; the requirement of an ex- treme 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 obhgation 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 preexisting, but arises at the moment of discovery, and is negative in its nature, — a duty which is common to himian 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 appH- ances or other means of operation, or of the speed or manner of run- ning 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 156 AKEES V. CHICAGO, &C. K. CO. [CHAP. II. to the efforts then made to avert the injury; and out of that to ascer- tain 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 con- fronted them neglected to employ with reasonable promptness the means at hand for stopping the train.* Beett, 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 negUgence. That the stage was, through want of attention of the defendant's servants, supplied in a state imsafe 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 negUgence 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 negUgence 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 negUgence is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negU- gence. Even if a defendant owes a duty to some one else, but does not owe it to the person injured, no action wiU Ue. The duty must be due 1 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 tres- passers, see Southern R. Co. v. Donovan, 84 Ala. 141; BuUard v. Southern R. Co., 116 Ga. 644; Cincinnati R. Co. v. Blankenship, 157 Ky. 699; Risbridger v. Michi- gan 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 i>. 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 assimie that an adult trespasser, not in obvious peril, wiU look out for himself. Indianapolis R. Co. v. McClaren, 62 Ind. 566; Campbell v. SECT. VI. J LARY ('. CLEVELAND R. CO. 157 to the person injured. These principles are elementary, and are equally appHcable, whether the duty is imposed by positive statute or is founded on general common-law principles.' LARY V. CLEVELAND R. CO. Supreme Court, Indiana, November Term, 1881. Reported in 78 Indiana Reports, 323. Lart 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 plain- tiff 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 sub- stantially as follows : — The railroad company owned half an acre of land between the rail- road track and a highway. On this land was a building erected sev- eral 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 plat- form 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.^ 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 ap- pellant intruded upon the premises of the appellee, and is not, there- fore, 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 appel- lee's premises, taking the risks of aU the mere omissions of the 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. ' " The duty must be one owed by the defendants to the plaintiffs in respect to the very matter or act charged as negligence." — Pabsons, C. J., in Pittsfield C. M. Co. V. Pittsfield Shoe Co., 71 N. H. 522, 531. * Statement abridged. 158 LARY V. CLEVELAND R. CO. [CHAP. U. appellee as to the condition of the grounds and buildings thus invaded without leave. We do not wish to be understood as holding or im- plying 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 Hable. 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 pubUc business; it was in a state of palpable and visible decay, and no one was authorized, imphedly 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 boimd 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 busi- ness 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 pubHc were permitted to travel; it was held that the owner was imder no legal obhgation to fence or guard the excavation imless it was so near the pubhc 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 Pittsbm-gh, &c. R. W. Co. v. Bingham, supra, says: — " The principle underlying the cases above cited recognises 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 un- safe 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 plain- tiff 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 hoiise was blown off the building and against the intestate, with such force as to kill him. The case, in its circumstances, was not unhke the one before us. Nichol- son V. Erie R. W. Co., 41 N. Y. 525; Murray v. McLean, 57 lU. 378; Durham v. Mussehnan, 2 Blackf. 96 (18 Am. Dec. 133). SECT. VI.] LARY V. CLEVELAND R. CO. 159' In the case of Sweeny ;-. Old Colony, &c. R. R. Co., 10 Allen, 368, the Court say: — " A Hcensee, who enters on premises by permission only, without any enticement, alliu-ement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused Iby obstructions or pitfalls. He goes there at his own risk, and enjoys the hcense 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 neghgence in not repairing its freight house, and that such neghgence renders it liable, though he entered upon its premises without invitation or hcense, 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; Indianapohs, &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 Com^t held that, where the negli- gence of the company was so gross as to imply a disregard of conse- quences or a willingness to inflict the injury, it was hable, 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 hable for animals killed on its road, unless guilty of gross negligence. The phrase " gross negligence," as used in these cases, means some- thing 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 neghgence, Ijow- ever gross, must be shown, to enable a party to recover for an injury, when he has been guilty of contributory neghgence." The Pennsyl- vania Co. V. Sinclair, 62 Ind. 301. There was, in the cases referred to in 26 Ind., something more than neghgence. 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 Comi; held that a party building a dam across a stream miist provide against unusual floods. We do not think these cases apphcable to the one before us. There could be no neghgence on the part of the appellee, of which the appellant can be heard to complain, imless at the time he received the injury, the appellee was imder 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 160 BUCH V. AMORT MANUFACTURING CO. [CHAP. H. 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. ^e judgment below should be affirmed. Per Cueiam. It is ordered, upon the foregoing opinion, that the judgment below be afiBrmed, at the costs of the appellant.^ 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 plaiatiff. March 30, 1886, the plaintiff, then eight years of age and imable to speak or imder- stand English, was injured by the machinery in operation in the de- fendants' 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, imless 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 plain- tiff was in the mill for a day and a haJf imtil 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 1 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; Gamer v. Town, 7 Ga. App. 630; McDermott v. Burke, 256 111. 401; Northwestern El. Co. v. O'Malley, 107 111. App. 599; Knapp v. DoU, 180 Ind. 526; St. Joseph I. Co. v. Bertch, 33 Ind. App. 491; Upp V. Darner, 150 la. 403; Bransom v. Labrot, 81 Ky. 638; Mallock v. Derby, 190 Mass. 208; Flanagan v. Sanders, 138 Mich. 253; Dahl v. Valley Dredg- ing 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; Higgle v. Lens, 71 Or. 125; Clapp v. La GriU, 103 Tenn. 164; Stamford OU Co. v. Barnes, 103 Tex. 409; Denison Light Co. v. Fatten, 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 la. 613. Compare Marble v. Ross, 124 Mass. 44; Loomis v. Terry, 17 Wend. 497; Sherfey v. Bartley, 4 Sneed, 58. SECT. yi.J BUCH V. AMORY MANUFACTURING CO. 161 hours before the accident, when, aware that the boy was not an em- ployee, he directed him to go out, and thinking he might not under- stand EngKsh, took him to an operative who spoke the plaintiff's language, whom he told to send the plaintiff out. The plaintiff tes- tified 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 warn- ing 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 man- aged. They were conducting their lawful business in a lawful way and in the usual and ordinary manner. During the plaintiff's pres- ence they made no change in the operation of their works or in their method of doing business. No inomediate 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 circum- stances of the accident — how or in what manner it happened that the plaiatiff 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 162 BUCH V. AMORY MANUFACTURING CO. [CHAP. II. sufficient to avoid the danger. Such an incapacity cannot be pre- sumed. Stone V. Raihoad, 115 N. Y. 104, 109-111; Hayes v. Nor- cross, 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 Men, 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 dis- cretion 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 appreci- ating 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 busi- ness and management of their machinery the defendants were with- out fault. The only negUgence 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 neghgence is the neglect of a legal duty. The defend- ants are not Hable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obhgations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, hable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or reheved. 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 Hable in damages for the child's injury, or indictable imder the statute for its death. P. S., c. 278, s. 8. " In dealing with cases which involve injiu-ies to children, courts . . . have sometimes strangely confounded legal obhgation with sen- timents that are independent of law." Indianapolis v. Emmehnan, 108 Ind. 530. " It is important to bear in mind, in actions for injuries to children, a very simple and fimdamental 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 wiU he against a spiteful man, who, seeing another running into dan- SECT. VI. J BUCH r. AMORY MANUFACTURING CO. 163 ger, 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 Ucense." Gautret v. Egerton, L. R. 2 C. P. 371, 376. 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 fiurther 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 in- terfere 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. "i^Tiat 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 un- able 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 dis- cover, 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 neghgence 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 imlawfully 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 obhgation 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 in- 164 BUCH V. AMORY MANTJFACTUKING CO. [CHAP. U. fant is not there by his express or implied inAatation ? If A sees an eight-year-old boy beginning to cUmb into his garden over a wall stuck with spikes and does not warn him or drive him off, is he Uable in damages if the boy meets with injiuy 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 hable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by the common law or imder the statute (P. S., c. 278, s. 8), because the child and I are strangers, and I am imder no legal duty to protect him. Now suppose I see the same child trespassing in my own yard and meddling in Uke manner with the dangerous machinery of my own win dmill . What additional obhgation 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 iu the one case more than lq the other. Upon what principle of law can an infant by coming imlawfully 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. lCh.Pl.86; 2 Kent, 241; Cool. Torts, 103; Poll. Torts, 46; 2 Add. Torts, 1126, 1153; 10 Am. & Eng. Enc. Law, 668, et seq.; Himiphrey v. Douglass, 10 Vt. 71; School District v. Bragdon, 23 N. H. 507; Eaton v. HiU, 50 N. H. 235; BuUock v. Babcock, 3 Wend. 391; Wilhams 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 Uable 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 impos- sible to hold that while the plaintifif is Hable to the defendants in tres- pass, they are hable 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 pubhc ways, or to the exposm-e upon them of machinery attractive and dangerous to children have no apphcation here. Danger from machinery in motion in the ordinary course of busi- ness cannot be distinguished from that arising from a, weU, pit, opjen 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; Holbrookt;. 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 tres- passer than it requires them to maintain a railing about an open SECT. VI.] KEFFE V. MILWAUKEE AND BT. PAUL RY. CO. 165 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 per- form 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} P.\KSONS, 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 Com- mon Pleas for Ramsey Coiuity to recover damages for injuries sus- tained while playing upon a turn-table of defendant. The circum- stances 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 pas- senger 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 tvuned around at the pleasiu^e 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 tmn-table, when left imfastened, was very attractive to young children, and that while the same was being ' 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, 104 111. App. 667; Nelson v. Bmiiham Co., 114 Me. 213; Peninsular Trust Co. v. City, 131 Mich. 571; Houek 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 u. Stone Quarries, 37 Wash. 355; Uthermohler v. Mining Co., 50 W. Va. 457; Ritz v. City, 45 W. Va. 262 Accord. Compare Walsh v. Pitts- burg R. Co., 221 Pa. St. 463; Lyttle v. Harlem Coal Co., 167 Ky. 345. 166 KEFFE V. MILWAUKEE AND ST. PAUL RT. CO. CCHAP. II. 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, negUgence, and improper conduct of said defendant, in not locking, enclosing, or otherwise fastening said turn-table, and by the negUgence, carelessness, and im- proper conduct of said defendant, its agents, and servants, in allowing said turn-table to be and remain unfastened, insecure, and improperly put ia 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 tiun-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 raU on said timi-table and the iron rail on said abutment or wall, and said leg was thereby so bruised, broken, man- gled, and fractm^ed, as to render amputation necessary." The complaint further alleges that the injury was catised by defend- ant's negligence, and without any fault or negHgence 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. Bigehw, Flandrau & Clark, for respondent, rehed on the opinion of Hall, J., and the cases therein cited.^ 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 re- quire the defendant to exercise care to protect him from receiving in- jury 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 pronerty, and it is therefore uimecessary to consider whether the proposition advanced by the defendant's coimsel, viz., that a land- owner 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 aver- ments of the complaint, that the turn-table, which was situate in a pubUc (by which we imderstand an open, frequented) place, was, 1 This opinion, too long to be inserted here, will be found in 2 Cent. Law Joiir- nal, 170. SECT. VI.] KEFFE V. MILWAUKEE AND ST. PAUL RY. CO. 167 when left unfastened, veiy 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 tvu-n-table, being thus attractive, presented to the nat- m-al instincts of young cliildren a strong temptation; and such chil- dren, 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 tinrn-table by the defendant's own conduct, and that, as to him, the turn-table was a hidden danger, — a trap. WTiile it is held that a mere Ucensee " 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 hcensee 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 ChanneU and Wilde, BB.; Corby v. Hill, 4 C. B. (n. s.) 556, per WHlcs, 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 apphcable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suit- able 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 impHed, 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 tempta- tion of an attractive plaj^thing is to a child of tender years. If the defendant had left this turn-table unfastened for the purpose of at- tracting 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 Ellen- borough 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 168 KEFFE V. MILWAUKEE AND ST. PAUL RY. CO. [CHAP. n. must not set traps of this dangerous description in a situation to in- vite 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 vmf astened for the purpose of injuring young children; and if the defendant had no reason to believe that the unfastened turn-table was likely to at- tract 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 attrac- tive, and when put in motion by them, dangerous, to yoimg 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 imguarded, it was not merely inviting young children to come upon the tm-n-table, but was holding out an aUiu-ement, which, acting upon the natiu-al 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 faxilt (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 hves 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 wiU lead them into danger, it must use ordinary care to protect them from harm. What wo\ild be proper care in any case must, in general, be a question for the jury, upon aU 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 dan- gerous 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 plaintiJBf the duty of care, but whether the defendant was absolved from UabiUty 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 SECT. VI.] KEFFE V. MILWATIKEE AND ST. PAUL KY. CO. 169 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 defend- ant 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 re- ferred 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 respon- sible, does not weaken the authority of those cases. And in Railroad Co. V. Stout, 17 Wall. 657 (a case in aU respects similar to the pres- ent), 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 defend- ant Kable, in a case like the present, are clearly stated. In Hughes v. Alacfie, 2 Hurlst. & Coltm. 744, and Mangan v. Atter- ton, 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 hd 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. Gar- diner, 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 reUance is placed by defendant on Phila. & Reading R. Co. V. HummeU, 44 Penn. St. 375 and Gfllis v. Penn. R. Co., 59 Penn. St. 129. In the first of these cases, the plaintiff, a young child, was injured by comuig upon the track while the cars were in motion. The only negUgence 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 com- pany 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 abimdant 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. GiUis 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 170 FROST V. EASTERN RAILROAD [CHAP. II. 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 lu-ged upon the argimient that the plaintiff was guilty of contributory negligence, and we have assumed that the plaintiff exer- cised, 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.^ 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 de- fendants 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 com- menced June 7, 1884. Plea, the general issue and statute of limita- tions. 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 per- sonal actions within two years after such disabiUty is removed." G. L., c. 221, s. 7. As a general rule, in cases where a disabUity exists when the right of action accrues, the statute does not nm during the continuance of the disabihty, and it has not commenced to run against the plaintiff. 1 Railroad Co. v. Stout, 17 Wall. 657; Umon 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, 116 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 — excava- tion)- City V. McMahon, 154 111. 141; Donk Bros. v. Leavitt, 109 111. App. 385; Belt R. Co. V. Charters, 123 lU. App. 322 (but see American Advertising Co. v. Flannigan, 100 111. 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 la. 410 (but see Anderson v. Ft. Dodge R. Co., ISO la. 465); Price v. Atchison Water Co., 58 Kan. 551 (reservoir); Kansas City R. Co. v. Matson, 68 Kan. 815 (wood pile); Osbom V. Atchison R. Co., 86 Kan. 440 (abandoned round house — but see Somer- field V. Land and Power Co., 93 Kan. 762 — unguarded canal); Bransom r, 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. SECT. VI.] FROST V. EASTERN RAILROAD 171 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 disabihty, 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 evi- dence upon which the jury could properly find a verdict for the plain- tiff. Paine v. Railway, 58 N. H. 611. The ground of the action is, that the defendants were guilty of neghgence in maintaining a turn- table insecm-ely 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 tin-ning 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 tm-n-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 tin-n-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 neghgence complained of relates to the construction and con- dition 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 quahfied like Kansas City Distillmg 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 — aban- doned quarry; Barney v. Haimibal R. Co., 126 Mo. 372 — imfenced 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) ; KeUey v. Southern R. Co., 152 Wis. 328 (but see Emond V. Kimljerly-Clark Co., 159 Wis. 83 — pond) Accord. Compare McCabe v. American Woolen Co., (C. C. A.) 132 Fed. 1006 (un- guarded canal); Valley Planing Mill v. McDaniel, 119 Ark. 139; Brmkley v. Cooper, 70 Ark. 331; Prickett v. Pardridge, 189 lU. 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, 123 111 App 322; State Bank v. Mandel, 176 ID. App. 278; Wilmes v. Chicago R. Ca. 175 la. 101; Shaw v. Chicago R. Co., (Mo.) 184 S. W. 1151. 172 FKOST V. EASTERN RAILROAD [CHAP. H. 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 imder special hcense (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 ia operating the defendants' raUroad. It was located on its own land so far removed from the highway as not to interfere with the convenience and safety of the pubhc 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 neghgence or breach of duty where there is no act or service which the party is boimd to perform or fulfil. A landowner is not required to take active measures to in- sure the safety of intruders, nor is he hable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes aU 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 in- jury by the exercise of reasonable care after discovering the danger. Clark V. Manchester, 62 N. H. 577; State v. Raflroad, 52 N. H. 528; Sweeny v. RaOroad, 10 Allen, 368; Morrissey v. Railroad, 126 Mass. 377; Severy v. Nickerson, 120 Mass. 306; Morgan v. Hallowell, 57 Me. 375; Pierce v. WMtcomb, 48 Vt. 127; McAlpin v. PoweU, 70 N. Y. 126; St. L., V. & T. H. R. R. Co. v. BeU, 81 lU. 76; Gavin V. Chicago, 97 111. 66; Wood v. School District, 44 Iowa, 27; Gram- hch 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; Man- gan V. Atterton, L. R. 1 Ex. 239. The maxim that a man must use his property so as not to incommode his neighbor, only apphes to neighbors who do not interfere with it or enter upon it. Knight v. Abert, 6 Pa. St. 472. To hold the owner Uable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of his enjoy- ment 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 hav- ing in his possession agricultm-al 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 SECT. VI.] COOKE V. MIDLAND GREAT WESTERN RY. 173 fr,uit. 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 acci- dents 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 pubhc 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 differ- ent kind of care; but precautionary measures having for their object the protection of the pubhc must as a rule have reference to all classes ahke." 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.^ 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 respond- ents for an injury sustained on the company's land in Meath under the circumstances stated in the headnote, the details of which are fuUy 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 de- fendants; 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' neghgence and as the effective cause of it that the misfortime occurred. That judgment was affirmed by the King's Bench Division in Ireland (PaUes, 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.J J.). Hence this appeal by the plaintiff.'' ' WHmot V. McPadden, 79 Conn. 367 (building m 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; Raikoad Co. v. Harvey, 77 Ohio St. 235; Paolino v. McKendaU, 24 R. I. 432 (unguarded fire); Uthermohlen v. Bogg's Run Co., 50 W. Va. 457 Accord. ' The arguments of counsel and the concurring opinions of Lords Atkinson, Colling, and Lorebum are omitted. 174 COOKE V. MIDLAND GREAT WESTERN RY. CCBDiP. U. Lord Macnaghten. My Lords, the only question before your Lordships is this: Was there evidence of neghgence 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 circum- stances attendiug the case it seems to me that this gap taken by itseK is the least important. I have some difficulty in behoving that a gap in a roadside fence is a strange and imusual spectacle in any part of Ireland. But however that may be, I quite agree that the in- sufficiency of the fence, though the company were bound by Act of Parhament 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 Ukehhood of some injury happen- ing to children resorting to the place and pla3dng 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., ia McDowaU 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 iu the pubHc 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 neghgence 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 unques- tionably 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 SECT. VI.] COOKE V. MIDLAND GREAT WESTERN RY. 175 much difference whether the place is dedicated to the use of the pub- he 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 plain- tiff's leg was crushed; the way in which it was left, unfenced, un- locked, 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 derehct. 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 for- bidding trespass it was a place of habitual resort for children, and .that children were frequently playing with the timber, and after- wards 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 attrac- tion 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, TuUy, 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 prac- tice 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 ii bolt; but if Cooke, the father of the plaintiff, is to be believed, the bolt was rusty and imworkable. 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 every- 176 COOKE V. MIDLAND GREAT WESTERN RY. [CHAP. II. thing 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 en- titled, in view of all the circimastances, 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 vmder appeal reversed, with pauper costs here and costs below; and I move your Lordships accordingly. I win 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.^ 1 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 ' attrac- tion ' 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 reaUty 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 ac- cordingly 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 stiU, if he goes on pri- vate ground without leave or right, however natural it may have been for liim 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 Uabihty on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and perU 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 simpUciter. A child can get into mischief and hurt itseU 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." SECT. VI.] BOLCH V. SMITH 177 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.' At the trial, before Channell, B., at the last Hampshire Sununer Assizes, the following facts appeared : The plaintiff was a millwright employed in the Government dock-yard at Portsmouth. The defend- ant 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 al- lowed to leave it during the day, and water-closets had been built for their use. For the pm-pose of going to these water-closets, they had permission to use certain paths which crossed the dock-yard. The de- fendant 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 cormected 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 lacer- ated 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 dechned to ac- cede to this course; whereupon the learned judge left it to the jury to say: first, whether the plaintiff was lawfully using the way in ques- tion on the day of the accident; secondly, whether the defendant was guilty of negUgence in leaving the shaft in the state it was on that day. The jury answered both questions in the aflSrmative, and they added that they found " that the shaft was not sufficiently fenced; " and they assessed the damages at 230Z. A verdict having been entered for the plaintiff for that amount, ■ Statement abridged. Arguments omitted, and parts of opinions. 178 BOLCH V. SMITH [CHAP. II. 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 de- fendant 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.] Maetin, B. I am of the same opinion. The real objection to this action is that the plaintiff has failed to estabhsh 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 obhgation 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 in- volves leave and Ucense, but it gives no right. If I avail myself of permission to cross a man's land, I do so by virtue of a hcense, not of a right. It is an abuse of language to caU it a right: it is an excuse or license, so that the party cannot be treated as a trespasser. Inas- much 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 ob- tained 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 stmnbling, and in trying to save himself, his arm came in contact with a revolving shaft and was lacerated. I wiU 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 obhgation 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 obhgation existed. If what was put up was an SECT. VI.] GAUTKET V. EGERTON 179 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 he, 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 char- acter. The danger was open and visible. There was nothing which could be called a " trap." Pollock, C. B., concurred. Rule absolute for a new triaU 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 defend- ants were possessed of a close of land, and of a certain canal and cut- tings 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 per- sons proceeding towards and coming from the said docks; that the defendants, well knowing'the premises, wrongfully, neghgently, 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 law- fully 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 afore- said, and thereby lost his Hfe 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 2,5m. 1 See also Cole v. Willcutt, 214 Mass. 453; Habina v. Twin City Electric Co., 150 Mich. 41; Chesley v. Rocheford, 4 Neb. UnofiF. 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; HiU v. President and Trus- tees, 61 Or. 190; Grant v. Hass, 31 Tex. Civ. App. 688; Brinilson v. Chicago R. Co., 144 Wis. 614. 180 GAUTEET V. EGERTON [CHAP. H. The defendants demurred to the declaration, on the ground that " it does not appear that there was any legal duty or obhgation on the part of the defendants to take means for preventing the said land, &c., being dangerous and imsafe." Joinder. Crompton {Mellish, Q. C, with him), in support of the demurrer. — To maintain this action, the declarations ought to show a dviy in the defendants to keep the canal, cuttings, and bridges in a safe con- dition, 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. HiU, 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 tmsafe condition, and that the pubUc were in the habit of passing along it. HounseU 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 defend- ants toward persons using their land as the deceased here did. That may be negligence in the case of a Hcensee, which would not be negK- gence 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.i So, if I employ one to carry an article which is of a pecidiarly 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. G. 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 Uable 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 main- tainable. That shows that there is some duty in such a case as this. 1 Affirmed in the Exchequer Chamber, L. R. 2 C. P. 311. SECT. VI. J GAITTRET V. EGERTON 181 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 de- fendants 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, how- ever, and reason and good sense, are the other way. The plaintiff must, in his declaration, give the defendant notice of what his com- plaint is. He must recover secundum allegata et probata. What is it that a declaration of this sort should state in order to fulfil those con- ditions ? 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 condi- tion of which, for anything that appears, those who suffered the in- jury 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 pubUc way, and the township or parish would be bound to repair it, and no such lia- bihty 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 nimiber of years dedicated to the pubhc, 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 182 ■ GAUTRET V. EGERTON [CHAP. 11. 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 dam- age 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 miist be shown. No action will he 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 negUgence, 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 an- swerable 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. HUl, 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 dec- laration 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 neces- sary for the plaintiffs at the trial to prove a duty. I am, however, utterly unable to discover any duty which the defendants have con- tracted 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.^ 1 Hoimsell v. Smyth, V C. B. n. s. 731; Batchelor v. Portescue, 11 Q. B. D. 474; Watson V. Manitou R. Co., 41 Col. 138; Bentley v. Loverock, 102 111. App. 166; Joseph V. Henrici Co., 137 lU. 171; Indiana R. Co. v. Bamhart, 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., SECT. VI.] CAMPBELL V. BOYD 183 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 con- venient 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 1S76, the defendant, with other owners of the interven- ing land, united in opening a connecting way, between those leading from the pubhc roads, from near points in each, so as to form a direct passway across the two divergent streams from one road to the other, 170 Mass. 321; Vanderbeck v. Hendry, 34 N. J. Law, 467; Fitzpatrick v. Cumber- land 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; KeUey 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 Brimlson v. Chicago R. Co., 144 Wis. 614. As to liability to children licensees, see Jansen v. Siddal, 41 lU. App. 279; Cleve- land 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. DoU, 180 Ind. 526 (citing cases); Wilmes v. Chicago R. Co., 175 la. 101; Lyttle v. Town Coal Co., 167 Ky. 345. As to liability where there is a knovm, 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 hcensee is different, where the Scensor 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 reasonable- ness naturally must vary according to the circumstances of the case, the trust re- posed, 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 per- mission 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 Cfoggs v, Bernard, 1 Smith, 184 CAMPBELL V. BOYD [CHAP. II. without going up to the mill. Over these waters they also constructed bridges. While this direct route was opened mainly for the conven- ience of the defendant and his associates, whose lands were traversed, it was also used as well by the public with full knowledge of the de- fendant, 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 flooriag of the bridge was sound, and there was no visible indi- cation 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 Hable in damages to the plaintiff, and from which the defendant appeals. The only case in our reports bearing upon the point is that of Mul- holland v. Brownrigg, 2 Hawks, 349. There, the defendant's mill- pond 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 mUl L. C, 11th ed., p. 173, and the notes thereto. In the case of persons received for carriage, Pabke, B., says in Lygo v. Newbold, (1854) 9 Ex. 302, at p. 305: ' A per- son 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 hav- ing 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 bor- rower 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. SECT. VI.] CAMPBELL V. BOYD 185 proprietors had kept the overflowed bed of the road and the bridges m repau-. 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 constmcting 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 ]\Iass. 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 law- ful piu-pose, by an invitation express or implied, can recover dam- ages 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 enunci- ated. The way was opened by the defendant and his associates; primarily, though it was for his and their accommodation, yet, per- missively, to the general travelling public. It has, in fact, been thus used, and known to the defendant to be thus used, with the acquies- cence 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 obUgation 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 Kability for neglect must rest on those who put the bridges there and invited the public to use them. 186 GALLAGHER V. HUMPHREY [CHAP. H. 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 structm-es 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.^ 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.^ Declakation. 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 per- mitted 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 permis- sion of the proprietors of the said passage, lawfully passing along the > 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 lU. 576, 139 111. App. 53; Indianapolis Water Co. v. Harold, 170 Ind. 170; Lawson v. Shreveport Water- works Co., HI La. 73; Schaaf v. St. Loiiis 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. ' 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. SECT. VI.] GALLAGHER V. HUMPHREY 187 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 defend- ant'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 bar- rels 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 al- lowed to rim, and then the man suddenly put on the break and the jerk caused the weight to rise and fall and the chain to break. Mon- tague Close is approached by steps from London Bridge, the gate to which was usually opened ver}- 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 wa}- if on legitimate business. The judge left the following questions to the jury: 1st, Was the accident caused by the negligence of the defend- ant, 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 INIontague Close by the owners ? 4th, Did the defendant on the evi- dence 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 jiu^' having answered all the questions in favor of the plaintiff, a verdict was entered for hun, 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 de- fendant 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.,' a visitor to a person's house ' The reference should be 25 L. J. (x. s.) or 34 L. J. 188 GALLAGHER V. HUMPHREY [CHAP. II. 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. Mon- tague 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 hable for leaving a quarry unfenced on waste land across which the public were allowed to pass, "WUHams, 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 com.plain of any excavation he may find there; he must accept the permission with its concomitant con- ditions, and it may be its perils." [Blackbubn, J. Have you any authority that persons so using the way take upon themselves the neg- ligence of the servants about the place ?] In Bolch v. Smith, 31 L. J. 201, Ex., where workmen employed in a dockyard 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. [CocKBtniN", C. J. There was the ordinary state of things in that case, and no superadded negligence.] CocKBUEN, C. J. I doubt whether on the pleadings and this rule it is competent to enter into the question of neghgence, 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 per- missive 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, hav- ing 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 per- son using the way. The plaintiff took the permission to use the way subject to a certain amount of risk and danger, but the case assmnes a different aspect when the negligence of the defendant — for the negli- gence of his servants is his — is added to that risk and danger. The SECT. VI.J GALLAGHER V. HUMPHREY 189 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 per- fectly legitimate purpose, and the evidence is that the defendant per- mitted 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 injxu-y may arise, and if by any act of negli- gence 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 pubUc 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 quaUfication that the person giving it shall not be hable 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. Chomptox, 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 per- mission 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. 190 GALLAGHER V. HUMPHEEY [CHAP. II. 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 ovpr 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 there- fore 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 neg- Hgence, 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 de- fence 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 per- mission 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 per- mission 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 WUde : " 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 Uke 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, with- out any negligence of the defendant's servants, there is no doubt that he could not recover, but he suffered through the negligence of the per- sons 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 serv- ants 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 Coinrt of Exchequer in Bolch v. Smith, or of the Common Pleas in HounseU v. Smyth. Rule discharged.^ 1 Felton V. Aubrey, ^4 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; Clarkinv. Biwabik-BessemerCo., 65 Minn. 483; Hyatt w. Murray, 101 Minn. 507; Schaaf v, St. Louis Basket Co., 151 Mo. App. 35; Knowles v. SECT. VI.] CARSKADDON V. MILLS 191 CARSKADDON v. MILLS In the Appellate Court, Indiana, May Teem, 1892. Reported in 5 Indiana Appellate Court Reports, 22. Action for damage to plaintiff's horse.^ 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. Theroad was not a public high- way, 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 De- cember, 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 nearlj- 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 dayhght. There were no posts that could be seen from the road in the night when the accident hereinafter alluded to occurred. The ap- pellant, 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. Exeter Mfg. Co., 77 X. H. 268; Houston R. Co. v. Bulger, 35 Tex. Civ. App. 478, Houston R. Co. v. O'Leaxy, (Tex. Civ. App.) 136 S. W. 601 (explosion of car con- taining fireworks); 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, 71 111. 500; Cunningham v. Toledo R. Co., 260 111 589; 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. 1 Statement abridged. 192 CARSKADDON V. MILLS [CHAP. II. When the appellant had closed his evidence, the learned judge ob- served 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 traveUing man over such property taking the hcense 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 priina facie right to recover; and foimd for defendant; denying plaintiff's motion for a new trial. Plaintiff appealed. Reinhaed, C. J. [The learned judge said that a hcense may be created either by parol or by acquiescence in the use of the property for the piu'pose ia question without objection. He held that plaintiff was prima fade 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 lU. App. 67; 13 Am. & Eng. Encyc. of Law, 555. Where the license is once proved, however, or a -prima fade case of such hcense has been made out, it then devolves upon the party asserting a revocation to prove it. Bltmt v. Barrett, 54 N. Y. Sup. 548. Consequently if the hcense 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 sufhcient to amount to a revocation. Or- dinarily 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 circimi- stances that made it dangerous to those hkely to pass over it, and which the appellees must anticipate would incur injury by it, it be- came their duty, if such dangerous means must be employed to accom- phsh 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 con- fident behef that the use wih 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. SECT. VI.] CARSKADDON V. MILLS 193 While we grant the clear right of the appellees to revoke the Ucense, we assert as emphatically that they must do so in a manner not cal- culated imder ordinary circumstances to inflict injury unnecessarily, -llthough a licensee acquu-es no interest, as the term is usually em- ployed, 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 in- jured 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 antici- pated just such results as the one that happened to the appellant. It was their clear dutj', consequently, in case they desired to make use of the dangerous wire, to shut out the publicfrom 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 en- coimtered in the dark, the case might be otherwise, and notice might not have been necessary. But the stretching of the barbed wire, with- out 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 neg- ligence. In that class of cases it is well enough settled that there is no Uability to a mere Ucensee. Thus where the owner of premises inad- vertently leaves imguarded a pit, hatchway, trap-door, cistern, or other dangerous opening, and one who is present merely by permis- sion and not by invitation, express or imphed, falls into the opening and is injiu-ed, he cannot recover, as, in such case, he enjoys the license subject to the risks. Thiele ;'. McManus, 3 Ind. App. 132. But while an owner may not be liable to one who is thus injured by mere inatten- tion 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 pennission 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 incmred by such neg- ligence. Young V. Harvey, 16 Ind. 314; Graves v. Thomas, 95 Ind. 194 INDERMAUK V. DAMES [CHAP. H. 361; Mayhew v. Burns, 103 Ind. 328; Penso v. McCormick, 125 Ind. 116. A barbed wire fence is not of itself an unlawfxil one, and the build- ing 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 neghgent manner, will be held hable for damages caused thereby. Sisk v. Crirnip, 112 Ind. 504. All these cases proceed upon the assumption that the party whose neg- ligence 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 obUgation. 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 con- tended, 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. McCor- mick, supra; and Sisk v. Crump, supra. The court should have sustained the motion for a new trial. Judgment reversed.^ INDERMAUR v. DAMES In the Common Pleas, Febbuaby 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 deUvered by ^ Willes, J. This was an action to recover damages for hurt sus- tained 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. 1 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. Carpen- ter, 179 Mich. 207; Wheeler v. St. Joseph Stock Yards Co., 66 Mo. App. 260 Accord. Compare EUsworth 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; PhiUips v. Library Co., 55 N. J. Law, 307; Beck v. Carter, 68 N. Y. 283; Hanson v. Spokane Valley Land Co., 58 Wash. 6. ^ Statement and arguments omitted. SECT. ^1.2 INDERMAUR V. DAMES 195 At the trial before the Lord Chief Justice at the sittings here after Michaehnas Term, the plaintiff had a verdict for 400L damages, subject to leave reserved. • A rule was obtained by the defendant in last term to enter a non- suit, 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 Erie, 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 dis- charged. 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 thi'ee 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 neces- sary 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 verj' material, because such protection was unques- tionably 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 pat- entee who had supphed 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 circmnstances as to which the evi- dence was conflicting, but) accidentally, and, as the jury found, with- out any fault or neghgence 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 wiU than the sending of any other work- man: and the employment, and the imphed authority resulting therefrom to test the apparatus were not of a character involving personal preference {diledus personae), so as to make it necessary that 196 INDERMATJR V. DAMES [CHAP. H. the patentee should himself attend. It was not suggested that the work was not journeyman's work. It was also argued that the {f aintiff was at best in the condition of a bare hcensee 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 de- fendant 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 defend- ant 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 imusual 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, be- tween this class of cases and those founded upon the rule as to volun- tary 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 1 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 con- sequence of his not knowing, and without any faiilt on his part, suffered damage. The cases referred to as to the hability 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. > Farrant v. Barnes, 11 C. B. n. s. 553; 31 L. J. (C. P.) 137. SECT. VI.] INDEEMAUB V. DAMES 197 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 con- sider, because the plaintiff in this case was not a servant of the defend- ant, but the servant of the patentee. The question was adverted to, but not decided, in Clarke v. Hohnes, 7 H. & N. 937, 31 L. J. (Ex.) 356.1 The authorities respecting guests and other bare licensees, and those respecting servants and others who consent to inciu- a risk, being there- fore inappKcable, 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 Com- pany V. Parnabjs 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. & X. 247, 25 L. J. (Ex.) 339, was cited, and the Lord Chief Justice, then Erie, 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, • And see Bolch v. Smith, 7 H. & N. 736; 31 L. J. (Ex.) 201-. 198 INDERMAUK V. DAMES [CHAP. II. which was. And if, instead of going himself, the customer were to send his servant, the servant would be entitled to the same considera- tion as the master. The class to which the customer belongs includes persons who go not as mere volunteers, or Hcensees, 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, hghting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jmy as matter of fact. In the case of Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. (Ex.) 73, rehed upon for the defendant, the distinction was pointed out be- tween ordinary accidents, such as falling down stairs, which ought to be imputed to the carelessness or misfortune of the sufferer, and acci- dents 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 busi- ness of the like kind, according to the best known mode of construc- tion. 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 httle 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 inappUcable 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 coiild 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 fuUy 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. BECT. ^^.] INDERMATJR V. DAMES 199 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 impHed con- dition 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 desuing 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 par- ticularly 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 jm-y 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.^ AflBrmed in Exchequer Chamber, L. R. 2 C. P. 311. 1 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. Wil- liamson, 66 Fla. 286; Horton v. Harvey, 119 Ga. 219; Latham v. Roach, 72 111. 179; Spry Lumber Co. v. Duggan, 182 111. 218; Calvert v. Springfield Electric Co., 231 111. 290; Laurie v. McCullough, 174 Ind. 477; Young v. People's Gas Co., 128 la. 290; Anderson v. Hair, 103 Ky. 196; Carleton v. Franconia Iron Co., 99 Mass. 216; McDermott v. SaJlaway, 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 MiU 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; WeUer 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. Cam- eron, 4 Rich. Law, 228; League v, Stradley, 68 S. C. 515; Richmond R. Co. v. 200 MCNEE V. COBURN TEOLLEY TEACK CO. [CHAP. II. 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 faU 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. 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. lAability to children invitees: see Miller v. Peck Dry Goods Co., 104 Mo. App. 609; Houck v. Chicago R. Co., 116 Mo. App. 559. I/iability 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. ShotweU, 41 Minn. 66; Ryerson v. Bathgate, 67 N. J. Law, 337; GilfiUan 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. BueU, 90 Wis. 508; Lehmann v. Amsterdam Coffee Co., 146 Wis. 213. But compare Pauckner v. Wakem, 231 111. 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 con- fined to the state of the premises, using that expression as extending to the struc- ture 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 ammimition as one of the iacidents. 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 dan- gerous one, and any part of the auditorium might be rendered an extremely un^f e 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 mvestigated, and I do not think that justice can be done between the parties imtU this is done. SECT. VI. 3 MCNEE V. COBURN TROLLEY TRACK CO. 201 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 carrj^ing 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 disco^'er. 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 fau-ly 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 ' showed such a performance by the defendant of its duty of warning or cautioning the workmen, or such contributory negli- gence or assumption of the risk on the part of the plaintiff, as to en- title the defendant to have the case withdrawn from the jury. AVhile 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 ('. 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 read- ing 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 plain- tiff 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 be- come 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 superin- tendent 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 for- ever, 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 ad- vantage that they should do so, from the saving of time thereby se- cured. It might be found that the plaintiff, even if he knew of the terms of the notice, might nevertheless assmne that its force had ceased. ' These notices read as follows: " All persons riding on this elevator do so at their own risk." 202 GARFIELD COAL CO. V. EOCKLAND LIME CO. [CHAP. II. 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 haibitual 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'DonneU V. Allegheny Valley Railroad, 59 Penn. St. 239; Pennsylvania Rail- road 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 Jvdgment for the plaintiff.^ GARFIELD COAL CO. v. ROCKLAND LIME CO. StTPEEME Judicial Cottbt, Massachusetts, June 23, 1903. Reported in 184 Massachusetts Reports, 60. ToET, 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. Plain- tiff had sold coal to the defendant, and sent it a barge loaded there- with." 2 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 diUgence." 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 appUcable 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 per- haps in any case : " The owner or occupant of a dock is hable in dam- 1 Craney v. Union Stockyards Co., 240 lU. 602; Kentucky Distilleries Co. v. Leonard, ^y.) 79 S. W. 281 Accmd. But see Burns v. Boston R. Co., 183 Mass. 96; Pike v. Boston R. Co., 192 Mass. 426. * 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. SECT. VI. J GARFIELD COAL CO. V. ROCKLAND LIME CO. 203 ages 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 neghgently 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,i 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 dUigence should be known to him, he is guilty of negligence and Hable to the person who, using due care, is injured thereby. Wendell v. Baxter, 12 Gray, 494; Carleton v. Franconia Iron & Steel Co., 99 Alass. 216; Thompson v. Northeastern Railway, 2 B! & S. 106; Alersey Docks v. Gibbs, L. R. 1 H. L. 93." Other cases bearing upon this point are: Smith r. Burnett, 173 U. S. 430; Barber v. Abendroth, 102 N. Y. 406; Barrett v. Black, 56 Maine, 498; Sawyer v. Oakman, 1 LpweU, 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 evi- dence 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.'^ 1 Bell V. Central Nat. Bank, 28 App. D. C. 580; Connolly v. Des Moines Inv. Co., 130 la. 633; Brajiham v. Buckley, 158 Ky. 848; Schnatterer v. Bamberger, 81 N. J. Law, 558 Accord. 2 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., Ill Miim. 427; Eisenberg v. Missouri R. Co., 33 Mo. App. 85; Henkel v. Murr, 31 Hun, 28; Alperin v. Earle, 55 Hun, 211. 204 INDIANAPOLIS ST. EY. CO. V. DAWSON [CHAP. II, INDIANAPOLIS STREET RAILWAY COMPANY v. DAWSON Appellate Cotirt, Indiana, November 17, 1903. Reported in 31 Indiana Appellate Court Reports, 605. From Superior Court op Marion County; Vincent G. Clifford, Special Judge. Action by George J. Dawson against the Indianapolis Street Rail- way Company. From a judgment for plaintiff, defendant appeals. RoBY, J. Action by appellee. Verdict and judgment for S500. 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 Indian- apohs and "was a common carrier for hire; that it owned a park near said city, and maintained certain attractions therein to induce per- sons to ride on its cars, inviting them to said park; that on the day named it gave a free band concert therein, the same ha^nmg been extensively advertised prior thereto; that on said day appellee, ac- companied 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 pur- suance of such conspiracy said persons assaulted and beat appellee, and drove him from the park; that he and his companion demeaned themselves in a ladyhke and gentlemanly manner, but upon arriving at the park were set upon by a large number of white boys and young men, appellee being assaidted 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 piu'poses aforesaid, and of acts of violence committed thereimder, 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 f oimd 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 police- men to maintain the peace; that two of its guards or poUcemen aided and abetted the wrong done appellee by standing by when he was SECT. VI. J INDIANAPOLIS ST. RY. CO. V. DAWSON 205 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 conspir- acy, with acquiescence therein, and, by its guards or policemen, with passive participation in the actual assault made upon appellee. " TMien 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. AlcCormick, 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 repre- hensible to in\-ite 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 agri- cultural 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 ia opposite directions at the same time, causing colli- sion. 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 reason- able 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, 157 111. 9, 29 L. R. A. 492. Where a street car company maintained a park as a 206 INDIANAPOLIS ST. EY. CO. V. DAWSON [CHAP. II. 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 vari- ous entertainments, among which was target shooting, one injured by a spHt bullet v/as 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. Thomp- son 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 in- jury on account of unlawful violence by persons not connected with their service has frequently furnished material for judicial considera- tion. The New Jersey Court of Errors and Appeals approved an ex- haustive and carefully considered opinion delivered by the Supreme Court of that State to the effect that a passenger who, while attempt- ing to have her baggage checked, was knocked down and injured by cabmen, in no sense servants of the carrier, scuffling on a passage- way 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, 63 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 news- papers 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 condi- tions 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 SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 207 Ind. App. 57S; City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 98; City of Goshen ;•. 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 ofhcei-s appear to have displayed indifference to the conditions existing which it and they could not well help know- ing. 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.^ 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 buUdings 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 Ucense 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 at- tached to an engine and taken over the crossing, and to a proper dis- tance 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 ' 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. C onboy. 170 Fed. 934; Lord v. S herer Co., 205 Mass. 1. ' — ^ , 208 SWEENY V. OLD COLONY RAILEOAD CO. [CHAP. II. defendants were not guilty of any negligence in respect to the manage- ment 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 tend- ing 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 jmnped 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 jiunped 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 xmsafe to do so on account of the approaching car, the plaintiff was not entitled to recover, because the Hcense to people to use the crossing was not a Ucense 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 de- fendants 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 plain- tiff 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 S7500; 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 ptirposes incident to the complete enjoyment of their fran- chise, 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 SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 209 other precautions prescribed for the crossing of highways or travelled places. Gen. Stat. c. 63, §§ 64-66, 83-91; Boston & Worcester Rail- road )'. Old Colony Railroad, 12 Cush. 608. The license or permis- sion, 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 con- comitant perils, at his own risk. Rowland v. Vmcent, 10 Met. 371, 374; Scott r. London Docks Co., 11 Law Tunes (n. s.), 383; Chap- man )■. Rothwell, El. Bl. & El. 168; Southcote v. Stanley, 1 Hurlst. ct Norm. 247; HounseU r. Smyth, 7 C. B. (n. s.) 729, 735, 742; Binks v. South Yorkshii-e Railway, .tc, 32 Law Journ. (n. s.) Q. B. 26; Blithe V. Topham, 1 Rol. Ab. 88; s. c. 1 Vin. Ab. 555, pi. 4; Cro. Jac. 158. The defendants did not hold out to the plaintiff an invitation to pass over. HounseU r. Smj^h and Binks v. South Yorlishire Rail- way, above cited. The allowing or making of such private crossing was not in itself such an in\-itation, 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 inquuy, and was, at most, only re- voking the prohibition, or granting permission; it was not holding out an invitation. The dutj- 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 ('. 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, stiU they would not be hable; for the report shows that after such supposed invitation the plaintiff might, by the exercise of ordi- nary care, have avoided the injury; that the plaintiff was himself at the time in the wrong; and that his own neghgence and fault con- tributed 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 habihty for damages caused by the acts of their agents, the case at bar falls. But on careful consideration we have been brought to the con- clusion 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 210 SWEENY V. OLD COLONY EAILROAD CO. [CHAP. XL. 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 neghgence, 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 condi- tion, whereby accident and injury have been occasioned to another, turn on the principle that neghgence consists in doing or omittiag to do an act by which a legal duty or obhgation 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 ex- cavation there situated. The owner of the land is not bound to pro- tect or provide safeguards for wrongdoers. So a hcensee, who enters on premises by permission only, without an enticement, allurement, or inducement being held out to him by the owner or occupant, can- not recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the Hcense subject to its con- comitant 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 pur- pose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passen- gers, 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 situ- ated, 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 obhgation 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 hable 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 Hable 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 appUca- ble 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 Lmphed, by which they have been led to enter thereon. A mere naked hcense or permission to enter or pass over an estate will not create a duty or impose an obh- SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 211 gation 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 con- venience 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 beheve 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 Uability; but if he directly or by impUcation 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 obhgation he is Hable in damages to a person injured thereby. This distinction is fully recognized in the most recent and best con- sidered cases in the EngUsh 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. HiU, 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 dam- age, 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 caiised 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 injm-ed 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 HounseU 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 noth- ing 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. 212 SWEENY V. OLD COLONY RAILROAD CO. [CHAP. II. South Yorkshire Eailway, &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 ap- pUcable to the case at bar. He says, " There might be a case where permission to use land as a pa.th may amount to such an iaduce- ment 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 Uable in damages by reason of having held out an invi- tation 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 Hcense or assent to the use of the place in question as a pubhc crossing. On the con- trary, 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 con- venient 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 munber of years. These facts would seem to briag 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 defend- ants to persons having occasion to pass, to believe that it was a high- way, 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 instruc- tions 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. SECT. VI. J SWEENY ('. OLD COLONY RAILROAD CO. 213 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 tunes when it was dangerous to do so. But it seerns 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 nvimbers 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 in- structions. 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 ques- tion, which they were not bound to use, and that the case would pre- sent the singular aspect of holding a party liable for neglect in the performance of a duty voluntarily assumed, and which was not im- posed by the rules of law. But this is by no means an anomaly. If a person vmdertakes 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 Hability 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. 214 STEVENS V. NICHOLS [CHAP. II. 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 estabUsh 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.^ STEVENS V. NICHOLS Supreme Judicial Court, Massachusetts, Februaet 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.^ 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 » Jones V. New York R. Co., 211 Mass. 521; De Boer v. Brooklyn Wharf Co., 51 App. Div. 289 Accord. Compare HiUman 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 ia Stevens ». 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, 161 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. Cen- tral 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. Tar- bell, 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. 2 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. SECT. VI.] STEVENS V. NICHOLS 215 as part of the street. There is no similarity between such an addition to the apparent width of a pubhc street and the opening of a private avenue or way out of a pubhc 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 Hohnes 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 pm-- pose 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, 424^26. . . . 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 hable for damages arising from a neglect of this duty. Indermam- v. Dames, L. R. 1 C. P. 274, 2 C. P. 311; Carleton v. Franconia Iron & Steel Co., 99 ^lass. 216 (rock by wharf at which vessel imloaded); The ^Moorcock, 14 P. D. 64 (a similar case); Davis v. Central Congre- gational 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, 415^18. It is this common interest, not the form of the Hcense 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 Hcense or permisson 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 216 STEVENS V. NICHOLS [CHAP. II. land for his own convenience by the owner's permission, and not a per- son brought there for a purpose in which the owner has an interest.' 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 Rid. Co., 10 Allen, 368; Murphy v. Boston & Albany Rid. Co., 133 Mass. 121; Hanks v. Boston & Albany Rid. Co., 147 Mass. 495; Byrne v. New York Central Rid. Co., 104 N. Y. 362; Swift v. Staten Island Rid. Co., 123 N. Y. 645; Taylor v. Delaware & Hudson Canal Co., 113 Pa. St. 162, 175. The principle of these cases is stated by WiUes, 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 Rid. Co., 153 Mass. p. 82, where the court speaks of " cases in which even unintended damage done to a hcensee by actively bringing force to bear upon his person wUl stand differently from merely passively leaving land in a dangerous condition." ' Smitli V. London Docks Co., L. R. 3 C. P. 326 ; Holmes v. Northeastern R. Co., L. R. 4 Ex. 264, 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; Ala- bama R. Co. V. Godfrey, 156 Ala. 202; Schmidt ;;. Bauer, 80 Cal. 565; Herzog v. Hemphill, 7 Cal. App. 116; Pauckner v. Wakem, 231 111. 276; Franey v. Union Stockyards Co., 235 lU. 522, 138 lU. App. 215; PurteU v. Coal Co., 256 lU. 110; Northwestern R. Co. v. O'Malley, 107 111. App. 599; Deach v. Woolner, 187 lU. App. 524; Paris 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., 176 la. 101; Lackat v. Lutz, 94 Ky.287; Smith v. Trimble, 111 Ky. 861; Kentucky Dis- tilleries 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; Ehe v. Lewiston R. Co., 112 Me. 178; Plummer v. Dill, 156 Mass. 426; Gauley v. Hall, 168 Mass. 613; Cowen V. Kirby, 180 Mass. 604; Norris v. Nawn Contracting Co., 206 Mass. 68; 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 ;;. 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. BustiUos, (Tex. Civ. App.) 169 S. W. 638 (child bringing lunch to employee). But compare MandeviUe 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. SECT. VI. J STEVENS V. NICHOLS 217 The cases above mentioned include all that are cited in Holmes v. Drew, 151 JMass. 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 Uable for any excavation or ob- struction existing when the permission was granted. [After citing cases where the court said that some kind of induce- ment 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 imphed 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 tend- ing to support the proposition that the knowledge of the habitual use of the crossing, pursuant to the implied permission, would create a Habihty 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 inter- ested, 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 ap- pear to have been called to the attention of the court. The judgment, which is very short, seems to proceed upon the ground that the de- fendant, 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 hterally, 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 in- terest; and the owner of land that gives permission to cross his land can escape liability only by proving that he did not intend the per- mission 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. . . . Lathbop, J. The declaration in this case, so far as material to the questions presented at the argument, alleged that the defendants on 218 STEVENS V. NICHOLS [CHAP. II. 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 de- fendants 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 Hke the pubUc 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 pubHc 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 hne with the rear of their estate, said granite curbing being from six to seven inches above the grade of the paving; that said ob- struction 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 he be- yond 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 assmne, entered in and upon said street to drive through the same; that said obstruction was covered by snow at said time, and plaintiff was imable to see the same; and, while in the exercise of due care, his sleigh struck said granite curbing," and he was thrown out and injiu-ed. The opening of the plaintiff's counsel added but little to the decla- ration. It stated that " the snow lay perfectly level " where the curb- stone 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 writ- ten 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 pubKc 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, un- less he had it as one of the pubHc. There is no allegation or state- ment 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. In- deed, if he was then using the way for the first time, the fair infer- ence would be, from the statement of the condition of the snow, that the fact that the way was paved was imknown 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 pubUc 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 SECT. VI.] STEVENS V. NICHOLS 219 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.i Nor can the fact that the passageway was paved be considered an invitation or inducement to the pubUc 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 Raihoad, 125 Mass. 75; Heinlein v. Boston & Providence Railroad, 147 Mass. 136; Reardon v. Thompson, 149 Mass. 267; Donnelly v. Boston & Maine Raihoad, 151 Mass. 210; Redigan v. Boston & Maine Raihoad, ante, 44. There was in this case no allegation and no statement that the de- fendants had any knowledge that the pubhc was using the passage- way, 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 hcensee goes upon land at his own risk, and must take the premises as he finds them." See also Redigan ;'. Boston & Maine Raihoad, ante, 44; Gautret v. Egerton, L. R. 2 C. P. 371, 374. The Hcensor has, however, no right to create a new danger while the license continues. Ohver v. Worcester, 102 Mass. 489, 502 ; Cor- rigan v. Union Sugar Refinery, 98 Mass. 577; Corby v. HUl, 4 C. B. (n. s.) 556. So a raUroad company which allows the pubhc habitu- aUy to use a private crossing of its tracks cannot use active force against a person or vehicle crossing under a hcense, express or im- pUed. Sweeny v. Old Colony & Newport Railroad, 10 Allen, 368; Mm-phy v. Boston & Albany Raihoad, 133 Mass. 121 ; Hanks v. Bos- ton & Albany RaOroad, 147 Mass. 495. See June v. Boston & Albany Raihoad, 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 obhged 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 1 That is, 155 Mass. 220 ■ TUTTLE V. GILBERT MANUFACTURING CO. [CHAP. II, opinion that that case has no application to the case at bar. In Hobnes 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 pubhc to use it, even though it were paved. Exceptions overruled.'^ 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.^ Morton, C. J. It is the general rule that there is no warranty im- plied 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 main- tain an action against the lessor, in the absence of warranty or of mis- representation. In cases where lessors have been held Hable for such injuries to the lessees, the Uability is founded in negUgence. Looney v. McLean, 129 Mass. 33. Bowe v. Hunking, 135 Mass. 380, and cases cited. 1 McClain v. Bank, 100 Me. 437; Moffatt v. Kenny, 174 Mass. 311 Accwd. Hanson v. Spokane Water Co., 58 Wash. 6 Contra. Compare Buckingham v. Fisher, 70 El. 121. Liability to one who has Jnisiness 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. DUl, 156 Mass. 426; Chenery v. Fitch- burg 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; AUen v. Yazoo R. Co., Ill Miss. 267; Black v. Central R. Co., 85 N. J. Law, 197; Heskell v. Auburn Light Co., 209 N. Y. 86. 2 The statement has been much abridged. SECT. VI.] TUTTLE V. GILBERT MANUFACTURING CO. 221 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 con- dition 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 assiune that the contract was to make the repairs withia 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 plain- tiff 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 be- tween 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 de- fendant, and this means more than a mere breach of a promise. Other- wise, 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 aU the consequential damages arising from such failure. As a general rule, there must be some active negligence or misfea- sance 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 per- forming 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 imreasonably 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 suffi- cient 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 222 SOUTHCOTE V. STANLEY [CHAP. 11. 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.^ 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 ia 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 neces- sary 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 per- mission 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 defend- ant in that behalf, the said door was then in an iasec\u"e and dangerous condition, and unfit to be used or opened, and by reason of the said door beiag in such insecm-e and dangerous condition and unfit, as aforesaid, and of the then carelessness, negligence, default, and im- proper 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 ' Anderson v. Robinson, 182 Ala. 615; Hedskin v. Gillespie, 33 Tnd. 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; Sohiick 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, 73 111. App. 432; Schwandt v. Metzger Oil Co., 93 HI. App. 365 (but see Cromwell v. Allen, 151 lU. App. 404) ; Good v. Von Hemert, 114 Minn. 393; GMdden v. Goodfellow, 124 Minn. 101; Keegan v. HeUeman Brewing Co., 129 Minn. 496; Merchants Cotton Press Co. v. Miller, 135 Tenn. 187; Lowe v. 0'Brien,-77 Wash. 677 Contra. See Moore v. Steljes, 69 Fed. 518. lAabUity where landlord makes repairs negligently: see Mann v. Fuller, 63 Kan. 664; GiU 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. Green- berg, (App. Div.) 158 N. Y. Supp. 670; Wilcox v. ffines, 100 Tenn. 538. SECT. VI.J SOUTHCOTE V. STANLEY 223 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 con- tract 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. [Bram- WBLL, 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 involv- ing the allegation that the defendant knew that the door was insecure. All facts necessary to raise a legal liability must be strictly averred. MetcaKe 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 secm-e. Suppose a person invites another to his house, and the latter runs his hand through a pane of glass, how is the fonner Hable ?] The Court then called on Gray, contra. The declaration shows a duty on the part of the de- fendant, and a breach of that duty. It is immaterial whether the in- jury 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. Mur- ray, 8 A. & E. 109, which decided that a warehouseman who lowers goods from his warehouse is bound to use proper tackle for that pur- pose. [Aldebson, B. It is the duty of every person who hangs any- thing 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 im- posed 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. [Pol- lock, C. B. The position that an action lies because the plaintiff was lawfully in the hoiise, 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 some- thing 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 differ- ent, because a shop is open to the public; and there is a distinction 224 SOUTHCOTE V. STANLEY [CHAP. II. 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 impHed 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,' and is now estabhshed law, though I beheve the principle was not recognized until recent times. The reason for the rule is that the servant imdertakes to run aU the ordinary risks of service, including those arising from the negligence of his fellow-servants. The rule ap- phes to all the members of a domestic estabhshment, so that the mas- ter 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 neghgence 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 negUgence of the master or his servants, and he must take his chance with the rest. Aldehson, B. I am of the same opinion. Bbamwell, 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 wiU take reasonable care to protect him from injiuy; for instance, that he wiU 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 com- mission. 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 some- thing. The words are aU negatives, and under these circumstances the action is not maintainable. I doubted whether the words " care- lessness, negUgence, and improper conduct," &c., might not mean something equivalent to actual conomission, but on the best considera- tion which I can give the subject, it appears to me that they do not ' See Hutchinson v. The Newcastle, York, & Berwick Railway Company, 5 Exch. 343; Wiggett v. Fox, 11 Exch. 832. — Reporter's Note. SECT. VI.] BEEHLER V. DANIELS 225 mean that, but merelj^ point to a negative. If I misconstrue the declaration it is the fault of those who so framed it. Judgment for the defendant.^ 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 Divi- sion on demiirrer to the declaration. Stiness, J. The plaintiff seeks to recover for injury caused by fall- ing 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 negli- gence 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 employ- ment; 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 Hable 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 ex- tension 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 aU times. Hence every owner of every building must at aU 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 ' 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 ex- pressed. See Hart v. Cole, 156 Mass. 475; Knowlton, J., in Coupe v. Piatt, 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 NegUgence, 4th ed., sect. 706; Barman v. Spencer, (Ind.) 49 N. E. 9, 11, 12; Beard v. Klua- meier, 158 Ky. 153; Land v. Fitzgerald, 68 N. J. Law, 28. 226 BEEHLER V. DANIELS [CHAP. II. 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, inde- pendent 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 Hcense 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 Ucensee. This question is discussed in the case just cited, as also in many others. For example, in Reardon v. Thompson, 149 Mass. 267, Hohnes, J., says: " But the general rule is that a Ucensee 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 Kcensee 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 coimt is, that the defendants did not properly construct their planer, and, being a dangerous instrument, did not sur- round 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 Hcensee. 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 pierson is a mere hcensee he has no cause of action on account of the dangers existing in the place he is permitted to enter.' " In Parker v. Portland Publishmg Co., 69 Me. 173, this question is fuUy examined, the coiul; holding it to be well settled, if the plaintiff was at the place where the injury was received by hcense 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 lU. App. 344; Bedell v. Berkey, 76 Mich. 435. There is a clear distinction between a hcense and an in\'itation 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, iinless imposed by statute, save that he should not knowingly let him run upon a hidden peril or wiKully cause him harm; while to one invited he is under obUgation for rea- sonable 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 reUed 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 poKce ofiicer who had entered a building, the doors of which were found open in the night time, to inspect it accordmg to the rules of the police depart- ment, and fell down an unguarded elevator well. A statute required such wells to be protected by raUings and trap-doors. Judgment SECT. VI.] BEEHLER V. DANIELS 227 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 ' sub- ject 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 pubhc health and welfare.' " Then, hkening 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 de- mand, 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 poUce officer fell' down an un- covered 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 sus- tained 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 plaintiGf 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.' ' Peimebakerz). San Joaquin Light Co., 158 Cal. 579; Ltmtw. Post Printing Co., 48 Col. 316; Gibson v. Leonard, 143 lU. 182, 37 lU. App. 344- Thrift v. Vandalia R. Co., 145 111. App. 414; Woodruff v. Bowen, 136 Ind. 431; Hamilton v. Minne- apolis 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 WUson v. Great Southern Tel. Co., 41 La. Ann. 1041. Ldability to police officer or other person in by permission of law: see Casey v. Adams, 234 111. 350; Eckels v. Maher, 137 111. App. 45; Blatt v. McBarron, 161 Mass. 21; Racine v. Morris, 136 App. Div. 467; Woods v. Lloyd, (Pa.) 16 Atl. 43; 228 •WINTEEBOTTOM V. WEIGHT [CHAP. U. Section VII LiABiLiTT TO Third Persons of Maker or Vendor of a Chattel WINTEEBOTTOM v. WRIGHT In the Exchequer, June 6, 1842. Reported in 10 Meeson & Welshy, 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, imder 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 condi- tion 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, di- rected, 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 de- fendant and the Postmaster-General, and believing that the said coach was in a fit, safe, secure, and proper state and condition for the pur- Burroughs Adding Machine Co. v. Fryar, 132 Tenn. 612; Greenville v. Pitts, 102 Tex. 1. But compare Kennedy v. Heisen, 182 111. App. 200; Parker v. Barnard, 135 Mass. 116; Learoyd v. Godfrey, 138 Mass. 315; Pickwick v. McCauIiff, 193 Mass. 70. Liability to volunteer salvor in case of fire: see Kohn v. Lovett, 44 Ga. 251; Gib- son V. Leonard, 143 111. 182. lAabilily to person who has contractual right to inspect the premises: see Dashields V. Moses, 35 App. D. C. 683. SECT. VII.] "WINTERBOTTOM V. WRIGHT 229 pose 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 con- duct 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 fraO, 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, circiunstance, 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 vaHdity, 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 uncon- nected 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 conse- quences 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 de- fendant, 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 allega- tion that the defendant knew that the coach was to be driven by the 230 WINTEKBOTTOM V. "WRIGHT [CHAP. II. plaintiff. There, moreover, fraud was alleged in the declaration, and found by the jury: and there, too, the cause of injmy 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 pubHc oflBicer to supply an article which, if imperfectly con- structed, 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 estab- lished by Levy v. Langridge. In that case the contract made by the father of the plaintiff with the defendant was made on behaK of him- self 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 maiutain an action against the contractor ? So, if a coachmaker, employed to put on the wheels of a carriage, did it so neghgently 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 insuffi- ciently 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 hke the case of a contractor who neghgently 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. Hears, 1 Man. & R. 187; Priestly v. Fowler. But here the declara- tion alleges the accident to have happened through the defendant's negUgence 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 knowl- edge 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. LoED Abingek, C. B. I am clearly of opmion that the defendant is entitled to our judgment. We ought not to permit a doubt to rest SECT. VII.J WINTERBOTTOM V. WRIGHT 231 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 impres- sion, and it has been brought in spite of tlie precautions which were taken, in the judgment of this Court in the case of Levy v. Lang- ridge, 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 bargam himself, but was really and substantially the party con- tracting. Here the action is brought simply because the defendant was a contractor with a third person; and it is contended that there- upon 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 inn-keepers, 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 hmit, would ensue. Where a party becomes responsible to the pubUc, by undertaking a pubHc duty, he is liable, though the in- jury may have arisen from the negUgence 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 HabiUty is the public duty, or the commission of the pubUc 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 pubhc 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 woiild, at aU events, have defeated his claim altogether. By permit- 232 WINTERBOTTOM V. WRIGHT [CHAP. H. ting 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 ac- counts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him. ALDEESOisr, 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 car- riage, 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 faUs within the prin- ciple of the case of Levy v. Langridge. But the principle of that case was simply this, that the father haAong bought the gun for the very purpose of being used by the plaintiff, the defendant made rep- resentations by which he was induced to use it. There, a distinct fraud was committed on the plaintiff; the falsehood of the representa- tion was also alleged to have been within the knowledge of the defendant who made it, and he was properly held liable for the conse- quences. How are the facts of that case appUcable to those of the present ? Where is the allegation of misrepresentation or fraud in this declaration ? It shows nothing of the kind. Our judgment miist 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 ia 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 plain- tiff 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 SECT. VII.] BLOOD BALM COMPANY V. COOPER 233 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.'- 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.^ 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 proprietarj^ 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 pre- scription, 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 ^hat 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 ques- tion, 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 coun- sel in this case, the question decided was, that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medi- cine, and sends it so labelled into market, is liable to all persons who, without fault on their part, are inimed by using it as such medicine in consequence of the false label. This comes nearer the present case 1 The authorities on all sides of the question raised in this cause are collected and discussed in the cases that follow. See also PoUock, Torts, 6 ed., 496-497; Piggott, Torts, 231-232; 1 Jaggard, Torts, 904r-909; Clerk & Lindsell, Torts, 6 ed., 511-522; Sahnond, Torts, 4 ed., 415-424; Bohlen, AiErmative Obligations in the Law of Torts, 44 Am. Law Reg. 341. ' The statement of facts by the reporter is omitted. 234 BLOOD BALM COMPANY V. COOPEE [CHAP. II. than any we have been able to find, and it is reUed upon by both parties as an authority; and in the notes thereto by Mr. Freeman in the i'&nerican 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 re- spect. 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 pur- pose of being sold again. It was put upon the market by the pro- prietor, not alone for the use of druggists to whom they might seU it, but to be used by the pubHc 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 conse- quences complained of to the defendant in error, and if the same was administered to him, either by himseff or any other person, as pre- scribed in the label accompanying the medicine, he could, in our judg- ment, recover for any injury he may have sustained on accovmt of the poisonous effect thereof. It was a wrong on the part of the proprietor to extend to the pubHc 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 pvu*- chase and take the same so as to cause injury to himself, the pro- prietor would not be liable. But if the contents of a medicine are concealed from the pubUc generally, and the medicine is prepared by SECT, VII. J HUSET V. CASE THRESHING MACHINE CO, 235 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 Hable for the damage thus sustamed. These proprietary or patent medicines are secret, or intended by the pro- prietors to be secret, as to theii- contents. They expect to derive a profit from such secrecy. They are therefore Hable 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 pubKc; nor j^-ould 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 injmy 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 testi- mony of the plaintiff, by witnesses learned in the profession of medi- cine, 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 accompanjdng 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 injiu-ed 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. Thomp- son, in his work on Negligence, refers to the same cases, and they are there fully discussed. Jicdgment affirmed. [Remainder of opinion omitted.] HUSET V. J. I. CASE THRESHING MACHINE CO. CmcinT CouBT of Appeals, Eighth Chjcuit, February 26, 1903, Reported in 120 Federal Reporter, 865. Sanborn, Circuit Judge: " 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 ' The statement of facts is omitted. 236 HirSET V. CASE THEESHING MACHINE CO. [CHAP. II. 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 liabihty 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 neghgence, that it is the duty of every one to so act him- self 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 negli- gence 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 action- able which would not have resulted from an act of negligence except from the interposition of an independent cause (Chicago, St. Paul, Mimieapolis & Omaha R. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582) — nearly aU the decisions upon this subject range themselves along symmetrical Unes, 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 con- tracts 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 con- sequence 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 prob- SECT. VII.] HTJSET ('. CASE THRESHING MACHINE CO. 237 able 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 pur- chaser — 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 Xegligence (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 gen- erally 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 inrpressed the courts with the view that there must be a fixed and definite limitation to the lia- bility 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 and the incompetent, the watchful and the careless, parties that can- not 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 par- ties who have no contractual relations with him for neghgence in the construction, manufacture, or sale of the articles he handles. Winter- bottom V. Wright, 10 M. & W. 109; Longmeid v. Holliday, 6 Exch. 764, 765; Blakemore v. Ry. Co., 8 El. & Bl. 1035; CoUis 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 OU 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 Oliio St. 393, 20 Am. Rep. 767; 238 HtrSET V. CASE THRESHING MACHINE CO. [CHAP. U. 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 neghgence of the manufactiu'er, vendor, or furnisher of the following articles, while the parties thus injured were innocently using them for the piu"poses 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 fiu-nishing. A stagecoach. Winter- bottom V. Wright, 10 M. & W. 109; a leaky lamp, Longmeid v. Holli- day, 6 Exch. 764, 765; a defective chain ftu-nished one to lead stone, Blakemore v. Ry Co., 8 El. & Bl. 1035; an improperly hung chan- delier, CoUis V. Selden, L. R. 3 C. P. 495, 497; an attorney's certifi- cate of title. Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 621; a defec- tive 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 threshiag 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 Him, 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, Bm-dick 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 pubhc policy, upon the ground that there would be no end of litigation if contractors and manufacturers were to be held hable to third persons for every act of negligence in the construc- tion 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. SECT. VII.] HUSET V. CASE THRESHING MACHINE CO. 239 and injured the driver, who sued the contractor for the injury re- sulting 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 con- tracts 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 reasoD 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 X. 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 Com-t of Appeals of New York held that Stevenson was Hable to a workman of Smith, the painter, who was injin-ed by a fall, caused by the negli- gence of Stevenson in the construction of the scaffold upon which he was working; and Schubert v. J. R. Clark Co., 49 Minn. 331, 51 X. 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. 240 HUSET V. CASE THRESHING MACHINE CO. [CHAP. II. 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 over- throw or shake the estabhshed 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 par- ties 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; Elkms 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 sus- tained. In Norton v. SewaU, 106 Mass. 143, 8 Am. Rep. 298, a re- covery was had by a third party for the sale of laudanum as rhubarb; in Bishop v. Weber, for the fmriishing of poisonous food for wholesome food; in Peters v. Johnson, for the sale of saltpetre for epsom salts; and in Dixon v. BeU, for placing a loaded gtm 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 dan- gerous to the fives of others, and (2) that an injury which is the natural and probable result of an act of negfigence is actionable. It was the natural and probable result of the negfigence in these cases that the vendees would not suffer, but that those who subsequently purchased the deleterious articles would sustain the injiu-ies resulting from the negfigence of the manufacturers or dealers who furnished them. The second exception is that an owner's act of negfigence which causes injury to one who is invited by him to use his defective appH- SECT. VII.] HXJSET V. CASE THRESHING MACHINE CO. 241 ance 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 Rio. 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 fm-nished the scaffold and one of the employees of the contractors was injured by the negligence of the owner in constructing the scaffold. The com-t 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 quahties 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 beUeving 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 con- templated 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 dealei^ Judge Gray, later Mr. Justice Gray of the Supreme Court, said : 242 HUSET V. CASE THRESHING MACHINE CO. [CHAP. H, " It is well settled that a man who deUvers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature and quahties, is liable for an injury which may reasonably be contemplated as likely to result, and which does in fact result there- from to that person or any other who is not himself in fault. Thus a person who deHvers 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 hquid, made up of ingTedients 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 Hable 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, (Gal.) 43 Pac. 398, a dealer, knowing a folding bed to be defective and unsafe, sold it to a Mr. Apperson without in- forming him of the fact. His wife suffered a broken arm and other severe injuries from the negUgence of the dealer in the sale of the bed, and recovered of him the damages she sustained. The Supreme Court of Missom-i, in Heizer v. Kingsland & Doug- lass 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 injirred him, said : " Had the defendant sold this machine to EUis, knowing that the cylinder was defective, and for that reason dangerous, without in- forming him of the defect, then the defendant would be liable even to third persons not themselves in fault. Shearman & Redfield on Neghgence, (4th ed.) § 117." Tiu'ning now to the case in hand, it is no longer difficult to dispose of it. The allegations of the complaint are that the defendant pre- pared 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 coUapse 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 neghgence immi- nently dangerous to the lives and hmbs of those who should use the machine, a machine imminently dangerous to the lives and limbs of aU who ^ould undertake to operate it, a concealment of this danger- ous condition, a knowledge of the defendant when it was shipped and SECT. VII.] HEAVEN V. PENDER 243 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 di- rectly within the rule stated by Mr. Justice Gray that when one de- livers 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 pur- pose 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 dehvering it to the piu-chaser 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 Coubt of Appeal, July 30, 1883. Reported in 11 Queen's Bench Division, 503. Action to recover damages for injuries alleged to have been sus- tained 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.' Brett, M. R. In this case the plaintiff was a workman in the em- ploy of Gray, a ship-painter. Gray entered into a contract with a ship-owner whose ship was in the defendant's dock to paint the out- side of his ship. The defendant, the dock-owner, supplied, under a contract with the ship-owner, an ordinary stage to be slung in the ordinary way outside the ship for the purpose of painting her. It 1 Arguments omitted. 244 HEAVEN V. PENDEE [CHAP. 11. must have been known to the defendant's servants, if they had con- sidered the matter at all, that the stage would be put to iromediate use, that it would not be used by the ship-owner, 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 neghgence. 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 ques- tion. Actionable negligence consists in the neglect of the use of ordi- nary care or skill toward a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plain- tiff, 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 to- ward 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 per- son. 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 per- son or persons, but has a duty toward him or them. It should be ob- served 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 circum- stances in which an imphed contract may arise to use ordinary care and skiU to avoid danger to the safety of person or property. We have not in this case to consider the question of a fraudulent misrepresenta- tion, 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 SECT. VII.] HEAVEN V. PENDER 245 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 prop- erty 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 wiU 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 circmnstances, 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 per- sonal safety of the passenger must be endangered. With regard to the condition in which an owner or occupier leaves his house or prop- erty 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 be- tween 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 accu- rate phrase, and as applied to the circmnstances 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 per- mission to enter and the entry. But it is not a strictly accurate state- ment of the duty. To lay a trap means in ordinary language to do 246 HEAVEN V. PENDER [CHAP. II. 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 cir- cumstances from which an exactly similar legal liability is inferred. It follows, as it seems to me, that there must be some larger proposi- tion 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 recog- nized cases suggest, and which is, therefore, to be deduced from them, is that whenever one person is by circumstances placed in such a posi- tion 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 circimastances in respect of which they have been enunciated, this proposition includes,. I think, aU the recog- nized cases of liability. It is the only proposition which covers them all. It may, therefore, safely be aflBrmed 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 circum- stances that every one of ordinary sense would, if he thought, recog- nize 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 skiU whereby injury hap- pens, 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 rea- sonable opportunity for discovering any defect which might exist, and SECT. VII.] HEAVEN V. PENDER 247 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 con- dition or the maimer 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 consid- ered, 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 suppUed 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 as- sumed 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 ia 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 mis- representation, which is, nevertheless, a necessary question in a case of fraudulent misrepresentation. The report of the argument makes the object of the argimaent 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 ver- dict, 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 pay- ment, the gun would be used or not by the son. I cannot hesitate to 248 HEAVEN V. PENDER [CHAP. II. 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 sup- ported 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 ob- servations 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 heense 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 probabihty, that the defendant negUgently 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 sup- plied, and therefore carries with it the relation between the parties which estabhshes 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 SECT. VII.] HEAVEN U. PENDER 249 have known, or ought to have known, that the coach would be neces- sarily 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 estab- lish 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 observa- tion 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 im- plied contract between the plaintiff and the defendant. But Cleasby, B. (p. 515), puts it upon the duty raised by the knowledge of the de- fendant 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 declara- tion 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 pubHc-house than any other member of the public. There is nothing to show how soon after the hanging of the chandeKer 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: "Everyman 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. 250 HEAVEN V. PENDER [CHAP. II. 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 appKances 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 RoUs 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 appUed. But the judges who decided that case based their judgment on the fraudulent representa- tion 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. HoUiday, 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. ^ 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 1 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. SECT. VII.J MacPHERSON V. BUICK MOTOR COMPANY 251 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 sup- plies 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 judg- ment, though I do not entirely concur with the reasoning of the Master of the Rolls. Judgment reversed. MacPHERSON v. BUICK MOTOR COMPANY CoTJBT OF Appeals, New York, March 14, 1916. Reported in 217 New York Reports, 382. Cardozo, J. The defendant is a manufactm-er of automobiles. It sold an automobile to a retail dealer. The retaU dealer resold to the plaintiff. While the plaintiff was ia the car it suddenly collapsed. He was thrown out and injured. One of the wheels was made of de- fective wood, and its spokes cnunbled into fragments. The wheel was not made by the defendant; it was bought from another manu- facturer. 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 KueUing v. Lean ]\Ifg. 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 foimdations 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 neghgent, was not hkely to result in in- jury 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 252 macpheeson v. buick motor company [chap. II. 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 earhest. 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 assupie 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 NegUgence, 233; Shearman & Red- field 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 finahty of the test has a bearing on the measure of dihgence owing to persons other than the purchaser. Beven, NegH- gence, (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 hberal spirit. First in importance is DevHn 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 DevHn v. Smith we pass over iatermediate cases and turn to the latest case in this court in which Thomas v. Winchester was fol- lowed. 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 appHed to the pm-poses 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 com- mitted to the extension. The defendant argues that things immi- nently dangerous to life are poisons, explosives, deadly weapons — things whose normal function it is to injure or destroy. But whatever SECT. VII.] MacPHERSON V. BUICK MOTOR COMPANY 253 the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (DevUn 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 CuUen, J., it was apphed to a buUder who constructed a defective building; in Kahner v. Otis Elevator Co., 96 App. Div. 169, 89 N. Y. Supp. 185, to the manufactm-er of an elevator; in Davies v. Pelham Hod Elevat- ing 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 beiag used by another person under such circiunstances 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 supply- ing 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 supply- ing such thing." He then points out that for a neglect of such ordinary care or skill whereby injmy 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 probabihty 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 supply- ing 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." 254 MacPHERSON v. BUICK motor company [chap. II. 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 skUl as to their condition or the manner of supplying them would not probably produce danger of injury to per- son 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 Eeg. (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 iaclu^on 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 natm^e, 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 Ufe and hmb ia 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 wUl 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 wiU make it dangerous if defective. That is not enough to charge the manufacturer with a duty inde- pendent 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 rela- tion is a factor to be considered. We are dealing now with the lia- bihty of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is neghgent, 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 manu- SECT. VII. J MacPHERSON r. BTJICK MOTOR COMPANY 255 fuL'turers 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 eariier members of the series is too remote to constitute, as to the ultunate user, an actionable wrong. Beven on Negligence, (3d ed.) 50, 51, 54; Wharton on Negligence, (2d ed.) § 134; Leeds v. N. Y. Tel. Co., 17S 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, 5l6, 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, at- tendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard hfe 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 defend- ant'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 suppKed 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. John- son, 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 256 MacPHERSON v. BUICK motor company [chap. II. 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 con- clusion, 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 manufactm-er 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 injuryto others is to be foreseen not merelyas 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 stiU 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 coiu-t held that he was not hable for in- juries 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 Hable 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 negli- gence 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. Stead- man, supra, at pages 348, 349, It was again cited and followed in SECT. VII.] MacPHEBSON V. BUICK MOTOR COMPANY 257 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. MulhoUand, [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 manu- facturer who sells the automobile to the retail dealer invites the deal- er'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 dutj- to C. and D. and others according as he knows or does not know that the subject-matter of the contract is in- tended for their use. We may find an analogy in the law which meas- ures the habHity 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 wUl 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 \'iew 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 con- structed, would become " imminently dangerous." Subtle distinc- tions 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 danger- ous thing. If there was any error, it was none of which the defendant can complain. 258 MacPHERSON v. BUICK motor company [chap. II. 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 auto- mobiles. 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. ReHance on the skill of the manufac- turer was proper and almost inevitable. But that is not the defend- ant'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. WiLLAED Bartlett, C. J. (dissenting). The plaintiff was injured in consequence of the coUapse of a wheel of an automobile manufac- tured by the defendant corporation which sold it to a firm of auto- mobile 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 manu- facturer 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 allega- tion 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 auto- mobile 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 SECT. VII. J MacPHEKSON V. BUICK MOTOR COMPANY 259 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 dis- covered by a reasonable inspection and the application of reasonable tests. This liability, it was further held, was not limited to the orig- inal 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 Ap- pellate 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 ven- dee. 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 ordi- nary use thereof; in other words, where the article sold was inher- ently 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 con- tractual relations with him, for negligence in the construction, manu- facture 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 stagecoach 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 260 MacPHERSON v. BUICK motor company [chap. II. the general nile. 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 dandehon. 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 neghgence of A. in buOding 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 neghgence 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 temperatm:e. The plaintiff, who was a servant of the pur- chaser, 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 defend- ant corporation was liable notwithstanding the absence of any. con- tract 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 Ukely to become so in the course of the ordinary usage to be contemplated by the ven- dor, 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 habiUty for negligence to the original parties to the contract of sale, was still more clearly stated by Judge Hiscock, writing for the coiu^ 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." SECT. VII.] MacPHERSON V. BUICK MOTOR COMPANY 261 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 pur- pose 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 buUt. It is said that the scaffold, if properly constructed, was not inherently dangerous, and hence that this decision affirms the exist- ence 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 RapaUo, 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 cir- cumstances 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 hke authority in reference to the absence of any liability for negUgence on the part of the original vendor of an ordinary car- riage to any one except his immediate vendee. The absence of such Hability was the very point actually decided in the English case of WLnterbottom 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 simi- larly 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 lia- bihty 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 opmion which reviews aU the leading American and English decisions on the subject up to the time when it was rendered (1903) . I have already discussed 262 macpherson v. buick motor company [chap. II. 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 para- phrase 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 ia 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 RoUs 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 stiU 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 negUgence in failing to discover that one of its wheels was defective, the coiu't 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 Ctiddeback, JJ., concur with Cardozo, J., and HoGAN, J., concurs in result. Willakd Bartlett, C. J., reads dissenting opinion. Pound, J., not voting. Judgment afl&rmed.^ ' lAability 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 municipahty: see Sunderland, Liability of Water Companies for Fire Losses, 3 Mich Law Rev. 442; Kales, Liabihty of Water Companies for Fire Losses — Another View, 3 Mich. Law Rev. 501; note in 19 Green Bag, 129-133. SECT. VIII.] NEAL V. GILLETT 263 Section VIII • CONTEIBUTORT 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. S.^NFORD, J. [Omitting opinion on another point.] ' 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 cor- relative 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 ex- pected from a person in the party's situation " (41 E. C. L. R. 425),^ that is, " reasonable care " (19 Conn. R. 672) ; and that " gross negli- gence " imports not a mahcious 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. "VVTiat 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 en- jojanent 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, 1 Part of case omitted; also arguments. On the subject of this section the student may read profitably, Bohlen, Con- tributory Neghgence, 21 Harvard Law Rev. 233; Clark, Tort Liability for Negli- gence in Missouri, Bull, of Univ. of Mo. Law Series, No. 12, pp. 25-43. 2 1 Q. B. 29, 36. 264 NEAL V. GILLETT [CHAP. n. he is responsible for it; if to himself, he must bear it. If in the en- joyment 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 himseK 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 con- tributed to his injury; because he is himself in fault, and because of the difficulty, if not impossibility, of ascertainiag in what proportions . the parties respectively, by their neghgence, have contributed to the production of the injury, and whether it would have been produced at all but by the combined operation of the neghgence of both. When the injury is iatentional, and designed, other considerations apply. For anything this Court can see, the neghgence of the defendants, however gross, might have been entirely harmless, but for the plain- tiff's own wrongful contribution to the combined causes which pro- duced his injury. And so too, for anything this Court can see, although the defendants' negligence was gross, and fully adequate to the pro- duction 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 neghgence. 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 neghgence; ' for although the defendant was guilty of negligence, if the plaintiff's negligence con- tributed essentially to the injmy, it is obvious that it did not occur by 1 Chicago R. Co. v. Levy, 160 111. 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. 68, Burns' Ann. St. § 362); Greenleaf v. Illinois R. Co., 29 la. 14 (but changed in case of actions against a couunon carrier, Suppl. to the Code, 1913, § 3593 a); Brown v. Illinois R. Co., 123 la. 239; Dickey v. Maine Tel. Co., 43 Me. 492; Planz w. 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. DanviUe, 53 Vt. 183 Accord. Contra, contributory neghgence an afiirmative defence: Inland Coasting Co. v. Tolson, 139 U. S. 551; Montgomery GasUght Co. v. Montgomery R. Co., 86 Ala. 372; Texas R. Co. v. Orr, 46 Ark. 182; Atchison v. Wills, 21 App. D. C. 548; Mac- Dougall 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; VaUey 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 u. 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. BeUingham Imp. Co., 13 Wash. 455; Fowler v. Baltimore R. Co., 18 W. Va. 579; Hoth v. Peters, 55 Wis. 405. SECT. VIII.] PAYNE V. CHICAGO & ALTON R. R. CO. 265 reason of the defendant's negligence." " Hence, to say that the plain- tiff must show the latter " [the want of the plaintiff's concurring negli- gence], " 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.^ PAYNE p. CHICAGO & ALTON RAILROAD COMPANY Supreme Couet, Missoubi, 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.^ The judge, at the request of plaintiff, gave the following instruc- tion: — " No. 7. One of the defences in this case interposed by the defend- ant is that of negUgence 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 negUgence, but that the negli- gence of plaintiff, and not that of the defendant, must be the proxi- mate or immediate cause of the injury, to excuse the defendant from liability." In the Circuit Court plaintiff had judgment. Defendant appealed. Macf.urlaxe, 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 concur- ring negligence of both plaintiff and defendant. The phrase is defined by Beach as follows: " Contributory negligence, in its legal significa- ' 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. KiUouiey, 81 Conn. 320; Catlett v. Young, 143 lU. 74; Shultz v. Griffith, 103 la. 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. 2 Only so much of the case is given as relates to a single point. 266 PAYNE V. CHICAGO & ALTON R. R. CO. [CHAP. U. tion, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or cooperating with the negli- gent act of the defendant, is a proximate cause or occasion of the injury complained of." Beach, Cont. Neg. [2 ed.] sect. 7. The defi- nition given by Shearman & Redfield in their work on Neghgence (sect. 61) is in substance and effect the same. If the neghgence 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 exer- cise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant's neghgence." 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 negh- gence unless there was also neghgence 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 liabihty. Unless the neghgence of plaintiff was a proximate cause of the injury, his action, on the ground of contributory neghgence, would not be defeated. Testing the instruction by these rules, it cannot be approved. It teUs the jury that " the negligence of plaintiff, and not that of defend- ant, must be the proximate or immediate cause of the injury to excuse the defendant from hability." They were told in effect that this re- sult would follow though " plaintiff was simply guilty of neghgence." The jury may as well have been told that to defeat a recovery on the plea of contributory neghgence, it was necessary to find that the negh- gence 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 neghgence. There are no degrees which distinguish the neghgence made necessary by the law to defeat a recovery. And neghgence which is proximate or a cause of the injury is sufficient. It does not matter that the con- curring and.cooperating neghgence of defendant was neghgence, 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 estabhsh its plea of contributory negligence " it is not sufficient that the jury may believe from the evidence that plaintiff was simply guilty of neghgence," and as qualified or ex- plamed, by what follows, does not correctly declare the law. The neghgence 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 neghgence was very clear, we think the errors in this instruction prejudicial and must cause a reversal.^ Judgment reversed, and cause remanded. ' Remainder of opinion omitted. Start, J., in LaFlam v. Missisquoi Pulp Company, 74 Vt. 125, 143: " The de- fendants, by their second request, asked for an mstruction that if, by the exercise SECT. VIII.] GALENA, &c. R. CO. V. JACOBS 267 Beeese, J., IN GALENA, &c. R. Co. v. JACOBS (1S5S) 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 aU care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negli- gence, shght as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be meas- ured the degree of care required of the plaintiff; that is to say, the of ordinarj' 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 plain- tiff's want of ordinary care or his neghgence contributed in any material degree to the happening of the accident, he is not entitled to recover, even though the de- fendants were negligent. This was in accordance with the rule as it has sometimes been stated bv this covirt. In Magoon v. Boston & Maine R. R. Co., 67 Vt. 184, 31 Atl. 156, aiid in Hill i'. New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, if the neghgence 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 neghgence 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 Hberty 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." " Neghgence contributing as an eflBcient cause of injury wiU defeat an action therefor, irrespective of the quantum of neghgence of the respective parties." Jag- gard, 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 negh- gence 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 negli- gence 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 in- struction demands that such neghgence shall be found the sole and direct cause of the accident — an interpretation at war with the term ' contributory ' itself." Reybum, J., in Hanheide v. St. Louis Transit Co., 104 Mo. App. 323, 330. "... if it appears that his [plaintiff 's] neghgence has contributed as an efficient cause to the injury of which he complains, the court wiU 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 recov- ery. There is really no distinction between neghgence in the plaintiff and negli- gence in the defendant, except that the neghgence of the former is called ' contri- butory neghgence.' " 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 re- covery, 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 268 GALENA, &c. R. CO. V. JACOBS ' [CHAP. H. 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 negli- gence 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. ^ R. Co. V. Maydole, 33 Col. ISO; Robmson v. Huber, (Del.) 63 Atl. 873; O'Keefe v. Chicago R. Co., 32 la. 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. HoUiday, 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. Liternational 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. 1 " The doctrine of comparative negligence no longer exists in this state." WiUdn, J., in City v. Holcomb, 205 lU. 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 negUgence of the plaintiff which contributes to the injury is held to be an absolute bar to the action. In the States of lUinois 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 proxi- mate 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 negli- gent or contributed to the injury, it should go in mitigation of damages, but cannot justify or excuse the wrong. East Tennessee, Virginia & Georgia Railroad Com- pany 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 negUgence 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 allow- ing the damages to be mitigated by the conduct of the injured party. In this re- spect our rule meets the objection which Mr. Thompson, in his notes on contribu- tory 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 injus- tice; 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 civU actions for assault and batterjr, 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 Louis- ville R. Co. V. Fleming, 14 Lea, (Tenn.) 128, 135. But see Southern R. Co. v. Pugh, 97 Tenn. 624. SECT. VIII.] THE MAX MORRIS 269 United States Compiled Statutes, 1913, § 8659. In all actions hereafter brought against any such common carrier ' 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 in- juries have resulted in his death, the fact that the employee may have been guilty of contributory neghgence shall not bar a recovery, but the damages shaU be diminished by the jury in proportion to the amount of negligence attributable to' such employee: Provided, That no such employee who may be mjured 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 em- ployees contributed to the injury or death of such employee.^ (Act of AprH 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.' THE AIAX 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.^ The hbel alleged that on the 27th of October, 1884, the libellant was lawfully on board of that vessel, being employed to load coal upon ' 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 Colimibia and any of the States or Territories, or between the District of Colum- bia or any of the States or Territories and any foreign nation or nations. . . ." 2 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, eh. 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, Bums' Ann. St. § 5277 c; Missouri, R. S. (1909) §§ 3164, 3172. ' American Workmen's Compensation Acts often provide that if the employer does not elect to act under the statute, he shall be hable 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. * Portions of opinion omitted. Argument for appellant omitted. 270 THE MAX MORRIS [CHAP. H. her by the stevedore who had the contract for loading the coal; that, on that day, the libellant, while on the vessel, feU 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 negli- gence; 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 libel- lant's costs, less $47.06 as one-half of the claimant's costs, making the total award to the hbeUant $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 hbeUant'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 Comt, on the ground that the libel should have been dismissed. It was stipulated between the par- ties 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 hbeUant was a long- shoreman, a resident of the city and county of New York, and was, at the time when the said accident occurred, employed as longshore- man, by the hour, by the stevedore having the contract to load coal on board the steamship Max Morris. The injuries to the hbellant 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 com- plained of by libellant were caused by his own negligence. The libel- lant 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 libel- lant, 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 SECT. Vin.] THE MAX MORRIS 271 Com't, and a decree was entered by the Circuit Court affirming the decree of the District Court and awarding to the hbellant a recovery of $135.27, with interest from the date of the decree of the District Court, and S26.30 as the hbellant'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. Me. 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 hbellant was debarred from the recovery of any siun 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 hbellant, 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 occa- sioned, 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 Hbellant, 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 pres- ent, where personal injuries to the Hbellant arose from his negligence concurring with that of the vessel, any damages can be awarded, or whether the Hbel 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 coUision between two vessels, where both are guilty of fault contributing to the collision, had long been the rule in England, but was first estabHshed by this Court in the case of The Schooner Cath- erine 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 weU 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 equaUy 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 colHsion, it was said by the Court, speaking by Mr. Jus- tice 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." 272 THE MAX MORRIS [CHAP. U. [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 siunmary and informal, and neither party has a right to trial by jury. An important differ- ence as regards this case is the rule for estimating the damages. In the common-law Court the defendant must pay aU the damages or none. If there has been on the part of the plaintiffs such carelessness or want of skiU. 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 colUsion must be equally divided between the parties. This rule of the admiralty commends itself quite as favorably ia its in- fluence 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 negUgence, 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 fuU com- pensation 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 SECT. Vni.] THE MAX MOREIS 273 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 lilce the present, where theii- 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 ad- mu-alty, as in harmony with the rule for the division of damages in cases of collision. The mere fact of the negligence of the hbellant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the olhcers of the vessel, does not debar him entirely from a recovery. The necessary conclusion is, that the question whether the hbellant, 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 dis- pute being insufficient to give this Court jurisdiction of the whole case, our jiuisdiction is lunited 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 sus- tained, 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.^ Scott, Collisioxs at Sea where both Ships aee in Fault, 13 Law Quar- terly 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.^ This is the British rule, and has been the American rule. . . . 1 Planiol, Thait^ £l£mentaire de droit cmii (6 ed.) II, §899: "It fre- quently 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 respon- sibihty therefor T\-ith the other. In this case there is what we call in practice /aw Birmingham R. Co. v. Brantley, 141 Ala. 614; Baltimore Traction Co. v. Wal- lace, 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 334 STEINMETZ V. KELLY [CHAP. H. 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 as- sault and battery. The complaint consisted of three paragraphs, a demurrer to each of which, for want of sufhcient 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 plain- tiff, 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 shaU 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 defend- ant's premises, and we have thought that the paragraph should aver I have been able to find were issued by the Interstate Commerce Commission for the year 1906. [The learned judge theiTcopies a table from the report referred to and proceeds.] It win be observed that while the road mileage and traia mileage in Canada are each ten per cent of the entire road system and the entire train mileage, the number of trespassers injured or kill ed 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 IdUed were in- jured 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 kUled were injured or killed iu that State. It is important to know both the train mileage and the road mileage, for the rea- son the greater number of trains that are run over a given road mileage the greater number of fatahties 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 mil es in Indiana; for every forty-sbc miles in Illinois; for every seventeen miles in Missouri; and for every forty-one miles in Iowa. It wiU be observed that the number of miles for each trespasser killed in Mis- souri and Michigan is the same. This results, however, from the fact that the line from Chicago, St. Louis, and other points converging at MontpeUer, Ohio, and thence all the traffic eastward goes over the one hundred and five nules of line located in the State of Michigan. The effect of this is also shown in the train mile- age. Thus, while Michigan has only four per cent of road mileage, it has one- tMrd or six per cent of the train mileage. The population along the Michigan SECT. VIII.] STEINMETZ V. KELLY 335 that the injury occurred without the fault of the plaintiff." The para- graph does not charge an injury to the plaintiff arising out of the neghgence of the defendant, but an unlawful assault upon, and bat- tery 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 contributorj' 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 Coiut 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 negli- gence 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 plain- tiff 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 mat- ter complained of was not negligence merely, but the commission of some act in itself unlawful, without reference to the manner of corn- 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 waiting on the track in Missoiiri. If we also consider the more dense population of lUinois, the figures become more startUng. 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 fatahties 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 en- forced, 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 faE stiU lower than what it is in any of the States mentioned. Such a policy and such a statute would exclude from the rail- roads 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 Raiboad Company, 228 Mo. 56, 88, 108. See also the observations of Professor Clark in University of Missouri Bulletin, Law Series, No, 12, 34-39. 336 STEINMETZ V. KELLY [CHAP. II. mitting it, as the wilful and tmauthorized 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 infhcted 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 groxmd of the alleged misconduct of the plain- tiff, and if he employed no more force than was necessary and reason- able, that was a complete defence. Otherwise the plaintiff, if he made out the trespass, was entitled to recover, and no neghgence 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 in- struction : " 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. KendaU, 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 tplaintiff could not recover at aU without showing a want of ordi- nary 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, tres- pass vi et armis was the proper form of action in such case, the essen- tial and only groimd on which the action could rest was the neghgence 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. SECT. VIII.] AIKEN V. HOLYOKE STREET RAILWAY CO. 337 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 de- fendant 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. Judgment affirmed.} 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 plain- tiff'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 tr}dng 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 ac- cordance 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 • Birmingham Light & Power Co. v. Jones, 146 Ala. 277; Indianapohs R. Co. v. Boettcher, 131 Ind. 82 Accord. 338 AIKEN V. HOLYOKE STREET RAILWAY CO. [CHAP. II. motonnan 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 inten- tion 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. lie defendant contends that while it was not necessary for the plaintiff to show due care anterior to the act of the motonnan, he was bound to show due care which was concurrent with this act and inune- diately subsequent to it. This brings us to a consideration of the rules and principles appKcable to this kind of Uability. It is familiar law that in the absence of a statutory provision, mere negUgence, whatever its degree, if it does not include culpability different in kind from that of ordinary negUgence, does not create a liability in favor of one iajured by it, if his own neghgence contributes to his injury. It is equally true that one who wiffuUy and wantonly, in reckless dis- regard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is Hable for the con- sequences, 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 differ- ence in the nature of the conduct of the wrongdoers in the two kinds of cases. In the first case the wrongdoer is guilty of nothing worse than carelessness. In the last he is guilty of a wilful, intentional wrong. His conduct is criminal or gvusi criminal. If it results in the death of the injiu-ed person, he is guilty of manslaughter. Com- monwealth 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 exposiag others to danger, it holds him to have intended the natural consequences of his act, and treats him as guilty of a wifful 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 con- structive 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 SECT. VIII.] AIKEN V. HOLYOKE STREET RAILWAY CO. 339 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 wHful, 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. 696. 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 North- ern Railway, 63 ]\Iinn. 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 neghgence are wanting, and at the same time the facts make the rule impossible of appUcation. 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 & Pittsbin-gh 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 RaUroad, 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, Hability does not depend upon which of different causes contributing to an injury 340 BANKS V. BRAMAN [CHAP. II. 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 possi- biUty 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 proxi- mately contribute as a cause of an injiuy inflicted directly and proxi- mately 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 exist- ence of pecuhar conditions of this kind ia the present case. Conduct of a plaintiff which would be negligence precluding recovery if the injury were caused by ordinary negligence of a defendant, wUl 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 cer- tainly 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 inter- pretation 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 coimsel 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.'^ 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. 1 Southern R. Co. v. Svendsen, 13 Ariz. Ill; 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, 260 111. 439; Kansas R. Co. a. 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. SECT. VIII.] BANKS V. BRAMAN 341 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 de- fendant. The case was submitted to the jury on two alleged grounds of UabUity: 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 de- fendant'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 de- gree 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 ma- chine 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 Hability for a fail- ure 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 ha- bility was sufficiently pointed out to give the jury an adequate under- standing 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 con- duct whose tendency to injin-e is known, or ought to be known, accom- panied by a wanton and reckless disregard of the probable harmful consequences from which others are Ukely 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 342 BANKS V. BKAMAN [CHAP. II. creates a liability to a trespasser in cases of this kind has been re- ferred 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 neghgence ' 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 hke a wilful, intentional wrong. It is illustrated by an act which other- wise might be unobjectionable, but which is Uable or Hkely 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 afiirmative 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 faU 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 Hability. What was said by the judge in this case comes very near to a correct state- ment of the law. But it lacks something in fulness, and we think the jury may have tmderstood that negUgence 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 re- ferred to. We are of opinion that when there is an attempt to estab- lish this pecuhar kind of HabUity, which exists independently of a general exercise of due care by the plaintiff, the jmy should be in- structed with such fulness as to enable them to know that they are dealing with a wrong materially different in kind from ordinary neg- ligence. 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 sub- mission 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. Eoxeptions sustained.^ 1 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 resvdts 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 iafiict the injury. Then there is that reckless indiBEerence or disregard of the natural or probable consequence of doing an act, or omission of an act, desig- SECT. VIII.] GEORGIA PACIFIC RY. CO. V. LEE 343 GEORGIA PACIFIC RAILWAY CO. v. LEE SuPEEME Court, Alabama, November Term, 1890. Reported in 92 Alabama Reports, 262. McClellan, J.i . . . 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 negU- gence, are presented for re\iew. The fault in the court's defmitions in this re- gard 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 ruhngs 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 nated 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 negUgence, 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 circum- stances and conditions, that his conduct will Hkely or probably result in injury. These are the distinctions between simple neghgence, wilful injury, and that wan- ton negligence which is the equivalent of wilful injury, drawn and appUed 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 neghgence, but cannot rise to the degree of wanton negli- gence or wilful wrong. . . " Coleman, J., in Birmingham R. Co. v. Bowers, 110 Ala. 32S, 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, with- out further averment, falls very far short of showing that the injury was intention- ally 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 indif- ference 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. BiUs, 118 Ind. 221; Alger v. Duluth-Superior Traction Co., 93 Minn. 31-1; 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 laggard, 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 negli- gent that it partakes of the nature of a reckless and wanton act. Therefore a de- fendant in an action of this character wiU not be heard to say chat 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 perO 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 neghgence committed with the knowl- Only a portion of the opinion is printed. 344 GEORGIA PACIFIC EY. CO. V. LEE [CHAP. II. team as soon as they might have seen them by the exercise of due care was such recklessness or wantonness as implies a wiUingness 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 itseK 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 wUlingness to inflict injury, cannot be imputed to one who is without con- sciousness, 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 notwith- standing plaintiff's contributory negligence he may yet recover, if, in a case Uke 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 conse- quences of the omission to act upon the dictates of prudence and diligence to the end of neutraUziag plaintiff's fault and averting disaster, notwithstand- edge that another certainly and immediately would be injured thereby. The prin- ciples of right and justice do not tolerate the idea that the negligence of the person imperilled involved in his act of placing himseK in position to be injured without giving proper heed to his own safety can cooperate with the negUgence 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 ehminates 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 hmnanitarian duty must be governed by the rules apphcable to ordinary negligence. The determina- tive question in aU 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 f ailiu-e 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, includ- ing the most recent decisions of the Supreme and Appellate courts. . . ." John- son, J., in Cole v. MetropoHtan R. Co., 121 Mo. App. 605, 611. SECT. VIII.] KELLOGG ('. CHICAGO, &c. RY. CO. 345 ing his lack of care, is, strictly speaking, not negligence at all, though the term " gross negUgence " has been so frequently used as defining it that it is per- haps too late, if otherwise desirable, to eradicate what is said to be an un- scientific definition, if not indeed a misnomer; but it is more than any degree of neghgence, inattention or inadvertence — which can never mean other than the omission of action without iatent, existing or imputed, to commit wi-ong — it is that recklessness, or wantonness, or worse, which implies a wiUingness to inflict the impending injury, or a wilfulness in pursuing a course of conduct which win naturally or probably result in disaster, or an intent to perpetrate ^Tong. The theory of contributory neghgence, as a defence, is that, con- jointly with negligence on the part of the defendant, it conduces to the dam- nifying result, and defeats any action, the gravamen of which is such neghgence. 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 dUigence 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 emploj'ees, and their omission of preventive effort after that knowledge is brought home to them, when there is reasonable prospect that such effort wiU avail, wiU suffice to avoid the defence of contributory negli- gence on the part of, or imputable to, the plaintiff. KELLOGG V. CHICAGO AND NORTHWESTERN RAILWAY COMPANY Supreme Couht, 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 rail- way 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 dis- tant. 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.' Dixon, C. J. All the authorities agree that the presence of dry grass and other inflammable material upon the way of a railroad, suf- fered to remain there by the company without cause, is a fact from 1 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. 346 KELLOGG V. CHICAGO, &c. RY. CO. [CHAP. II. which the jury may find negligence against the company. The cases in lUinois, cited and relied upon by counsel for the defendant, hold this. They hold that it is proper evidence for the jury, who may find negli- gence from it, although it is not negligence per se. Railroad Co. v. Shanefelt, 47 111. 497; Illinois Central Raihoad 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, neghgence 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 negli- gence 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 plaintiEf 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 plaintiEf, 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 com- municated 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 estabhsh these facts, and under the instructions the jury must have so found. The plain- tiff 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 negli- gence, and, if they found he was, that then he could not recover. On SECT. Vm.] KELLOGG V. CHICAGO, &c. RY. CO. 347 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 commu- nicated 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 authori- ties 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 com- bustible material from his own land under such circumstances, and that he cannot recover damages where the loss is by fire thus conmiu- nicated. 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 ver.v strong to the contrary. Opposed to these are the unanunous decisions of the courts of New York, and of the English Court of Exchequer, upon the identical point. Cook r. Champlain Trans- portation Co., 1 Denio, 91; Vaughan v. Taff Vale Railway Co., 3 Hiu-1. and Nor. 743; Same i>. Same, 5 id. 679. These decisions, though made many years before the Illinois cases arose, are not re- ferred 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 aflBrmed, as will be seen from the opinions of the judges, particularly of Cockburn, C. J., and WUles, 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 neghgence 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 negUgent 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 neghgence 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 negli- gent 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 culti- vates some portion of it. B. has a planing mill, or other similar manu- 348 KELLOGG V. CHICAGO, &c. RY. CO. [CHAP. II. facturing 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 hable 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, wiU endanger his dwelling-house and other property of a com- bustible 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 im- poses on him the duty of guarding against B.'s neghgence, 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 prin- ciple 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 neghgence 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 neghgence, but not he himseK. 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 apply- ing the doctrine of contributory negligence in such a caye. And it is absurd, I care not by what Court or where apphed. Now the case of a railroad company is Hke the case of an individual. Both stand on the same footing with respect to their rights and liabili- ties. Both are engaged in the pursuit of a lawful business, and are ahke Hable for damage or injury caused by their neghgence in the prosecution of it, Fire is an agent of an exceedingly dangerous and SECT. VIII.] KELLOGG V. CHICAGO, &c. EY. CO. 349 unruly kind, and, though apphed to a lawful purpose, the law requires the utmost care in the use of all reasonable and proper means to pre- vent damage to the property of third persons. This obligation of care, the want of which constitutes negligence according to the circum- stances, 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 negli- gent, 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 pur- poses, 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 negli- gent 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 yorn- own that another shall not injure your property," by his carelessness and negUgence. It would be a very great burden to lay upon all the farmers and proprietors of lands along our extensive liaes 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 bmrdensome and difficult, it would, in numerous in- stances, 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 aU profitable use. Houses and build- ings 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 Une of the railroad would be negligence in the farmer or pro- prietor. 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 re- move everything combustible from his own land in order that the company may leave aU things combustible on its land and exposed without fear of loss or danger to the company to being ignited at anv 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 350 KELLOGG V. CHICAGO, &c. RY. CO. [CHAP. II. 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 httle precaution, to pre- vent 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 Httle labor bestowed for that purpose, the mischief might be remedied. And this is an addi- tional reason why the burden ought not to be shifted from the com- pany 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; TurberviUe 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 Neghgence (A. 6). It is true that some of these cases arose under statutes creating a Hability on the part of railroad companies, butihat does not affect the principle. Negligence in the plaintiff, contributing to the Iqss, 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., dehvered 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 neghgence. The dis- SKCT. VIII.] KELLOGG V. CHICAGO, &c. RY. CO. 351 tinction is between a known, present, or immediate danger, arising from the negligence of another, — that which is imminent and cer- tain, unless the partj- does or omits to do some act by which it may be avoided, — and a danger arising in like manner, but which is re- mote and possible or probable only, or contingent and uncertain, de- pending on the course of future events, such as the future conduct of the negligent partj-, and other as yet unknown and fortuitous circum- stances. 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 impwses 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 maj' happen through another's default and culpable want of care. Rehearing denied.^ 1 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; Sahnon v. Delaware R. Co., 38 N. J. Law, 5; Philadelphia R. Co. 11. Schxiltz, 93 Pa. St. 341 Accord. But see CoUins 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 habflity 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 hmit 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 maiataia 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 vhether the plaintiff's flax was so near to the track as to be in danger from even a prudently managed engLoe. Here certainly, except in a clear case, we should call 352 THE BBENINA ' [CHAP. II. THE BERNINA In the Court of Appeax,, Januaby 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 per- sonam 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.' 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 negUgently navigated. One of the three persons (Toeg) was a passenger oh the Bushire; one (Armstrong) was an engineer of the ship, though not to blame for the colUsion. The third (Owen) was her second officer, and was in charge of her, and was himself to blame for the collision. The ques- 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 3 the law loltimately should formulate an exact measure, as it has tended to in other instances; (Martin v. District of Columbia, 205 TJ. S. 135, 139) but at present I takeit that if the question 1 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 1 should decline \o 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. NegHgence 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 universaUty 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. Wil- son, 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. 62; 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. Coinpare 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. ' Statement of case abridged. Arguments omitted. SECT. Yin. J THE BEKNINA 353 tions 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 Admi- ralty 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 circmnstances 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 re- spectively 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 rea- sonable 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 re- cover 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 pas- senger 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 354 THE BERNINA [CHAP. II. 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 caimot be yet said to have become indisputably settled law. I do not think, there- fore, 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 Camp- bell's Act. The facts were shortly as foUows. 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 defend- ants. There was negligence on the part of the drivers of both omni- buses, and it appears that there was also neghgence 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 com- pelled 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 com- plained of, but was upheld by the Court. The ratio •decidendi was that if the death of the deceased was not occasioned by his own negli- gence 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 omni- bus in which he voluntarily became a passenger, and the negligence of the driver was the neghgence of the deceased." This theory of identi- fication was quite new. No trace of it is to be found in any earher decision, nor in any legal treatise, Enghsh 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 himseK m fault. Assuming this to be so, then, if both drivers were negUgent, 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 doc- trine 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. SECT. VIII.J THE BERNINA 355 Such a doctrine, if made the basis of further reasoning, leads to re- sults which are wholly untenable, e. g., to the result that the pas- sengers 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 di-iving hmi. But why not ? The driver of a pubhc 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 inter- ference was suggested in Thorogood v. Bryan, supra. The principles of the law of negligence, and in particular of what is called contribu- tory 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 himseK 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 easOy 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 negli- gence 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 356 THE BEENINA [CHAP. II. 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 rea- sonable 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 rea- sonable 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 negUgence, 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 under- stand. However, as already stated, the law on this point is settled, and not open to judicial discussion. If now another person is intro- duced the same principles will be found appUcable. 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. wiU have two persons instead of one hable 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 au- thorities were carefully examined by the late L. C. J. Cockburn. This is no doubt hard on the defendant, who is alone sued, and this hard- ship 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 pro- duces hardship in these cases, but the hardship produced by that rule (if SECT. VIII.] THE BERNINA 357 really applicable to such cases as these under discussion) does not jus- tify the Court in exonerating one of the wrong-doers from all responsi- bility 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 rea- sons for my inability to concur in the doctrine laid down in Thorogood V. Bryan, supra, I proceed to consider how far that doctrine is sup- ported by other authorities. [After commenting on various author- ities]; 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 em- ploy. 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 sub- ject 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,^ in which the English and American cases were reviewed, and the doctrine laid down in Thorogood v. Bryan, supra, was dis- tinctly repudiated as contrary to sound principles. In this case the plaintiff was driving in a hackney carriage and was injured by a colli- sion 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 BramweU, who has gone further than any other judge in up- holding the decision, has expressed disapproval of the grounds on which it was based. No text-writer has approved of it, and the com- ments 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 doc- trines 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 Lobd 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 be- 1 116U. S. 366. 358 THE BERNINA ' [CHAP. 11. tween 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 pas- senger 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 negUgence of the driver is to be imputed to the passenger. If the negligence of the driver is to be at- tributed 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 neghgence 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 liabihty of that railway company or shipowner. It would work mani- fest 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 can- not 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 Arm- strong 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. Arm- strong; L. R. 13 App. Cases, l.i 1 Little V. Hackett, 116 U. S. 366; Baltimore R. Co. v. Friel, (C. C. A.) 77 Fed. 126; Georgia R. Co. v. Hughes, 87 AJa. 610; Little Rock R. Co. v. Harrell, 58 SECT. VIII.] SHULTZ V. OLD COLONY ST. RAILWAY CO. 359 SHULTZ ('. 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 plain- tiff 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 instruc- tion plaintiff excepted. Verdict for defendant.' 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:] 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, 183 111. 482; Chicago R. Co. V. Leach, 215 111. 184; Pittsbm-gh 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 ;;. New Orleans R. Co., 38 La. Ann. 185; Roby v. Kansas City R. Co., 130 La. 880; Consohdated Gas Co. v. Getty, 96 Md. 683; Cuddy v. Horn, 46 Mich. 596; Gallo- way «;. Detroit Ry., 168 Mich. 343; Flaherty v. Miimeapolis R. Co., 39 Minn. 328; Colton v. Wilhnar 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. Stein- brenner, 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. MarshaU, 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. '■ Statement abridged. Greater part of opinion omitted. 360 SHULTZ V. OLD COLONY ST. RAILWAY CO. [CHAP. II. The rule fairly deducible from our own oases, 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 ex- ercise 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 concm-ring neghgence 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 im- putable 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 neg- hgence 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 surren- der of all care for himself to the caution of the driver. ^ 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,^ nor if she negligently aban- doned the exercise of her own faculties and trusted entirely to the vigi- ' 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 PennewiU 681; Porter v. Jacksonville Electric Co., 64 Fla. 409; Roach v. Western R. Co., 93 Ga. 785; West Chicago R. Co. v. Dougherty, 209 HI. 241; Nonn V. Chicago R. Co., 232 lU. 378; Yeates v. Illinois R. Co., 241 lU. 205; Cin- ciimati R. Co. v. Cook, 44 Ind. App. 303; Larkin v. Burlington R. Co., 85 la. 492; Withey v. Fowler, 164 la. 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. Metropohtan R. Co., 91 App. Div. 158; Ward v. Brooklyn R. Co., 119 App. Div. 487; Morris v. Metropohtan R. Co., 63 App. Div. 78; TerwiUiger v. Long Island R. Co., 152 App. Div. 168; Kamnnerdiener v. Raybum, 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. 8 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; Briokell V. New York R. Co., 120 N. Y. 290; Caminez v. Brooklyn R. Co., 127 App. Div. 138; Doctoroff v. Metropohtan R. Co. 55 Misc. 215; Southern R. Co. v. Jones, 118 Va. 685; Wilson v. Puget Sound JR.. Co., 52 Wash. 522; Warth v. Jackson County Court, 71 W. Va. 184 Accord. See Atlantic R. Co. v. Ironmonger, 95 Va. 625. SECT. VIII.J SHTJLTZ V. OLD COLONY ST. RAILWAY CO. 361 lance and care of the driver.^ 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 call- ing to the attention of the driver perils unnoticed by hun, depends upon the circumstances at the tiirae 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 pro- duced 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 plain- tiff 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.^ 1 City V. Thuis, 28 Ind. App. 523; Bush v. Union R. Co., 62 Kan. 709; Yamold 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. Buokmaster, 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. 2 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. McDougaU, 172 Cal. 306; Denver Tramway Co. v. Armstrong, 21 Col. App. 640; Sampson v. Wilson, 89 Conn. 707; Metropohtan R. Co. v. Powell, 89 Ga. 601; Southern R. Co. v. King, 128 Ga. 383; Chicago R. Co. v. Condon, 121 111. App. 440; Dudley v. Peoria R. Co., 153 lU. App. 619; Town V. Musgrove, 116 Ind. 121; Lake Shore R. Co. v. Boyts, 16 Ind. App. 640; Nisbet V. Town, 75 la. 314; Hubbard v. Bartholomew, 163 la. 68; Corley v. Atchison R. Co., 90 Kan. 70; Bevis v. Vanceburg Tel. Co., l2l Ky. 177; Illinois R. Co. v. Wil- kins, 149 Ky. 35; Sykes v. Maine R. Co., Ill Me. 182; United R. Co. v. Cram, 123 Md. 332; Chadboume v. Spriagfield 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; Colbome 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, 362 KOPLITZ V. CITY OF ST. PAUL [CHAP. II. 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 gen- eral 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. 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 prin- cipal or employer not personally culpable, see also: Siegel v. Norton, 209 111. 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 lU. App. 146; Toledo R. Co. v. Goddard, 25 Ind. 185; Louisville R. Co. v. Stommel, 126 Ind. 35; Young v. County, 137 la. 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 negUgence contributed). As to when neghgence 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. Metro- politan R. Co., 186 Mo. 350; Moon v. St. Louis Transit Co., 237 Mo. 425; Reed v. Metropohtan 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, 86 111. 402; Yahn v. Ottumwa, 60 la. 429 (see also Nesbit v. Gamer, 75 la. 314; WiUfong v. Omaha R. Co., 116 la. 548); Denton v. Missouri R. Co., 90 Kan. 51; Livingston v. PhiUey, 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; Penn- sylvania R. Co. V. Goodenough, 55 N. J. Law, 577; Horandt v. Central R. Co., 78 N. J. Law, 190; CarUsle v. Sheldon, 38 Vt. 440. Imputed negligence as between fellow servants, see: Nonn v. Chicago R. Co., 232 HI. 378; Ford v. Hine, 237 lU. 463; Paducah Traction Co. v. Sine, (Ky.) Ill 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 lU. App. 616; Welty v. Indianapolis R. Co., 105 Ind. 55; Illinois R. Co. v. Sims, 77 Miss. 325; Spehnan 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. SECT. VIII.] KOPLITZ V. CITY OF ST. PAUL 363 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 convey- ance, 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 neghgence 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 ac- count 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 judg- ment 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 re- lation 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 364 • FECHLEY V. SPRINGFIELD TRACTION CO. [CHAP. II. each has authority, expressed or imphed, to act for all in respect to the control of the means or agencies employed to execute such com- mon 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. Minneapohs & St. L. Ry. Co., 39 Minn. 328, 40 N. W. 160; Howe v. Minneapolis, St. P. & S. Ste. M. Ry. Co., 62 Muin. 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 imphedly 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.^ FECHLEY V. SPRINGFIELD TRACTION COMPANY St. Louis Coubt of Appeals, Missouei, Mat 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 colUsion 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 neghgent 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 negUgence.^ 1 See Alabama R. Co. v. Hanbury, 161 Ala. 358; Louisville R. Co. v. Armstrong, 127 Ky. 367; Beauoage v. Mercer, 206 Mass. 492; Ward v. Meads, 114 Minn. 18; Schron v. Staten Island R. Co., 16 App. Div. 1 1 ; Christopherson v. Minneapolis R. Co., 28 N. D. 128; Wentworth v. Town, 90 Vt. 60; Washington R. Co. v. ZeU, 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 negli- gence of Gibbons would have been imputed to them. Compare Laurence v. Sioux City, 172 la. 320; Scheib v. New York R. Co., 115 App. Div. 578; Kansas City R. Co. v. Durrett, (Tex. Civ. App.) 187 S. W. 427. * Statement abridged. Arguments omitted; also portions of opinion. SECT. VIII.] FECHLEY V. SPRINGFIELD TRACTION CO. 365 GooDE, J. [After stating the case; and holding that the negli- gence 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 himseK 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 motor- man's fault was a factor in bringing about the casualty. Few, if any, coiu-ts 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 jurisdic- tions, 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 imput'able 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; BrickeU v. Raikoad, 120 N. Y. 290; 2 Thompson, Negligence, sec. 1620; Beach, Con. Neg., sec. 115; 3 Elliott, Rail- roads, sec. 1174. [After discussing the pleadings.] Therefore the question occm-s whether, on the testimony for appel- lant, the court would have been justified in holding him guilty of con- tributory 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 Com- mercial 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 circmnstances, a man of ordinary prudence would have re- lied 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 366 NEWMAN V. PHILLIPSBURG HORSE CAE CO. [CHAP. II. a car was likely to come along on that track from the east. Pierce's behavior was so grossly careless, that FechJey 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 ad- vanced so far into danger. It is palpable from appellant's own -testi- mony that he was giving no heed to his safety, but either was rel3nng iDlindly 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 concur- rent 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 calcula- tions 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 acci- dent 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 Philhpsburg. 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. SECT. Tin. J NEWMAN ('. PHILLIPSBURG HORSE CAR CO. 367' ^, ^^^ '^i^'^^it judge submitted the three following propositions to this L ourt for its advisory opinion, viz. : — F»-s^ Whether the negligence of the persons in charge of the plaintiff, an infant minor, should be imputed to the said plaintiff. ^^eco^f- ^A hether the conduct of the persons in charge of the plain- tiff at the time of the mjury complained of, was not so demonstrably n^hgent that the said Circuit Court should have nonsuited the plain- tiff, or that the Court should have dii-ected 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 Scud- dee, Dixox and Reed, JJ. The opinion of the court was delivered by — Beaslet, 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 vicari- ously 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 c% Xewell, 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 cus- todian of the infant, too young to be intelligent of situations and cir- cumstances, 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 pub- Uc 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 per- mitted by its custodian to wander into a position of such danger it was without remedy for the hurts thus received, unless they were volun- tarily 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 in- fant," 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." 368 NEWMAN V. PHILLIPSBtTEG HORSE CAB CO. [CHAP. II. 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 in- ference being that, for that reason, the neglects of the adult are the neglects of the infant. But surely this is, conspicuously, a non sequi- tur. How does the custody of the infant justify, or lead to, the impu- tation 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 for- feiture is not a necessary, or even convenient, incident of this ofBce 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 in- fant 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 in- terests of the infant, and could not be confined to the single instance where an injury is inflicted by the cooperative tort of the guardian. And yet it seems certain that such custodian cannot surrender or im- pair 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 invahd 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 neghgence 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 vahd. In fact, this doctrine of the imputabiUty of the misfeasance of the keeper of a child to the child itself, is deemed to be a pure interpola- tion 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 SECT. VIII.] NEWMAN V. PHILLIPSBURG HORSE CAR CO. 369 agency to which the harsh rule of respondeat superior should be ap- pHcable. The answerableness of the principal for the authorized acts of his agent is not so much the dictate of natural justice as of public pohcy, 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 relation- ship between the infant and its keeper, all these decisive characteris- tics 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 co- operative 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 sub- stitution, 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 per- son who is incapable either of self-protection or of being a participator in their misfeasance. Xor 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 care- less 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 logi- cal necessity, follow, that the infant must indemnify those who should be harmed by such neglects. That such a doctrine has never pre- 370 BISAILLON V. BLOOD [CHAP. II. vailed 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 suffi- cient 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 RaUw. 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.^ BISAILLON V. BLOOD Supreme Couet, 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 pubhc street of Manchester, ran over and injured the plaintiff, an infant then five years old, who had wandered from his home with- out 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 ex- ercise care for himself, it was the duty of his parents or natural 1 Chicago R. Co. u.KowaIski,(C. C. A.) 92 Fed. 310; Pratt Coal Co. v. Braw- ley, 83 Ala. 371; St. Louis R. Co. v. Rexroad, 59 Ark. 180; Daley v. Norwich R. Co., 26 Conn. 591; Jacksonville Electric Co. v. Adanas, 50 Fla. 429; Ferguson V. Columbus R. Co., 77 Ga. 102; Chicago R. Co. v. Wilcox, 138 111. 370; Evans- ville V. Senhenn, 151 Ind. 42 (overruling earlier cases contra); Ives v. Welden, 114 la. 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; Gal- veston 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 CSl. 602; O'Brien v. McGlinchy, 68 Me. 552; Baltimore R. Co. v. McDonneU, 43 Md. 534; Wright v. Maiden 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; Parish! v. Eden, 62 Wis. 272; Kuchler v. Milwaukee Electric Co., 157 Wis. 107 Cmtra. 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. SECT. VIII.] CONSOLIDATED TRACTION CO. V. HONE 371 guardians to exercise care and prudence for him to prevent his being injured, and if they were neghgent in this respect, and their neglect contributed to produce the injury complained of, he cannot recover. To these instructions the plaintiff excepted. Caepenter, J. The plaintiff would be entitled to damages for the defendant's negligent injury of his property similarly exposed to dan- ger by the carelessness of his guardian. Davies v. Mann, 10 M. & W. 546; Smith v. Railroad, 35 N. H. 366, 367; Giles v. Raikoad, 55 N. H. 555. An infant of such tender years as to be incapable of exer- cising care is not less under the protection of the law than his chattel. The previous neghgence of the plaintiff's parents was immaterial. The only question for the jury was, whether the defendant by the ex- ercise of ordinary care could have prevented the injury; if she could not, she was without fault, and is not hable; if she could, she is liable whether the plaintiff was in the street by reason of, or without, his parents' neghgence. In cases of this character, where an irresponsible child or an idiot is, by the negligence of the parent or guardian, ex- posed to peril without an attendant, or where a chattel is in like man- ner placed by the owner in a dangerous position, and either is injured by the act of a " volimtary 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 defend- ant 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} CONSOLIDATED TRACTION COMPANY v. HONE Supreme CotrRT, 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 ad- ministrator 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 ConsoUdated 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 de- fault, 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 hable to an action of damages notwith- 1 Savannah Electric Co. v. Dixon, (Ga.) 89 S. E. 373; Smith v. Marion Bottle Co., 84 Kan. 551 Accord. 372 CONSOLIDATED TRACTION CO. V. HONE [CHAP. II standing the death of the person injured," etc. Gen. Stat., p. 1188, §10.1 The following section directs " that the action shall be brought by and in the name of the personal representatives of the deceased per- son, 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 main- tained 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 neghgent 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 like- wise 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. ' 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 Camp- bell'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 stat- utes are printed in ivH 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 pay- ment of creditors (unless, perhaps, in the absence of any relatives). In some in- stances 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 expUcit 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 neghgence 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. SECT. VIII. 1 CONSOLIDATED TRACTION CO. V. HONE 373 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 havmg himself been, in a measure, the occasion of the resulting dam- age, 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 exten- sion, and to apply it as is now insisted on would be to use it in a novel way. The question whether the deceased was neghgent 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 neghgent has nothing whatever to do with such issue. In the legal practice of this state it is the estabUshed course to exclude every- thing 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 in- quiry 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 simi- lar, and in Wymor's case (78 Iowa, 396) ^ the court of that state ex- pressed very distinctly what is deemed the correct view of this topicj in these words: " If," says the opinion, " his parents, by their negli- gence, 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 negli- gent 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 ' Wymore v. Mahaska County, 78 la. 396. The material provisions of the stat- ute 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 Hable 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 onC; and to have accrued to such representa- tive 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. 374 RICHMOND CO. V. martin's adm'r [chap. II. can recover the full amount of damages which the estate of the child sustained." The subject will be foimd Olustrated by a reference to many cases in 4 Am. & Eng. Encycl. L. 88. My conclusion is that there is no fault to be foimd with the trial of this case in reference to this poiut. [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 contribu- tory 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.] ' RICHMOND, FREDERICKSBURG & POTOMAC R. CO. v. MARTIN'S ADM'R StJPEEME 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 Rail- road 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 kiUed 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 Fredericks- burg; that Patrick Martin, Jr., negUgently drove upon and attempted to cross the railway track at Falmouth crossing, in plain view of a rapidly approaching traia; and that in the collision which followed 1 Southern R. Co. v. Shipp, 169 Ala. 327; Nashville Lumber Co. v. Busbee, 100 Ark. 76 Accord. See Macdonald v. O'ReiUey, 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 m the hands of its ad- ministrator, to be distributed in accordance with the special provisions of the stat- ute. 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 prop- erty 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." SECT. VIII. J RICHMOND CO. V. MARTIN's ADM'r 375 his mother and two sisters, who occupied a rear seat in the vehicle, were instantly killed. Thereupon the defendant moved the court to mstnict 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 neghgence 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 mmor child, can, under the statute, in an action instituted by him as administrator, suing for his own bene- fit, recover damages for the death of the child. The statute requires such actions to be brought by and in the name of the personal repre- sentative 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 pay- ment 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 amoimt so received shall be assets in the hands of the personal repre- sentative, to be disposed of according to law." Code 1887, sees. 2903, 2905. It win be observed that by the express language of the statute the damages awarded caimot become assets in the hands of the adminis- trator, 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 legis- lative intent to treat the recovery as wholly independent of the dece- dent 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 de- cedent, 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 negli- gence has contributed to the accident. Thus, if the child in this in- stance 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 inter- 376 EICHMOND CO. V. MAETIn'S ADM'r [CHAP. II. pose no defence to an action by the child for such injury. The rule is that the child's want of responsibility for neghgence 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 repre- sented 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 contrib- uted to the result, although the infant may maintain an action for such injury, the father cannot; the negligence of his agent, the cus- todian of the chUd, 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 neghgence, 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 negUgent father cannot recover is foimded 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 permit- ting 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 pohcy of the law, which forbids that one shaU reap a benefit from his own misconduct. Ac- cordingly the authorities are practically unanimous to the effect that the guiding principle in both classes of cases is identical, and the contributory neghgence of the beneficial plaintiff wiU 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 negli- SECT. VIII. J WELCH V. WESSON 377 gence 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 wrongdoer, 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 gov- erned 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} 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 sub- stance 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 plain- tiff's objection, to introduce evidence tending to prove that it was 1 Lee V. New River Coal Co., (C. C. A.) 203 Fed. 644; Chicago R. Co. v. Logue, 158 111. 621; True v. Woda, 201 111. 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; Hoof v. Burlington Traction Co., 70 Vt. 509; Vin- nette «.■ 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 con- tention 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. " ShaO 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 378 WELCH V. WESSON [CHAP. II. done while the parties were trotting horses in competition with each other for a purse of money, the ownership of which was to be deter- mined by the issue of the race. And it was ruled by the presiding judge, that if this fact was estabUshed, no action could be maintained by the plaintiff to recover compensation for the damages he had sus- tained, even though the injury complained of was wilfully inflicted. Under such instructions, the jury retm-ned a verdict for the defendant. We presume it may be assumed as an imdisputed principle of law, that no action wiU 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 quahfication, 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 wil- ful 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 Ulegal 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 punish- able by fine and imprisonment. St. 1846, c. 200. But neither the con- tract 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 rul- ing, anything to do with the trespass committed upon the property of 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." Sedg- wick, C, in Tucker v. Draper, 62 Neb. 66, 67. See Wigmore, Contributory NegUgence of the Beneficiary as a Bar to an Admin- istrator's Action for Death, 2 lUiaois 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 HI. 441; Feldman v. Detroit R. Co., 162 Mich. 486; Davis v. Seaboard R. Co., 136 N. C. 115; Wn1f r t ^'^^ -^nr. Tj T'li , , ^ Ohio St ^^JJ; Gunn v. Ohio R. Co., 42 W. Va. 676. Contra: Wymore v. Mahaska Uouhry, 78 la. 396; McKay v. Syra- cuse 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 » Lake Krie R.. Co^ 55 Ohio St. 51J7; Dflrhrina W v. PeTmsvlvania Co., 248 PIT St. 503. "^ SECT. VIII.J BOSWORTH V. INHABITANTS OF SWANSEY 379 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 en- gaged in any such business at all, is apparent from the course of the proceedmgs 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 conse- quences of his own illegal misbehavior in another. Exceptions sustained.^ BOSWORTH V. INHABITANTS OF SWANSEY Supreme Judicial Court, Massachusetts, October Teem, 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 high- way, 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 en- titled 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 al- leged exceptions to the judge's instructions. ^ 1 See Broschart v. Tuttle, 59 Conn . 1 ; Dudley u. Northampton, 202 Mass. 443, 449. '■ The arguments are omitted. 380 BOSWOETH V. INHABITANTS OF SWANSEY [CHAP. II. 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 sus- tained 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 estabHsh which, it must appear that the plaintiff him- self 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 afl&rmatively that he was so free from all fault. Adams v. CarUsle, 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 prin- ciple of the cases cited. It would show that his own unlawful act con- curred 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 neghgence of the defendants had been proved, if they rehed 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 evi- dence 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.^ \ Hinckley v. Penobscot, 42 Me. 89; Smith v. Boston R. Co., 120 Mass. 490 (injury to passenger travelling on train in violation of Sunday kw) Accord. " The provisions of chapter ninety-eight of the PubHc 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. SECT. A'lII.] SUTTON V. TOWN OF WAUWATOSA 381 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 flight, he resximed his journey on Sunday morning, and at about four o'clock, p. m., reached a pubhc 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 render- ing 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 de- fendant to keep it in proper repair. The answer denies the negligence charged to the defendant, and al- leges that the cattle were driven upon the bridge in so careless and neghgent 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 Sun- day, when the injury occurred, could not recover therefor. The plain- tiff appealed.^ 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 dol- lars 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 tri- ' The arguments are omitted; also that part of the opinion which relates to the question of contributory negligence. 382 SUTTON V. TOWN OF WAtJWATOSA [CHAP. II. biinal as eminent and much respected for its learning and ability as any in this comitry. Bosworth v. Swansey, 10 Met. 363; Jones v. Andover, 10 AUen, 18. A similar, if not the very same principle has been maintained in other decisions of the same tribunal. Gregg v. Wyman, 4 Gush. 322; May v. Foster, 1 AUen, 408. But in others still, as we shall hereafter have occasion to observe, the same learned Gourt 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 Uke the present, and it was held there could be no recovery against the towns. In the fiirst, the opinion, delivered by Chief Justice Shaw, and which is very short, commences with a state- ment of the proposition, repeatedly decided by that Gourt, " that to maiatain the action it must appear that the accident was occasioned exclusively by the defect of the highway; to estabUsh 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, imless 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 httle, and but a httle, more effort at reasoning upon the point. The illustrations on page 20, of negUgence 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 coUision, and the language of the Gourt aUuding 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 neghgence, or want of due care in the plain- tiff, 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 Gourt 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 iu 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 SECT. VIII.] SUTTON V. TOWN OF WAtTWATOSA 383 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 injxu-y. 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 let- ting 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 delictu7n 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 wiU 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 Com-t of the United States, and the Courts of Great Britain, which have been so diUgentl}' 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. Coding, 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 any- thing 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 aflBrmance of two very just and plain principles of law as ap- phcable 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 in- jury, 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 wiU 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, 384 SUTTON V. TOWN OF "WAUWATOSA [CHAP. II. voluntarily or negligently done to the injury of the plaintiff, on the ground that the plaintiff has been guilty of some other and inde- pendent 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 morahty," 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 appUcation, 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 obUged 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 abohshing imprisonment for debt arising out of or foimded on a contract express or imphed, 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. Kcehler, 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 neghgence on his part contributiug 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 com-se 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 SECT. VIII.] SUTTON V. TOWN OP WAUWATOSA 385 injury, or from which the injury or accident might naturally and reasonably have been anticipated under the circumstances. It is ob- vious that a violation of the Sunday law is not of itself an act, omis- sion, 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 condi- tions 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 con- tributory 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 considera- tion of the cause of it. Time and place are circumstances necessary in order that any event may happen or transpire, but they are not ordi- narily, 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 per- ceive how the highwayman could connect the unlawful act of the trav- eller 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 pres- ence at one time and place be a fault or wrong on his part, contribut- ing 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, there- fore, 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 386 SXTTTON V. TOWN OP WAITWATOSA [CHAP. II. plaintiff's action on that ground. As observed ia 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. San- ford, 51 Maine, 134, " is the sum total of the contingencies of every description, which, being reahzed, 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 con- spicuous 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 in- jurious 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,Tio one doubts the same accident would then have happened, and the same in- juries 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 superincimibent 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 iajury from a defect in it, be ia the act of com- mitting, 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 tortur- ing 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 pos- session, 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. SECT. VIII. J SUTTON V. TOWN OF WAUWATOSA 387 There are in Massachusetts, and doubtless in many of the States, stat- utes against blasphemy and profane cursing and swearing, the preven- tion 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 Massa- chusetts, that the action of any person to recover damages for an injury sustained by reason of defects in a highway, has been per- emptorily dismissed because he was engaged at the time in profane cursing or swearing, or because he was in a state of voluntary intoxi- cation, 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 cir- cumstances, 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 dis- missed. 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 re- ject the doctrine of those cases entirely and adopt that of the other cases cited, and which is well expressed by the Supreme Court- of IMaine, 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 way- farer on the wrong side of the street, or without giving him half the road, or that he was travelling on runners without bells, in contraven- tion 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 liabihty 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. 388 STEELE V. BTJRKHARDT [CHAP. II. 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 dif- ferent 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 rem- edy of the plaintiff, against the opposite rule sustained by the adjudi- cations 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 con- sidered in connection with each other. Judgment reversed, and a venire de novo awarded.^ 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; subihitted to the judg- ment 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 employ- ment of the defendant. At the time of the injury, the plaintiffs' 1 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 la. 652; Taylor v. Star Coal Co.. 110 la. 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 causa- SECT. VIII.] STEELE V. BUKKHARDT 389 wagon, to which the injured horse was attached, was placed in Chn- ton 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 Chnton Street, and thereby the plaintiffs were guilty of a viola- tion of an ordinance of the city, which provides as follows: 'And for the loading or unloading of any dii-t, 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 m part backed or placed across any street, square, lane, or alley, or upon flag-stones or crossings of the same, but shall be placed length- wise, 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 injiuy, there was sufficient room, with proper care, for the de- fendant'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 curb-stone, 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 t)nly fault upon the part of the plaintiffs is the fact of their horse and wagon ha-^-ing 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 maintain- ing their action for damages, my award would be judgment for the defendant for his costs of court, with the costs of this reference; tion, 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 sum- marized as follows: — • The UabUity 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 travel- lers 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 for- bidden 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 habihty " are co-extensive with the pur- poses 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 kmd of a highway, and therefore was under no liability for any insufficiency in any highway." 390 STEELE V. BTJKKHAEDT [CHAP. II. 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 ordi- nance. 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 keep- ing the ordinance, but did not necessarily show negUgence that con- tributed to the injury. And, notwithstanding this evidence, it was competent to the arbitrator to find, as a fact, that, towards the defend- ant, the plaintiffs were guilty of no negligence, but were careful to leave him ample room to pass. He did so find in subptance; 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 col- lision 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 conse- quence 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 per- sonally, 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 SECT. VIII.] NEWCOMB V. BOSTON PROTECTIVE DEPT. 391 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. Maiden & 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 ordi- nance referred to is, that for loading and unloading packages weigh- ing 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. Wes- son, 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 jus- tified 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 r. Harlow, 3 Allen, 176, it was held that, though the plain- tiff'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 Jxjdicial Couet, Massachusetts, January 25, 1888. Reported in 146 Massachusetts Reports, 596. Tort for personal injuries occasioned to the plaintiff, a cab-driver, by a coUision 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 392 NEWCOMB V. BOSTON PROTECTIVE DEPT. [CHAP. II. under the St. of 1874, c. 61/ for the protection of Hfe 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 rail- way 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 curb- stone, 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 defend- ant was driven negUgently 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 there- with lengthwise with the street, as near as possible to the sidewalk,' that was an \inlawful act, and he cannot recover in this action. 2. If that unlawful act contributed to cause the aUeged injiuy, 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 Hable for an accident caused by the collision of one of its teams, whUe 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 unem- ployed 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 con- tributed to cause the aUeged 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 1 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 coimcil 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." SECT. VIII. J ISTEWCOMB V. BOSTON PROTECTIVE DEPT. 393 vehicle and horse while standing in a street, stating that the rule was apphcable 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 ia violation of this ordinance, such violation is evi- dence of negligence on his part; and, if such negligence directly con- tributed to the injury, the plaintiff cannot maintaui 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 contrib- uted to the injury. Whether the position of the plamtiff'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 posi- tion 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 con- clusive proof of neghgence which contributed to the injury. Or, stat- ing the general rule in a somewhat different form, the fact that the plaintiff is engaged in violating the law does not prevent bim from recovering damages of the defendant for an injury which the defend- ant 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 negli- gence, 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 de- fendant's servants, in the care and management of this wagon, at the time the plaintiff was injured, were neghgent." The jury returned a verdict for the plaintiff; and the defendant alleged exceptions. Knowlton, J. The plaintiff brought his action to recover for in- juries 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 contrib- uted to the injury. There was evidence apphcable 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 defend- ant 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 394 NEWCOMB V. BOSTON PROTECTIVE DEFT. [CHAP. II. exercise of due care, and therefore he cannot maintain this action." The presiding judge decHned 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 neghgence directly contributed to the injury, the plaintiff cannot maintain the ac- tion. It cannot be said, as matter of law, that the fact that the plain- tiff 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 tis then is, whether or not the defendant was entitled to this instruction, — in other words, whether, if the plain- tiff's unlawful act contributed to cause his injury, it was a bar to his recovery, or merely evidence of neghgence which might or might not bar him, according to the view which the jiuy should take of his con- duct as a whole, in its relation to the accident. It has often been held that a violation of law at the time of an acci- dent, by one connected with it, is evidence of his neghgence, 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 pohcy, 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 unUcensed 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 ig- norance, 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 guUty of actual neghgence 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 pres- SECT. VIII.] NEWCOMB V. BOSTON PEOTECTIVE DEPT. 395 entty 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 circmnstance bearing upon the question whether there was actual neg- ligence; 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 obtam 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 re- ferrmg 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 AUen, 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 neghgent 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 miU, 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 plain- tiff 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 contrib- ute to the injury, but was independent of it, he is not precluded thereby from recovering." 396 NEWCOMB V. BOSTON PROTECTIVE DEPT. [CHAP. II. 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 investi- gation 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 con- trary. Hall V. Ripley, 119 Mass. 135; Banks v. Highland Street RaOway, 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 Rail- road, 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. HaU v. Cor- coran, 107 Mass. 251. While this principle is universally recognized, there is great prac- tical difficiilty 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 evi- dence. 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, uhi 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 doc- trine that, when a plaintiff's illegal conduct does directly contribute to his injury, it is fatal to his recovery of damages. Baker v. Port- land, 58 Maine, 199; Norris v. Litchfield, 35 N. H. 271; Sutton v. Wauwatosa, 29 Wis. 21. The plaintiff rehes 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 consti- tute negligence on the part of the defendant, and would entitle the SECT. VIII.] NEWCOMB V. BOSTON PROTECTIVE DEPT. 397 plaintiff to recover if he was in the exercise of due care," and his re- fusal was held right by this Court. In giving the opinion, after point- ing 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 unlaw- ful rate of speed contributed to the injury, that alone would give the plaintiff a right to recover, if he was without fault." There are inti- mations, without adjudication, to the same effect, in Wright v. Maiden & Melrose Raikoad, 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 Raikoad, 22 N. Y. 191; Flynn v. Canton Co., 40 Md. 312. But there is nothing in the language used in Hanlon v. South Bos- ton Horse Railroad inconsistent with the principle which we have ah-eady stated. That decision related to the liability of a defendant. It may be, where a penal statute does not purport to create a civil lia- bihty, 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, ap- pears to be neghgent or wrongful. And at the same time Courts may well hold that, in the sanctuary of the law, a violator of law imploring reUef from the consequences of his own transgression will receive no favor. The instruction requested in the case at bar would have become ap- plicable only upon a finding by the jury that the plaintiff's unlawful act contributed to cause the injiuy. 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 plain- tiff 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 illegahty which is a cause, and illegality which is a condition of a transaction rehed 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 prox- imately 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 398 HEMMING V. CITY OF NEW HAVEN [CHAP. II. such an accident, that indicates that it contributed to it. But even in that case, external causes may have been so exclusive in their opera- tion, 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 re- sult. What is a contributmg 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 Mame, 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 plain- tiff 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.^ HEMMING V. CITY OF NEW HAVEN Supreme Coubt of Eeroks, 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 high- way, and for that purpose had caused an excavation to be made on Chapel Street. On September 21st an automobile owned by the plain- tiff, 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 regis- tration 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 niunber which had been 1 Monroe v. Hartford R. Co., % Conn. 201; Tackett v. Taylor, 123 la. 149; Baker v. Portland, 58 Me. 199; Bourne v. Whitman, 209 Mass. 155; Chesapeake R. Co. V. Jennings, 98 Va. 70 Accord. SECT. VIII.] HEMMING V. CITY OF NEW HAVEN 399 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 re- fusing 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 hcense, 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 de- scribed in the complaint on the highways of the State, he cannot re- cover and j'our 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 negUgence 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 (PubUc 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 ha^ang 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 obhgation upon the plaintiff to register his auto- mobile, 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 un- numbered 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 coin- cident injury. In doing an unlawful act a person does not necessarily put himself outside the protection of the law. He is not barred of 400 HEMMING V. CITY OF NEW HAVEN [CHAP. II. redress for an injury suffered by himself, nor liable for an injury suf- fered 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 de- fendant 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 hap- pened if the law in this respect had been fully observed. The plain- tiff'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 unUcensed and imnimibered automobile upon the highways and streets of the State. The defendant placed much rehance 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 pubUc highway imless it was registered, &c. Dudley, the plaintiff in that action, was a resident of Connecti- cut. He had fully comphed 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 tres- passer 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 con- sideration is that in Massachusetts there was a statutory prohibition against using upon the highways of that State an automobile im- registered and unmarked. As already stated, no such provisions ap- peared 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.' ' Atlantic R. Co. v. Weir, 63 Fla. 69; Lockridge v. Minneapolis R. Co., 161 la. 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 negUgence 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 SECT. VIII. J HEMMING V. CITY OF NEW HAVEN 401 ^^tA^'l °^ ''^g'^ge^ce of the violator, and it has sometimes been stated that this would show negUgence that can be availed of as a ground of recovery by one who !^i;?1 ^^J^^ °^ r ™J"^y ^'■"i" l"m ^liile this iUegahty continues; but it is now wi;;;vr+l /*^.''° ,'''*'^° 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 cruninal statute in the usual form is enacted for the benefit of tne public It creates a duty to the pubUc. Every member of the pubhc is covered py tJie prot 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; Kight- linger v. Egan, 75 111. 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; MuUer v. McKesson, 73 N. Y. 195; People t. Shields, 142 App. Div. 194; Tubbs v. Shears, 65 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. SECT. II. J FILBURN V. PEOPLE'S PALACE CO. 423 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. Raj-m. 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 hes, if the owner has had notice of the quahty 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 nxunber 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. LoHD EsHEB, ]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 recog- nizes two distinct classes of animals; and as to one of those classes, it eaimot 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. TVTiether 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 enu- merate. 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 assiunes the result of this experience to be correct without further proof. Unless an animal is brought within one of these two descrip- tions, — 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 424 FILBUKN V. people's palace CO. [CHAP. III. 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 conse- quently it falls within the class of animals that a man keeps at his perU, and which he must prevent from doing injury under any cir- cumstances, imless the person to whom the injury is done brings it on himself. It was, therefore, immaterial in this case whether the par- ticular 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 ani- mals. 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 plain- tiff 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 imder 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 ^ 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 dam- age 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 propensi- ties. I agree, therefore, that the appeal must be dismissed. Appeal dismissed.^ 1 See Mason v. Keeling, 12 Mod. 332. 2 Besozzi V. Harris, 1 F. & F. 92; Texas R. Co. v. Juneman, 71 Fed. 939 (wild SECT. II.] MAUNG KYAW DUN V. MA KYIN 425 MAUNG KYAW DUN v. MA KYIN Before the Judicial Commissioner of Upper Burma, Mat 7, 1900. Reported in 2 Vpper 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 in- flicted bj' 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 appli- cation 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." CoUett 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 neghgence, 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, imless he knew that it was in fact dangerous. The other class consists of animals which have not 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. Gamer, 106 Miss. 828; Manger v. Shipman, 30 Neb. 352; Van Leuven v. Lyke, IN. 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. Amuse- ment Co., 95 Misc. 699 Accord. Compare Hayes " lUillpr, ^ 50 A) a. 621 ^ aa to a wolf domesticated to such an extent that' the ownerBelTeved 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 la. 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. 426 MATING KYAW DUN V. MA KYIN [CHAP. III. been shown by experience to be hannless by nature; and one who keeps animals of this class must prevent them from doing injiuy under any circumstances, unless the person to whom it is done brings it on himself." In the Enghsh case on which these remarks are based (FUburn v. People's Palace Company), it was held that an elephant " did not belong to a class which, according to the experience of man- kind, is not dangerous to man, and therefore the owner kept such an animal at his own risk, and his UabUity 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 hable for injury caused by his animal, whether tame or wild, if it is proved that the injury was due to the owner's negUgence. 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 guUty of negligence or whether he used such care as in the circmnstances 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 covdd 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 neghgence 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 neghgence, 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 hke an elephant is concerned, I think the burden of proving neghgence is in the first place on the plaintiff who avers it. It might be otherwise if iajury 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 ordmary precautions with him. It does not seem to be shown that ordinary precautions were neglected. It is aUeged 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 Coiirt of First In- stance, the plamtiff himself admitted that " Kya Gyi " had a bell and fetters on the second occasion. It is admitted that all the other ele- phants of the defendant had bells and fetters. There is direct evi- dence, at least as good as that for the plaintiff, that " Kya Gyi " was SECT. II.] BOSTOCK-FERAEI CO. V. BROCKSMITH 427 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 there- fore hold that the Lower Courts have rightly decided that the defend- ants are not liable; and I dismiss this appeal with costs.' BOSTOCK-FERARI AMUSEMENT COMPANY v. BROCKSMITH Appellate Couht, 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 de- murrers 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 ver- dict was contrary to the law, and was not sustained by sufficient evidence. The question of the sufficiency of the second paragraph of the com- plaint 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 ^ " Certain ammals 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 Uable 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. 428 BOSTOCK-FERARI CO. V. BROCKSMITH [CHAP. III. 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 at- tached. Said chain was strong enough to hold and control him. He had around his neck a collar alDout 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 col- lar 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 iajm-ed by an attack by an animal ferae naturae, the neghgence of the owner is presumed, because the dangerous pro- pensity 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 pubHc 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 argimient 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 uimecessary to consider these questions. The liability of the appel- lant must rest on the doctrine of negligence. The gist of the action as claimed by appellee is the transportation of the bear, with knowl- edge that he was likely to frighten horses, without taking precaution to guard against fright. 1. An animal /erae naturae, reduced to captivity, is the property of its captor, 2 Blackstone's Comm., *391, *403; 4 Blackstone's Comm., *235, *236. SECT. II.] BOSTOCK-FERARI CO. V. BROCKSMITH 429 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 pubhc 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 imnecessariiy to injure another, but the measure of care to be em- ployed 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 /eroe 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 care- lessly 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 auto- mobile, the bicycle, the traction-engine, the steam roller may each be frightful to some horses, but still they may be lawfully used on the pubhc streets. King David said, " An horse is a vain thing for safety." Modem observation has fuUy 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 pas- sage of the act of April 2, 1862, regulating the use of pubhc high- ways. There is nothing in the evidence to show that the plaintiff's horse was terrified because the object he saw was an elephant, but 430 MAKLOH V. BALL [CHAP. III. 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 unac- customed — 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 attt-ibuted to a lack of ordinary courage and disciphne 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 hkely 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 hkely to frighten horses of ordinary gentle- ness. 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 neghgence 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, ^ MARLOR V. BALL In the Couet 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 PhiUimore 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-haU pleasure- grounds, at Oldham, where he kept an exhibition of wild animals. The plaintiff went with his wife and his brother-in-law to see the ex- hibition, 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 ampu- 1 See Bennet v. Bostock, 13 Scottish Sheriff Court Reports, 50; in the same direction with Scnbner v. Kelley, 38 Barb. 14, cited in the foregoing opinion. SECT. II.] MAELOK V. BALL 431 tated. At the trial the jury returned a verdict for the plaintiff for £175. Mr. Montague Lush, for the defendant, in support of the applica- tion for judgment or a new trial, contended that there was no evidence on which the defendant could be held liable. The common law obliga- tion 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 injiu-ed. 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 al- leged negligence appeared to be this, that the defendant did not pro- vide 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 appHcation and ordered judgment to be entered for the defendant. Lord Justice A. L. Smith said it was conceded that a zebra was a dangeroiis animal, and that by law a man who kept a dangerous ani- mal 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 dam- age must not have brought the injury on himself. Where the plain- tiff 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 conamon 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 432 MAELOR V. BALL [CHAP. III. an elephant comes within the class of animals known to be harmless by- nature, or withm 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. LoED Justice Romer concurred.^ » Kelley v. Kfflourey, 81 Conn. 320; Keightlinger v. Egan, 65 HI. 235; Feldman i;. Sellig, 110 111. App. 130; Donahue v. Scott Transfer Co., 141 111. 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 Habihty 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 volun- tarily and unnecessarily puts himself ia the way of such an animal, he would be adjudged to have brought the injiury 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 Ufe and Mmb, by harboring and keeping such animals, it follows that he ought not to be reUeved from it by sUght neghgence or want of ordinary care [on the part of the plaintiff]. ... As negUgence, in the ordinary sense, is not the ground of Hability, so contributory negUgence, 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 reheved from it by any act of the person injured, un- less it be one from which it can be affirmed that he caused the injury himself, with a full knowledge of its probable consequences." Chtjkch, 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; Buck- ley V. Gee, 55 111. App. 388; Milne v. Walker, 59 la. 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. SECT. II. J MASON V. KEELING 433 MASON V. KEELING In the King's Bench, Michaelmas Teem, 1699. Reported in 12 Modem 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 un- muzzled per publica compita, so that pro defeciu curce 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.' Gould, J. No doubt but in the case of sheep there ought to be a saens, 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 re- spect of the place, for the law takes notice of highway, and is a secu- rity 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 main- tain 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 heferox, 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 quaUty; 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 son, 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 git 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 1 Arguments omitted. Compare report of same case in 1 Ld. Raym. 606. 434 DE GRAY V. MURRAY [CHAP. III. 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 aU 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 wiU 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 TtrKTON, Justice; Gould, J., mutante opinionem suam} 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 injmies re- sulting 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 pubhc 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 wiU not be held respon- sible for injuries resulting to another person from its bite vmless 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.] ' 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. EUiott, 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. HoUenbeck, 259 lU. 382; Indianapolis Abattoir Co. v. Bailey, 54 Ind. App. 370; Trumble v. Happy, 114 la. 624; Ballou v. Humphrey, 8 Kan. 219; Murray v. Young, 12 Bush. 337; Goode v. Martia, 57 Md. 606; Dix v. Somerset Coal Co., 217 Mass. 146; DurreU v. Johnson, 31 Neb. 796; Smith v. Donohue, 49 N. J. Law, 548; Vrooman v. Lawyer, 13 Johns. 339; Dufer v. CuUy, 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. Hart- man, 2 Marv. 351; Keightlinger v. Egan, 65 111. 235; Domm v. HoUenbeck, 259 SECT. II. J DE GRAY V. MURRAY 435 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 ab- solute. A leading case is that of May ;■. 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 Comt 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 author- ity 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 natm-al con- sequence of its escape." The application of this principle led the court to fix hability upon the owner of land, who had stored water in a res- ervoir bmlt thereon, for injurj' 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, not- withstanding the fact that the bursting of the boiler was not due to any neghgence 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, m. 382; Kolb v. Klages, 27 111. App. 531; Cameron v. Bryan, 89 la. 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 i;. 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 ;;. 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. EUiott, 16 N. H. 77; Keenan v. Gutta Percha Mfg. Co., 46 Hun, 544; Cockerham V. Nixon, 11 Ired. 269. Compare: Linok v. Scheffel, 32 lU. 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. 436 DE GRAY V. MURRAY [CHAP. III. 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 in- jury which results from a lawful act, done in a lawful manner, and without neghgence 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 coiut 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, com- mensm-ate with the danger to others which wUl follow the dog's es- cape 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 infUcts injxiry, 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 ia 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 he affirmed.'- 1 Worthen v. Love, 60 Vt. 285 Accord. Baker v. SneU, [1908] 2 K. B. 352, 825; Laverone v. Mangianti, 41 Cal. 138; Midler 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 «. Smith, 62 Ohio St. 161; Fallon v. O'Brien, 12 R. I. 518. See also Vredenberg v. Behan, 33 La. Arm. 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 ResponsibiHty at Common Law for the Keeping of Animals, 22 Harvard Law Rev. 465. SECT. II.] CROWLEY V. GROONELL 437 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 de- fendant and went one morning to the defendant's barn, where the lat- ter was, to bujr 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 hability; 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 liabiUty, it made no difference whether such assault proceeded from good nature or ill nature, from ugliness or pla3rfulness. 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 Hon, 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 conunitted 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. 438 cox V. BUEBIDGE [CHAP. III. 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 non- suit on the ground that it did not appear that the dog had bitten McDermott mahciously, and also on the ground that there was no evi- dence 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 re- covered 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, actu- ated 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 in- jured 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 mis- chievous 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.^ Ehle, C. J., m COX V. BUEBIDGE (1863) 13 Common Bench, New Series, 435-437. I AM of opinion that this rule must be made absolute, on the grovmd 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 assmne that the horse was tres- passing; 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 high- way, the owner of the horse might have been Hable 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 soU, 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 1 Compare Merritt v. Matchett, 135 Mo. App. 176. SECT, n.] cox V. BURBIDGE 439 on the part of the plaintiff as assumes the action to be founded upon the neghgence 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 negli- gence 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 neghgence 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 plain- tiff. 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 dam- age 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 dam- age 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 part}' injured has no remedy unless the scienter can be proved. This is verj- 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 neigh- bor's corn or pasture. For a trespass of that kind, the owner is of coiuse 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 re- duces itself to the question whether the owner of a horse is liable for a sudden act of a fierce and xiolent nature which is altogether contrary to the usual habits of the horse, without more.^ 1 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. 440 DICKSON V. MCCOY [CHAP. III. DICKSON V. McCOY CouET OF Appeals, New Yokk, Jxjne Term, 1868. Re-ported 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 mahcious and mischievous disposition, and accustomed to attack and injure mankind; " also, that the defendant " wrongfully and negUgently 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 re- quested the court to charge that there was no proof that the horse was possessed of any vicious propensity, or mischievous habit, which re- quired the defendant to exercise special care over him; which the court declined to charge. The comi; 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 coimsel 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 mah- cious or vicious disposition. But I regard the allegation as unneces- sary, 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 com- plaint. It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner's negh- gence. 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 SECT. II.] DECKER V. GAMMON 441 property, the owner or driver will be responsible. Certainly, not less so if the horse be negligently turned loose in the street without re- straint 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 mis- chievous 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 jm^' were correct, and the verdict is conclusive upon all the questions in the case. The judgment must he affirmed. [The opinion of Grovee, J., is omitted.] ^ DECKER V. GAMMON Supreme Judicial Court, Maine, 1857. Reported in 44 Maine Reports, 322. This is an action on the case ^ to recover the value of a horse alleged to have been injured by the defendant's horse, and comes for- ward 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 de- fendant's were together in his, the plaintiff's close, the defendant's horse, having, during the night, escaped from the defendant's en- closure, 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 • Jewett V. Gage, 55 Me. 638 (hog) Accord. Compare Coulter, J., in Goodman v. Gay, 15 Pa. St. 188, 193, 194; Corcoran V. Ke^y, 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. Bren- nan, 213 Mass. 28; Low v. Barnes, 30 Okl. 15; Palmer v. Saccocia, 33 R. I. 476. 2 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 peace- ably and of right depastming 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." 442 DECKER V. GAMMON [CHAP. m. 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 iajmy. 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 injiuy 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 re- cover the value of the horse so injm-ed. 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.^ Davis, J. There are three classes of cases in which the owners of animals are hable 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, imder 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 con- clusively 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 Uable 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 iU quaUty." Holt, C. J. Mason v. Keel- ing, 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 quaUty of the beasts." Rex v. Huggins, 2 Lord Raym. 1583. 2. If domestic animals, such as oxen and horses, injure any one, in persoii 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 • 1 The arguments are omitted. SECT. II. J DECKER V. GAMMON 443 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 Uable. " 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." Bux- endin 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 con- venience, the owner is not liable to an action on the ground of negli- gence, 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 am'mals, 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 groimd 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 buU 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 /regit, in which the value of the horse would be the just measm-e 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 de- fendant was possessed of another horse, vicious and unruly, which was running at large where of right he ought not to be; and being so un- lawfully at large, broke into the plaintiff's close, and injured the plain- tiff's horse, &c." It is also alleged that " the vicious habits of the 444 DECKER V. GAMMON [CHAP. III. 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 de- fendant was hable 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 qitare 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 Corns. 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 sufhcient; and the instruction given to the jury, " that if the defendant's horse, at the time of the injmy, 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 de- fendant'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 concm-. Exceptions overruled.^ ^ 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 trespass- ing animal is set up in aggravation. Lee v. RUey, 17 C. B. n. s. 722: Theyer V. PumeU, [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 prem- ises and killed canary). SECT. II.] DOYLE V. VANCE 445 DOYLE V. VANCE Supreme Court, Victoria, April 16, 1880. RepoHed in 6 Victorian Law Reports, Cases at Law, 87. Stawell, C. J.^ 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 appUcation 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 hable 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; aU the circumstances point to the probability of that being the case. But he has found that the dog was there as a tres- passer. 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 com- panion 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 compara- tively recent case, Read v. Edwards, supra,'' 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 deUvered 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 be- tween oxen, and dogs or cats, on account, first, of the difficulty or impossibility of keeping the latter under restraint; secondly, the shghtness of the damage which their wandering ordinarily causes; thirdly, the conamon 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." 1 Statement and arguments omitted. ' 17 C. B. n. s. 260. 446 DOYLE V. VANCE [CHAP. III.- "The legitimate inference from these observations is that the ques- tion, 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 hability. But there is no reason which a coiu-t of law can reco'gnize. 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 gar- den 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 hav- ing done the mischief complained of in the present case, the owner would be liable. Cox v. Burbidge, supra,'- 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 groimd 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,'' 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 re- ceived 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,^ 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 argmnent goes too far. One part of the enactment is declaratory, and the other is new. Babry, 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 overruhng old cases which had been decided on the 1 13' C. B. N. s. 430. 2 18 C, B. n. s. 732. ' L. R. 10 C. P. 10. SECT. II.J DOYLE V. VANCE 447 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 mer- chant, 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 con- cerned, 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 con- sidered on much more reasonable grounds in these days. Where sheep, oxen, or horses, comnait a trespass, it has always been held that the owner is Hable; 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, Mt. 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 distinc- tion is made. I cannot see why there should be any. This case illus- trates how far the law ought to be altered, so as to preserve its accord- ance with change of time and place. Of course, the Com-t 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 Coiut is at liberty, within reasonable limits, to meet the changed circumstances of the pres- ent 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.^ 1 McClain v. Lewiston Driving Ass'n, 17 Idaho, 63; Green v. Doyle, 21 111. 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. 448 TROTH V. WILLS [CHAP. III. TROTH V. WILLS Superior Court, Pennsylvania, July 29, 1898. Reported in 8 Pennsylvania Superior Court Reports, 1. Trespass for personal injuries. Before Bregy, J. It appears from the evidence that the plaintiff, a lady about fifty- five years of age, was temporarily Hving 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 dehberately went towards the field, and that she followed closely behind the cow, when the cow sud- denly turned her head and butted the plaintiff in the abdomen, and hence her injxiries.' Defendant requested (Request No. 5) a ruling, that, under all the evidence, the verdict should be for the defendant. The court de- chned so to rule. Verdict and judgment for plaintiff. Defendant appealed. Smith, J. It is not necessary, in disposing of this case, to deter- mine 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 dam- age for which the owner may be held liable is matter of aggravation. The minimum habOity of the owner is for acts arising from the natu- ral 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 in- jures sheep, this, though its first offence, may be laid as an aggrava- tion 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 lead- ing 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 hable. 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 1 Statement condensed. Arguments and portions of opinions omitted. SECT. II.] TROTH V. WILLS 449 example, trespassing cattle, in order to reach the vegetation in a hot- bed, 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 try- ing to prevent it from trespassing, the owner should be held fiable, 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 dii-ectly out of it. The same principle must govern if a person be injured in trying to prevent the continu- ance of a trespass, or of acts forming an aggravation of it. In this view of the principles which should govern the determina- tion of this case, the injury to the plaintiff must be deemed an aggra- vation of the trespass committed by the animal in entering the garden. This injury, indeed, is not such as a cow is ordinarily prone to com- mit ; 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 dis- tm'bed while feeding; and it was so directly associated with the primary trespass that, unless the plaintiff's right to prevent a continu- ance of this be denied, there can be no ground for questioning the Uabihty 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 instruc- tions, and their finding on the questions involved was concurred in by the trial covut. 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 weU-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 mmierous 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 450 TROTH V. WILLS [CHAP. III. 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 inani- mate, 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 evi- dence 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 at- tack 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 find- ing 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 re- spectable tribunals in other states, that the owner of every trespassing domestic animal is liable merely because it is a trespasser for all in- juries it may commit, however contrary to its usual nature and dispo- sition, and regardless of his knowledge of its special viciousness, might often lead to strange and unthought-of consequences., For in- stance, suppose that a pet lamb, always regarded as a harmless play- mate 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 Hable in each instance for all the resulting damages. In vain would he urge that the animal causing the injury belonged to a SECT. II.] TROTH V. WILLS ;451 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 mileh cows usually do and may be expected to do when trespassing, that is, for the natiu-al 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 there- fore 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 hkely 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 suf- fered 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.' • 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 NegUgence, 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 hable 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 ^, Conlan, 18 N. D. 205, 212. 452 KYLANDS V. FLETCHER [CHAP. UI. Section III Dangerous Use of Land FLETCHER v. RYLANDS In the Exchequer, May 5, 1865. Reported in 3 Hwlstone & 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 o} Lords, 330. In November, 1861, Fletcher brought an action against Rylands and Horrocks to recover damages for an injmy caused to his mines by- water flowing into them from a reservoir which defendants had con- structed. The declaration (set out in L. R. 1 Exch. 265, 266) con- tained three counts, each count alleging neghgence 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 plaintifif, 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.^ The material facts in the special case stated by the arbitrator were as follows: — Fletcher, imder 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 hori- zontal 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 com- petent 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 imder or near the site of the 1 Statement abridged. Arguments in all the courts omitted; also opinions in Court of Exchequer. SECT. III. J RYLANDS V. FLETCHER 453 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 reser- voir communicating by means of other and intervening old under- ground 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 fiUed up with marl, or soil of the same kind as the marl or soil which inamediately surrounded them, and it was not known to, or suspected by, the defendants, or any of the persons em- ployed 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 plan- ning 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 negHgence 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 sufBciency of the said reservoir to bear the pressiire 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 con- sequence of which the water of the reservoir flowed into the old work- ings 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 colKery, as above described, large quan- tities 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. 454 RYLANDS V. FLETCHER [CHAP. III. The question for the opinion of the Court was whether the plaintifT 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., concur- ring; 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 deliv- ered 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, Bram- well, 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 be- fore 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 Bram- well, 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 SECT. III.] RYLANDS V. TLETCHEB 455 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 em- ployed 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 plaintifl, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some de- fault 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 whUst it remains there, will naturally do mischief if it escape out of his land. It is agreed on aU 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 circimistances, 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 aU 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 negUgence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skiU 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 anjrthing 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 per- haps that the escape was the consequence of ids major, or the act of God; but as nothing of this sort exists here, it is unnecessary to in- quire what excuse would be suflacient. The general rule, as above stated, seems on principle just. The person whose grass or corn is 456 EYLANDS V. FLETCHER [CHAP. III. 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 fmnes 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 briaging 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 natu- ral 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 fre- quently 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 al- though 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 gen- eral 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 SECT. III.] HYLANDS V. FLETCHER 457 liable for any trespass it may commit, and for the ordinary conse- quences of that trespass. Whether or not the escape of the animal is due to my negligence is altogether immaterial." So in May v. Bur- dett, 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 wUl 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 with- out 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 natm-al con- sequence of the animal being loose, the o^vner 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, hke eating grass or other ordinary ingredients in damage feasant, the natioral 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 perU, 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 dis- trained; 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 theu- 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 neghgence or not. 458 EYLANDS V. FLETCHER [CHAP. III. 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. Gold- win, 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 under- stood 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 (sole- bat) to be separated and fenced from a privy house of office, parcel of the said messuage of defendant, by a thick and close waU, which be- longs 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 obUgation 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. AH three reports concur in saying that Lord Holt, during the argiunent, intimated an opinion against him on that, but that after consideration the Court gave judgment for him on the second groiuid. 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 conunon 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 user. . . . Sup- pose 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 anythmg else." There is here an evident allusion to the same case in Dyer, see ante, p. 334, as SECT. III.] RYLANDS V. FLETCHER 459 is referred to in Com. Dig. Droit. (M. 2). Lord Raymond in his re- port, 2 Ld. Raym. at p. 1092, says: " The last day of term. Holt, C. J., dehvered the opinion of the Court that the declaration was suffi- cient. 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 thej' did not go upon the solebat, or the jure dehuit 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 He 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, re- ports the judgment much more concisely (1 Salk. 361), but to the same effect; he says: " The reason he gave for his judgment was be- cause it was the defendant's wall and the defendant's filth, and he was boimd 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 groimd, and it should timible 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 thiaks this was a case without diffi- culty, because the defendant had, by letting judgment go by default, admittet his hability 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 UabiUty was not admitted, that they took so much trouble to consider what liability the law would raise from the ad- mitted facts, and it does therefore seem to us to be a very weighty authority lq support of the position that he who brings and keeps any- thing, 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 460 RYLANDS V. FLETCHER [CHAP. III. 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 defend- ants proved that they at great expense erected contrivances by which the fimies of chlorine were condensed and sold as muriatic acid, and they called a great body of scientific evidence to prove that this ap- paratus 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 nu- merous other chimneys in the neighborhood ; the jury, however, being satisfied that the mischief was occasioned by chlorine, drew the con- clusion 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 negUgence 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 negh- gence 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 dur- ing his argument before us, this is not confined to cases of collision, for there are many cases in which proof of negUgence is essential, as, for instance, where an unruly horse gets on the footpath of a public street and kills a passenger, Hanamack 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 foimd, But we think these caaes SECT. III.] RYLANDS V. FLETCHER 461 distinguishable from the present. Traffic on the highways, whether by- land or sea, cannot be conducted without exposing those whose per- sons 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 beUeved 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 defend- ants 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 circmnstances 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 pur- poses 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 462 EYLANDS V. FLETCHER [CHAP. III. 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 conamunicating 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 con- structed. It was constructed by them through the agency and inspec- tion 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 men- tioned. However, my Lords, when the reservoir was constructed and fiUed, 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 hori- zontal workings, and from the horizontal workings imder 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 estabhshed no cause of action. The Court of Exchequer Chamber, be- fore 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 con- structed, 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 vmder ground, and if, by the operation of the laws of nature, that accumula- tion 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 lam 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. SECT. III.] RYLANDS V. FLETCHER 463 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,' for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the pur- pose 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 defend- ants would be liable. As the case of Smith v. Kenrick is an illustra- tion of the first principle to which I have referred, so also the second 1 " It is not every use to which the land is put that brings into play that prin- ciple [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 imprac- ticable distinctions are not creditable to the development of English law." Sal- mond, 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 estabhshed by the courts in these cases is that every owner shall refrain from these unwarrantable and extremely dangerous uses of property imless 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 weU 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. 464 RYLANDS V. FLETCHER [CHAP. III. 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 Cham- ber, 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 alkah 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 confin- ing 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 dis- missed 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 Cham- ber. 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, how- ever careful he may have been, and whatever precautions he may have taken to prevent the damage. SECT. III. J EYLANDS V. FLETCHER 465 In considering whether a defendant is hable to a plaintiff for dam- age 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 ex- plained 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 boimd sic uti suo ut non ladat alienum. This is the principle of law applicable to cases like the pres- ent, 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. Wilhamson, 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 de- fendant, 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 pimiped 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 negUgence 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 skil- fully or imskilfully 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 466 RTLANDS V. FLETCHER [CHAP. IH. 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 White- head's land. But that is not the real state of the case. The defend- ants, 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 skUfully and carefully the accimiulation was made, the de- fendants, 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 afiirmed, and that there must be judgment for the defendant in error. Judgment of the Court of Exchequer Chaniber affirmed.^ > 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 Hy- drauhc 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. Asso- ciates, 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. ti. Olinger, 54 Ohio St. 532; Bradford Co. V. St. Mary's Co., 60 Ohio St. 560 (stored nitroglycerine); Langabaugh ;;. An- derson, 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 incUnation to discover something in the facts which took the case out of the rule. According to the Eng- lish judicial system which has gone round the world with the English language and En^sh 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 Friederieks- hafen. Some motor trouble happened, and the ship was landed in a field. Thou- sands 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 stem. In the afternoon a sudden thunder- storm 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 SECT. III.] RYLANDS V. FLETCHER 467 the rear gondola, was caught by the ship's anchor, dragged into the air and car- ried tor some distance; in the fail, one of his legs sustained such injuries that it had to be amputated. He brought suit for damages, and was nonsuited; appealed; same result. a inally, he appealed to the Reichsgericht. It refused to interfere, for the following reasons: There bemg no special law governing damage by air-navigation, it be- \?™^!u°*'°^1f^'^ *° P''°'*'® neghgence on the part of the aviator or promoter. The Idea that the mere undertaking of a business, acknowledged to be dangerous, cames wth it responsibihty for aU damage caused thereby, is not law. The only duty which the hazardousness of the undertaking imposes upon the person en- gaged therem, 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 contmued until after the time when the ship had been landed and anchored. Defendant had proved that on former occasions he had succeeded in landing, anchormg and holdmg 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 pro\-ide 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, hy- draulic 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 mdistinguishable 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 inter- mediate 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 per- mission 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 com- panies 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 appUcable 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 authori- ties. 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 Mid- wood 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 adja- cent 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 de- fendant 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 Metropohtan Gas Co., 65 L. J. Q. B. N. a. 126; City v. Bridgeport Hydraulic Co., 81 Conn. 84. 468 NICHOLS V. MAKSLAND [CHAP. III. NICHOLS V. MARSLAND In the Exchequeb, June 12, 1875. Reported in Law Reports, 10 Exchequer, 255. NICHOLS V. MARSLAND In the Court of Appeal, Decembeb 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 re- ceiving 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 guUty, 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 enter- ing 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 ter- rible 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 morn- ing of the 19th it was foimd that during the night the violence and volume of the water had carried away the artificial embankments of SECT. III.] NICHOLS V. MARSLAND 469 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 thej' 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 orna- mental 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 ris 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 unprece- dented, did not amount to vis major or excuse the defendant from lia- bility, entered the verdict for the plaintiff for 4092Z., 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. Mclntyre, 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. [Cleasbt, B. Was not the flood brought on to the defendant's land by vis major f] 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, dehvered 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 col- lects 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 answer- able for all the damage which is the natural consequence of its escape. 470 NICHOLS V. MARSLAND [CHAP. III. 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 hghtning: 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 foimd 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 INIr. Mclntyre, 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, Hke an earthquake in this country, be called the act of God, or vis mxijor. 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 de- fendant is not liable. What has the defendant done wrong ? What right of the plaintiff has she infringed ? She has done nothing wrong, SECT. III.] NICHOLS V. MAESLAND 471 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 ? INIr. Rlclntyre contended that she would be in all cases of the water being let out, whether by a stranger or the Queen's ene- mies, or by natural causes, as lightning or an earthquake. Why ? A^ hat 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 pxirposes; 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 groxmd 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 diffi- culty in this case. Water stored in a reservoir may be the only prac- tical mode of suppljnng 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 472 NICHOLS V. MAESLAND [CHAP. III. right is to say to the defendant, Sic utere tuo ut alienum rum Icedas, and that the defendant has done, and no more. The Chief Bakon and my brother Cleasbt agree in this judg- ment. 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 hot dissatisfied therewith, and we cannot see it is wrong. Consequently the rule wiU be absolute to enter a verdict for the defendant. Rule absolute. In Court of Appeal. Cotton, Q. C. {Mclntyre, Q. C, and Coxon with him), for the plain- tiff, appellant.^ Assiuning the jury to be right in iSnding 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 hable 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 in- nocent of wrong-doing, why should the plaintiff suffer for the defend- ant's voluntary act of turning an otherwise harmless stream into a source of danger ? But for the defendant's embankments, the exces- sive 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 (Cockbuen, C. J., James, and Hel- lish, 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 de- fendant 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, pre\'ious to the 18th day of June, 1872, caused any damage. On that day, how- ever, 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.^ Upon this findmg the Lord Chief Jus- 1 Argument abridged. 2 The judgment of the Court below, read by Bkamwell, B., states the findmg thus: " In this case I understand the jury to have found that all reasonable eare had been taken by the defendant, that the banks-were fit for all events to be an- ticipated, and the weirs broad enough; that the storm was of such violence as to be properly called the act of God, or vis major." SECT. III.] NICHOLS V. MAESLAND 473 tice, acting on the decision in Rylands v. Fletcher, L. R. 3 H. L. 330, as the neai-est authority appHcable to the case, directed a verdict for the plaintiff, but gave leave to move to enter a verdict for the defend- ant. 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 Excheq- uer 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 col- lects and keeps there anything likely to do mischief if it escapes, must keep it in at his perU, 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 plain- tiff'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 :^st question, the ordinary rule of law is that when the law creates a duty and the party is disabled from per- forming it without any default of his own, by the act of God, or the King's enemies, the law wiU excuse him ; but when a party by his own contract crea,tes 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 mak- ing 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 pecuhar nature or condition of the soil, the water escapes and does damage to his neighbor — the case of Rylands V. Fletcher, supra, estabUshes that he must be held liable. The ac- cumulation of water in a reservoir is not in itself wrongful; but the making it and suffering the water to escape, if damage ensue, consti- tute a wrong. But the present case is distinguished from that of Ry- 474 NICHOLS V. MAESLAND [CHAP. III. lands 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 dis- aster. 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 opera- tion, 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 en- titled 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 es- cape of the water was owing to the act of God ? Now the jury have distinctly f oimd, not only that there was no negligence in the construc- tion 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 hable 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 hability for a loss occasioned by the act of God, if the loss by no rea- sonable 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 con- tributed 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.^ 1 See Salmond, Torts (4 ed.) § 65. SECT. III.] BOX V. JUBB 475 BOX V. JUBB In the Exchequer Division, Febeuaby 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 cloth- mill 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 defend- ants. Such mill and reservoir have been built, and constructed, and used, as at the time of the overflowing of the reservoir hereinafter men- tioned, 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 water- course. 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 com- munications 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 con- structed and maintained in a proper manner, so as to prevent the over- flowing 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 opin- ion that the defendants were liable for the damage sustained by the plaintiff, and accordingly gave judgment for the plaintiff. 476 BOX V. JUBB [CHAP. III. The question for the opinion of the Court, having regard to the facts set out in the case, was whether the defendants were hable for the damage sustained by the plaintiff by reason of the flooding of his premises, such flooding being caused by water from a reservoir belong- ing to a third party, over which the defendants had no control, and without any Imowledge or negligence on defendants' part, the over- flowing of the defendants' reservoir being occasioned by the act of a third party, over whom the defendants had no control, and no wrong- ful 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.' 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 over- flow 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 com- plained 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 imlawful 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 antici- pate 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 hable ? 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 pomt. The illustrations put in that case clearly go to show that if the person who has collected the water has done aU that skill and judgment can do he is not Uable 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 '■ Arguments omitted. • SECT. III. J MARSHALL V. WELWOOD 477 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 ^neighbor— the case of Rylands v. Fletcher, supra, establishes that he must be held Kable." Here this water has not been accumu- lated by the defendants, but has come from elsewhere and added to that which was properly and safely there. For this the defendants, in my opmion, both on prmciple and authority, cannot be held liable. Judgment jor the defendants.^ MARSHALL v. WELWOOD Supreme Cotjet 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 burst- mg 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 Wood- hull, V.iN Stckel, 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 hable in the action, unless it appeared that the same was not being run by him, or his agent, at the time of the e.xplosion. The proposition propounded was, that a person is respon- sible 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 sldll on his part. This \-iew 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. Ry- lands, 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 any- thing 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 ' 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. 478 MARSHALL V. WELWOOD [CHAP. III. 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 mischie- vous, if it gets on his neighbor's, should be obhged to make good the damage which ensues, if he does not succeed in confini n g it to his own property. This principle would evidently apply to, and rule, the pres- ent 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 col- lects 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 con- structed reservoir on a person's own land, nor raising steam in a boiler ' of proper quality; neither act, when performed, is a nmsance 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 in- vestigated with reference to the general groimds 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 appUcable to a class of cases which, I think, should be regarded as, in a great degree, exceptional, is amph- fied 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 conse- quences. This is the doctrine of the Year Books, but I do not find that it is grounded in any theoretical principle, making a man answer- able for his acts or omissions, without regard to his culpabihty. 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 SECT. III.] MAKSHALL V. WELWOOD 479 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 considera- tion ; for the conclusion of the liability of the unnegligent owner rests in dicta, and not in express decision. But waiving this, there is a con- sideration 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 injurj- 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 in- demnifier against the whole of the damage. It appears to me, there- foie, 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 judg- ment under consideration were those of one who was sued for not keeping the wall of his privy in repair, to the detriment of his neigh- bor, bemg the case of Tenant v. Goulding, 1 Salk. 21, and several actions which it is said had been brought agamst 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 ^-iew 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 480 MABSHALL V. WELWOOD [CHAP. IH. in want of repairs was, in itself, a prima fade 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 iajurious fumes from the alkah works, that in truth they stand somewhat by themselves, and having this peculiar- ity: that the things in their nature partake largely of the character of nuisances. Take the alkah 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 fxmies, it is an attempt to legaUze that which is illegal, and the con- sequence 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 con- trast 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 neghgence, there is no legal in- jury, 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 himseK against an aggressor." Other instances of a hke 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 kiUing." This case belongs to a niunerous, 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, be- coming tingovernable 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. . Preston Mill Co., 80 Wash. 25; Fahn v. Reichart, 8 Wis. 255 Accord. Fires set by locomotives. As to Habihty for fires set by locomotives, there is a conflict. One view is that the plaintifi must estabhsh neghgence, 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 iaappUcable) ; New England Box Co. v. New York R. Co., 210 Mass. 465; Fero v. Buffalo R. Co., 22 N. Y. 209; Peck ;;. 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 fa^ case of negligence or even casts upon the company the burden of disproving negligence. McCuUen 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. Johns- ton, 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); Osbum v. Oregon R. Co., 15 Idaho, 478; American Strawboard Co. V. Chicago R. Co., 177 III. 513; Kennedy v. Iowa Ins. Co., 119 la. 29 (stat- ute); 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; MiUer 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 (stat- ute); Norfolk R. Co, v. Thomas, 110 Va. 622; Thorgrimson v. Northern R. Co., 498 HEEG V. LIGHT [CHAP. III. HEEG V. LIGHT Court of Appeals, New Yobk, Apeil^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 plain- tiff'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 Hiable to respond in damages, without regard to the question whether he was chargeable with carelessness or negUgence. The defendant had constructed a powder magazine upon his premises, with the usual safeguards, in which he kept stored a quantity of powder which, with- out 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 re- fused to charge that the powder magazine was dangerous in itself to plaintiff and his property, and was a private nuisance, and the de- fendant 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 Hable to cause damage to the property of persons residing in the vicinity. The locahty [legaHty ?] of works of this Co^7^8 Wk °i20^''*^ "■ ^^^*™*^''^ ^- ^°-' 68 W. Va. 618; Moore v. Chicago R. T ^^ °i^% jurisdictions there is a statutory absolute liability for such fires St Louis R. Co. V. Cooper, 120 Ark. 595; British Assur. Co. ;;. Colorado R Co ^2 ^.11 ^f^'.^A'T, "■^."^ l°'\^- ^%' ?? Conn. 331; PittsburgLTco .. Chap^ peO, 183 Ind. 141 Stewart v. Iowa R. Co., 136 la. 182; Murphv v St Louis R ?°J'^^ ^8°Olfl= fiqv'r"T?'S°,-"^r%61 Ohio'St.3f2fMidlandT(S: V. Lynn, 38 Okl. 695; MacDonald v. New York R Co 23 R T "^"iR- Pon„io= OU Co. .. Charleston A. Co., 83 S. C. 530; Jensen! South bakota R. Co.', 2^Td! SECT. III.] HEEG V. LIGHT 499 description must depend upon the neighborhood in which they are situated. In a city, with buildings immediately contiguous and per- sons constantly passing, there could be no question that such an erec- tion 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 hmits 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 neghgence, 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 sur- rounding 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 Hable 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 apphcation 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. Weelcs, 3 Barb. 159; Dubois v. Budlong, 15 Abb. 445; Wier's Appeal, 74 Penn. St. 230. Wtule 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 per- sons 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 500 HEEG V. LIGHT [CHAP. III. class are cases of slaughter-houses, fat and offal boiling establish- ments, 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; BriU v. Flagler, 23 Wend. 354; Pickard v. CoUins, 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 frag- ments are liable to be thrown on the premises and injure the adjoin- ing dwelhng-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 re- striction or restraint. The keeping of gimpowder or other materials in a place, or under circumstances, where it would be Hable, in case of explosion, to in- jure 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 pubhc 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 negUgently and improvidently kept. It will be seen that the case was disposed of upon SKCT. III.] HEEG V. LIGHT 501 the fonn of the indictment, and while it may well be that an allega- tion of negligence is necessary where an indictment is for a public nuisance, it by no means follows that negligence is essential in a pri- vate action to recover damages for an alleged nuisance. In Myers v. Malcohn, 6 Hill, 292, it was held that the act of keeping a large quan- tity of gunpowder insufficiently secured near other buildings, thereby endangering the hves of persons residing in the vicinity, amounted to a pubhc nuisance, and an action would lie for damages where an ex- plosion 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 Com-t said, for aught they could see, the house may have been one built and secured for the pur- pose of keeping powder in such a way as not to expose the neighbor- hood; " 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 wiU be regarded as a nuisance. The case of People V. Sands is not therefore controlling upon the question of neghgence. FiUo r. 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 main- tained 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 thxis 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 locahty 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 hereia 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.^ ' State 11. 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. 502 dilwokth's appeal [chap. hi. DILWORTH'S APPEAL Supreme Court, Pennsylvania, October 9, 1879. Reported in 91 Pennsylvania State Reports, 247. Appeal from Court of Coimnon 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 mas- ter, who recommended that an injunction should be refused and the bill dismissed. The facts are set forth in the opinion of this coiui;. 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.i Truneet, 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 Uttle 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 Coimty. It is situated about two miles from East Liberty, the nearest closely built-up district, and is separated therefrom by in- tervening hills and ravines. It is in a sparsely settled locaUty, 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 pm-poses. That portion of Lincoln Avenue which terminates at a point five hvmdred feet from the magazine is very httle 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 Pitts- burgh to carry city improvements into wild rural regions, expecting population to rapidly follow. The other pubhc road, passmg within twenty-two feet of the magazine, has for some time been almost aban- doned 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 dis- tance of this magazine from a borough, or closely built-up district, the absence of demand of land for building purposes, and the unlikeU- hood of such demand in the vicinity, the httle travel on the pubhc road which passes near it, and the ravine opening from the road, are ' Only part of ease is given. Argument omitted. SECT. III. J DILWORTh's APPEAL 503 the chief points wherein this case differs from Wier's Appeal. The dweUings 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 danger- ous 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 Hkely to be worked for considerable time, it would be a material fact to be weighed with others — ahiiost of Uke 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 neigh- borhood. It was lu-ged 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 citj'. The facts, as we have seen, are that that end of the avenue is very httle 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 ra%-ines 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 imused and useless part of a graded and paved street extended beyond the visible city. Confessedly, the demand for and consumption of powder in Pitts- bm-gh 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 Co\mty, ex- cept 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 pubUc 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 defend- ant 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. 504 KNUPFLE V. KNICKERBOCKER ICE CO. [CHAP. III. 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. 1 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 estabhsh such neghgence, the plaintiff offered and introduced in evidence, against the objection of the defendant, an or- dinance 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 admissibihty 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 evi- dence 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 neghgence; and the judge repHed: " it is; I have so told the jury; it is negligence; " and the defendant's coim- sel 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 ordi- nance 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 re- quirements of the law and not bring injury upon hitn 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 ' Statement and arguments omitted. SECT. IV.] KNUPFL,E V. KNICKERBOCKER ICE CO. 505 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 neghgence, is some evidence for the consideration of the jury. In Massoth c. 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 vio- lation of a municipal ordinance was neghgence 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 evi- dence of neghgence, but not necessarily neghgence. The judge not only assented unqualifiedly to the request made, but he also said that it was neghgence; 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 imattended, 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 ordi- nance or not, they must have found that they were so left, and, there- fore, the plaintiff was entitled to a verdict. The difficulty about this position is, that the question, whether leaving the horses untied was neghgence, was one of fact depending upon the circumstances attend- ing the case, and while the jury may have found in favor of the de- fendant 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 de- fendant 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} 1 Wright V. Maiden R. Co., 4 M. 283; Nelson v. Bumham & Morrill Co., 114 Me. 213; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Beck v. Vancouver R. Co., 25 Or. 32 Accwd. 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 Boyee, 133; Toledo R. Co. v. O'Connor, 77 506 HOLMAN V. CHICAGO, R. I. & P. R. CO. [CHAP. in. HOLMAN V. CHICAGO, ROCK ISLAND & PACIFIC R. CO. SuPBEME Court, Missouki, May Term, 1876. Reported in 62 Missouri Reports, 562. Hough, J.' This was an action to recover damages for the kil li ng of a cow, belonging to the plaintiff, by a train on defendant's raihoad 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 111. 391; United States Brewing Co. v. Stoltenberg, 211 111. 531; Presto-Lite Co. V. Skeel, 182 Ind. 593; Correll v. Burlington R. Co., 38 la. 120; Schlereth v. Mis- souri 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. Mil- waukee 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 stat- utes such as the one we are considering upon the action of negligence ? The famihar expressions that the breach of such a statute is ' negUgence per se ' or is ' prima facie evidence of negligence ' seem to me to postpone elucidation rather than to contribute to it, while the imphcation that proof of a breach of a pubhc statute wiU 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 negUgence that is essential to the action of neghgence is not solely in the overt act that produced the injury complained of, but may he 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 negUgence ' says the writer already cited. Of negUgence 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 aU, but, on the contrary, one of affirmative commission, e. g., the blowing of a locomotive whistle (Bittle v. Camden and At- lantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma v. Easton and Amboy RaUroad Co., 73 Id. 653) or the extraordinary lurching of a train (Burr V. Pennsylvania RaUroad 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 negUgence is this element of what we may caU 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 civiUy Uable for the consequences of his conduct. Now, it is precisely upon this element of discoverable danger that pubUc 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 pru- dent man,' the famiUar 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 noTDenefit from his ignorance of it — he would break it, reasonably beUeving that it was a prudent thing for him to do, aad that in all probabUity 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 pubUc author- ity. We must assimie, therefore, that the ordinary prudent man woi3d not do such I Arguments omitted. SECT. IV.] HOLMAN V. CHICAGO, E. I. & P. E. CO. 507 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 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 estabUshed 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, wliose 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 wiU 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 culpabihty for neglect, or of his HabiUtj- 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, Fhick, J., says: " The coxirt instructed the jm-y in substance that, if they foimd from the evi- dence 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 neghgence at most. As to whether a violation of a law or ordinance constitutes neghgence 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 Ufe, limb, or property, then, as a matter of necessity, a violation of such law or ordinance constitutes neghgence. In any case the standard is usually de- fined as that degree of care that men of ordinary care and prudence usually exer- cise. But, when the standard is fixed bj' 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 neghgence, 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 neghgently violated. The violation, thus in and of itself , would mean nothing, and one would be permitted to violate the law with impunity, provided the jurv find it to have been carefully done. Neither is it an answer to say that the violation mav 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 neghgence arising out of such act or acts alone, and the jury woiild be required to find whether the act or acts complained of con- stituted 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 neghgence per se. This neghgence, 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 neghgence, if they found neghgence as above stated, was the proximate cause of the injury complained of, the respondent could not recover. This, we think, is a cor- rect statement of the law pertaining to ordinances such as the one in question here. We do not hold that a violation of aU laws or ordinances constitutes neghgence per se, but we do hold that the violation of ordinances designed for the safety of life, hmb, or property, does constitute neghgence per se, and this, we think, is supported by the clear weight of authority." It is sometimes said that violation of a duty so unposed is " prima facie evidence of neghgence; " Giles v. Diamond State Iron Co., 7 Houst. 453; True v. Woda, 508 HOLMAN V. CHICAGO, E. I. & P. E. CO. [CHAP. III. 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 104 111. App. 15; Wabash R. Co. v. Kamradt, 109 lU. 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 regSating 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 aU 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 negh- gence 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 neghgence, it may be considered with other evidence in ascertain- ing whether the defendant was guilty of neghgence.' When the suit is against the mimicipality itself, and it is charged with negligence, due to the derehction of its employees, their violation or disregard of its own regulations and ordinances re- lating to the matter under investigation are proof of such dereliction, though not necessarily of the specific neghgence charged, which, as in aU other cases, must be proved by proper and satisfactory evidence. The dereliction of the municipal em- ployees is to be taken into consideration with the other facts in the case, upon proof of which the plaintiff reUes to sustain his allegation of neghgence. 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 hve, naked telephone wire used in the pohce service of the city, and it appeared that the break in the wire was known to the pohce 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 pohce department relating to the inspection and use of the city wires. The ordinance of April 10, 1894, provides for the inspection of elevators by in- spectors 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 operatuig an elevator to demand an inspection, and it is only after the inspector has inspected that he must procure and expose the cer- tificate. But, even if there had been an inspection here, and the defendant com- pany had not procured and exposed the proper certificate, its failure to do so is not the neghgence 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 la. 655; Stevens v. Boston R. Co., 184 Mass. 476; Virginia R. Co. v. Godsey' X J. I V 3/. J.O(« See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317, SECT. IV.] HOLMAN V. CHICAGO, E. I. & P. E. CO. 509 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. Clonceding that the servants of the defendant neglected to ring the beU or sound the whistle, the question is whether there is any evidence tending to show that the cow was kiUed 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 de- clare 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 neghgent 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 neghgence." The foregoing extract clearly asserts, that there is no necessary con- nection 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, imdoubtedly. Who must produce such evi- dence ? The party who asserts that such connection exists. The damage must be shown to be the result of the negligence; that is, the neghgence 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 at- tending the killing, so that the jury could fairly and rationally con- clude 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 defendant's 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 kilhng 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 510 BRATTLEBORO V. WAIT [CHAP. III. 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 en- titled 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 Howen- stein V. Pac. R. R., 55 Mo. 33. The judgment must be reversed and the cause remanded. AU the judges concur, except Judge Vories, who is absent.^ BRATTLEBORO v. WAIT Supreme Coxjet, 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 opioion of the court was dehvered 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 Brattle- boro for the years commencing April 1, 1866, and April 1, 1867, is Uable 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 1 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 lU. 182; Browne v. Siegel, 90 111. App. 49 (afi'd on another ground, 191 111. 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, 265 111. 331, with Pizzo v. Wiemann 149 Wis. 235; Beauchamp v. Bum Mfg. Co., 250 lU. 303, with Berdos v. Tremont Mills, 209 Mass. 489. SECT. IV.] BRA.TTLEBORO V. WAIT 511 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 pen- alty is applied for a matter which at common law was an indictable offence, either remedy may be pm^ued; but where the statute makes the offence, that remedy must be taken which the statute gives." Lord ]\LusrsFiELD, 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 pur- sued, and not the common law method of an indictment." The doc- trine stated in these early leading cases is as applicable to civil as to criminal prosecutions. The question then is, was the penalty or for- feiture of $100 provided for by § 47, ch. 83 of the General Statutes, and of S500 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 in- jured 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 treas- urer 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 defend- ant'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 plam- tiff 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 512 BRATTLEBORO V. WAIT [CHAP. III. cumulative to. Such holding would interpret one and the same act as giving a double remedy, which is contrary to all rules of interpre- tation, and only allowable when it is given in express terms by the statute. The judgment of the county court is affirmed} 1 In Cowley v. Newmarket Local Board, [1892] A. C. 345, 351, Lord Herschell " My Lords, the question which arises in this action is whether the defendants are Uable 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 de- fendants, in consequence of which the plaintiff fell and sustained considerable in- jury. The difference of level in the footway arose from a carriageway 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 MacheU in the year 1873. The plaLotiff in his statement of claim asserted that the defendants had wrongfully suffered and permitted the footway to be out of repair and in a condi- tion 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 non-feasance. 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 rehed 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 oflfice of surveyor of highways, and to exercise and be subject to all the powers, duties, and habUities of surveyors. By the latter it is provided that the urban sanitary authority shaU from time to time cause all streets vested in them to be levelled, paved, metaUed, flagged, chan- nelled, altered, and repaired as occasion may require. Amongst the duties thus imposed upon the urban authority was undoubtecUy the duty of keeping this high- way 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 Cockbum, C. J., and the present Master of the RoUs 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-perform- ance 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 em- ployed.' 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 rate-payer 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 high- way is unfulfilled and the Uability 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 high- way is not in a state of thorough and perfect repair, they are to convict the sur- SECT. IV.] OSBOENE V. MCMASTERS 513 OSBORNE V. McMASTERS Supreme Court, Minnesota, Januahy 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 KeUy, J., and a jiiry, 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 emplo3maent as such, sold to plaintiff's intestate a deadly poison with- out labelling it " Poison," as required by statute; that she, in igno- rance 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.' The require- ments of both statutes are substantially the same, and the sole ob- ject of both is to protect the pubhc against the dangerous quahties 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 hable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordi- veyor 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 sur- veyor 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 CouncU, [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. 1 " A person who sells, gives away, or disposes of, any poison, or poisonous sub- stance, without attaching to the vial, box, or parcel containing such poisonous sub- stance, a label, with the name and residence of such person, the word ' poison,' and the name of such poison, aU written or printed thereon, in plain and legible char- acters, is guilty of a misdemeanor." — Minnesota Penal Code, section 329. " Xo person shaU 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 placeof business of the seller. ,. . . Any person failing to comply with the require- ments of this section shall be deemed guilty of a misdemeanor, and shall be hable to a fine of not less than five (5) dollars for each and every such omission." — Minnesota Laws, 1885, chap. 147, section 14. 514 OSBORNE V. MCMASTEKS [CHAP. III. nance was designed to prevent, and which were proximately produced by such neglect. In support of this we need only cite our own deci- sion in Bott V. Pratt, 83 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 Uability 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 as- sumption that selliag poison without labelling it might not be action- able neghgence at common law, it is sufficient to say that, in our opinion, defendant's contention proceeds upon an entire misappre- hension 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 negUgence, 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 con- clusive evidence of neghgence, or, in other words, negUgence 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 negUgent which otherwise might not be such, or at least only evidence of negUgence. All that the statute does is to estabUsh a fixed standard by which the fact of negUgence may be determined. The gist of the action is stiU negUgence, or the non-performance of a legal duty to the person injured. What has been already said suggests the answer to the further con- tention that if any civil UabiUty exists it is only against the clerk who sold the poison, and who alone is criminally Uable. Whether the act constituting the actionable negligence was such on common-law prin- ciples, or is made such by statute, the doctrine of agency appUes, to wit, that the master is civilly liable for the negligence of his servant committed in the coiu-se of his employment, and resulting in injuries to third persons. Judgment affirmed} I Couch V. Steel, 3 E. & B. 402; Salisbury v. Herchenroder, lOG-Hass. 458; Parker v. Barnard, 135 Mass. 116; Marino v. Lehmaier, 173 N. Y. 530; Wester- velt V. Dives, 220 Pa. St. 617 Accord. Compare Nugent !\ Vanderveer, 38 Hun 487. See also Great Northern Fishing Co. v. Edgehill, 11 Q. B: D. 225. SECT. IV.] WILLY V. MULLEDY 515 WILLY V. MULLEDY Court of Appeals, New York, September 30, 1879. Reported in 78 New York Reports, 310. Earl, J.' This is an action to recover damages for the death of plaintiff's wife, alleged to have been caused by the fault of the defend- ant. 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 tene- ment 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 day-time, 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 plain- tiff " 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 siun 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 conomissioners. 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 1 Arguments omitted. Only so much of the opinion is given as relates to a single point. 516 GORRIS V. SCOTT [CHAP. IH. 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 correla- tive; and where a duty is imposed, there must be a right to have it performed. When a statute imposes a duty upon a pubUc officer, it is well settled that any person having a special interest in the perform- ance 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. BarkhofE, 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 EU. & 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} 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 T^nimals 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 dehvered 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 dehvered 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 ' Groves v. Wimbome, [1898] 2 Q. B. 402; Cowen v. Story & Clark Co., 170 111. 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. SECT. IV.] GOHEIS V. SCOTT 517 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 honour- able 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 regxilating the importation of foreign ani- mals; 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 follow- ing 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 expe- dient to make for the better execution of this Act, or for the purpose of in any maimer preventing the introduction or spreading of contagious or infectious disease among animals in Great Britain."] ^ 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 cer- tain order made by the Privy Council, in pursuance of the Contagious Diseases (Animals) Act, 1869. The Act was passed merely for sani- tary purposes, in order to prevent animals in a state of infectious dis- ease 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 dimen- 1 Arguments of counsel omitted. 518 GORRIS V. SCOTT [CHAP. III. sions, 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 penal- ties to secure the observance of its provisions, and that, according to the general rule, the remedy prescribed by the statute must be pur- sued; 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 Ue, 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 illus- trated by the case put iu 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 imseasonable 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 ob- ject, 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 over- board, 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 possibihty of sheep or cattle being exposed to disease on their way to this country. The preamble SECT. IV.J GOREIS V. SCOTT 519 recites that " it is expedient to confer on Her Majesty's most honour- able Privy Council power to take such measures as may appear from time to tinie necessary to prevent the introduction into Great Britain of contagious or infectious diseases among cattle, sheep, or other ani- mals, by prohibiting or regulating the importation of foreign animals," and also to provide against the " spreading " of such diseases m Great Britain. Then follow nimierous sections directed entirely to this ob- ject. 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; aU the purposes emmierated 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 accord- ance with all the authorities to say that the action is not maintain- able. 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 pre- amble as being " to prevent the introduction into Great Britain of contagious or infectious diseases among cattle, sheep, or other ani- mals," and the " spread of such diseases in Great Britain." The pur- poses 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 alter- ing 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 520 GORRIS V. SCOTT [CHAP. III. 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} ' Bischof V. Illinois R. Co., 232 III. 446; Frontier Steam Laundry Co. v. Con- nolly, 72 Neb. 767; Hocking R. Co. v. Phillips, 81 Ohio St. 453 Accord. Breach of statutory duly toward third person, see Gibson v. Leonard, 143 111. 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 injxired 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 obUgation to maintain the fence, except for the purpose of avoiding UabOity for animals killed or injured by its trains, and there- fore caimot 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 re- quire 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 im- posed 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 fiabihty must be limited to injuries resulting from the operation of the road, and the state has no power to make it Uable 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 com- pany 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 Uable 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. LoweU, 134 Cal. 357. lAabiliiy to trespassers, see Nelson v. Burnham & Morrill Co., 114 Me. 213; Flan- agan 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. 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 (Dumford & 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 plain- tiffs 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 Febru- ary, 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 mer- chandises, to wit, sixteen other bags of cochineal of great value, to wit, of the value of £2,634 16s. Id. upon trust and credit; and did for that purpose then and there falsely, deceitfully, and fraudulently assert and aflBrm to the said John Pasley and Edward that the said John Chris- topher then and there was a person safely to be trusted and given credit to in that respect, and did thereby falsely, fraudulently, and de- ceitfully 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 522 PASLEY V. FREEMAN [CHAP. IV. said last-mentioned assertion and affiraiation, the said John Chris- topher 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 Chris- topher 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 16s. Id. 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 weU 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 merchan- dises, 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. Geose, 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 mterested in any transaction between the plaintiffs and Falch, nor to have colluded with them; but he knowingly asserted a falsehood, by saymg that Falch might be safely intrusted with the goods, and given credit to, for the purpose of mducing the plaintiffs to trust him with them, by which the plaintiffs lost the value of the goods. Then this is an action against the defend- ant for making a false affirmation, or telling a he, 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 C^A^P. IV.] PASLEY V. FKEEMAN 523 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 hes against any person standing in the predica- ment of this defendant for the false affirmation stated in the declara- tion. 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 hes; 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 Hes, 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 he; 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, pi. 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 impHed, 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 fiuTiishes 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 mis- representations of others; and if such an action would have lain, there certainly has been, and wiU be, a plentiful source of litigation, of which the pubhc 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; accord- ing 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 plain- tiffs will stand in a peculiarly fortunate predicament, for they will then have the responsibility both of Falch and the defendant. And they 524 PASLEY V. FKEEMAN [CHAP. IV. will be in a better situation than they would have been if, in the con- versation 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 wUl; " for then undoubtedly an action would not have lain against the defendant. Other and stronger cases may be put of actions that must necessarily spriag 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 mis- represent, 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 mis- information 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 teU 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 pres- ent) 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, afiirmed 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 plain- tiff. 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 apphcable 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 wUl 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 CHAP. IV.] PASLEY V. FREEMAN 525 the assertion be a nude assertion, it is that sort of misrepresentation the truth of which does not He merely in the knowledge of the defend- ant, 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 plain^ tiffs might safely give him credit; but credit to which a man is en- titled 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 asser- tion relative to credit, especially where the party making it has no in- terest, 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 analo- gous 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 hes. Per Croke, J., 3 Bulst. 95. But it is contended that this was a bare, naked lie; that, as no collu- sion 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 telHng a bare, naked lie; but that I define to be, sajdng 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 he; 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 per- son. 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 526 PASIiEY V. FREEMAN [CHAP. IV. subject, to see how far the Courts have gone, and what are the prin ciples 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, Garth. 90, Salk. 210. The first of these has been fuUy stated by my brother Grose; but it is to be observed that the book does not affect to give the reasons on which the Gourt dehvered 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 imphes 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 de- fendant 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, Garth. 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 de- fendant 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 He; and knowledge of the falsehood of the thing asserted is fraud and deceit. But, notwith- standing 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'didum 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 war- ranty 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 CHAP. IV.] PASLEY V. FREEMAN 527 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 war- ranty 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 he; 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 hable in an action for reparation of damages at the suit of the person injured. That knowl- edge 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 de- fendant 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 collu- sion was there stated; nor does it appear that the tenant was ever asked a question about the rent, and yet the purchaser might have apphed to him for information; but the judgment proceeded wholly upon the groxmd 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., rea- son seems to say that he has a right to seek satisfaction against him. Authorities are not wanting on this point. 1 Roll. Abr. 91, pi. 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 528 PASLEY V. FREEMAN [CHAP. IV. 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 iu 1 RoU. Abr. 100, pi. 1, it was held that if a man acknowledge a fine in my name, or ac- knowledge 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, stat- ute-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, 1. 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 incxunbrances, if the land be incumbered, &c., the lessee may have an action on the case against my servant, be- cause 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 mahce 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 conunitted; and it was done with a view to enrich Falch by im- poverishing 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 salens, 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 wiU 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 gen- eral arguments were urged at the bar to show that mischiefs and in- conveniences 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 CHAP. IV.] PASLEY V. FREEMAN 529 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 curisoity, 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 reasoniag in the case of Coggs v. Bar- nard, which was cited by the plaintiff's counsel, is, I think, very appli- cable to this part of the case. If the answer import insolvency, it is not necessary that the defendant should be able to prove that insol- vency 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 main- tained 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 foUow, 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 reHed 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 prosecu- tor was induced to trust him; and the Court refused to grant a certio- rari, 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 imderstand; 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 siihserviunt. AsHHXjHST, 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 Ues not- withstanding 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 prin- ciple, namely, that fraud without damage, or damage without fraud, 530 PASLET V. FKEEMAN [CHAP. IV. will not found an action; but where both concur an action will he. The principle is not denied by the other judges, but only the apphca- tion of it, because the party injured there, who was the carrier, had the means of attaining certaui knowledge in his own power, namely, by weighing the goods; and therefore it was a foolish creduhty, 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 Hes not unless where the party making it has an interest, or coHudes 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 shotdd 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 injiuy 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 he against him, as the mahee is more diabohcal if he had not the temptation of gain. For the same reason, it cannot be necessary that the defendant shovild collude with one who has an inter- est. 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 diabohcal 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 he, by the credit- ing of which another happens eventually to be injured. But this con- sequence 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 he accompanied with those circum- stances 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 any- body, but which some person was foohsh enough to act upon; for the CHAP. IV.] PASLEY V. FREEMAN 531 qm 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 inter- position 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 com- petent 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. LoHD IvEXTON, 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 caimot be enforced by municipal laws. But there are certain duties, the non-performance of which the jurisprudence of this coimtry 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 532 PASLET V. FREEMAN [CHAP. TV. 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 neghgence. And in that case, as reported iu Cro. Jac. 386, the neghgence of the plaintiff himself was the cause for which the Court held that the action was not maiataiuable. Then, how does the principle of that case apply to the present ? There are many situations in life, and particularly ia the commercial world, where a man cannot by any dihgence 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 soiu-ces of intelligence enable them to give that information. The law of prudence leads him to apply to them; and the law of morahty ought to induce them to give the iofonnation re- quired. In the case of Bulstrode, the carrier might have weighed the goods Imnself ; but in this case the plaintiffs had no means of knowing the state of Falch's credit but by an apphcation 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 recoiu'se 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 apphcation of it to that particular case. Then it was con- tended here that the action cannot be maintained for telling a naked lie; but that proposition is to be taken sui modo. If, indeed, no injury is occasioned by the he 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 apphed to the defend- ant, 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 /mudufenier, did not occur in several of the cases cited. It is admitted that the defend- CHAP. IV. J WORK V. CAMPBELL 533 ant'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} WORK V. CAMPBELL Supreme Court, California, December 13, 1912. Reported in 164 California Reports, 343. Angellotti, J.= 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 wiU 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 char- acterizes 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 Habitity 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 beheved and rehed upon, and certain advice and counsel given to her by defendant in the matter, all of which statements and advice were wilfuUy 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 1 By " Lord Tenterden's Act," 9 Geo. IV. oh. 14, s. 6, it is provided, that no action shall be brought to charge any person upon any representation made con- cerning 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. 2 Only part of the opinion is printed. 534 WORK V. CAMPBELL [CHAP. IV. 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 al- leged " that by reason of the premises hereinabove stated, defendant has un- lawfully, 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 entice- ment from him of his wife, and in such an action by the wife her husband is not a necessary paxty 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 abduc- tion or enticement of her husband from her is stated by the wife in her com- plaint. . . . 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 be- half of p lain tiff 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 wilfuUy 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 dam- ages 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. CHAP. ly.] STATE V. GORDON 535 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 ia pomt of fact, as the complaint sufficiently alleges that plaintiff beheved 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 behef 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. Pahner, 68 Vt. 1 [33 L. R. A. 411, 33 Atl. 829].) We are not called upon to go as far as this iu this case. The complaint indicates no criminal offence on plaintiff's part. Certainly, however, under the circumstances stated, it can- not fairly be said that plaintiff did not believe her conduct toward her hus- band to be in full accord with good morals and public pohcy, or was not justified in so believing. It is not claimed that the complaint does not suffi- ciently show that plaintiff acted with reasonable prudence in accepting as true and rel^'ing 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 affec- tion 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 appli- cable. 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.^ STATE V. GORDON Supreme Coubt, Kansas, July Teem, 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 ap- pealed 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 1 Cf. Lillegren v. Bums, 135 Minn. 60. 536 STATE V. GORDON [CHAP. IV. were about to take the brick to the United States Mint at Philadel- phia 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.^ Johnston, J. . . . The substantial features of the charge were rep- resentations 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 ob- tained from Trenier. The mere fact that a false pretence of an exist- ing or past fact is accompanied by a future promise wUl not reUeve 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 prop- erty solely and entirely by pretences which are false; nor need the pretences be the paramoimt cause of the dehvery 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? ' Statement abridged. Only part of opinion is given. 2 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 pro- spectus, I should not think that conclusive. It must be for the jury to say what they beheved 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 cal- culated to induce any one who believed the statements in it to invest his money in the concern." In Mathews v. BUss^ 22 Pick. 48, Shaw, C. J., says: " The judge further in- structed the jury, that m 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 mducing the sale, but it must have been a predominant one. In this par- CHAP. IV.] EDGINGTON V. FITZMAURICE 537 EDGINGTON v. FITZMAURICE Ix THE Court of Appeal, March 7, 1885. Reported in Law Reports, 29 Chancery Division, 459. Action against Fitzmaurice ei 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 smn 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 pro- spectus 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 adchtions 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 infancj'." Plaintiff took debenture bonds to the amount of £1500; and testi- fied that he rehed, 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 of- fered evidence tending to show that the real object of the directors in issuing the debentures was to pay off pressing habilities of the com- pany, and not to complete the buildings or to purchase horses and vans, or to develop the business of the company .^ Davey, Q. C, W. W. Karslake, Q. C, and J. Kaye, for Fitzmaurice. ticular, the Court are of opinion, that the direction, as it may have been and prob- ably 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 under- stood 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 opiaion, 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 pro- ducing 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 pre- dominant ' 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 1 The case has been much abridged, and the greater part of the report omitted. 538 EDGINGTON V. FITZMAURICE [CHAP. IV. 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?;. 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 fraud- ulent: Ex parte Whittaker, L. R. 10 Chan. 446. [Denman, J., delivered an elaborate opinion, substantially sus- taining 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 buHdings, to purchase horses and vans, and to develop the supply of fish. A mere suggestion of possible pur- poses to which a portion of the money might be appUed 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 appUed as careful consideration to the evidence as I could, I have reluctantly come to the conclusion that the true objects of the de- fendants in raising the money were not those stated in the circular. I wiU not go through the evidence, but looking only to the cross-exami- nation of the defendants, I am satisfied that the objects for which the loan was wanted were misstated by the defendants, I wiU not say knowingly, but so recklessly as to be fraudulent ia 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 imless 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 misstate- ment in the circular was not material. But such misstatement was material if it was actively present to his mind when he decided to ad- vance his money. The real question is, what was the state of the CHAP. IV.] GALLAGHEK V. BRUNEL 539 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 aslis when he ad- vances 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} GALLAGHER v. BRUNEL Supreme Coukt, 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, contri\'ing and intending to injure and defraud the plaintiffs; and to induce them to sell and dehver the cotton to C. & H.; and thereby subject the plaintiffs to the loss of the balance due after the cash pay- ment, 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 de- hver the cotton. That they did sell and deliver it, in confidence of such false, fraudulent and deceitful representation, &c., when, in 1 Cockrill V. Hall, 65 Cal. 326; United States Home Co. v. O'Connor, 48 Col. 354; Lynch v. HaU, 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. KimbaU, 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 la. 569. 540 GALLAGHER V. BRXJNEL [CHAP. IV. 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 imfit 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 pos- session 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 imderstand and beheve, that, in case they would sell the cotton to C. & H., the defendant would be- come answerable to the plaintiffs, for so much as should be unpaid, by endorsing the note or notes of C. & H., &c.; that without such repre- sentation, they would not have sold the cotton, &c. (In other respects, this count was. substantially the same as the first.) General demurrer and joinder.'^ WooDWORTH, J. . . . The attempt here is, to sustain the action, not on a contract, which, if in writing, might perhaps be obhgatory; but on a deceitful representation. If the promise was in writing, I per- ceive no objection to its validity, inasmuch as a good consideration is stated, viz., that if the plaintiffs would sell and deUver, the defendant would endorse. If, then, there is a binding contract existing between the parties, and on which the defendant is hable, I apprehend it is not competent for the plaintiffs to say they have an election to tiim this into an action for deceit, and recover in that form, vmless 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 pay- ment. 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 dif- ferent 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 im- perfect obhgation. 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. ' Arguments and part of opinion omitted. CHAP. IV. J GALLAGHER V. BRUNEL 541 If this case is stripped of the general allegations in the declaration, ot traud and deceit, it appears to me that the gravamen is nothing more than that the defendant encouraged the plaintiffs to sell to L astro and Henriques; and, as surety, promised to endorse their notes. The mtention 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 hable. The maker of a promissory note may not, at the time, intend to make pajanent. On this note, the plaintiff may de- clare that the defendant intended to deceive and defraud; but it is mere matter of form, sanctioned by precedent in pleadmg. The maker may go farther, and on the strength of assurances to pay punctually, never mtended to be performed, induce the lender to part with his money, and accept the borrower's note. All this is immoral. StiU the remedy is on the contract. The law has not recognized it as the sub- stantive ground of fraud. That no cases are to be met with in the books going the length contended for, is good evidence that the doc- trme is novel, and has never been acted upon. It is evident what must be the species of fraud, for which the law gives redi-ess; falsehood as to an existing fact. If, as BuUer, J., ob- serves, every deceit includes a lie, it follows, that the representation, and promise of the defendant are not comprised within the legal ac- ceptation 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 per- form, 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} 1 Harriage v. Daley, 121 Ark. 23; Dickinson v. Atkins, 100 HI. App. 401; McAllister v. Indianapolis R. Co., 15 Ind. 11; Welshbillig v. Dienhart, 65 Ind. 94; Long i;. Woodman, 68 Me. 49; Davis v. Reynolds, 107 Me. 61; Bullock v. Woold- ridge, 42 Mo. App. 356; Welters v. Fidelity Trust Co., 73 N. J. Law, 57 Accord. See also Bennett v. Mclntire, 121 Ind. 231. in Adams v. GiUig, 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 in- clude 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 obliga- tions 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 deter- mines 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 542 SWIFT V. ROUNDS [CHAP. IV. 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. TiLLDSTGHAST, J. This is trespass on the case for deceit. The first count in the declaration alleges that the defendant, intending to de- ceive 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 simi of $400 the defendant refuses to pay, to the plaintiffs' damage, &c. The second count, after setting out the fraudu- lent 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 groimds of demurrer to the first coimt 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 represen- tation 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. 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 ad- missible. (Pomeroy's Equity Jurisprudence, Sec. 889.) This case stands exactly as it would have stood if the plaintiS and defendant before the execution and deUvery 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 pur- posely 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 in- tent 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 ascertamed in many cases and when ascertained determines the rights of the parties to controversies. The intent of Gillig was a matenal existing fact in this case, and the plaintiff's reHance upon such fact mduced her to enter into a contract that she would not otherwise have entered mto. 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 mmd or to have sold the property to another who might CHAP. IV.] SWIFT V. ROUNDS 543 The grounds of demurrer to the second count are, (1) that the plain- tiffs 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 representa- tion 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 dec- laration states a case of deceit. Any fraudulent misrepresentation or de\ice 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 over- reaches and misleads another, to his hurt. And, while the fraudulent misrepresentation rehed 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 false- hood, 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 de- meanor which would naturally impress the mind of a careful man with a mistaken behef , 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, MeUish, L. J., says: " It is true, in- 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 ordi- narOy be drawn to bend to changed conditions has made many purchasers dis- inclined 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 seUing property may be quite willing to execute and dehver a deed thereof without putting restrictive covenants therein and in reliance upon the good faith of express, unquahfied 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 coUateral 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 state- ment 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." 544 SWIFT V. ROUNDS [CHAP. IV. deed, 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 imphed 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 LobdeU V. Baker, 1 Met. 201; 1 Benjamm 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 impHedly 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 rehed on this representation, which was material and fraudulent, and were damaged thereby. AU 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; Bar- ney 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 misrepre- sentation and of fraud as could be made." See also p. 466 as to what constitutes a representation. In Goodwin v. Home, 60 N. H. 486, the court say: " Ordinarily false promises are not fraudulent, nor evi- dence 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 in- tention 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 Milhken v. Miller, 12 R. I. 296; Thompson v. Rose, 16 Conn. 81; Hennequin v. CHAP. IV.] SWIFT V. ROUNDS 545 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; MorriU 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 actmg on the knowledge of a different state of things — among the oldest definitions of fraud in contracts — is exemplified in this case. See Lee ('. 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 foimd 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 He 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 pm-chase 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 reahzed, is not such a representation as will sup- port 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; CHft v. White, 12 N. Y. 538; 546 SWIFT V. ROUNDS [CHAP. IV. 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 pos- session 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 orig- inal wrong and the UabiUty incurred thereby. Of course a mere in- tention to commit a crime or to do a wrong is no offencs. But when the intention is coupled with the doing or accomplishment of the act intended, that moment the wrong is perpetrated and the correspond- ing 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 satisfac- tory 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 inabihty 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 dis- position 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 deter- mination 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 appHcation 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 pur- chase ? A representation of a material fact, imphed 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, CHAP. IV.] SWIFT v. HOUNDS 547 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 Divi- sion for further proceedings.' 1 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 !'. Milan, 249 111. 456; Murray v. Smith, 42 III. App. 548; Chambers v. MitcheU, 123 III. 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 diges- tion.' And Chapman, C. J., in Conmionwealth 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 per- son'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 impUed 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. 548 BURRILL V. STEVENS [CHAP. IV. 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 deHberate decision. The plaintiff contends that the question was settled ia 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 deUvered to the jury by the presiding judge in the case at bar, and we think the doctrine maysafely 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 rehes 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.^ 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 ' See Gardner v. State, 4 Ala. App. 131; Syracuse Knitting Co. v. Blanchard. 69 N. H. 447. CHAP. IV.] BUGG V. WERTHEIMER-SCHWARTZ SHOE CO. 549 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. Xor 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 pre- determined 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. Reddick, J., m BUGG v. WERTHEIMER-SCHWARTZ SHOE COMPANY (1897) 64 Arkansas, 12, 17, 18. Nob can we sustain the contention of appellant that to entitle the ven- dor 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 know- ingly 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 beheve 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 wUl of the vendor. To illus- trate, let us suppose a case. A man with no property, but with great faith in his abUity 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 abOity wiU 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 reljang 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 ques- tion 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 wUl not suffice to antidote and neutralize an intentionally false statement which had accomplished its object of benefit- ing 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. 550 MCCOMB V. BREWER LUMBER CO. [CHAP. IV. McCOMB V. BREWER LUMBER COMPANY Supreme Judicial Court, Massachusetts, October 21, 1903. Reported in 184 Massachuselts 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 fol- lows: — Plaintiff says that the defendant, by its agent, with intent to de- ceive and defraud the plaintiff, falsely and fraudulently represented to him [here specifying certain representations], and that, if the plain- tiff would purchase a certain number of shares of stock in the defend- ant 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 particu- lars], 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 ruhng at the trial in reference to this count.^ 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 tune the defendant promised to use the money as working capital it did not iatend 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, with- out 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 ap- JDears to have been made with reference to the third count, and, as applied to that, it was correct. An examination of the count wiU show that it does not contain any allegation that at the time the de- fendant 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, ' Statement abridged. Part of opinion omitted. CHAP. IV.] DORR V. CORY 551 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 mana,ger, 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 connec- tion with the other counts, without feeling that the pleader studiously avoided alleging anjrthing 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} DORR V. CORY Stipheme Court, Iowa, April 5, 1899. Re-ported in 108 Iowa Reports, 725. AppE.Ai, from Polk District Court. Action at law on contracts in writiag for the purchase of interests in real estate. Answer alleges {inter alia) that the contracts were obtained by fraud. Verdict for plaintiff, and judgment. RoBrvsox, C. J.^ . . . 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 repre- sentations 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 ia Cooper v. Lovering, 106 Mass. 77, and it is the rule of ' 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 AU. 324; Pile ;;. Bright, 156 Mo. App. 301. Known impossible prophecy by one having superior knowledge, see Murray r. Tolman, 162 111. 417; French v. Ryan, 104 Mich. 625; Hedin v. MinneapoUs Insti- tute, 62 Minn. 146. 2 Only part of the case is given. 552 DORR V. CORY [CHAP. IV. Tuck V. Downing, 76 111. 71, and Banta v. Palmer, 47 111. 99. In Hol- brook 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, aflBrmations of fact. When known to the ut- terer to be untrue, if made with the intention of misleading the ven- dee, if he does rely upon them, and is misled to his injury, they avoid 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 appUed 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 mate- rial, 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 jus- tice. 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; Her v. Griswold, 83 Iowa, 442, and Coles v. Kennedy, 81 Iowa, 360, although not pre- cisely 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.^ 1 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 CHAP. IV.] DEMING V. DARLING 553 DEMING V. DARLING Supreme Judicial Court, Massachusetts, February 27, 1889. Reported in 14S 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 pur- pose of inducing the plaintiff to purchase a railroad bond from the defendant. . . } Among the representations relied on, one was that the railroad mort- gaged, 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 Xo. 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 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 he if such an aifirmation prove false. It is the foUy 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 Rens,selaer, 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 aflSrmation concerning the price paid for the land furnishes a good groimd 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, 157 111. 258; Miller v. Craig, 36 111. 109; Wightmant). Tucker, 50111. App. 75; Woods f. Nicholas, 92 Kan. 258; Buck- ingham 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; Kmcaid v. Price, 82 Ark. 20; Williams v. McFadden, 23 Fla. 143; Noetling v. Wright, 72 111. 390; Cagney v. Cuson, 77 Ind. 494; Bossingham v. Syck, 118 la. 192; Else v. Freeman, 72 Kan 666; Reynolds f. Evans, 123 Md. 365; Picardt). McCormick, 11 Mich. 68; Doran v. Eaton, 40 Minn. 35; Boasberg v. Walker, 111 Minn. 445; Union Bank v. Hunt, 76 Mo 439; Dahymple j). Craig, 149 Mo. 345; Dresher v. Becker, 88 Neb. 619; Sandford v. Handy, 23 Wend. 260; EUis v. Andrews, 56 N. Y. 83' Van Slochem v. Villard, 207 N. Y. 587; Mecum v. Becker, 166 App. Div. 793; Camp- bell 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 JN. C. 267; Crompton v. Beedle, 83 Vt. 287. 1 Portions of the opinion are omitted. 554 DEMING V. DARLING [CHAP. IV. 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 dechned 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 wUl be seen that the fundamental difference between the instruc- tions 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 mis- take. 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 concern- ing 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 ease, 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 quahty and value when the expectation has been disappointed. Exceptions sustained} « Gordon v. Butler, 105 U. S. 563; 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, 108 111. 257; Curry v. Keyser, 30 Ind. 214; Conant v. Nat'l State Bank, 121 Ind. 323; Scroggin v. Wood, 87 la. 497; Yokes 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, CHAP. IV.] ANDREWS V. JACKSON 555 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 hun- dred 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 in- tended 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 ex- pression of opinion, for which, however wilfully false, and however damaging in the reliance placed upon it, no action can be main- tained. 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 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. Button, 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; Hor- rigan 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. 556 ANDREWS V. JACKSON [CHAP. IV. 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 erro- neous " because a representation as to a man's financial abihty 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 apphed to the subject matter, and as inter- preted by the surrounding circumstances, in each case. The question is generally to be submitted to the jury." The opinion plainly impUes that, if the jury had been left to determine whether there was a rep- resentation of the maker's financial abiUty 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 abihty to pay said note, and that the note was good."^' The plaintiff was allowed to recover. The court says of the representations, " We must presimie that they were legally sufficient to support the action; that is to say, that they were statements of facts susceptible of knowledge, as d^- tinguished 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 hved in Boston. The plaintiff lived in a suburban town and knew nothing of the maker. She was obhged to take the defendant's representations or to dechne to deal with him until she could go to Boston and make an investigation for herseff.i He told her that he had lent money to the maker, and said, ' Jarratt v. Langston, 99 Ark. 438; Baum v. Holton, 4 Col. App. 406; Shelton V. Healy, 74 Conn. 265; Kenner v. Harding, 85 111. 264; Dwight v. Chase, 3 111. CHAP. IV.] ANDREWS V. JACKSON 557 " 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 vaUdity of the note, and upon an equally certain knowledge of the maker's financial ability. The known facts upon which financial abUity 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 prop- erly 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 rail- road bonds payable in the distant future, is ordinarily only a matter of opinion. A statement of the value of such property is very differ- ent 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} App. 67; Wightman v. Tucker, 50 111. 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 la. 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 ^. Frankel, 109 Va. 603; Grant v. Huschke, 74 Wash. 257 Accord. ' 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, S3 Ind. App. 74; Burr v. Willson, 22 Minn. 206; Adan v. Steinbrecher, 116 Minn, 174, 558 WILLIAMS V. STATE [CHAP. IV. WILLIAMS V. STATE SuPBEME Court, Ohio, Febhuaby 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 111,000, and that one Martha M. Williams, then and there beUeving said representation of value to be true, and relying and acting upon that belief, was induced to and did purchase from the plain- tiff 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 111,000, 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 there- for, 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 repre- sentations as one of fact rather than mere opinion." The jury found the de- fendant guilty and judgment was rendered accordingly, which judgment was affirmed by the Circuit Court, and this proceeding in error is to reverse that judgment.^ Davis, J. A statement of value may be given either as an opinion or as a statement of fact. AU the authorities agree that if a statement of value is given as an opinion merely it cannot be regarded as a foundation for an indict- ment. 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 representa- tion is indictable. Whether the representation of value is intended as an ex- pression of opinion, or whether it was made as a statement of an existiag fact ' -Arguments omitted. CHAP. I^'.] WILLIAMS V. STATE 559 which the spesiker 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 sug- gested, 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 pre- tences." 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, apd he is thus induced to forbear making inquiries which he other- wise 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, espe- ciaUj' when it is as to a fact affecting quality or value and is pecuKarly within the knowledge of the person making it. Watson v. People, 87 N. Y. 561; Simar v. Canaday, 53 N. Y. 298; Hickey v. MorreU, 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. "ttTien 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 Hable for the damage sustained. Med- bury V. "Watson, 6 Mete. 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 la. 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. Peice, Chew, Summers and Spear, JJ., concur. 560 SMITH V. LAND CORPORATION [CHAP. IV. 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 noth- ing 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 in- volves very often a statement of a material fact, for he impHedly 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 aU or do not know them equally weU, and if the landlord says that he considers that the relations between himself and his tenant are satisfactory, he really avers that the facts pecuHarly within his knowledge are such as to render that opinion reasonable. Now are the statements here statements which involve such a repre- sentation 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 desir- able tenant; what does that mean ? I agree that it is not a guarantee that the tenant will go on pajong his rent, but it is to my mind a guarantee of a dififerent 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 be- came due. On the 1st of May, it was whoUy impaid and a distress was threatened. The tenant wrote to ask for time. The plaintiffs rephed 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 imder pressure must be regarded as an un- desirable tenant.^ 1 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 CHAP. IV. J KIDNEY V. STODDARD 561 KIDNEY V. STODDARD Supreme Judicial Court, Massachusetts, October Term, 1843. Re-ported 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 other- wise, wiU be gratefully received by him, and much obUge your obedient servant, who will take the hberty 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 WUde, 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 con- ceals 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 ma- 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 com- pleted.' 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 ? Coiild anybody defend himself if he was charged upon an indictment for obtaining money under false pretences, the allegation in the indictment being that he pre- tended 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 aU ? 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 aU 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 wiU enable it shortly to produce aU 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 beUef, that is one thing; but it does not seem to have been in the minds of the learned judges that you may use lan- guage in such a way as, although in the form of hope and expectation, it may be- come 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." 662 KIDNEY V. STODDARD [CHAP. IV. terial fact; that if he concealed the fact that the son was a minor, with the view to give him a credit, knowing or beheving 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 conse- quences 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.^ HtTBBABD, J. It is very certain, as has been maintained by the defendant's coun- sel, 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 beheved 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 plain- tiffs 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.^ 1 Tte statement has been abridged. 2 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, 18 111. 23; Day- ton V. Kidder, 105 111. App. 107; Craig v. Hamilton, 118 Ind. 565; Firestone v. Werner, 1 Ind. App. 293; Coles v. Kennedy, 81 la. 360; Howerton v. Augustine, CHAP. IV. 3 DERRY V. PEEK 563 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, De- vonport, and District Tramways Company, claiming damages for the 130 la. 389; Nairn v. Ewalt, 51 Kan. 355; Paris 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 IK Greene, 206 Mass. 561; Kenyon v. Woodruff, 33 Mich. 310; Tompldns V. HoUister, 60 Mich. 470; Busch v. Wilcox, 82 Mich. 315; Marsh v. Webber, 13 Minn. 109; Thomas v. Murphy, 87 Minn. 358; McAdams v. Gates, 24 Mo. 223; Morley i'. 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 III. 518; Potts v. Chapin, 133 Mass. 276; Cochrane v. Halsey, 25 Minn. 52; CroweU 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 I'. 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 pro- spectuses 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 state- ments. 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 reaHzed from the profits and paid to defendants. In estimating the probability of sub- scribers being misled by these prospectuses we may take into consideration not only the facts stated, but the facts suppressed. New Brunswick Co. v. Mugge- ridge, 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. Gumey, L. R. 6 H. L. 377, Lord Cairns said (p. 403) : " Mere non- disclosure of material facts, however morally censurable, however that non-dis- closure 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 frag- 564 DEHRY V. PEEK [CHAP. IV. fraudulent misrepresentations of the defendants whereby the plaintiff was induced to take shares in the company.^ 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 pubUc 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, mentary 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 doubt- less the general rule that a purchaser, when buying on credit, is not bound to dis- close 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 indebted- ness, win not constitute a fraudulent concealment. 2 Pomi 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 con., dition and abiHty 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 Uberty to give an evasive or misleading answer, which, although hteraHy 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 imder 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 expUcit inquiries by plaintiff would have disclosed the fact of his indebtedness. It does not he in Bauman's mouth to say that plaiatiffi reUed too imphcitly on this general statement. To teU haK a truth only is to conceal the other half. Con- cealment of this kind, under the circumstances, amounts to a false representation." '^ The statement is taken from 37 Ch. D. 541, omitting the last part. Argu- ments are omitted. None of the opinions are given except portions of Lord Heeschell's. CHAP. IV. J FEEEMAK V. VENNER 597 FREEMAN v. VENNER SxTPREME Judicial Court, Massachusetts, June 23^ 1876. Reported in 120 Massachiisetts 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 plain- tiff 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 de- fendant was not entitled to have the personal liability of the plaintiff as in- dorser of the note. Plaintiff, through ignorance of the law, and by reason of the false and fraudulent representations of defendant, on Dec. 1, 1873, in- dorsed 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. There- upon plaintiff forbade defendant to negotiate the note; but defendant, not- withstanding, 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, sub- stantially 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 con- tained in the mortgage, had applied a part of the proceeds of the sale in liqui- dation 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. N. Y. 351; and in Van Velsor v. Seaberger, 35 ID. 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, 153 111. 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). 598 LUETZKE V. ROBERTS [CHAP. IV. 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 com- pellable to pay to the holder of the note, namely, the face of the note and in- terest, less the amount realized from the sale under the mortgage, treating the same as a partial payment. Defendant excepted.*^ 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 in- dorsement 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 wiU have suffered no actionable wrong. There wiU 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 nomi- nal damages in this action. Pasley v. Freeman, 3 T. R. 51; 2 Smith Lead. Cas. (6th Am, ed.) 157, and notes. Exceptions sustained.'^ 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 de- creed 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: — ] ' 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 liabihty was measured by the amount 1 Statement abridged. Part of opinion omitted. 2 In re Pennewell, 119 Fed. 139; Kimmans v. Chandler, 13 la. 327: Dunn v. Bishop. (R. I.) 90 Atl. 1073 Accord. Compare Van Vliet Automobile Co. v. Cro- weU, (la.) 149 N. W. 861. 2 A new statement has been made covering but one point and only the portion of the opinion relating to that point is given. CHAP. IV.] FOTTLEK V. MOSELEY 599 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. McCor- mick H. M. Co., 108 Wise. 81, 84 N. W. 18.i FOTTLER V. MOSELEY Supreme Jtjdicial Court, Massachusetts, June 18, 1901. Reported in 179 Massachusetts Reports, 295. ToHT for deceit, alleging that, relying upon the false and fraudulent repre- sentations 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 re- voked 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, 1896.2 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 re- turned as directed; and the plaintiff alleged exceptions. The findings war- ranted 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 S28.50 per share; that on March 27 the defendant, for the purpose of inducing the plaintiff to withdraw the order and refrain from selling, repre- sented to the plaintiff that the sales which had been made of said stock in the market had aU 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 reljdng upon them, was thereby induced to and did cancel his oral order to the defend- ant to sell, and did refrain from seUing; 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 ia continuous rehance 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 iu findiag that he had, says that even upon such a finding the plaintiff would have no case. He con- tends 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 1 Ely V. Stannard, 46 Conn. 124; Goring v. Fitzgerald, 105 la. 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. 2 Statement abridged. 600 FOTTLER C. MOSELEY [CHAP. IV. offering a motive suflBcient to influence the conduct of a man of average intelli- gence 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 ques- tion 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 busi- ness 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 hght 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 false- hood." 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 conver- tible with those which define the right to rescind a contract for fraud or mis- representation and the two classes of cases are generally cited without any express discrimination, still discrimination is sometimes needful in the com- parison 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 CHAP. IV.] FOTTLER V. MOSELEY 601 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 in- duced 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 appUcable 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 Gush. 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} FOTTLER V. MOSELEY Supreme Judicial Court, Massachusetts, May 19, 1904. Reported in 185 Massachusetts Reports, 563. ToHT for deceit, alleging, that, relying upon the false and fraudulent repre- sentations 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 re- voked 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 com- pany, the result of which was that the market price of the stock immediately 1 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). 602 ' FOTTLBR V. MOSELEY [CHAP. IV. 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 ruUngs 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 en- titled 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 fuU 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 Frank- lin 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 " S28.50 per share." " 4. What was the fair market value of said stock on the last day of Maj', or immediately prior to June, 1893, the day before Moody Merrill's abscond- ing ? " 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 diminu- tion in the seUing price of the stock came from common causes. The defend- ant'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 wrongdoer should contem- plate the particulars of the injury from his wrongful act, nor the precise way in which the damages wiJI be inflicted. He need not even expect that damage CHAP. IV.] FOTTLER V. MOSELEY 603 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 dis- honest, in the management of the corporation, would be among the most com- mon 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 cor- poration, or by the unexpected bankruptcy of a debtor who owed the corpora- tion a large sum. Neither the plaintiff nor the defendant would be presumed to have contemplated all the particulars of the risk of diminution ia 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 whoUy by reason of the defendant's fraud. The risk of a fall, from whatever cause, is presumed to have been contemplated by the defend- ant 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 discoverj^ of the embezzlement. The false repre- sentations 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 reli- ance 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} 1 " 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 mis- representation cannot of itself directly produce damage. It requires a nieans of conveyance, and that is the action which it produces, and which results in dam- aEe." " ... 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. 604 MORSE V. HUTCHINS [CHAP. IV. MORSE V. HUTCHINS SUPKBME JUDICIAIi COXTBT, MASSACHUSETTS, OCTOBEB TERM, 1869. Reported in 102 Massachusetts Reports, 439. Tort for deceit in makiag false and fraudulent representations to the plain- tiff 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 defend- ant in the stock and good will of the firm. A count ia 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, G. J., ruled that the discharge in bankruptcy was a defence to the second count, but not to the first count; and the plaintiff reUed on the first count only. The judge iostructed 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. Geat, J. The objections that either the joinder of a count in contract with the coimt in tort, or the certificate of discharge in bankruptcy, would defeat the plaintiff's right of action ia tort for the defendant's false and fraudulent representations, were hardly reUed on at the argument, and are groimdless. 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, iu 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 pur- chase and its value if the property had been what it was represented or war- ranted 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; MuUer v. Eno, 4 Keman, 597; Sherwood v. Sutton, 5 Mason, 1; Loder v. Kekul6, 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 wiU 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 ia 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 ianocent purchaser ia the original bargain iaure to the benefit of the wrongdoer; and, in proportion as the origiaal 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 ex- emptiug the defendant from any part of the direct consequences of his fraud. And the value may be estimated as easily ia this action as ia an action against him for an entire refusal to perform his contract. Exceptions overrvled. CHAP. IV.] SMITH V. BOLLES 605 SMITH V. BOLLES Supreme Court op the United States, November 11, 1889. Reported in 132 United States Reports, 125. EsEOR 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 minin g stock. The amended petition alleged (inter alia) that plaintiff was induced by defendant's fraudulent representations to buy of defendant four thousand shares of minin g stock at S1.50 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 in- structions given as to damages are stated in the opinion. Verdict for plaintiff. Motion for new trial overruled. Judgment for plaintiff. Defendant brought error.' Ftjlier, C. J. The biU 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 be- tween 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 con- tract. 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 fraudu- lent 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 defend- ant was liable to respond in such damages as naturally and projdmately 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 liabUity did not include the expected fruits of an unreaUzed speculation. The reason- able market value, if the property had been as represented, afforded, therefore, no proper element of recovery. 1 Statement abridged and arguments omitted. 606 SCHWABACKER V. RIDDLE CCHAP. IV. 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 sus- tained in that particular. If the stock had a value in fact, that would neces- sarily be appUed in reduction of the damages. " The damage to be recovered must always be the natural and proximate conseqiience 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 con- templated 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} 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. ^ 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 wiU lie for damages, if any, for such misrepresentation . ' ' This instruction is Hable to several serious objections. In the first place, a misrepresentation, to be actionable, must be a material one, or no action will he. In the second place, in an action for deceit no recovery can be had unless the plaintiff himseff 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 ' ReaflSrmed 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. 8. 804. For later cases, see: Harris v. Neil, 144 Ga. 519 (accord); Trayne i;. Boardman, 207 Mass. 581; Crawford v. Armacost, 85 Wash. 622 (contra). ' Statement abridged; arguments omitted; also part of opinion. CHAP. IV.] SCHWABACKER V. RIDDLE 607 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 rehed 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 state- ment 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} 1 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 lU. 65; Jones v. Foster, 175 111. 459; Press v. Hair, 133 HI 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 Mouiton, 114Mass. 99; Poland «. Brownell, 131 Mass. 138; Thompson t>. Pente- cost 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. 608 FAKGO G. & C. CO. V. FARGO G. & E. CO. [CHAP. IV, 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.^ 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 failvu-e of consideration from the nondelivery of some of the property pur- chased, 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 fail- ure of consideration unnecessary. We wiU confine ourselves to the single question of fraud. The property pxu-chased 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 Ught plant, with poles, wires, and other fixttires 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 hght the pubUc streets of the City of Fargo, its pubUc 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 re- lating 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 Missouri R. Co., 71 Neb. 180; Saunders v. Hatterman, 2 Ired. 32; Mulholland v. Washington Match Co., 35 Wash. 315; Mosherw. Post,89 Wis. 602; Farru. Peter- son, 91 Wis. 182; Kaiser v. Nummerdor, 120 Wis. 234; Jacobsen v. Whitely, 138 Wis. 434 Accord. But see Wilson i;. Higbee, 62 Fed. 723; King v. Livingston Mfg. Co., 180 Ala. 118; Masonw. Thornton, 74 Ark. 46; Linington w. Strong, 107 111. 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; Bach- man V. Travelers Ins. Co., (N. H.) 97 Atl. 223; Fox v. Dufiy, 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.-624, 531. Equal means of knowledge, see HjII v. Bush, 19 Ark. 622- Strong v. Peters, 2 Root, 93; McDaniell v. Strohecker, 19 Ga. 432; Knight w. Gaultney, 23 111 App 376; Foley v. CowgiU, 5 Blackf. 18; Boddy v. Henry, 113 la. 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 vnthout 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; MuUer v. Rosenblatt, 157 App. Div. 513; Griffin v. Roanoke Lumber Co., 140 N. C. 514. Reliance on friendship, see Gray v. Reeves, 69 Wash. 374. 1 Arguments omitted; also part of opinion. CHAP. IV.] FAEGO G. & C. CO. V. FARGO G. & E. CO. 609 class related to the net earnings of the plant for the previous year, and the prices charged customers for gas and electric light. It ap- peai3 that defendant rehed chiefly upon the earning capacity of the plant in making the purchase, and was induced to beheve 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 prop- erty sold, and the general nature of the fraudulent representations upon which defendant's counterclaim for deceit was founded, we can now inteUigently 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 in- structed 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 cha,racter of the property, defendant must be presumed to have had a knowledge of the actual facts." This instruction must be considered in the fight of the refusal of the court to charge the jury as foUows, 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 refied on, and were false, and the defendant suffered injury thereby, the defendant would be entitled to recover the damages which it suffered in conse- quence 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 mat- ter of law, defendant did not have the right impficitly to rely upon the representations of the plaintiff touching the character of the plant, but must make inquiries concerning them, and must make investi- gation as to their truth or falsity. It is true that the word " investi- gate " 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 be- fore 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 dis- covering 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 610 FABGO G. & C. CO. V. FARGO G. & E. CO. [CHAP. IV. from the fact that this plant was in the same city, and could be in- vestigated 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 band, 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 state- ment of fact, and its falsity is not palpable to the purchaser, he has an undoubted right impUcitly 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, be- cause the defendant might have measured the wire, coimted 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 investi- gate to determine their truth or falsity. In Mead v. Buim, 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 con- tract, with full means of knowledge, has dehberately 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 fraudu- lently made with the intent to induce the plaintiff to rely upon the fact being as represented, and to act upon the beUef thus induced, the wrongdoer who succeeds in such a purpose is not to be shielded from responsibility by the plea that the defrauded party would have dis- covered the falsity of the representation if he had pursued such means of information as were available to him." While the rule has been in CHAP. IV.] FARGO G. & C. CO. V. FARGO G. & E. CO. 611 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 ;;. Scott, 24 Wis. 81 ; CaldweU v. Henry, 76 Mo. 254; Oswald v. McGehee, 28 IMiss. 340; CottriU 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; Bige- low. 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 creduhty of his victim. The falsity of the statement may be ap- parent 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 refu- tation 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 busi- ness are a milhon 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 rehance 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 negUgence 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 imwise 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 hsten to the plea that the defrauded party 612 STABKWEATHER V. BENJAMIN [CHAP. IV. 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} STARKWEATHER v. BENJAMIN Supreme Coubt, 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. 1 Martin v. Burford, (C. C. A.) 181 Fed. 922; Hutchinson v. Gorman, 71 Ark. 305; Scott «. Moore, 89 Ark. 321 ; Montgomery w. McLaury, 143 Gal. 83; Teague V. Hall, 171 Gal. 668- Eames v. Morgan, 37 HI. 260; Ladd v. Pigott, 114 111. 647; Kehl V. Abram, 210 111. 218 (pubKc records); Backer v. Pyne, 130 Ind. 288 (rec- ords); McGibbons v. Wilder, 78 la. 531; Faust v. Hosford, 119 la. 97 (records); Scott V. Bumight, 131 la. 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); Hoist v. Stewart, 161 Mass. 516; Rollins V. Quimby, 200 Mass. 162 (mortgage records) ; Jackson v. Armstrong, 50 Mich. 65; Smith v. WerkheLser, 152 Mich. 177; Faribault v. Sater, 13 Minn. 223; Redding v. Wright, 49 Minn. 322; Union Bank v. Hunt, 76 Mo. 439; Gottrill v. Krum, 100 Mo. 397; Stonemets v. Head, 248 Mo. 243; Shearer v. Hill, 125 Mo. App. 375; Gemer 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. 1. 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. Rosen- ield. 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: GrandaU v. Parks, 152 Gal. 772; Hale v. Philbrick, 42 la. 81; Youngf. Hopkins, 6 T.B.Mon. 18; Cobb w. Wright, 43 Minn. 83; Manley D. 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. Navlor. 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 writina, Ettlineer v. Weil 184 N.Y. 179. CHAP. IV.J MABAEDY V. MCHUGH 613 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 con- tents 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 mak- ing 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} MABARDY v. McHUGH StTPREME JXJDICIAL COTJRT, MaSSACETCTSETTS, MaT 21, 1909. Reported in 202 Massachusetts Reports, 148. ToET 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 taien over the farm by the defendants ... or [and] were shown the boimds so that the plaintiffs knew where the farm was and what was com- prised within the boimds, it would not be of any consequence that represen- tations 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 plain- tiffs, " 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 AUen, 1 O'Neill V. Onway, 88 Conn. 651; Antle v. Sexton, 137 111. 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. 614 MABARDY V. MCHXJGH [CHAP. IV; 212, and Mooney v. Miller, 102 Mass. 217/ The facts ih the case at bar are similar in all material respects to these cases. An attempt is made to distin- guish 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 famihar 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. JeweU, 151 Mass. 345; Hoist 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, coextensive 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. Jus- tice Brett, in Robinson v. MoUett, L. R. 7 H. L. 802, 817, that " The courts have appHed 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, 137 111. 410. Estes V. Odom, 91 Ga. 600, 609. Lovejoy v. IsbeU, 73 Conn. 368, 375. Caw- ston 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. HoUingsworth, 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. Wil- hams, 98 Ga. 388. Sears v. Stinson, 3 Wash. 615. HiU 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. SummerviUe, 85 Mo. App. 183, although the last case has been overruled in Judd v. Walker, 114 Mo. App. 128, 135. CHAP. IV.] MABARDY V. MCHTJGH 615 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 trans- action 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 heed- lessness 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 WaU. 379, 383. Long v. Warren, 68 N. Y. 426, 432. Baily v. Merrell, 3 Bulstr. 94. This rule in its general statement appUes 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 them- selves easy of comprehension and memory, when once established, should remain fast. The doctrine of stare decisis is as salutary as it is well recog- nized. . . . While perhaps it is more important as to far-reaching juridical principles that the court should be right, in the light of higher civiUzation, 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 cer- tain 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 p lainl y wrong, in the long run probably works out substantial justice, al- though 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 can- not 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 con- fine 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 616 EASTERN T. & B. CO. V. CUNNINGHAM [CHAP. IV. 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 misrepresenta- tion as to the area alone. . . . Exceptions overruled} EASTERN TRUST & BANKING COMPANY v. CUNNINGHAM Supreme Couet, 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 iriherent absurdity and in- credibility 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 neghgent. 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 PoUock 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 mis- representation short of proof that it was not relied upon, either because the other party knew the truth, or because he rehed whoUy on his own investiga- tions, or because the alleged fact did not influence his action at all." In Linington v. Strong, 107 111. 295, we find this language: " The doctrine is well settled that as a rule a party guilty of fraudulent conduct shaU not be allowed to cry ' negligence ' as against his own dehberate fraud. . . . While the law does require of aU parties the exercise of reasonable prudence in the business 1 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 lU. 218; Hill v. Coates, 127 111. 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., 76 Me. 55; Stevens v. Odiin, 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; More- land 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!). Schneider, 125 la. 1; Anderson v. Heasley, 95 Kan. 572: Wood v Roeder, 50 Neb. 476. CHAP. IV.] S. PEAESON & SON V. LORD MAYOR 617 of life, and does not permit one to rest indifferent in reliance upon the in- terested 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 guUty of an intentional and dehberate 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 dili- gence and ca,re." See Grifiin v. Roanoke R. & Lumber Co., 140 N. C. 514, 53 S. E. 307, 6 L. R. A. (n. s.) 463.^ S. PEARSON & SON, Limited, v. LORD MAYOR OF DUBLIN _ In the House of Lords, Mat 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 outfaU 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 aU existing works and other things connected with the contract works; that the corpora- tion 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 in- formation or inaccuracies in the drawings or specifications. The appellants performed the contract, and brought an action of deceit against the corpora- tion, claiming damages for false representations as to the position, dimensions and foundations of the wall, whereby the appellants were compelled to exe- cute more costly works than would otherwise have been required. The plans, drawings and specifications were prepared by engineers employed by the corporation.' [At the trial before Pallbs, C. B., the plaintiffs offered evidence tending to show that the aforesaid representations were not sincerely beheved by the engineers to be true.] Palues, C. B., refused to leave anj^ 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. 1 " 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 obli- gation. 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. ' The statement has been redrawn and only parts of the opinion are printed. 618 S. PEAESON & SON V. LOKD MAYOR [CHAP. IV. 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 Loeebxjen, Halsburt, Ashbourne, Mac- NAGHTBN, James OF HEREFORD, ROBERTSON, Atkinson, and CoLLiNs) re- versed 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 lia- bility 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 him- self innocent may not under any circumstances, however peculiar, guard him- self by apt and express clauses from hability 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 pos- sessed the guilty knowledge. Earl of Halsburt. . . . The action is based on the allegation of fraud, and no subtUty 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 can- not 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 inchne 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 excep- tion 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 con- CHAP. IV.] S. PEARSON & SON V. LORD MAYOR 619 struction, 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 TuUis v. Jacson, [1892] 3 Gh. 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 contempla- tion, 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.^ 1 See Hicks v. Stevens, 121 111. 186. CHAPTER V MALICIOUS PROSECUTION AND ABUSE OF PROCESS HALBERSTADT v. NEW YORK LIFE INSURANCE CO. CouET 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 em- bezzlement " 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 determiaed ... 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 Repubhc of Mexico and there- after continuously remained absent . . . and by such absence avoided being arrested imder 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 deter- mination 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 accoimt 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.^ HiscocK, J. The respondent's first reply to the appellant's attack upon its answer is of the tu quoqm nature, it insisting that the com- plaint is as deficient in the statement of a good cause of action as the ' The statement of the case has been abridged and only a part of the opinion is given. 620 CHAP, v.] HALBEESTADT V. NEW YOKK LIFE INS. CO. 621 answer is alleged to be in the statement of a good defence. This con- tention 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 crmiinal 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 apphcation 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 ia 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 juris- diction 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 prose- cution by means of civil process and what was there said must be interpreted with reference to that fact, and thus interpreted it is not appHcable here. Of the other cases, only two, Hej^ward v. Cuthbert and Cooper v. Armour, considered the question here involved with sufficient thoroughness to require brief conmient. An examination win 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 in- jiiry sustained by the person accused, when he is not taken into cus- tody, and no process has been issued against him, is to his reputation; and for such an injury the action of hbel 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 foimdation for an action of mahcious prosecution, are : Addison 622 HALBEESTADT V. NEW YORK LIFE INS. CO. [CHAP. V. on Torts, vol. 2 [4th Eng. ed.], p. 478; Newell on Malicious Prosecu- tion, 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, 2 111. 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 foimd 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 suiScient independent of statute to effect the commencement of a case or proceeding. Carpen- ter 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 piuposes 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 CaroUna case already referred to, the sole foimdation for an action of malicious prosecution is not " the wrong done to the plain- tiff 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 in- flicted upon the feelings, reputation and character by a false accusa- tion 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; Gundennann v. Buschner, 73 111. App. 180; Lawrence v. Hagerman, 56 lU. 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 hbel or slander. Howard v. Thompson, 21 Wend. 319, 324; Woods v. Wiman, 47 Hun, 362, 364; Sheldon v. CHAP, v.] HALBERSTADT V. NEW YORK LIFE INS. CO. 623 Carpenter, supra; Dale v. Harris, 109 Mass. 193; Gabriel v. McMuI- Hn, 127 Iowa, 427; Hamilton v. Eno, 81 N. Y. 116; Newell on Mali- cious 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 circimastances we should hold that such action will lie, if for no other reason than to satisfy that principle of law which demands an ade- quate remedy for every legal wrong."^ . . . Vaxx, J. I concur in the result because there was merely an at- tempt 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 be- cause 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 com- mence an action, in a court of record, is equivalent to the commence- ment thereof," stiU the attempt goes for naught unless followed by service, actual or constructive, within sixty days. (Code CivU 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 au- thorities 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, J J., concur with Hiscock, J.; Cullbn, Ch. J., and Willakd Bartlett, J., concur with Vann, J. Order affirmed.^ ' The court deciaed that the answer was good. " 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 El. 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. Fumies, 19 Ala. 760 (semble)- Davis v. Sanders, 133 Ala. 275, 278 (semble); Newfield v. Copperman, 15 Abb. Pr. n. a. 360 (semble); Lawyer v. Loomis, 3 Th. & C. 393, 624 BYNE V. MOORE [CHAP. V. 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 he, though the indictment was bad; a bad indictment serving aU the purposes of maUce, 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.* BYNE V. MOORE In the Common Pleas, November 13, 1813. Reported in 5 Taunton, 187.^ This was an action for a maUcious prosecution in indicting the plaintiff for an assault and battery. The only evidence on the part of the plaintiff being, that the biU was preferred and not found, Lord Chief Baron Macdonald who tried the cause, nonsuited him.' , 395; Mitchell v. Donanski, 28 R. I. 94; O'DriscoU v. McBumey, 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. Louis- ville R. Co., 167 Ala. 122; Hardin v. ffight, 106 Ark. 190; Chicago R. Co. v. Holliday, 80 Okl. 680; Olson v. Haggerty, 69 Wash. 48. Application for a warrant, none issu^, 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 valid- ity. 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). 1 Pippet V. Heam, 5 B. & Al. 634; Rutherford v. Dyer, 146 Ala. 665; Peterson V. Hoyt. 4 Alaska, 713; Harrington v. Tibbet, 143 Cal. 78; Streight v. BeU, 37 Ind. 550; Shaul v. Brown, 28 la. 37; BeU v. Keepers, 37 Kan. 64; Potter v. Gjertsen, 37 Minn. 386; Stocking ;;. Howard, 73 Mo. 25; Hackler v. Miller, 79 Neb. 209; Dennis v. Ryan, 65 N. Y. 385; Khne v. Shuler, 8 Ired. 484; Chicago R. Co. 0. Holliday, 30 Okl. 680; Ward v. Sutor, 70 Tex. 343; Strehlow v. Pettit, 96 Wis. 22; Mcintosh v. Wales, 21 Wyo. 397 Acccrrd. Alexander v. West, 6 Ga. App. 72 Contra. Prosecution under unconstitutional statute: Murten v. Garbe, 91 Neb. 439. Court without jurisdiction: Calhoun v. BeU, 136 La. 149. Compare Grorud v. Lossl, 48 Mont. 274. 2 1 Marsh. 12, s. c. ' The statement of the case has been taken from 1 Marsh. 12; the arguments of coimsel are omitted. CHAP, v.] STEWAKD V. GROMETT 625 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 biU 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. Chambee, J. It would be a very mischievous precedent if the action could be supported on this evidence. Rule discharged} STEWARD V. GROMETT In the Common Pleas, November 11, 1859. Reported in 7 Common Bench Reports, New Series, 191. Eele, C. J.^ 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 maUciously, and without reasonable or probable cause, pro- cure 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 ordinarj' 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 1 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 & LindseU, Torts, (5 ed.) 663. ' Only the opinion of Erle, C. J., is given. 626 STEWARD V. GEOMETT [CHAP. V. 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 prob- able 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 mali- ciously, and without reasonable or probable cause, an action Ues. So, if a party go to the Court of Queen's Bench, and mahciously exhibit articles of the peace against another, supported by a false oath that such other had used threats against him, his statement being iucontrovertible, it is clear to my mind that an action would lie. Can it make any difference that here the pro- ceeding took place before a magistrate ? It seems to me that the two proceed- ings 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 contra- dicted 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 deci- sion in his favor. In Bum'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 accoimted for by supposing that no one has entertained doubt enough upon it to take the opinion of any court. But as far as author- ity goes. The King v. Doherty, 13 East, 171, and Venafra v. Johnson, 10 Bing. 301, 3 M. & Sc. 807, are ia 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 ses- sions, whereas here the magistrate at once committed the plaintiff to jail until he should find the required sureties: and it was there decided by impHcation that the proceeding before the magistrate was incontrovertible; for, the court held that the judge was wrong ia 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 aU 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 -plainiif} 1 Hyde v. Greuch, 62 Md. 577; Pixley v. Reed, 26 Minn. 80 {sembk); Apgar v. Woolston, 43 N. J. Law, 57, 65 {sembk); 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). CHAP. V.J BKOWN V. RANDALL 627 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 ecclesiasti- cal court of the archdeaconery of Huntingdon. Demurrer to the declaration and cause assigned, that it was not stated how the prose- cution was disposed of, or that it was not stiU 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 re- cover in the action, and yet be afterwards convicted on the original prosecution. Judgment for the defendants} BROWN V. RANDALL Supreme Court, Connecticut, March Term, 1869. Reported in 36 Connecticut Reports, 56. Carpenter, J.- 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 magis- trate in due form, whereupon a warrant was issued, and the plaintiff arrested and held to answer the complaint. After remaining in cus- tody 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 1 Parker v. Langley, 10 Mod. 209; Whitworth v. Hall, 2 B. & Ad. 695; Mellor v. Baddeley, 2 O. & 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. Sonnebom, 98 U. S. 187: Steel v. Williams, 18 Ind. 161; West v. Hayes, 104 Ind. 251; Olson v. Neal, 63 la. 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. Ill- 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. SiiUivan, 42 App. D. C. 523 (amended or substitute information, altering the charge); Mistich v. CoUette, 136 La. 294 (second prosecution instituted after termination of first and still pending). 2 Everything is omitted, except the opinion of the court on the question of the termination of the prosecution. 628 BROWN V. RANDALL [CHAP. V. malicious and without probable cause, and the jury have found that allegation to be trtie. The important question in this case is whether, upon the facts alleged and proved, the plaintiff is entitled to recover. AU the material averments seem to have been proved except the allegation of acquit- tal. 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 coimtiy, justify this claim. It does not appear that this ques- tion has ever been directly determined by this covui;. We are referred to the case of Monroe v. Maples, 1 Root, 553. But no such question arose iu that case. It simply decided that a person convicted of the crime charged against hitn could not maintaia 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 iujury sustained by the plaintiff. 1 Swift's Digest, 491. The conviction of the plaintiff is justly con- sidered as conclusive evidence of probable cause. The authorities re- ferred 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 dis- regarded 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 pubhc, 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 wiU lay the foundation for CBJlP. V.J BROWN V. RANDALL 629 this action, and one of them is, " when the prosecution has been abandoned and given up." In Parker v. Farley, 10 Gush. 279, Shaw, C. J., in spealdng of the rule under consideration, says: " Were this a new and original ques- tion, 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 ac- cused, and without any request from him that it should be so aban- doned, 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.' 1 Cotton V. Wilson, Minor, 203; Hurgren v. Union Co., 141 Cal. 585: Chapman V. Woods, 6 Blackf . 504; Richter v. Koster, 45 Ind. 440; Co£fey v. Myers, 84 Ind. 105; KeUey t-. 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 (sembk); 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 (sembk); 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. SulMvan, 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 maUcious arrest or seizure of property in a civil action, a voluntary abandonment of the latter ac- tion by the plaintiff therein is equivalent to its termination in favor of his adver- sary. 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. Oilman, 24 LI. App. 65; Cardival v. Smith, 109 Mass. 158; Lud- wick 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 mahcious 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. WaUw. Toomey, 52Conii. 35; Marbourg w. Smith, 11 Kan. 554; Mitchell v. Sullivan, 30 Kan. 231. See also Wilson v. Hale, 178 Mass. Ill; Luby v. Bennett, 111 Wis. 613. But an abandonment of the previous proceeding, brought about as a com- promise, 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, 24 111. App. 65; Fadner v. Filer, 27 111. App. 506; Ruehl Brewing Co. v. Atlas Brewing Co., 187 111. 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; Gallaghers. Stoddard, 47 Hun, 101; Atwood v. Beime, 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. 630 FOSHAT V. FEKGUSON [CHAP. V. FOSHAY V. FERGUSON Supreme Court, New York, Mat, 1846. Reported in 2 Denio, 617. By the Court, Bronson, C. J.' There was evidence enough in the case to warrant the jury in finding, that the defendant set the prosecu- tion in motion from a bad motive. But all the books agree, that proof of express maUce is not enough, without showing also the want of probable cause. Probable cause has been defined, a reasonable groimd of suspicion, supported by circumstances sufficiently strong in them- selves 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 beheving 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 plaiatiff 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 beUef 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 pos- session, it was held that an action for maUcious 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 maUciously, and without probable cause, prociu-ing a third person to charge the plain- tiff 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 guQt or innocence of the accused; but upon the behef of the prosecutor concerning such guUt 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 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 Tejctbook Co., 156 la. 210. ' Only the opinion of the court is given. CHAP. V.J FOSHAY V. FERGUSON 631 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 pubhc, 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 maUcious feeling towards the plain- tiff, stiU 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 enter- tain that belief, there is no priaciple upon which the action can be supported. On a careful examination of the case, I am of opinion that the ver- dict 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} 1 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, 69 111. 376; Barrett V. Spaids, 70 111. 408; Leyenberger v. Paul, 12 111. App. 635; Morrell v. Martin, 17 ni. App. 336; Adams v. Lisher, 3 Blackf. 241; Green v. Cochran, 43 la. 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 u. 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. MiUigan, 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. 1. 609; Stod- dard 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. Suf- folk 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 catise, see Gulsby v. Louisville R. Co., 167 Ala. 122; Hanchey v. Brunson, 175 Ala. 236; Rvmo v. WiUiams; 162 Cal. 444; Redgate v. Southern R. Co., 24 Cal. App. 573; Mark v. Rich, 43 App. D. C. 182; Pianco v. Joseph, 188 111. App. 555; Schwartz v. Boswell, 156 IW. 103; IndianapoUs Trac- tion Co. V. Henby, 178 Ind. 239; Banken v. Locke, 136 La. 156; Chapman v. Nash, 121 Md. 608; Gilecki v, Dolemba, 189 Mich, 107; Cox v. Lauritsen, 126 Minn. 632 CLOON V. GEKRY [CHAP. V. CLOON V. GERRY SuPBEME Judicial Court, Massachusetts, June, 1859. Reported in 13 Gray, 201. Shaw, C. J.^ 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, Hes at the foimdation of the suit; and although it is in form a negative proposition, it is incumbent on the plaintiff to establish it by satisfac- tory 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, maUce may be inferred; but from maHce, 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 mahcious prosecution. Malice, and absence of any reasonable and probable cause, must also concur with an acquittal. In the pressent 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 ques- tion of reasonable and probable cause, when the facts are not con- tested, is a question of law. And when the plaintiff had been convicted by a tribunal, constituted by law, with authority to render a judg- ment, which, if not appealed from, would have been conclusive of his guilt, and such judgment is not impeached on the ground of fraud, 128; Lammers v. Mason,' 123 Minn. 204; Wilkerson v. McGhee, 163 Mo. App. 356, 153 Mo. App. 343; Humphries t;. 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. 1 Only the opinion of the court is given. CHAP. V.J CLOON V. GERRY 633 conspiracy or subornation in its procurement, although afterwards reversed on another trial, it constitutes sufficient proof that the prose- cution was not groundless, and to defeat an action for malicious pros- ecution. The cEise 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} ^ Coni'ktion reversed. — It is generally agreed that a conviction of the defend- ant in the criminal proceeding, although subsequently reversed, negatives the ab- sence 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., 254 111. 290; Dahlberg v. Grace, 178 HI. App. 97; Adams v. Bicknell, 126 Ind. 210; Moffatt V. Fisher, 47 la. 473; Bowman v. Brown, 52 la. 437; Olson v. Neal, 63 la. 214; Barber v. Scott, 92 la. 52; White v. International Text Book Co., 156 la. 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; SideUnger v. Trowbridge, 113 Me. 537; Whitney v. Peckham, 15 Mass. 243; Dennehey v. Woodsum, 100 Mass. 195, 197; Phillips r. 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 i. 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 ;'. Sprague, 23 R. I. 188; Memphis Co. v. WiUiamsonj 9 Heisk. 314; Saunders v. Baldwin, 112 Va. 431; Topolewski v. Plankinton Packing Co., 143 Wis. 52. Com- pare Carpenter v. Hood, 172 Mich. 533; Piatt 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 ia its procurement being inadmissible. Hartshorn v. Smith, 104 Ga. 235; Clements v. Odorless Co^ 67 Md. 461, 605 (Bryan, J., diss.); Parker D.Huntington, 7 Gray, 36; Griffis v. Sellars, 4Dev. &B. 176. In Virginia, on the contrary, a coimt 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 (overruhng 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 mima facie evidence of probable cause. Miller v. Chicago Co., 41 Fed. 898; Ewing V. Sanford, 19 Ala. 605; Price Mercantile Co. v. CuiUa, 100 Ark. 316; Ganea v. Southern Co., 51 Cal. 140; Diemer v. Herber, 75 Cal. 287; Ritchey v. Davis, 11 la. 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 fade evidence of probable cause. Garrard v. WiUet, 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 ongmal prosecution is m 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. Bart- 634 KAVENGA V. MACKINTOSH [CHAP. V. 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, Mackin- tosh acted truly and sincerely upon the faith of the opinion given by his professional adviser, actually beUeving that Ravenga was person- ally hable, and that he might be lawfully arrested, and that he (Mack- intosh) could recover in that action; but to find for the plaintiff, if they were of opinion that Mackintosh beheved 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.' ' The Attorney-General now moved for a new trial. Batlby, 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 fde upon the opinion given by that counsel (however erroneous that opinion may be), he is not hable to an action of this description.^ A party, how- lett, 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. Tanunany, 158 Pa. St. 545; McKenzie v. Canning, 42 Utah, 629 (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. Huntmgton Loan Co., 70 W. Va. 688; Wmn 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 Coim. 493; Plummer v. Collins, 1 Boyce, 281; Skidmore v. Bricker, 77 lU. 164; Bitting V. Ten Eyck, 82 Ind. 421; Prine v. Singer Machine Co., 176 Mich. 300; WLUiams v. Vanmeter, 8 Mo. 339; Boeger v. Langenberg, 97 Mo. 390; Eckerle v. Higgins, 159 Mo. App. 177 (distinguishmg 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. 1 The statement of the evidence, the argument for the defendant, and the con- curring opinion of Holeoyd, J., are omitted. 2 Snow V. AEen, 1 Stark. 502; Abrath v. North Eastern Co., 11 Q. B. Div. 440, 11 App. Caa. 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. Goshom, 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. CHAP. V.J RAVENGA /'. MACKINTOSH 635 ever, 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, beheving 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 beheve that he had any cause of action whatever. Assuming that the defendant's behef that he had a cause of action would amount to a probable cause, stUl, 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} Rich, 43 App. D. C. 182; Joiner v. Ocean Co., 86 Ga. 238; Baker v. Langley, 3 Ga. App. 751; Ross v. Innis, 26 111. 259; Ames v. Snider, 69 111. 376; Barrett v. Spaids, 70 HI. 408; BrowB v. Smith, 83 lU. 291; Roy v. Goings, 112 111. 656; Aldridge v. ChiirchiU, 28 Ind. 62; Paddock v. Watts, 116 Ind. 146; Adams v. Bicknell, 126 Lad. 210; Mesherw. Iddings, 72 la. 653; Schippelt). 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. 2S2; Hyde v. Greuch, 62 Md. 577; Torsch v. DeU, 88 Md. 459; Stone v. Swift, 4 Pick. 389; Monaghan v. Cox, 155 Mass. 487; Stanton v. Hart, 27 Mich. 539; Perry !'. Sulier, 92 Mich. 72; Moore v. Northern Co., 37 Minn. 147; Boyd v. MendenhaU, 53 Minn. 274; Alexander v. Harrison, 38 Mo. 258; Biirris v. North, 64 Mo. 426; 'RTiitfield v. Westbrook, 40 Miss. 311; Grorud v. LossI, 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 Hmi, 465; Beal v. Robeson, 8 Ired. 276; Ash v. Maxlow, 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. Johns- bury 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. McCon- nell, 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. Glyim, (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 lajmaan. Murphy v. Larson, 77 HI. 172; McCuUough v. Rice, 59 Ind. 580; Ohnstead 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. Yovmg, 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. McConneU, 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 ad- vice 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 beenso glaringly perverted in behalf of injustice. See Singer Machine Co. v. Dyer, 156 Ky. 156. 1 Vann v. McCreary, 77 Cal. 434; Boyd v. MendenhaU, 53 Minn. 274; Acton v. Coffman 74 la 17; Johnson i;. Miller, 82 la. 693; Sharpen. 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 unfair statement to counsel. Fowlkes v. Lewis, 10 Ala. App. 543; Rothschach v, Diven, 97 Kan. 38; Indianapolis Traction Co. v. Henby, 636 MITCHELL V. JENKINS [CHAP. V. MITCHELL V. JENKINS In the King's Bench, November 11, 1833. Reported in 5 BamewaU & Adolphiis, 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 5s. 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 5s. 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 aU of mahce 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 imphed mahce; 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, calhng on the plaintiff to show cause why that verdict should not be set aside, and a new trial had; ^ 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 rea- sonable or probable cause, though with an entire absence of mahce, the party arresting may be deprived of his costs, and at common law, if the party arrested has suffered damage to a greatei; extent than those costs, he may, if the arrest was also made maUciously, bring his action on the case. In that action, however, it is still incumbent on the plaintiff to allege and to prove mahce 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 mahce or not. I have always understood the question of reasonable or probable cause on the facts found to be a question for the opinion 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. Miist slate facts which wight have been ascertained with reason/Me diligence. Weddington v. White, 148 Ky. 671; Virtue v. Creamery Mfg. Co., 123 Minn. 17; Duffy w. Scheerger, 91 Neb. 511. Contra — enough to make fuU and fair disclosure of known facts, Roby v. Smith, 40 Okl. 280. 1 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. CHAP, v.] MITCHELL V. JENKINS 637 of the court, and malice to be altogether a question for the jury.^ Here, the question of maUce having been wholly withdrawn from the con- sideration 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 maUce. I have always under- stood, 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 prosecu- tion or arrest, the plaintiff must prove what is averred in the declara- tion, 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 mahce 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 maUcious. 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 mahcious; 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 "mahce" in this form of action is not to be considered in the sense of epite or hatred against an indi- vidual, but of maliis animus, and as denoting that the party is actu- » 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. Sonnebom, 98 U. S. 187; Brown v. Self- ridge, 224 U. S. 189; Sanders v. Palmer, 55 Fed. 217; Staunton v. Goshorn, 94 Fed. 52; Gulsby v. LouisviUe R. Co., 167 Ala. 122; Louisville R. Co. v. Stephen- son, 6 Ala. App. 578; BaU v. Rawles, 93 Cal. 222; Johnson v. Southern R. Co., 157 Cal. 333; Smithw. King, 62 Conn. 515; Carroll w. Perry, 43 App. D. C. 363; Boyd V. Mendenhall, 53 Minn. 274; Helwig v. Beckner, 149 Ind. 131 ; IndianapoHs Trac- tion Co. V. Henby, 178 Ind. 239; Lawrence v. Leathers, 31 Ind. App. 414; Hender- son 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; Camp- bell 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. PuUman 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 l'; 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; Coopern. Flemming, 114Tenn. 40; Landaw. Obert, 45Tex. 539; Finigan V Sullivan, 65 Wash. 625; Bailey v. Gollehon, 76 W. Va. 322 Accord. But see Wilson V. Thurlow, 156 la. 656; Griffin v. Dearborn, 210 Mass. 308. 638 MITCHELL V. JENKINS [CHAP. V. ated by improper and indirect motives.^ That would not be the case where, there being an unsettled account, with items on both sides, one of the parties, beheving bona fide that a certain sum was due to him, arrested his debtor for that sum, though it afterwards appeared that a less sxim 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 maKce having in this case been whoUy with- drawn from the jury, I think the rule for a new trial must be made absolute. Rule absolute.' 1 Abrath ;;. 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; Hanxmond v. Rowley, 86 Conn. 6; Coleman v. Allen, 79 Ga. 637; South Western Co. u. Mitchell, 80 Ga. 438; Stewart v. Mulligan, 11 Ga. App. 660; McEhoy v. Catholic Press Co., 254 lU. 290; White v. International Text Book Co., 156 la. 210; Foltz v. Buck, 89 Kan. 381; Metrop. Co. v. MiUer, 114 Ky. 754; Pullen v. GUdden, 66 Me. 202; Wills V. Noyes, 12 Pick. 324; Mitchell v. Wall, 111 Mass. 492; Ross ;;. Lang- worthy, 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 maUcious 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 mali- cious spirit, that is, an indirect and improper motive, and not in furtherance of jus- tice." See also especially Pullen v. Ghdden, and Johnson v. Ebberts, cited supra in this note; Magowan v. Rickey, 64 N. J. Law, 402; Peterson v. Reisdorph, 49 Neb. 529; Nobb D. White, 103 la. 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. 2 Farmer v. Darling, 4 Burr. 1971; Busst v. Gibbons, 30 L. J. Ex. n. s. 75; Coulter V. DubUn Co., 60 L. T. 180; Hicks v. Faulkner, 46 L. T. Rep. 127 (affirm- ing s. c. 8 Q. B. D. 167); Wheeler v. Nesbitt, 24 How. 544; Stewart v. Sonnehom, 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 d. Brannan, 39Cal. 485; Harkraderw. Moore, 44 Cal. 144; Porter V. White, 5 Mackey, 180; Harpham v. Whitney, 77 lU. 32; Krug v. Ward, 77 111. 603; Boyd v. Mendenhall, 53 Minn. 274; Frankfurter v. Bryan, 12 HI. App. 549; Gardiner v. Mays, 24 HI. App. 286; Newell v. Downs, 8 Blackf. 523; OUver v. Pate, 43 Ind. 132; Ritchey v. Davis, 11 la. 124; Atchison Co. u. Watson, 37 Kan. 773; Gourgues v. Howard, 27 La. Ann. 339; Humphries v. Parker, 52 Me. 502; Med- calfe V. Brooklyn Co., 45 Md. 198; MitcheU v. Wa.11', 111 Mass. 492- Bartlett v. Hawley, 38 Mmn. 308; Greenwade v. Mills, 31 Miss. 464; Sharpe v. Johnston, 59 Mo. 557; Finley v. St. Louis Co., 99 Mo. 559; March i;.' Vandiver, 181 Mo. App. 281; McKown v. Hunter, 30 N. Y. 625; Famam 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. Ciilver, 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; CampbeU 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, CHAP. V.J HADDRICK V. HESLOP 639 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 with- out 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 groimds 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 beUeved that there was reasonable ground for indicting, and whether he had indicted from malice. The jury answered that Heslop did not so beUeve; and, as to the malice, they said that they thought that the word " maUce " 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 maUce 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.^ First: the question of the defendant's behef ought not to have been left to the jury. It is for the judge to decide whether there was reason- able 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 proba- bility. But behef is not such a fact: it is material as to the maUce, 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 behef 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 foimd 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 ques- tions that the belief of the party is material. ' The statement of facts and the argument for the defendant are abridged; the concurring opinions of Coleridge, Wightman, and Erie, JJ., are omitted. 640 HADDRICK V. HESLOP [CHAP. V. Next: the jury were misdirected as to malice. The mere fact that the defendant had an indirect motive, however improper, in institut- ing the prosecution does not show malice. The malice required in this action is express mahce in fact, not mere mahce in law. In the judg- ment of Lords Mansfield and Loughborough, in Johnstone v. Sutton,' it is said: ^ " From the want of probable cause, mahce may be, and most commonly is, imphed. The knowledge of the defendant is also impUed." The jury ought therefore to have been told that the indirect motive was quite consistent with absence of mahce, unless the defend- ant knew (not simply beUeved) that there was no probable cause, or unless there was some evidence of express mahce 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 Maiile, upheld afterwards in the Common Pleas,' to the effect that reasonable and probable cause cannot exist without behef . There may possibly be some difficulty in distinguish- ing the case last mentioned from some others : but I think that beUef is essential to the existence of reasonable and probable cause: I do not mean abstract behef, but a behef upon which a party acts. Where there is no such behef, to hold that the party had reasonable and prob- able cause would be destructive of common sense.'* Proof of the absence of behef is almost always involved in the proof of mahce. In Turner v. V^bler there was no point directly made at the trial as to want of behef: the only question was whether the facts of themselves bore out the probabihty and reasonableness. But, where a plaintiff takes upon himself to prove that, assuming the facts to be as the de- fendant contends, still the defendant did not beheve them, we ought • 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.). 2 1 T. R. 545. s 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. (Re- porter's note.) * 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 la. 613; Humphries v. Parker, 52 Me. 502, 505; Mitchell v. Wall, 111 Mass. 492; Bart- lett V. Hawley, 38 Minn. 308; Peck v. Chouteau, 91 Mo. 138; Chicago Co. v. Kriski, 30 Neb. 215; Howard v. Thompson, 21 Wend. 319; Burhngame v. Burhngame, 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; Chft v. Birmingham, 4 W. Aust. L. R. 20 Accord CHAP, v.] VANDERBILT V. MATHIS 641 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 faU. 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.^ — To maintain an action for mali- cious 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. Mahce. 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 fade evidence of the want of probable cause. Gorton v. De Angehs, 6 Wend. 418. It is equally essential, that the former prosecution should appear to have been maUciously 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 mahce, other evidence, in sup- port 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 pubUcation, are properly ad- mitted to prove mahce. Such evidence must be given as wiU justify a jmy in finding the existence of mahce. The rule is imiformly stated, that, to maintain an action, for a former prosecution, it must be shown to have been without probable cause, and mahcious. 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 fade, that there was no probable cause for the arrest, and shifted the burden of proof from 1 Only the opinion of the court is given. 642 VANDERBILT V. MATHIS [CHAP. V. 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 maHce, 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 beUeved, from the evidence, that, in making the complaint, the defendant acted from malicious motives." This the judge decHned 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 maUce, yet we understand the rule to be, that when it is a just and proper infer- ence 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 sup- posed 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 mahcious 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 ac- tion 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 mahcious." If the charge mast be imderstood to mean, that if the want of prob- able cause was established, the plaintiff was entitled to recover, al- though the jury should believe, from the whole evidence, that, in making the complaint, the defendant did not act from mahcious mo- tives, then we deem it to be erroneous. This construction is the only one, of which the language of the instruction appears to be susceptible; CHAP, v.] VANDERBILT V. MATHI8 643 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 insti- tuted in an honest behef of the plaintiff's guUt, and with no other motives than to bring a supposed offender to justice. The question of mahce 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 deter- mination of a jury, whether the defendant was actuated by mahce. If the whole evidence is such, that a jury cannot properly doubt the honesty and purity of the motive which induced the former prosecu- tion, 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 mahce, 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.^ 1 Brown v. Hawkes, [1891] 2 Q. B. 718; Grant v. Book, 25 Nova Scotia, 266 Accord. Malice may be inferred from want of prohable cause. Hanchey v. Brunson, 175 Ala. 236; Hawkins v. Collms, 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; Stew- art V. Mulligan, 11 Ga. App. 660; HoUiday v. Coleman, 12 Ga. App. 779; McElroy V. Catholic Press Co., 254 111. 290; Pontius v. Kimball, 56 Ind. App. 144; Singer Machine Co. v. Dyer, 156 Ky. 156; Mertens v. MueUer, 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; GaUey v. Brennan, 156 App. Div. 443; KeUogg v. Ford, 70 Or. 213; Cole V. Reece, 47 Pa. Super. Ct. 212; Keener v. Jeffries, 54 Pa. Super. Ct. 553; Tuf- shinsky v. Pittsburgh R. Co., 61 Pa. Super. Ct. 121 ; Petty v. Huntington Loan Co., 70 W. Va. 688. It is not a necessary inference. Hanowitz v. Great Northern R. Co., 122 Mmn. 241; Smith v. Glynn, (Mo.) 144 S. W. 149; Chicago R. Co. v. HoUiday, 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, 76 Wash. 534. Want of •probable cause is not to he 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., 254 111. 290; Shadden v. Butler, 164 la. 1; Hudson v. Nolen, 142 Ky. 824; Chapman v. Nash, 121 Md. 608; Griffin v. Dear- bom, 210 Mass. 308; Callahan v. Kelso, 170 Mo. App. 338; Motsinger v. Sink, 168 N. C. 648; 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, 60 Pa, Super. Ct. 289. 644 CHAPMAN V. PICKERSGILL [CHAP. V. MACK V. SHARP Supreme Court, Michigan, December 14, 1904. Bevorted in 138 Michigan Reports, 448. Montgomery, J.^ The court also ruled throughout the case that in this action the defendant was not at hberty to prove that the plaintiff was ia fact guilty of the criminal offence imputed to him in the prose- cution instituted by the defendant. It is well established by authority that in an action for mahcious 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 fur- nished 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 con- tent with his good luck, and not belabor one who suspected his gmlt and acted accordingly. As was said ia Newton v. Weaver, 13 R. I. 617: — " The action for mahcious 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 mahcious 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. MasteUer, 57 Iowa, 478; Turner v. Dmne- gar, 20 Hun, 465; Lancaster v. AIcKay, 103 Ky. 616. The jvdgment is reversed, and a new trial ordered. The other Justices couQurred.^ CHAPMAN V. PICKERSGILL In the Common Pleas, Michaelmas Term, 1762. Reported in 2 Wilson, 145. Action upon the case for falsely and mahciously suing out a com- mission of bankrupt against the plaintiff, who declared upon three counts; in the first, having stated his honesty, he alleges that the de- ' Only a portion of the opinion is given. 2 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 la. 651; Parkhurst v. MasteUer, 57 la. 474; White v. International Text Book Ck)., 156 la. 210; Lancaster v. McKay, 103 Ky. 616, 624; Bacon v. Towne, 4 Cush. 217, 241; Threefoot t). Nuckols, 68 Miss. 116; Morris «. Corson, 7 Cow. 281 ; Turner ». Dinnegar, 20 Hun, 465; BeU 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. CHAP, v.] CHAPMAN V. PICKEKSGILL 645 fendant 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 Ser- jeant 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 wiU not he, 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 main- tainable.^ The general grounds of this action are, that the oommission was falsely and maUciously sued out, that the plaintiff has been greatly damaged thereby, scandalized upon record, and put to great charges in obtaining a supersedeas to the conmiission; here is falsehood and mahce 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 maUcious prosecution, it is most reasonable he should have an action to repair himseff. 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. Bul- wer's case, 1. 2 Leon. 1 Ro. Abr. 101; 1 Ven. 86; 1 Sid. 464. 1 Watson V. Norbury, Sty. 3, 201; Brown v. Chapman, 1 W. Bl. 427; Cotton v. James, 1 B. & Ad. 128; WMtworth v. HaU, 2 B. & Ad. 695; Hay v. WeaUey, 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; Carle- ton V. Taylor, 50 Vt. 220 {semble) Accord. S imil arly an action will lie without proof of special damage for a maUcious 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 suspemsion 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. 646 TOMLINSON V. WAENEK [CHAP. V. 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 con- fined, for there is nothing in nature but may be an instnunent 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 there- fore this action wiU not he; 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 inade- quate and uncertain remedy; for though there be the most outrageous mahce and perjmy, and the party injured suffer to the amoimt of ten or twenty thousand poimds, 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 fm^her 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 groimd and substance of the declaration is falsehood and mahce; 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 plaintifif has no occasion to aver he is not a thief, and this case is analogous; for after the plain- tiff has alleged that the commission was false and maUcious, 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 Cotibt, Ohio, December, 1839. Reported in 9 Ohio Re-ports, 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 CIL\P. V.J TOMLINSON V. WABNER 647 plaintiffs had not absconded, but contriving and maliciously intending wrong- fully 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 there- upon 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.' By the Court, Wood, J. The only question presented in this motion, is, do the facts set forth ia the declaration constitute a legal cause of action, pro- ^•ided 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 " -R-iUingly and wittingly " wrong any defendant by prosecuting any ac- tion against h im vdth intent wrongfully to trouble and vex him, such plaintiff shall pay treble damages for the first offence, be hable to a fine for the second, and for the third, ma}' 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 weU settled, that no action will lie for a maH- cious 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 suffi- cient compensation for the injury, however maUcious. 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 maKcious intention to injure, the action lay for a malicious arrest. 1 Saund. R. 228. The action for a maKcious prosecution, which technically only applies to cases of malicious prosecution of criminal complaints, hes 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. Hav- ing 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 attach- ment, 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 prob- able cause for the writ, and the false affirmation of either fact, knowingly, as a means of procuring the writ, shows express mahce, 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 he against both plaintifif and defendant, for fraudulently setting up the judg- ment as unsatisfied, when in fact paid, and causing an execution and sale of ' The arguments of counsel are omitted. 648 TOMLINSON V. WAKNER [CHAP. V. 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 ex- pense to the plaintiff, this action hes." The general rule is, that for every injury the law gives redress; and it would be a reproach to the administra- tion 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 techni- cahties 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 wUl not be astute to avoid, but rather seek ground to sustain an ac- tion. 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 fade cause of action, and cause for opening up the nonsuit. New trial granted} • Malicious arrest on civil process. Stribler v. Jones, 1 Lev. 276; Daw v. Swain, 1 Sid. 424; Parker v. Landey, 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 {senible) ; 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; HamUburgh 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 hail. Steer v. Scoble, Cro. Jac. 667; Berry v. Adamson, 6 B. & C. 528; SmaU 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. HaseH, 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 III. 68; Spaids v. Barrett, 57 111. 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; Martm v. Rexford, 170 N. C. 540. Malicious issue of an injunction. Muncei). Black, 7 Ir. C. L. R. 475; McFar- lane v. Garrett, 3 Pennewill, 36; Landis v. Wolf, 206 EI. 392; Krzyszke v. Kamm, 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; WiUiams 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 i;. Evered, 17 Q. B. Div. 338; Lea v. Charrington, 23 Q. B. Div. 45; Uttmg v. Bemey, 5 T. L. Rep. 39. 6 . vi CHAP, v.] WETMORE V. MELLINGER 649 WETjNIORE v. MELLINGER Supreme Court, Iowa, April 9, 1884. Reported in 64 Iowa Reports, 741. Beck, J.^ 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 repre- senting to defendants, under the assumed name of Baker, that they were the owners of certain lands in Poweshiek County, which defend- ants were induced to purchase of plaintiff and his wife, who, in such assiimed 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 hereia and his wife well knew the condition of their title, and representing that they were the owners thereof, for the pur- pose 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 de- fendants 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 simi at the time their action was brought against him; that he was not giulty of the frauds therein charged, and that the action was commenced and prosecuted by de- fendants maKciously 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 weU established by the great preponder- ance of authority that no action wiU lie for the institution and prose- cution 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 neces- sarily result in all suits prosecuted to recover for Kke 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, 27 111. 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.) * Only the opinion of the court on this point is given. 650 WETMORE V. MELLINGER [CHAP, V. This doctrine is supported by the following considerations: The courts are open and free to aU who have grievances and seek remedies therefor, and there should be no restraint upon a suitor, through fear of habihty 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 mahce and the want of probable cause. If an action may be maintained agaiast a plaintiff for the mahcious prosecution of a suit without probable cause, why should not a right of action accrue agaiast a defendant who defends without probable cause and with mahce ? The doctrine surely tends to discourage vexatious htigation, 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 de- fendant, the same results foUow all actions of like character, whether they be meritorious, or prosecuted maliciously and without probable cause. They are incidents of litigation. But ff an action is so prose- cuted as to entail imusual hardship upon the defendant, and subject him to special loss of property or of reputation, he ought to be com- pensated. 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 spe- cial 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 mahciously prosecuted, cite Green v. Cochran, 43 Iowa, 544, and Moffatt et at. 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 hen 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} ' Savile v. Roberts, 1 Ld. Ray. 374; Purton v. Honnor, 1 B. & P. 2G5; 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 CHAP, v.] FLIGHT V. LEMAN 651 FLIGHT V. LEMAN ' In the Queen's Bench, June 9, 1843. Re-ported in 4 Queen's Bench Reports, 883. Case . The second count of the declaration alleged that the defendant here- tofore, to wit 1st January, 1838, and on divers &c. between that day and 22d November, 1838, contriving and maliciously intending to injure, harass and danmif y plaintiff, and to put him to great vexation, unlawfully and mali- ciously 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, procure- ment, 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 Co., 75 Ga. 398 (but see Slater v. Kimbro, 91 Ga. 217) ; Smith v. Mich. Co., 175 111. 619; Bonney v. King, 201 lU. 47; McCormiok v. Weber, 187 lU. App. 290; Smith V. Hintrager, 67 la. 109; Cattle Co. i\ Nat. Bank, 127 la. 153, 158; White v. Inter- national Text Book Co., 156 la. 310; Cade v. Yocum, 8 La. Ann. 477; McNamee V. Mink, 49 Md. 122; Sup. Lodge v. Unverzagt, 76 Md. 104 (see Clements v. Odor- less 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 t'. Davis, 114 N. C. 31; Carpenter v. Hanes, 167 N. C. 551; Cineirmati Co. V. Bruck, 61 Ohio St. 489 (explainmg 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. Thome, 34 Wash. 692; Luby v. Bennett, 111 Wis. 613 (semble); Cross v. Comm. Agency, 18 N. Zeal. L. R. 153 Accord. Bumap V. Albert, Taney, 244; Cooper v. Armour, 42 Fed 215, 217; Wade v. Nat. Bank, 114 Fed. 377; Eastm 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 lU. App. 666 (semble); Locke- nour 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. FinneU, 13 Bush. 628; Johnson v. Meyer, 36 La. Ann. 333 (semble); AHent; Codman, 139 Mass. 136 (sembfe) ; Wilson w. Hale, 178 Mass. Ill; Brandy. Hinchman, 68 Mich. 590; AntcM v. June, 81 Mich. 477; McPherson v. Runyon, 41 Minn 524" O'Neills. .lohnson, 53 Minn. 439; Eickhoffy. Fidelity Co., 74 Minn. 139- Virtue v. Creamerj' Mfg. Co., 123 Minn. 17; Brown ;;. City, 90 Mo. 377 (semble); Smith v. Burrus, 106 Mo. 94; McCormick Co. v. WiUan, 63 Neb. 391; Pangburn v. Bull, 1 Wend. 345; Dempsey v. Lapp, 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 Eastm v Stockton Bank, supra, the court said: "The EngUsh 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. ... , , . , » ^t. a- c i j.u " Two other objections made to the mamtenance of the action, — trst, the claim that if such suits are allowed, litigation will become interminable, because 652 FLIGHT V. LEMAN [CHAP. V. 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 con- sidered, 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 de- fendant in the said last-mentioned action as aforesaid. Whereby the now plaintiff was not only put to great trouble and vexation, but was also obUged 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.^ Lord Denman, C. J. The case of Pechell v. Watson, 8 M. & W. 691, pro- ceeded 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 aU 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 maUcious prosecution or arrest; and here, as there, the want of reasonable or probable cause ought to be alleged. every successful action will be followed by another, alleging malice in the prosecu- tion of the former; and second, that if the defendant may sue for damages sus- tained by an unfounded prosecution, tlie 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 he for an unsuccessful prosecution, unless begun and carried on with maUce and without probable cause. With the burden of this difficult proof upon him, the litigant wiU need a very clear case before he wiU be willing to begin a suit of this character. The second argument faUs 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 groundles.sly and mahciously 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 coiui; (Appellate Term, First De- partment) says: " It clearly appears that the complaint does not state facts suffi- cient to constitute a cause of action for abuse of process, nor are the allegations sufficient to support an action for maUcious 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 HI. 446; Savage v. Brewer, 16 Pick. 453; Paul v. Fargo. 84 App. Div. 9; Sommer v. Wilt, 4 S. & R. 19. » The averments of the count are abridged and the arguments of counsel are omitted. CHAP, v.] GRAINGER V. HILL 653 Williams, J. The averments in tliis 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 FUght." Xo 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 in- stigation and a stirring-up. There should be added to these, in strict analogy with actions for maUcious prosecution or arrest, as my Brother Patteson has pointed out, an averment of want of reasonable or probable cause: and with- out such averment this declaration shows no right of action. Judgment for defendant} GRAINGER v. HILL In the Coiiiiox Pleas, Januabt 20, 1838. Reported in 4 Bingham, New Cases, 212. Testdal, C. J.- 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 stipu- lation 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 be- fore 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 pro- vide bail, arrested him under a capias, indorsed to levy £95, 17s. 6d., and kept him imprisoned, untU, 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. ^ Fivaz V. NichoDs, 2 C. B. 501, 514 (semble); Grove v. Brandenburg, 7 Blackf. 234 Accord. " PecheU v. Watson came to be considered in FMght v. Leman. Its authority was recognized, but the latter case was decided against the plain tift, who sued for main- tenance, on the groimd, I own I should have thought the narrow ground, that to in- stigate 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, 424rA43. Compare Metropolitan Bank v. Pooley, 10 App. Cas. 210, 217-218. 2 Only the opinion of the Chief Justice upon the point of abuse of legal process is given. 654 GRAINGER V. HILL [CHAP, V. 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 anwser 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 maUcious arrest or maUcious 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 enjoiaed by the writ. If the coiu-se 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 com- plaint being that the process of the law has been abused, to effect an object not withia 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.' ' Heywood v. Collinge, 9 A. & E. 268; King v. Yarbray, 136 Ga. 212; Wicker v. Hotchkiss, 62 111. 107 {sewhle); Emery v. Ginnan, 24 111. App. 65 (semble); White- sell V. Study, 37 Ind. App. 429 (semble); Page v. Gushing, 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; Plough 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 w. Wum, 142 Ga. 138; Wright D.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. HiU, 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 mahcious use and a maUcious 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 m 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 thai? in an action for such malicious abuse it is not necessary to prove that the action in which CHAP, v.] BOND V. CHAPIN 655 BOND V. CHAPIN Supreme Judicial Court, Massachusetts, September, 1844. Reported in 8 Metcalf, 31. HuBBAED, J.i 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 excep- tions) 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 Xo-vember 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 with- out 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 hberty 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 the process issued has been determined, or to aver that it was sued out without rea- sonable or probable cause: Grainger v. HiU, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the pro- ceeding itself was baseless or otherwise. We know that the law is good, but only if a man vise it lawfully. " On the other hand, legal process, civil or criminal, may be mahciously 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 maUce 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 prob- able cause. It is clearly settled also, that the proceeding must be determined finally before any action hes for the injury; because, as it is said in ArundeU v. Tregono, Yelv. 117, the plaintiff wiU clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be con- trary and inconsistent." To proceed unfairly and oppressively but without seeking to compel another to do what he is not obhged to do, e. %., 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. 1 Only the opinion of the court is given. 656 BOND V. CHAPIN [CHAP. V. such case, though the party supposed he had authority, and acted upon that supposition, without malice, stOl 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 mahcious 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 mahce must concur with the want of authority to com- mence the suit in the name of a third person, to enable the plaintiff to main- tain the action, we think there was error in the instruction, and that though the damages might be enhanced by showing mahce and a want of probable cause, yet that the proof of them is not essential to the maintenance of the action. New trial granted} ' Y. B. 7 Hen. VI. 43; 1 RoU. Ab. 101, pi. 1, s. c; HoUiday v. Sterling, 62 Mo. 321 Accord. CHAPTER VI DEFAMATION CLUTTERBUCK v. CHAFFERS At Nisi Prtus, coram Lord Ellenborough, C. J., December 14, 1816. Reported in 1 Starhie, 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 deUv- ered to him folded up, but vmsealed, and that without reading it, or allowing any other person to read it, he had dehvered it to the plain- tiff 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,^ since a publication to the party himself tends to a breach of the peace. Verdict for the defendant? ' Edwards v. Wooton, 12 Rep. 35; Peacock v. Raynell, 2 Brownl. 151; Barrow V. Lewellin, Hob. 152; ffick's Case, Hob. 375; Rex v. Burdett, 4 B. & Aid. 95 Accwd. 2 Phillips V. Jansen, 2 Esp. 624; Ward v. Smith, 4 Car. & P. 302; Sharp v. Skues, (C. A.) 25 T. L. Rep. 336; Wamock v. MitoheU, 43 Fed. 428; Western Co. V. Cashman, 149 Fed. 367; Spaits v. Poundstone, 87 Ind. 522; Yousling v. Dare, 122 la. 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; GambrUI 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. Hohnan, 2 Hall, 172; Prescott v. Tousey, 50 N. Y. Super. Ct. 12; Shepard v. Lamphier, 84 Misc. 498; FonvUle v. McNease, Dudley, 303; State v. Syphrett, 27 S. C. 29; Fry v. McCord, 95 Tenn. 678; Sylvis V. MiUer, 96 Tenn. 94; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accwd. See Ahem 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. 657 658 SNYDER V. ANDREWS [CHAP. VI. SNYDER V. ANDREWS Supreme Coukt, 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.' 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 Ubel, 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 groimd that a publication of the hbel had not been proved. The judge denied the motion. The jury found a verdict for the plaintiff of $250. And the defend- ant, 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 pubhcation of the Hbel. 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 hbellous matter, if communicated to no one but to the party hbelled, is not the founda- tion for a civQ action, although it may be of an indictment. Lyle v. Clason, 1 Caines, 581; Hodges v. The State, 5 Humphrey, 112; 1 Wms. Saimd. 132, n. 2; Phillips v. Jansen, 2 Esp. 626; 2 Starkieon 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 Hbellous letter and directed it to the plaintiff and his clerk received and read it, it was held there was a sufficient pubUca- tion to support the action. Delacroix v. Thevenot, 2 Stark. 63. And in Schenck v. Schenck, 1 Spencer, 208, a sealed letter addressed and deHvered to the wife containing a Hbel on her husband was held a pubhcation sufficient to enable the latter to sustaia an action.^ Read- iag or singing the contents of a Hbel in the presence of others has been 1 Part of the case, not relating to publication, is omitted. 2 Wenman v. Ash, 13 C. B. 836; Jones v. Williams, 1 T. L. Rep. 572; Sesler v. Montgomery, 78 Cal. 486, 489 (semble); Luiok v. Driscoll, 13 Ind. App. 279; Wil- cox 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 publica- tion. Wennhak v. Morgan, 20 Q. B. D. 635; Sesler v. Montgomery, 78 Cal. 486; Trumbull v. Gibbons, 3 City H. Reo. 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 Joum. 406 (defamatory matter uttered to business partner in course of CHAP. VI. 3 SHEFFILL V. VAN DEUSEN 659 adjudged a publication. 2 Starkie on Slander, 16; 5 Rep. 125; 9 Id. 59 6; 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} DELACROIX V. THEVENOT At Nisi Peius, 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 beheved 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.^ SHEFFILL V. VAN DEUSEN Supreme Judicial Court, Massachusetts, September Term, 1859. Rejported in 13 Gray, 304. Action of tort for slander. BiGELOW, J.' Proof of the pubUcation 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 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. 1 M'Coombs V. Tuttle, 5 Blackf. 431; Van Cleef v. Lawrence, 2 City H. Rec. 41 Accord. T, ™- ^ T 2 Wyatt V. Gore, Holt, 299; Wenman v. Ash, 13 C. B. 836; Kiene v. Ruff, 1 la. 482; AUen v. Wortham, 89 Ky. 485; Rumney v. Worthley, 186 Mass. 144; Schenck V. Schenck, Spencer, 208; State v. Mclntire, 115 N. C. 769; WUcox v. Moon, 64 Vt. 540; Adams v. Lawson, 17 Gratt. 250 Accord. See Fox v. Broderick, 14 Ir. C. L. R. 453; CaUan u. Gaylord, 3 Watts, 321. Slarvdermis statements to -plaintiff in presence oj his counsel, Massee v. WiUiams, 207 Fed. 222. ^, ^.^ ., , ^ Sending libellous letter to plaintiff's attorney. Brown v. Elm City Lumber Co., 167 N. C. 9. 3 Only the opinion of the court is given. 660 SHEFFILL V. VAN DEUSEN [CHAP. VI. 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 con- stitutes the material element in an action for verbal slander. Even in a civil action for Ubel, evidence that the defendant wrote and sent a sealed letter to the plaintiff, containing defamatory matter, was held insufficient proof of pubhcation; 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 for- eign language, which no one present understood, no action wiU He therefor.i Edwards v. Wooton, 12 Co. 35; Hick's Case, Pop. 139, Hob. 215; Wheeler & Appleton's Case, Godb. 340; PhiUips v. Jan- sen, 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.^ 1 Jones V. Davers, Cro. Eliz. 496; Price v. JenMngs, Cro. EUz. 865; Amarin v. Damm, 8 C. B. n. s. 597; Kiene v. Ruff, 1 la. 42; Hurtert v. Weines, 27 la. 134; Mielenz v. Quasdorf, 68 la. 726; Economopoulos v. A. G. PoUard Co., 218 Mass. 294; Wormouth v. Cramer, 3 Wend. 394 Accord. See Bechtell v. Shatler, Wright, (Ohio) 107. Conf. Anon., Moore, 182; Gibs v. Jenkins, Hob. 335; Zenobio v. Axtell, 6 T. R. 162; Jenkins v. PWlUps, 9 Car. & P. 766; Hickley v. Grosjean, 6 Blackf. 351; Keenholts v. Becker, 3 Den. 346; Ra- hauser 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. 2 Anon., Sty. 70; Force v. Warren, 15 C. B. n. s. 806; Desmond v. Brown, 33 la. 13; Marble v. Chapin, 132 Mass. 225, 226; Cameron v. Cameron, 162 Mo. App. 110; Traylor v. White, 185 Mo. App. 325; Broderiok v. James, 3 Daly, 481 Accord. Mailing of post card. Three views have been expressed as to whether the mail- ing of a post card is a publication. (1) The mailing is a pubhcation. Sadgrove v. Hole, [1901] 2 K. B. 1, 4, 5 (aemhle) ; Logan V. Hodges, 146 N. C. 38; Spence v. Burt, 18 Lane. L. Rev. 251; Robinson V. Jones, L. R. 4 Jr. 391 {s&mble); McCann v. Edinburgh Co., L. R. 28 Ir. 24, 28 per Palles, C. B. (2) The maiUng is prima facie a publication. Odgers, Libel and Slander (4 ed.), 153 281. (3) The mailing is prima facie not a pubhcation, i. e., is not a pubhcation unless evidence is given that the post card was read in transitu. Steele v. Edwards, 15 Ohio Cn. Ct. 52, 58. Publication in ignorance of the libel. The dissemination of a hbel by a carrier or newsvender or a pubHc library, who neither knew nor ought to have known of the hbel and who had no reason to suppose that the newspaper was Ukely to con- tain 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 hbrary was held liable for giving out a book containing defamatory statements, because his freedom from neghgence did not appear. VizeteUy v. Mudie's Library, [1900] 2 Q. B. 170. See also Morris v. Ritchie, Court of Sess., March 12, 1902, 4 F. 645. CHAP. VI. J HANKINSON ('. BILBY 661 HANKINSON v. BILBY In the Exchequer, January 28, 1847. Reported in 16 Mecson & We.lsby, 442. Case. The declaration stated that the defendant, in the presence and hearing of divers subjects, falsely and maUciously 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 de- fendant 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 bystanders 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.' Aldersox, 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 imderstand 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 con- ferred 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 in- formed on the matter aUuded to might form a different judgment on the subject. Rule refused.'^ 1 The case has been much abridged. 2 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. Van- loon, 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 ;;. New York Tribtme Ass'n, 135 App. Div. 30; Rossiter v. New York Press Co., 141 App. Div. 662 BHOMAGE V. PROSSER [CHAP. VI. BROMAGE V. PROSSER In the King's Bench, Easter Term, 1825. Reported in 4 Bamewall & Cresswell, 247. Batley, J., now delivered the judgment of the court.^ 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." Defend- ant repeated, " I was told so." Defendant had been told, at Crick- howell, 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 Ul will against the plaintiffs, he told the jury that if they thought the words were not spoken maUciously, 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 339; Spencerw. Minnick, 410kl. 613; McGeary «. 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 lU. App. 224; Willfred Coal Co. v. Sapp, 193 III. 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. Mor- daunt, 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 ob- vious or known to aU the hearers, are not actionable. Yeates v. Reed, 4 Blackf . 463; Irvine v. Gibson, 117 Ky. 306; Dickinson v. Barber, 9 Mass. 225, 227; Bry- ant 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. Hop- kins, Cary, 133; Gates w. Meredith, 7 Ind. 440. The old rule of construing defamatory statements in miiiori 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; Mc- Ciu-da 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. 644; Leuch ;;. Berger, 161 Wis. 564. 1 Only the opinion of the court is given. CHAP. VI.] BROMAGE V. PROSSER 663 is a question of fact for the consideration of a jury, the direction was right; but if in such a case the law imphes 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 defama- tion, 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 maUce is the gist of the action, but in what sense the words maUce or mahcious 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 La common ac- ceptation 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 mahce, 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 mahce, 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 appre- hend the law recognizes the distinction between these two descrip- tions of malice, malice in fact and mahce in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the de- fendant spoke them falsely, it is not necessary to state that they were spoken mahciously. This is so laid down in Style, 392, and was ad- judged upon error in Mercer v. Sparks, Owen, 51; Noy, 35. The objection there was, that the words were not charged to have been spoken mahciously, but the court answered, that the words were them- selves mahcious 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 conmiunications to per- sons who ask it, or have a right to expect it, mahce in fact must be proved by the plaintiff, and in Edmonson v. Stevenson, 1 Term Rep. 664 BROMAGE V. PROSSER XCHAP. VI. 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 sub- ject, 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 maUce; if the matter is slanderous, mahce is implied, it is sufficient to prove pubHcation; the motives of the party publish- ing 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 Ubel 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 mahcious, it appears to be incidental to the appKcation by the intended master for the character; and BuUer, J., said, this is an exception to the gen- eral rule, on account of the occasion of writing. In actions of this kind, the plaintiff must prove the words " mahcious " as well as false. BuUer, J., repeats in Pasley v. Freeman, 3 T. R. 61, that for words spoken confidentially upon advice asked, no action lies, unless express mahce 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 extraor- dinary circumstances of express malice. But in an ordinary action for a Hbel or for words, though evidence of mahce 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 mahce. 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 imiversal 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 mahce 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 CHAP. VI. j HANSON V. GLOBE NEWSPAPER CO. 665 counts in the declaration, but upon carefully .attending to the declara- tion 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 mahce, 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 con- sider whether this was understood by the defendant as an apphcation 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} HANSON V. GLOBE NEWSPAPER COMPANY SuFBEME Judicial Court, Massachusetts, June 20, 1893. Reported in 159 Massachusetts Reports, 293. Knowlton, J. 2 The defendant published in its newspaper an article describing the conduct of a prisoner brought before the Mu- nicipal 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.' The justice of the Superior Court, before whom the case was tried, without a jury, " found as a fact that the alleged libel 1 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. ' A portion of the opinion is omitted. ' 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 in- surance broker of South Boston, emerged from the seething mass of humanity that filled the dock and indulged in a wordy bout with poUceman 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." 666 HANSON V. GLOBE NEWSPAPER CO. [CHAP. VI. 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 hbel 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 pub- hshed article was to be appHed, 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 imder 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 Hght of events which have relation to the utterance or pubHcation 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 pubHcation of it as could readily be ascertained by the pubhc, is free from am- biguity in regard to the person referred to, and points clearly to a well known person, it would be held to have been published concern- ing that person, although the defendant should show that through some mistake of fact, not easily discoverable by the public, he had designated in his pubUcation a person other than the one whom he in- tended 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 CHAP. VI.] HANSON V. GLOBE NEWSPAPER CO. 667 something, either by way of designating the person, or making asser- tions 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 pubUcation 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 undis- closed intention in regard to the person of whom the words are used, may be doubtful. If language purporting to be used of only one per- son 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 per- haps 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 pubhca- tion, and of all the surrounding circiunstances 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 hbel referred to the complainant or not, and when the language wap 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 refus- ing 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 shoiw that the defendant in- tended 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 w. 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 pubHcation. 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 re- ferred to an occasion on which he was present, and gave a description of conduct of a prisoner, and of proceedings in court, which was cor- rect in its appHcation to him and to no one else. The internal evi- dence when applied to facts well known to the public would have 668 HANSON V. GLOBE NEWSPAPER CO. [CHAP. VI. 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 pub- licly known circimistances 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 findiug that they were not pubhshed of the plaiatiff 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 pubUcation, he might suffer some harm. For illustration, suppose a hbel is written concerning a person de- scribed as John Smith of Spriagfield. 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 in- tended to apply, he can maintaia an action. The other persons of the same name cannot recover damages for a libel merely because of their misfortime in haviag a name Uke that of the person hbeUed. Or, if the defendant can justify by proving that the words were true, and published without mahee, he is not guilty of a Hbel, even if, writ- ten of other persons of the same name of whose existence very likely he was ignorant, the words would be hbellous; otherwise, one who has published that which by its terms can refer to but one person, and be a Hbel on him only, might be responsible for half a dozen Hbels on as many different persons, and one who has justifiably published the truth of a person might be hable to several persons of the same name of whom the language would be untrue. The law of hbel has never been extended, and shoiild not be extended, to include such cases. Whether there should be a habihty founded on negligence ia any case when the truth is published of one to whom the words, inter- preted in the fight of accompanying circmnstances easily ascertainable by those who read them, plainly apply; and where, by reason of iden- tity of names, or similarity of names and description, a part of the pubhc might think them appHcable to another person of whom they would be libellous, is a question which does not arise on the plead- ings in this case. So far as we are aware, no action for such a cause has ever been maintained. It is ordinarily to be presmned, 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 CHAP. VI. J HANSON V. GLOBE NEWSPAPER CO. 669 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 pubHc, 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 pur- ported to designate, and would be imderstood by its readers to desig- nate, the plaintiff. If the defendant had supposed that there was no such person, and had iatended 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 assimie 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 descrip- tion is supposed to point out nobody. On the general principles of tort, the pubhcation is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the pubKc will understand it. A man may be liable civilly, and formerly, at least by the common law of England, even criminally, for publishing a hbel without know- ing it. Curtis V. Mussey, 6 Gray, 261; Commonwealth v, Morgan, 670 HANSON V. GLOBE NEWSPAPER CO. [CHAP. VI. 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 mis- take, iatending to pubUsh 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 plaintifif'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 wiU be hable for a slander spoken in jest, if the bystanders reasonably imderstand 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 concern-, ing the plaintiff, it lies upon him " only to show that this construction, which they 've put upon the paper, is such as the generaUty 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. Brod- erick, 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 beheved it to be so. Under the circumstances of the case, " beUeved " 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 appUcation 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 apphcation of the law, than when they are uttered about a man beheved on the strongest grounds to be dead, and thus not capable of being the sub- ject of a tort. It has been seen that by the common law of England such a behef would not be an excuse. Heame v. Stowell, 12 A. & E. 719, 726, denying Parson Prick's case. I feel some difliculty in putting my finger on the precise point of difference between the minority and majority of the court. I under- stand, however, that a somewhat unwilling assent is yielded to the general views which I have endeavored to justify, and I should gather CHAP. VI. J HANSON V. GLOBE NEWSPAPER CO. 671 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 cii-cumstances 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 ire misleading. I only will add on this point, that I do not know what the publiclj' known circmnstances are. I think it is a mistake of fact to suppose that the public generally know who was before the Munici- pal Criminal Court on a given day. I think it is a mistake of law to say that, because a small part of the pubhc have that knowledge, the plaintiff cannot recover for the harm done him in the eyes of the greater part of the pubhc, probably including all his acquaintances who are ignorant about the matter, and 1 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 fm-ther on the facts, it might appear that, in view of the plaintiff's character and circumstances, aU 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 resort- ing to an action to ^-indicate 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 hbeUous as to him, he might have maintained an action, it is unnecessary to express an opinion. I think the proposi- tion 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 pubhc 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 apphed to two or more, the name of each, in theory of law, is dis- tinct, 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 personce." Bract, fol. 190 a. Com- monwealth V. Bacon, 135 Mass. 521, 525. Cocker v. Crompton, 1 B. 672 PECK V. TRIBUNE CO. [CHAP. VI. & 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.* PECK V. TRIBUNE COMPANY Supreme Couet of the United States, May 17, 1909. Reported in 214 United States Reports, 185. Mb. Justice Holmes delivered the opinion of the court. This is an action on the case for a Hbel. The Hbel 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. Than, 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 aU weak and rundown conditions," &c., &c., with the words " Mrs. A. Schuman, 1576 Mozart St., Chicago, lU.," at the end, not in quota- tion 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 Hquors. There was also a count for pub- lishing the plaintiff's likeness without leave. The defendant pleaded not guUty. 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. Mor- rison 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. Schu- 1 The opinion of the dissenting judges is supported by the decisions and dicta in other jurisdictions. Butler v. Barret, 130 Fed. 944 {sembk); Every Evening Co. V. Butler, 144 Fed. 916; Taylor v. Hearst, 107 Cal. 262; Hulbert v. New Co 111 la. 490; Davis v. Marxhausen, 86 Mich. 281, 103 Mich. 315 (sembk) ; Clark v North Amencan Co., 203 Pa. St. 346 (semble); Hutchinson v. Robinson 21 N S W. L. E. (Law) 130 (semble). Compare Newton v. Grubbs, 155 Ky. 479; Ellis v Brockton Pub. Co., 198 Mass. 538; Dunlop v. Sundberg, 55 Wash. 609 CHAP. VI. J PECK ('. TRIBUNE CO. 673 man, that was inconsistent, when all the facts were known, with the plaintuT'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 pubhcation 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 mattere by Lord Mansfield, " What- ever a man publishes he publishes at his peril." The King u. Wood- fall, Lofft, 776, 7S1. 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 hm^ful statements concerning an individual, without other justifica- tion than exists for an advertisement or a piece of news, the usual principles of tort wiU make him liable, if the statements are false or are true only of some one else. See Morasse v. Brochu, 151 Massachu- setts, 567, 575. The question, then, is whether the pubhcation was a hbel. 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 hbel is of httle use, but while it is maintained it should be gov- erned by the general principles of tort. If the advertisement obviously would hurt the plaintiff in the estimation of an important and respect- able 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 imprivileged 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 con- tempt 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 action- able, 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 674 E. HULTON & CO. V. JONES [CHAP. VI. 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. Cuhner 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 Ukeness was a tort per se. It is enough for the pres- ent case that the law should at least be prompt to recognize the in- juries that may arise from an unauthorized use in cormection with other facts, even if more subtUty is needed to state the wrong than is needed here. In this instance we feel no doubt. Judgment reversed} E. HULTON AND COMPANY v. JONES In the House of Lords, December 6, 1909. Reported in [1909] Ajypeal Cases, 20. The following statement is taken from the opinion of Lord Alver- stone, C. J., in the Court of Appeal.^ " The action was brought by the plaintiff, a member of the Bar, in respect of a Hbel 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 purport- ing to describe what the Paris correspondent of the paper had wit- nessed 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 Ubel 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 1 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 (pub- lishing of white woman that she is colored); Ball v. Evening American Co., 237 lU. 592; Maclntyre 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. 2 This abridged statement has been substituted. The arguments and all but one of the opinions have been omitted. CHAP. VI.] E. HXJLTON & CO. V. JONES 675 the name of Artemus Jones or Thomas Artemus Jones. He was con- firmed 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 anj- knowledge of the existence of the plaintiff or of any per- son 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 what- ever of the plaintiEf, 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 plain- tiff ia their article. Some question was raised both at the trial and on the appeal before us as to the possibility of there being other indi- viduals LQ the employment of the defendant company who were actu- ated by express malice towards the plaiatiff, but for the purpose of my judgment I assume that there was no proof of mahce in fact on the part of any agent or servant of the defendants. The plain- tiff called five witnesses who stated that upon reading the article they thought that it referred to the plaintiff, and the plaintiff was prepared to caU 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 Kbel on anybody, and a fortiori not on the plaintiff him- self. 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 par- ticular 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 hbel, but if he would think the con- trary, that it did not refer to an imaginary person, but to a real in- dividual, 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. 676 E. HULTON & CO. V. JONES [CHAP. VI. 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 Loeebukn, L. C. My Lords, I think this appeal must be dis- missed. A question in regard to the law of Hbel 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 reason- ably think to be defamatory of the person complaining of and injured by it. A person charged with hbel 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 Hbel believing it to be true, and it may be foimd 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 inten- tion of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in consid- ering whether it is defamatory of the plaintiff. The writing, according to the old form, must be maUcious, 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 caimot show that the Hbel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equaUy is inferred from what he did. His remedy is to ab- stain from defamatory words. It is suggested that there was a misdirection by the learned judge ia 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 ia Hterature used as types ? If you think any reasonable person would think that, it is not actionable at aU. 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, sub- ject to such damages as you think imder aU the circumstances are fair and right to give to the plaintiff." I see no objection in law to that passage. The damages are cer- tainly heavy, but I think your Lordships ought to remember two CHAP. VI. J MCPHERSON t'. DANIELS 677 things. The first is that the jury were entitled to think, in the ab- sence of proof satisfactory to them (and they were the judges of it), that some ingredient of recklessness, or more than recklessness, en- tered into the writing and the pubhcation of this article, especially as Mr. Jones, the plaintiff, had been employed on this very newspaper, and his name was weU 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 pubhcation, especially pubUcations 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 Hcense is not fairly used and that the tone and style of the Hbel is reprehensible and ought to be checked, it is for the jury to say so; and for ray 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} Mcpherson v. daniels In the King's Bench, Michaelmas Term, 1829. Reported in 10 Bamewall & 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.^ Littledale, J. For the reasons already given by my Brother Bayley, I think that the plea is bad; but with reference to the reso- lution 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 extra-judicial, for it was not neces- sary 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 he published gener- 1 Compare Northrop v. Tibbies, (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. 2 The statement of the pleadings is abridged, and only the opinion of Little- dale, J., is given. Bayley and Parke, JJ., concurred. 678 MCPHERSON V. DANIELS [CHAP. VI. ally." 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 necessarj^ 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 mxist be maUce in the defendant and a damage to the plaintiff, and the words must be imtrue. Where words, falsely and maUciously 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 pub- Hcation of the slander is not intended to be denied, the defendant must negative the charge of malice (which in its legal sense denotes a wrong- ful 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 maUciously; by proving that they were spoken on an occasion, or tmder circumstances which the law, on groimds of pubUc policy, allows, as in the course of a parhamentary 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 spe- cially; because the truth is an answer to the action, not because it negatives the charge of maUce (for a person may wrongfully or mali- ciously utter slanderous matter though true, and thereby subject him- self to an indictment), but because it shows that the plaintiff is not entitled to recover damages. For the law wiU 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 maUce, for a man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occa- sion. Such a plea does not show that the slander was published on an occasion, or under circumstances which the law, on groimds of pubKc poHcy, 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 pub- Hcation of slander, the first utterer may have been a person insane, CHAP. VI. J THORLEY V. LORD KERRY 679 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, be- cause another person previously pubhshed 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 pubUshed 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 mahce, nor does it show that the plaintiff is not entitled to recover damages. Judgment for plaintiff} 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 Lord- ship with being a hypocrite, and using the cloak of rehgion for un- worthy purposes." ^ 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 dehvered 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 ' That the defendant repeated a defamation, giving the name of the author, seems originaUy to have been a justification. Northampton's Case, 12 Rep. 134 (Fourth Resolution). But the name of the author was to be giv?n 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 sufiicient exactness to groimd 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. WeUesley, 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; VaUery v. State, 42 Neb. 123; Walhng v. Commercial Advertiser, 165 App. Div. 26; Galveston Tribune v. Johnson, (Tex. Civ. App.) 141 S. W. 302. See also WTiitney 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. 2 This short statement of the case, taken from 3 Camp. 214, has been sub- stituted for the declaration which is set out at considerable length in the original report. 680 THORLEY V. LORD KERRY [CHAP. VI. 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 hbel 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 chvu:chwarden, 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 beheved that the said earl was guilty of the offences and misconducts thereinafter men- tioned (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 hbel, for which the plaintiff in error might have been indicted and punished; because, though the words impute no pimishable crimes, they contain that sort of imputation which is cal- culated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment hes; and I should have thought that the peace and good name of in- dividuals was sufficiently guarded by the terror of this criminal pro- ceeding 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 wiQ He for these words so written, notwithstanding such an action would not he 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 plain- tiff in error it has been truly urged, that in the old books and abridg- ments no distinction is taken between words written and spoken. But the distinction has been made between written and spoken slan- der 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 hes. But for mere general abuse spoken, no action hes. In the arguments both of the judges and counsel, in CHAP. VI. J THORLEY V. LORD KERRY 681 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, action- able; 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 estabhshed by some of the greatest names known to the law. Lord Hardwicke, Hale, I beheve Holt, C. J., and others. Lord Hardwicke, C. J., especially has laid it down that an action for a hbel 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 groimds 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 plain- tiff 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} 1 " 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 auy way the rule of law which confines actions for spoken words, in the absence of proof of special damage, to a very hmited number of cases." Vaughan Wilhams, L. J., in Dauncey v. HoUoway, [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 prmcipal case between oral and written scandal still obtains in England and the United States. The definition of a libel as 682 WEBB V. BEAVAN [CHAP. VI. WEBB V. BEAVAN In the Queen's Bench Division, May 10, 1883. Reported in 11 Queen's Bench Division, 609. Demueebr 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 Glouces- ter Gaol next week. I know enough to put you " (meaning the plain- tiff) " 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 in- dicted, 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 earher authorities, the test, in ascertaining whether words were action- able per se, was whether the offence imputed was punishable corporally or by fine, and that it was not necessary to allege that the words im- puted 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 over- ruled. The expression " indictable offence " seems to have crept into the text-books, but I think the passages in Comyns' Digest are con- clusive 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 inffiction 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. a written publication calculated to bring another into hatred, ridiciile, or contempt-, is also universally recognized in English-speaking countries. As it is a pure ques- tion of fact for the jury whether the pubhcation in a given case comes within this definition, it has not seemed advisable to bring together in this book the multi- tudinous 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 hbel made in the course of judicial proceedings cannot be main- tained until the proceedings have terminated in favor of the person defamed, Masterson v. Brown, 72 Fed. 136. CHAP. VI. J BROOKER V. COFFIN 683 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} BROOKER V. COFFIN Supreme Court, New York, November, 1809. Reported in 5 Johtison, 188. Spencer, J., delivered the opinion of the court.^ 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 ' 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; WaJden v. MitcheU, 2 Ventr. 265; Scoble v. Lee, 2 Show. 32 (regrating); McCabe v. Foot, 15 L. T. Rep. 115; EUiott 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; Hoagr. Hatch, 23 Conn. 585; Page w. Merwin, 54 Conn. 426; Kennen- berg 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 punish- able corporally. Redway v. Gray, 31 Vt. 292 (quahfying BiUings v. Wing, 7 Vt. 439); Murray v. McAllister, 38 Vt. 167. rV. Word& 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 pun- ishment. 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 subject- ing the offender to an infamous punishment. See Brooker v. Coffin, infra, and cases cited. . , , , „ r^ -cc VII Words imputing an indictable offence pumshable corporally. GriHm v. Moore, 43 Md. 246; Shafer v. Ahalt, 48 Md. 171; Birch v. Benton, 26 Mo. 153; Curry v. Collins, 37 Mo. 324; Bundy ;;. Hart, 46 Mo. 460; Lewis v. McDamel, 82 Mo. 577; Houston v. Woolley, 37 Mo. App. 15, 24; Parsons v. Henry, 177 Mo. As to deiamatim 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. 2 Only the opinion of the court is given. 684 BROOKER V. COFFIN [CHAP. VI. without alleging special damage.^ By the statute (1 R. L. 124), com- mon prostitutes are adjudged disorderly persons, and are liable to commitment by any justice of the peace, upon conviction, to the bride- well 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 sayiag, that every one charged with any of the acts prohibited by that statute, would be entitled to maiatain an action for defamation. Among others, to charge a person with pretending to have skill in physiog- nomy, 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, wiU subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment, then the words wiU be in themselves actionable; ^ 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 imcertainty in the law upon any subject as when words shall be in themselves actionable. From the contradiction of cases, and the imcertainty pre- vailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which wiU conduce to cer- ' By 54 & 55 Vict. c. 51, words which impute unchastity or adultery to any woman or girl are actionable, without special damage. 2 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; HaUey v. Gregg, 74 la. 563; Wooten v. Martin, 140 Ky. 781; St. Martin v. Desnoyer, 1 Minn. 156; West v. Hamahan, 28 Minn. 385; Chaphn v. Lee, 18 Neb. 440; Hendrickson v. SuUivan, 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. Hanng, 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; Hollings- worth V. Shaw, 19 Ohio St. 430; Davis v. Brown, 27 Ohio St. 326; Davis v. Slad- den, 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. CHAP. VI. J COOPER V. SEAVERNS 685 tamty, 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} COOPER V. SEA^^RNS SuPBEME Court, Kansas, December 11, 1909. Reported in SI Kansas Reports, 267. Btjech, J.2 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 emplo}'- ment for which morahty and \-irtue 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, tinghng a basin before them (Odgers, Lib. & Slan., p. *&i) . This rule has been accounted for on the supposition that in the early, formative daj-s of the co mm on law social relations were rude, manners were mirefined, and the people were accustomed to hearing gross and vulgar epi- thets 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 EHzabeth (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 dis- cover a better state of civiUzation from the early records than the view in- dicated 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 de- crees that if one calls a man ' wolf ' or ' hare ' one must pay bim three shil- lings, while if one calls a woman ' harlot ' and cannot prove the truth of the charge, one must pay her forty-five shiUings. The oldest English laws exact bot and uitf if one gives another bad names. ..." This being true, a reason for the rule must be found elsewhere than in any essential brutahty of the early Englishman. The doctrine appears to be 1 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," Mclntjrre v. Fruch- ter, 148 N. Y. Supp. 786; or a " rascal," Massee v. Williams, 207 Mass. 222, or to call a woman a "bitch." Graver v. Norton, 114 la. 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., saying that though the pun- ishment had been suffered, " stUl the obloquy remains. Gainford v. Take, Gro. Jac. 536; Boston;). Tatam, Gro. Jac. 623; Beavorti. Hides, 2 Wils. 300; Stewart v. Howe, 17 111. 71; Wiley v. Campbell, 5 T. B. Monr. 396; Krebs v. OUver, 12 Gray, 239; Johnson v. Dicken, 25 Mo. 580; Van Ankin v. Westfall, 14 Johns. 233; Ship V. McGraw, 3 Mmphy, 463; Smith v. Stewart, 5 Pa. St. 372; Beck i>. Stitzel, 21 Pa. St. 522; Poe v. Grever, 3 Sneed, (Tenn.) 664 Accord. Compare Carpenter v. Tarrant, C. t. Hardw. 339; French v. Greath, Breese, 12; Barclay v. Thompson, 2 Pen. & W. 148. 2 Only portions of the opinion are given. 686 COOPER V. SEAVERNS [CHAP. VI. 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 ex- communicating 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 occa- sioned by slanderous words. [After discussing the jurisdiction of the ecclesiastical courts, the opinion proceeds :] Although the English judges felt constrained to foUow 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. Heme, in the Court of King's Bench (2 WH. 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 com- pany 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 anomaHes 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 pre- cious 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 CHAP. VI.] LUMBY V. ALLDAY 687 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 Whita- ker c. Hawley (25 Ivan. 674), supra. The world is censorious, and a woman's or a maiden's reputation for mod- esty 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 liabihty 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 .^thony v. Norton (60 Kan. 341), mpra. 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 svstem 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 stiU is followed. In some statutes have reUeved 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 dis- charged in the present case.* LUMBY V. ALLDAY Ls' THE Exchequer, Hilary Term, 1831. Reported in I Crompton & Jervis, 301. Action for words. The judgment of the court was now deUvered by Batley, B.2 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 grotmd of nonsuit. The declaration stated that the plaintiff was clerk to an incor- porated company, called the Birmingham and Staffordshire Gas Light I See also Keck v. Shepard, (Ark.) 180 S. W. 501 (statutory); Graver v. Nor- ton 114 la. 46; Hahn v. Lumpa, 158 la. 560; Traylor v. ^^^lite, 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. ' Only the opinion of the court is given. 688 LXJMBY V. ALLDAY [CHAP. VT. 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 yoiu- situation, for your conduct with whores. I will have you in the ' Argus.' You have bought up aU 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 grotmd of the plaintifif 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 refer- ence; 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 aU the duties of such a clerk. The plaintiff reUed on the rule laid down by De Grey, C. J., in Onslow V. Home, 3 WUs. 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 ex- pressed to be, " if the words be of probable ill consequence to a person in a trade or profession, or an office." ^ The objection to the rule, as expressed in both reports, appears to me to be, that the words " probably " and " probable " are too indefi- nite and loose, and unless they are considered as equivalent to " hav- ing 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 con- tains 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 ' " We think that the rule as to words spoken of a man in his office or trade is not necessarily corifined 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 caUings." Channel, B., in Foulger v. Newcomb, L. R. 2 Ex. 327, 330. CHAP. VI.] LUMBY V. ALLDAY 689 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 considera- tion is, before trial, to demur; after trial, to move in arrest of judg- ment. 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 nis-i to arrest the judgment, if the defendant be advised to take such rule. Rule discharged} 1 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 u. Holloway, [1901] 2 K. B. 441; Hogg v. Dorrah, 2 Porter, (Ala.) 212; Oram i: 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 X. 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 ap- plicable 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. Imputatum of misconduct to a clergyman, see Bishop of Norwich v. Pricket, Cro. Eliz 1 (heterodoxy in rehgion); Payne v. Bewmorris, 1 Lev. 248 (mcontmence); 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. Hanng, 6 Cow. 76 (incontinence); Potter v. N. Y. Journal, 68 App. Div. 95; Hayner j Cowden 27 Ohio St. 292 (drunkenness); McMillan v. Birch, 1 Bmney, 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, mcontmence), holding the words ^'^ pSrat^ii. Carpenter, Cro. El. 502; Nicholson v. Lyne, Cro. El. 94; Anon., Sty. 49 Contra. Compare GaUwey v. MarshaU, 9 Ex. 294, 568. Imputation to teacher oj discreditable conduct with pupils. Spears v. McCoy, 155 Ky. 1. Compare Nicholson v. Dillard 137 Ga. 225. oo vr t Imputation to an officer of drunkenness while on duty. Reilly v. Curtis, 83 JN . J . Law, 77. 690 JONES V. LITTLER [CHAP. VI. JONES V. LITTLER In the Exchequer, Januaky 16, 184L Reported in 7 Meeson & Welsby, 423. Slaitoer. The declaration stated that the plaintiff was a brewer, and that the defendant falsely and mahciously spoke and pubUshed of and concerning him in the way of his trade as a brewer the false, scandalous, maUcious, and defamatory words following: "I'U" (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 HiU" (meaning and describing the plaintiff), "has been in a sponging-house within this last fortnight for debt ? " and thereupon the defendant then repHed to the said Henry Pye, and the said other persons then present, " Yes, I do." The jmy haviag 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 tp 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 conver- sation in question the plaintiff was spoken of as a brewer. Independ- ently 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 action- able, 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 distin- guishable 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 con- nected with the plaintiff's profession of a physician; and it was pos- sible that such imputations of incorrect conduct, out of the line of their respective professions, might not injure their professional char- acters. But this case is distinguishable, because here the imputation is that of insolvency, which must be injurious; for if a tradesman be iocapable of paying all his debts, whether in or out of trade, his credit CHAP. YI.] SECOR V. HAERIS 691 as a tradesman, which depends on his general solvency, must be in- jured. 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} SECOR IK 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. ^Iasox, 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 hve long after they took it. They died right oif, — 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 phj'sician. 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 fuU teaspoon doses of calomel, would be certain death, then it is not a forced construction of the words to say that the defend- ant intended to charge the plaintiff with an intention to kUl 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 foimd that such intent was imputed, we should not be just^ fied 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 1 Kempe's Case, Dy. 72, pi. 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. Bumham, 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. Tmndy, 31 Me. 321; Redway v. Gray, 31 Vt. 292 Contra. See BeU 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. Ulrioh, 150 Wis. 532 (habitual cheating). 692 SECOR V. HARRIS [CHAP. VI. 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 famiUar and common medicine, as to give such quantities thereof to such young children. The law is well settled that words pubHshed of a physician, falsely imputing to him general ignorance or want of skUl in his profession, are actionable, in themselves, on the ground of presumed damage. Starkie on Slander, 100, 110, 115, 10, 12; Martyn v. BurHngs, Cro. Ehz. 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 action- able 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 untU 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 particu- kr patient, if the charge be such as imports gross ignorance or unsMlfulness. 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 repudia,ted 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 sa}' 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 cksease, and even as to the powers of medicine, and yet his error may be of that pardonable kind that wiU do him no essential prejudice, because it is rather a proof of human imperfection than of culpable ignorance or unskilfuhiess; and where charges are made against a physician that fall within this class of cases, they are not actionable, without proof of special damages.' 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 skiQ, as will not fail to injure his reputation, and de- prive him of general confidence. When such a charge is made against a phy- sician, the words are actionable per se. 7 Conn. R. 257. The rule may be laid 1 Sumner v. Utley, 7 Conn. 257; Garr v. Selden, 6 Barb. 416; Rodgers v. Kline, 66 Miss. 808; Lynde v. Johnson, 39 Hun. 5 Accord. CHAP. VI.] SECOR V. HARRIS 693 down as a general one that, when the charge implies gross ignorance and un- skUfulness 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 consider- able, the law suppUes 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 im- punity, unless special damage is shown. By confining the slander to particu- lars, 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 presump- tion 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 igno- rance 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 aU men speak out and say, as did the witness Richard Morris, " that it was outrageous, and the plaintiJGf 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} 1 Jotmson V. Robertson, 8 Port. (Ala.) 486; Sumner v. Utley, 7 Conn. 257; Love- iov V Whitcomb, 174 Mass. 586; Freisinger v. Moore, 65 N. J. Law, 286; Mattice i. Wilcox, 147 N. Y. 624; Kmg'v. Pitass, 162 N. Y. 154, 163 N. Y. 600; Lynde v. Johnson, 39 Hun, 12; Hollingsworth v. Spectator Co., 49 App. Div. 16; Mclntyre i; Weinert, 195 Pa. St. 52; HoUand 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. & Or. 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 Ciim who made it, and dictated by malice — ought to be the subject of a civQ remedy, though made in the course of a purely miUtary iaquiry. This mode of stating the question assumes the untruth and assumes the mahce. 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 groimd 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 hiunan judgment. And the real question is, whether it is proper on grounds of pubUc pohcy 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 mahce, 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 Utigation. With such possibiUties hanging over his head, a witness cannot be expected to speak with that free and open mind which the administra- tion of justice demands. , ,,,,,. ^t ^ " These considerations have long smce led to the legal doctrme tnat a witness m 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 inqmry such as the present, and with the same result." , ^. ■ • -ii. j ' The statement, arguments of counsel and Darts of the opmion are omitted. 708 WHITE V. CAEROLL [CHAP. VI. in which the contested point or question was the testamentary capac- ity of one Jay P hilli ps; 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 homcEopathic 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 PhiUips, 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 con- tains two counts, one for hbel, 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 com- plaint, substantially upon the ground that the words spoken by the defendant were not actionable, because they were spoken on his ex- amination 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 beheved, 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 an- swers were pertinent and relevant, then the law protected him in what he said; it was privileged, and their verdict should be for the defend- ant. That if, on the contrary, they should beheve from this evidence, that the defendant, though testif jdng 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 maHce; that he used the words for the mere purpose of defaming the plaintiff, then the law withdrew the pro- tection it would otherwise have afforded him, and he became amen- able to the consequences of uttering the slander, or of publishing the libel." CHAP. VI.] WHITE V. CARROLL 709 There is certainly some doubt whether the defendant's exception which he claims applies to this part of the charge, was sufficiently spe- cific 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 imder the circvraistances, was not a ques- tion 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 him- seK 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; bu^; Justice Potter had a right to assume this under the circumstances. I think the judgment should be affirmed, with costs. AU concur for affirmance. Judgment affirmed} 1 " 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 beUeved that it was; and whether he so beUeved, was a question of fact to be determined by the jury. Had the evidence proved that the answer was ma- terial and pertinent, the court must have held it privileged, irrespective of the defendant's behef 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 Uabihty 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 ia the course of an action must be perti- nent and material to the case." Lord, J., in McLaughlm 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 pro- tected in testifying to any matter which is relevant to the inquiry, or which he rea- sonably 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 710 RICE V. COOLIDGE [CHAP. VI. 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 proceed- ing for a divorce was pending in the courts of the State of Iowa, be- tween Joseph S. CooHdge and Mary L. Coolidge, in which the latter alleged that the said Joseph S. CooHdge had been guilty of adultery with the plaintiff; that the defendants conspired together and with the 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 HI. 289; Fagan v. Fries, 30 111. App. 236; Smith v. Howard, 28 la. 51; Hawk v. Evans, 76 la. 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. La^ fitte, 28 La. Ann. 435; Gardemal v. McWilliams, 43 La. Arm. 454; Barnes v. McCrate, 32 Me. 442; Hoar v. Wood, 3 Met. 193; Kidder v. Parkhurst, 3 AU. 393; McLaughlin v. Cowley, 127 Mass. 316; Wright v. Lothrop, 149 Mass. 385; Whea- ton 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. Pame, 4 Wis. 358; Calkins v. Sumner, 13 Wis. 193; Larkin v. Noonan, 19 Wis. 82. Statements volunteered by witness. Viss v. CaUigan, 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 legisMive investigation. Tuohy v. HasseU, 35 Okl. 61. Defamatory statements at creditors' meeting. Smith v. Agee, 178 Ala. 627. Statements in notice of foreclosure sale. Tiemey v. Ruppert, 150 App. Div. 863. Report of grand jury withxmt indictment. Rich v. Eason, (Tex. Civ. App.) 180 S. W. 303. Statement of guardian as to person making claim against ward's estate. Mamey 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. OffiHal statements of officers of state are absolutely privileged. Chatterton v. Sec- retary 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 ; Has- kell v. Perkins, 165 111. App. 144; Tanner v. Stevenson, 138 Ky. 578; Peterson v. Steenerson, 113 Mmn. 87; Johnson v. Marsh, 82 N. J. Law, 4 (notice not to sell liquor to alleged drunkard); Bingham v. Gaynor, 203 N. Y. 27. CHAP. VI.] RICE V. COOLIDGE 711 said ]\Iary L. Coolidge to procure and suborn witnesses to falselj' tes- tify 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 ia which the false testimony of such witnesses was repeated, and made the pretext for false and maUcious charges upon the plaintiff's character and good name. The gist of the plaintiff's case is that the defendants have suborned \s-itnesses to falselj' swear to defamatory statements concerning her, and have done other connected acts ia 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 con- spiracy, but by the wrongful acts done by the defendants to the injm-y 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. Himtington, 2 Gray, 124; Bowen v. Matheson, 14 Allen, 499. The question is presented, therefore, whether the plaintiff can main- tain an action of tort, ia 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 pubhc policy, which take the case out of this rule. The defendants contend that the witnesses who uttered the defama- tory statements are protected from an action, because they were state- ments 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, coun- sel, parties, and witnesses are absolutely exempted from Habihty to an action for defamatory words pubhshed in the course of judicial pro- ceedings. 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 doc- 712 EICE V. COOLIDGE [CHAP. IV. trine 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. Parkhiu^t, 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 sjwken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken else- where, would import mahce and be actionable in themselves, are not actionable if they are apphcable 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 maiutain an action against those who, with mahce and intent to uijure 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, pubUc pohcy 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.^ 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 satis- factory to our minds. The perjured witness and the one who suborns him are joint tort-feasors, acting in conspiracy or combination to in- jure the party defamed. The fact that one of them is protected from a civil suit by a personal privilege does hot exempt the other joint tort- feasor from such suit. A similar argument was disregarded by the court m 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 hable to an action of tort therefor, although the officer who served the warrant was protected from an action, for reasons of pubhc policy. ' 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; TaylorK. Bidwell, 65 Cal. 489; Bostwick w. Lewis, 2 Day, 447; Grove r Branden- burg, 7 Blackf. 239; Dunlap v. GUdden; 31 Me. 435; Severance v. Judkins, 73 Me 376, 379; Ganng v. Eraser, 76 Me. 37; Phelps v. Steams, 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, 83 111. 122. Compare Schaub v. O'Ferrell, 116 Md. 131. CHAP. VI. J RICE I'. COOLIDGE 713 The defendants rely upon the eases 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 Con- necticut 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 main- tained, because, in the language of Mr. Justice Kent, it was " an at- tempt to overhaul the merits " of a former suit. The case of Dunlap V. Ghdden, 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.^ 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 imaided testimony of one witness, is a rule applicable only to criminal proceedings. The argmnent 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 erf this action, that it is a novelty. The fact that an action is without a prec- edent 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 wiU never suffer an injury and a damage with- out 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.^ Demurrer overruled. 1 See also Taylor v. Bidwell, 65 Cal. 489; Curtis v. Fairbanks, 16 N. H. 542; Stevens !'. Rowe, 59 N. H. 578. ' A part of the opinion relating to points of pleading is omitted. 714 KTALLS V. LEADER [CHAP. VI. RYALLS V. LEADER In the Exchequer, Mat 26, 1866. Reported in Law Reports, 1 Exchequer, 296. Declaration on a Ubel published of the plaintiff by the defendants, in a newspaper called the " Sheffield and Rotherham Independent." Plea. Not guHty. Issue thereon. The hbel 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 Bank- ruptcy 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 pubUcation of the defamatory matter having been proved, the learned judge told the jury that " the Hbel 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 pub- lished without maKce." 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.' Pollock, C. B. I am of opinion that my Brother Keating was right in his r ulin g. The complaint here made is that certain proceedings held by a registrar in bankruptcy in York Castle, and published by the defendant, were hbeUous on the plaintiff. The defence is, that the alleged Ubel was contained in a fair, correct, and bana fide report of what took place ; and if these proceedings were in a pubHc court, and the pubHcation was fair, there is no foundation for this action.^ The ' The arguments and the concurring opinions of Martin and ChanneU, BB., are omitted. 2 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 {sembk); Blodgett v. Des Moines Co., (la.) 113 N. W. 821; BiUet v. PubUshing 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. Dis- patch Co., 101 Mum. 309; Hawkins ;;. 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 dv. Proc, § 1907; Ackerman v. Jones, 37 N. Y. Super. Ct. 42; Salisbury v. Umon 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. Glass- man, 12 Utah, 238 Accord. So pubhcation 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 oflBce, 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. CHAP. VI.] RYALLS V. LEADER 715 only question then is, whether the registrar's court was under the cir- cumstances a pubhc 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 pubhc 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 pubhc, 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 inqiui-y, 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 pub- lisher to prove aU the hbellous 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 sug- gestion made to us, viz., that what is irrelevant and hbellous on a third person is not protected. There are cases where an individual must suffer for the pubhc good, and it is difficult to draw the hne between relevancy and irrelevancy. My opinion is, that when once you estab- lish that a court is a pubhc court, a fair bona fide report of all that passes there may be pubhshed. Possibly this privilege is apphed 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. 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; Hsley t'. 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. 716 TJSILL V. HALES [CHAP. VI. USILL V. HALES In the Common Pleas Division, January 30, 1878. Reported in 3 Common Pleas Division, 319. Lord Coleridge, C. J.' I am of opinion that this rule must be discharged. This was an action against the proprietor of a newspaper for pub- Hshing 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 ( 1 must take it for the purpose of my judg- ment, and do so take it) apphed 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 sum- mons against the plaiatiff 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 jurisdic- tion. 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 natmre of the appli- cation 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 jurisdic- tion, 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, imdoubtedly he has. It has been laid down again and again in broad terms that the pub- hcation 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 qualifica- tion which has been grafted upon that general proposition, viz., that the appUcation 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 pro- ceeding " has been over and over again used by judges of great emi- nence, sometimes aflBrmatively to say that an ex parte proceeding is not privileged, and sometimes negatively to say, this, being a proceed- ing not ex parte, is privileged; and I do not doubt for my own part 1 Only the opinion of Lord Coleridge, and that, too, slightly abridged, is given. Lopes, J., concurred. CHAP. VI.] trSILL V. HALES 717 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 ob- served that he recollected the time when it would have been matter of surprise to every lawyer in Westminster Hall to learn that the pubHca- tion 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 imable 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 pas- sage 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 : " What- ever disadvantages attach to a system of unwritten law, — and of this we are fully sensible, — it has at least this advantage, that its elastic- ity enables those who administer it to adapt it to the varying con- ditions 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 hbel 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 publica- 718 USILL V. HALES [CHAP. VI. tion of the proceedings of courts of justice law^, 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 indict- ment 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 pubhcation, 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 earUer 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 pubhc reported in all the newspapers in the kingdom ; and yet no one ever heard, at least since I have known Westminster HaU, of an action being brought by a per- son injiuriously affected by such publication, where the report is honest and bona fide, and published without intention to injinre. That, there- fore, seems to introduce this element into the determination of these cases, that there is a certain elasticity in the rules which apply to ques- tions of privilege (development is perhaps the more correct expres- sion), and that the courts have from time to time apphed 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 pubhcation 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 pubhc 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 appUcation to cases which manifestly come within it. CHAP. YI.J XJSILL I'. HALES 719 I come therefore to the consideration of this case feeHng 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 dis- tinguish 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. Le^-y; 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 pubhcation of a fair and cor- rect report of proceedings taking place in a pubUc court of justice is privileged, extends to proceedings taking place publicly before a magistrate on the preliminary investigation of a criminal charge ter- minating in the discharge by the magistrate of the party charged." I am perfectly aware that there may be subtle distinctions, — distinc- tions 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 argu- ment 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 dis- tinguish the principle of Lewis v. Levy from that involved in the pres- ent 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 Currj' 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 rehabihtated by the judgment of the Court of Queen's Bench in Lewis v. Levy, E. B. & E. 537. I am content, there- fore, to rest my judgment in this case upon the principles laid down in Curry v. Walter, 1 B. & P. 525, and dehberately reafifirmed 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.^ 1 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; Toddti.Every Evening Co., (Del.) 62 Atl. 1089; Flues v. New Nonpareil 720 WASON V. WALKER [CHAP. VI. 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 CocKBUEN, C. J.i This case was argued a few days since before my Broth- ers Lush, Hannen, and Hates, 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 re- duced 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 dispar- aging 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 jour- nals, 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 con- flicting 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 jaU of Newgate, in which a work published by the plaintiff, a bookseller, and which had been per- mitted to be introduced into the prison, had been described as " of a most dis- gusting nature," and as containing, " plates obscene and indecent in the ex- treme," 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 alder- men 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 book- sellers, 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 con- formity with a modem practice, for public sale, the proceeds to be applied to the general expenses of printing by the House. An action of libel having been Co., 155 la. 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; Mencel 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. ' 1 Only the opiaion of the coiui; is given. CHAP. VI. J WASON V. WALKER 721 brought by Stockdale against the defendants, the printers of the House of Conimons, 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 pubUshed 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 necessarj-, was an essential incident to the functions of parhament, the ques- tion became one of pri-\dlege, as to which the decision of the House was con- clusive, 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 hberties 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 shaU 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 unhesitat- ing 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, stiU less that a resolution of the House can supersede the jurisdiction of a court of law by clothing an unwar- ranted exercise of power with the garb of privilege, can have no apphcation 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 be- fore 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 suf- fer, are privileged, and that for the pubhcation of such reports the publishers are neither criminally nor civilly responsible. The immunity thus afforded in respect of the pubhcation of the proceedings of courts of justice rests upon a twofold ground. In the English law of hbel, maUce 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 maUce, is meant, while by legal maUce, as ex- plained by Bayley, J.,in Bromage v. Prosser, is meant no more than the wrong- ful 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 re- butted 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, 722 WASON V. WALKER [CHAP. VI. 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 pub- lished without any reference to the individuals concerned, but solely to afford information to the public and for the benefit of society, the presumption of maUce 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 Ubel is foimded is, that the advantage to the community from publicity being given to the proceedings of courts of justice is so great, that the occa- sional inconvenience to individuals arising from it must j'ield to the general good. It is true that with a view to distinguish the pubUcation 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 jus- tice 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 proceed- ing 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 pub- he that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made pubUc, 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 infinitesimaUy small as compared to the con- venience of publicity." And Wightman, J., says: " The only foundation for the exception is the superior benefit of the pubUcity 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 maUce is nega- tived 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 refer- ence 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 paramoxmt public and national importance that the proceedings of the houses of parliament shall be conmiunicated 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 coun- CHAP. VI.] WASON V. WALKER 723 tn- are committed, — where would be our attachment to the constitution imder which we hve, — 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 sjfstem, be usefully carried on, if the constituencies were kept in ignorance of what their representatives are doing ? ^Miat 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 mod- em times to what passes in parUament is essential to the maintenance of the relations subsisting between the government, the Legislature, and the country at large ? It maj', 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 pubhc, 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 pubhc have a deeper interest than in aU that relates to the conduct of pubhc 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 serv- ices of a most competent and valuable pubHc 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 obUgations 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 facUity 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 pubhshing 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 asser- tion to deny that the benefit to the public from having the debates in parlia- ment published was as great as that which arose from the pubhshing of the proceedings of courts of justice, but he rehed 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 724 WASON V. WALKER [CHAP. VI. on bills introduced by Lord Campbell for the purpose of amending the law of Ubel.^ There is no doubt that in dehvering their opinions in Stockdale v. Han- sard, the two learned judges referred to denied the necessity and in effect the public advantage of the proceedings in parliament being made pubUc. The coxmsel 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 legaUty of such a proceeding by the assertion of privilege, thought it neces- sary 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 sub- ject. This is the more to be regretted, a^ their observations apply not only to the printing of papers by order of the House, the only question before them, but also to the pubhcation of parliamentary proceedings in general, the con- sideration 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 lumi- nous reasoning of a Mansfield, while overthrowing by irresistible arguments the positions of the Attorney-General, was content to answer the argument as to the poUcy of allowing papers to be published by order of either of the houses of parliament, not by denying the pohcy 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 ob- structions or impediments should exist to the publication of such of the re- ports, papers, votes, or proceedings of either house of parhament 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 pubhshed by order of either house of parliament. As regards the attempt of Lord Campbell to fix the legality of the publica- tion of parliamentary debates on the sure foundation of statutory enactment,^ 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 pubhcation 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 pubhcation of reports of the proceedings of courts of justice have been held to be privileged apply to the reports of par- 1 In 1843, see Hansard's ParUamentary Debates, 3d series, vol. Ixx. pp. 1254-8; and in 1858, see vol. cxlix. pp. 947-82. — Reporter's Note. 2 See Hansard's Parliamentary Debates, 3d series, vol. Ixx. p. 1254; and vol. cxlix. p. 947. — Reporter's Note. CHAP. VI.] WASON V. WALKER 725 liamentary 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 tiU now, we must assume that it is only because the occasion has never before ai-isen. If the priuciples which are the foundation of the privi- lege 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 iu- justice 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 ia which we Kve, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and inter- ests of the generation to which it is immediately applied. Our law of libel has, in many respects, only gradually developed itself into anj^thing like a satis- factory 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 recog- nized. Comments on government, on ministers and officers of state, on mem- bers 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 im- prisonment 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 in- flicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties ? Again, the recogni- tion of the right to publish the proceedings of coiu-ts of justice has been of modem growth. TiU 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 pubhcation of the proceedings of courts of justice lawful, have thought it necessary to dis- tinguish 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 appHcations 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 cri- terion 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 in- tention to do injury to the reputation of the party affected. It is to be observed that the analogy between the case of reports of proceed- ings of courts of justice and those of proceedings in parliament being complete, aU 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, wiU 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 wiU 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 726 WASON V. WALKER [CHAP. VI. 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 par- liament. 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 actuallj' 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 withhold- ing their debates from the country at large. Practically speaking, therefore, it is idle to say that the pubHcation of parliamentary proceedings is prohibited by parliament. The standing orders which prohibit it are obviously main- tained only to give to each house the control over the publication of its pro- ceedings, and the power of preventing or correcting any abuse of the facility afforded. Independently of the orders of the houses, there is nothing imlawful in publishing reports of parliamentary proceedings. Practically, such pubU- cation is sanctioned by parliament; it is essential to the working of our par- liamentary 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 wiU 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 re- spect 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 con- duct of the plaintiff in preferring the petition which gave rise to it. We are of opinion that the durection given to the jury was perfectly correct. The pub- lication of the debate ha-\dng been justifiable, the jury were properly told the subject was, for the reasons we have already adverted to, pre-eminently one of pubhc 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 pub- licly 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 CHAP. VI.J PURCELL V. SOWLER 727 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} PURCELL V. SOWLER In the Court of Appeal, Februaby 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 work- house 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 en- tered accordingly, with leave to move to enter judgment for the defendants, if the court should be of opinion that the pubhcation was privileged. The Common Pleas Division refused the motion, ordering judgment to stand for the plamtiff. 1 C. P. D. 781. The Hbel, &c., are set out at length in the report in the court below. The defendants appealed. Mellish, L. J.^ 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 be- yond what it has as j'et 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 pubhc in the position of those who were actu- aU}' 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 Lq 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 e.xtended as to a variety 1 Garby i: 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 Gal. 527. 2 The concurring opinions of Cockbum, G. J., and Baggallay and Bramwell, JJ. A., and the arguments of counsel are omitted. 728 PUBCELL V. SOWLEB [CHAP. VI. 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. Al- though they admit the public on an occasion when ex parte charges are made against a pubhc officer, which may affect his character and injure his private rights, it is mostmateriaJ that there should be no further pubhcation; there is no reason why the charges should be made public before the person changed has been told of the charges, and has had an opportunity of meeting them; and I cannot see any inconvenience in holding that the pubhcation is not privi- leged; 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 investi- gate 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 hable to an action of slander. I do not mean to say that the matter was not of such pubUc interest as that comments would not be privileged if the facts had been ascertained. If the neglect charged agaiast 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, there- fore, 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} 1 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 au- thority shall, if published contemporaneously with such proceedings, be privileged: Provided that nothing in this section shall authorize the publication of any blas- phemous or indecent matter. " § 4. A fair and accurate report published in any newspaper of the proceedings of a pubHc meeting, or (except where neither the pubhc nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guard- ians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any conmiittee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorized to act by letters patent. Act of ParUament, warrant under the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parhament^ justices of the peace in quarter sessions assembled for administrative or deUberative piUTjoses, and the pubhcation at the request of any Government office or department, officer of state, co mmis sioner of poUce, 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 pubhcation was published or made mahciously : Provided that nothing in this section shall authorize the pubhcation 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 pubhca- tion complained of appeared a reasonable letter or statement by way of contradic- CHAP. VI, J BARROWS V. BELL 729 BARROWS V. BELL Supreme Judicial Court, Massachusetts, October, 1856. Reported in 7 Gray, 301. Shaw, C. J.^ 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 Massa- chusetts Medical Society," and it proceeds to give a brief account of the pro- ceedings 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 benev- olence, 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 pubhcation of them, as far as it can be done consistently with private rights. This view of the law of Hbel in Massachusetts is recognized, and to some extent sanctioned, by the case of Commonwealth v. Clapp, 4 Mass. 163, and many other cases. The ]\lassachusetts Medical Society were not a private association; they were a pubhc corporation, chartered by one of the earUest Acts under the Con- stitution, which was amended and their powers confirmed by several subse- quent 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 pubUc interest of the prac- tice 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 dis- tion 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 discus- sion of any matter of pubhc concern, whether the admission thereto be general or restricted." Kelly v. O'MaUey, 6 T. L. R. 62, was decided under this statute. Newspaper publication of reports of administrative officers. TiUes v. Puhtzer Pub. Co., 241 Mo. 609; Schwarz v. Evening News Co., 84 N. J. Law, 486; Bing- ham 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. 1 The case has been much abridged. 730 BARROWS V. BELL [CHAP. VI. franchise any fellow or member, and to make rules and by-laws for their gov- ernment. 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 impor- tant 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 per- manent 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 — dishonor- able conduct, a fraudulent transaction between the plaintiff and another mem- ber 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 plaintiif '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 liis dealings with Dr. Carpenter, was within the jurisdiction of the medical society, and proceedings were instituted and carried on to their final determi- nation in the expulsion of the plaintiff from his fellowship, then the proceed- ings might be rightly characterized, as in the case of Famsworth v. Storrs, as quasi judicial; and then the only remaining question of fact was, whether the pu"blication was a true and correct narrative of such proceedings and deter- mination. 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 de- fendant, we are to assume that it was foimd 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 fan- trial. Judgment on the verdict for the defendant} > AUbutt 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. CHAP. VI.] MILISSICH V. LLOYd's 731 MILISSICH V. LLOYD'S In the Court of Appeal, Febkuaey 10, 1877. Reported in 13 Cox, Criminal Cases, 575. Mellish, L. J} 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 shoiild take advantage of that general rule to remove questions from the consideration of the jiuy which are questions of fact properly for their consideration. The action was brought by the plaintiff against Lloyd's for an alleged Kbel 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 ex- pressed an opinion that, inasmuch as only the speech of the prosecut- ing 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 maUce 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 fuU, but only the summing up of the judge and the speech of the prosecuting coun- sel, made the report of the trial an unfair one. I think that proposi- tion imphes that proceedings at trials caimot be reported at all unless they are reported in full. It must, therefore, be sufficient to pubUsh 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 aad that it is useless sending the case down to a new trial because no ' Only the opinion of Mellish, L. J., is given. 732 BARNES V. CAMPBELL [CHAP. VI. 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 jmy. Notwithstanding the great powers given by the Judicature Acts, it is stiU, of course, the province of the jury to determine between the credibUity of witnesses on either side. Here, however, the question is more what is the inference to be drawn from the facts proved in evi- dence. The general inference to be drawn from aU the facts, as in Lewis V. Levy, E. B. & E. 537, is for the jury. There the whole pro- ceedings 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 infer- ence, 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} BARNES V. CAMPBELL Stjpeeme Coukt, New Hamfshibb,June, 1879. Reported in 59 New Hampshire Reports, 128. Case, for hbel in accusing the plaintiff of crime. Plea, the general issue, with a brief statement alleging that the defendants are con- ductors 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 com- mimity, and that, as such conductors and publishers, they published the article complained of, in good faith, without mahce, beheving and having good reason to beheve 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 imder the general issue, or be pleaded. State v. Bumham, 9 N. H. 34, 43, and authorities cited; Carpenter d. 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 re- ject it as intended to raise the question whether the brief statement 1 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. CHAP. VI.J BARNES V. CAMPBELL 733 sets forth a defence, we are of opinion that it does not. The defend- ants 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 publish- ing 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 pubhc journal. They have the same right to give informa- tion 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 cal- culated to give the jury the erroneous impression that the defendants' judgment of the propriety of the pubHcation is evidence of the law- fulness of the occasion. The defendants' general business of publish- mg interesting and valuable news was not, of itself, a lawful occasion for publishing this particular, false, and criminal charge against the plaintiff. It wiU be for the jury to say what weight the defendants' business has as evidence on the question of maUce. 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 con- stituting a lawful occasion in this particular instance, as if this false charge had been the only thing they ever pubHshed. 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 publi- cation 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} 1 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. '?34 LAWLESS V. ANGLO-EGYPTIAN COTTON CO. [CHAP. VI. LAWLESS V. THE ANGLO-EGYPTIAN COTTON CO. In the Queen's Bench, Februaky 11, 1869. Reported in Law Reports, 4 Qiteen's Bench, 262. Libel. The declaration charged that the defendants falsely and mahciously published of the plaintiff, their manager, in a certain re- port of the affairs of the company, these words: " The shareholders will observe that there is a charge of £1,306 Is. 7d. 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 ren- dered to us very irregularly." Plea: Not guilty. Issue thereon .^ It was objected on behalf of the defendants that there was no evi- dence of a publication of the Hbel, and that it was a privileged com- mimication. 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 ver- dict 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. Melloe, 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 neces- sarily brought under the notice of the auditors, who are appointed by 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; TiUes 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 jour- nalist 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 responsibiUties which attach to his power in the dissemination of printed matter may, and in the case of a conscien- tious 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. ' 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. CHAP. VI. j LAWLESS V. ANGLO-EGYPTIAN COTTON CO. 735 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 what- ever 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 mahce 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 commimicating 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 know- ing all the circimastances 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 aU the share- holders, 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 imnecessary; 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 maUce, and that the defend- ant 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 prin- ciple 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 boTia fide. I think we should be going against what I may call progress, if we were to hold that the dehvery 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 priAdleged. 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 736 PADMORE V. LAWRENCE [CHAP. \-I. receiving it. I am glad that Mr. Holker called owe attention to the American authority, for it supports the judgment of the court. In Philadelphia, Wilmington, and Baltimore Railroad Company v. Quig- ley, 21 Howard (Rep. Sup. Court, U. S.), 202, it was held that it was within the course of business and emplosmient 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 maUce and bad faith, that the report to the share- holders 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 justffied in making a communication in a printed re- port, relating to the conduct of their officers, to all the shareholders, whether present or absent, if the communication be made without mahce and bona fide. The commimication 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 con- clusion 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} PADMORE V. LAWRENCE In the Queen's Bench, Janitaet 18, 1840. Reported in 11 Adolphus & Ellis, 380. Case for slander. The words charged to have been spoken by the defend- ant 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 mate- rial 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 1 Barbaudi). Hookham, 5Esp. 109; McDougallD. Claridge, 1 Camp. 267; Dun- man 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; Mait- land V. BramweU, 2 F. & F. 623; ScarU 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; WaUer v. Loch, 7 Q. B. D. 619; Cowles v. Potts, 34 L. J. Q. B. 247; Quartz Co. v. BeaU, 20 Ch. Div. 501; Royal Aquarium V. Parkinson, [1892] 1 Q. B. 431; Pittard v. OUver, [1891] 1 Q. B. 474; Phila. Co. v. Quigley, 21 How. 202; Broughton v. IMcGrew, 39 Fed. 672; Haight v. Cornell, 15 Conn. 74; Etchison v. Pergerson, 88 Ga. 620; Wharton v. Wright, 30 111. App. 343; Coombs V. Rose, 8 Blackf. 155; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Ljmch V. Febiger, 39 La. Ann. 336; Remington v. Congdon, 2 Pick. 310; Bradley v. CHAP. VI.] PADMORE V. LAWRENCE 737 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 b}- 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, ia 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, Erie obtained a rule for a new trial, on the ground of misdirection. Crmoder and Butt now showed cause. Erie and Barstow, contra.^ Heath, 12 Pick. 163; Famsworth v. Storrs, 5 Cush. 412; York v. Pease, 2 Gray, 2S2; 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. IXmkle, 53 N. J. Law, 438; Jarvis v. Hatheway, 3 Johns, 180; O'Donaghue v. McGovem, 23 Wend. 26; Streety v. Wood, 15 Barb. 105; Fowles v. Bowen, 30 N. y. 20; Ivilinck v. Colby, 46 N. Y. 427; McKnight v. Hasbrouck, 17 R. I. 70; Tillinghast v. ]\IcLeod, 17 R. I. 208; Holt v. Parsons, 23 Tex. 9; Shurtleff v. Stevens, 51 Vt. 501 {semble^ Accord. See also Dickeson r. HiUiard, L. R. 9 Ex. 79; Lyman v. Gowing, L. R. 6 Ir. 259 (where the communication was made to unsuitable persons) ; Phillips v. Bradshaw, ISl 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. Communidaiion from superintendent of railroad to express company as to em- ployee who serves both. International R. Co. v. Edmimdson, (Tex. Civ. App.) 185 S. W. 402. Communication by insurance adjv^ster 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) ; Fair- man 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; Wemnan v. Ash, 13 C. B. 836 (semble, communication to imsuitable 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 la. 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; LoveU Co. v. Houghton, 116 N. Y. 520; Lent v. Underbill, 54 App. Div. 609; Reynolds v. Plumbers' Ass'n, 30 Misc. 709; Behee v. Missouri R Co., 71 Tex. 424; Missomi R. Co. v. Richmond, 73 Tex. 568; Missouri Co. v. Beheej'2 Tex. Civ. App. 107; Miller v. Armstrong, 24 N. Zeal. 968. 1 The arguments of counsel are omitted. 738 CHILD V. AFFLECK [CHAP. VI, 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 jurj 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 unjusti- fiable to search a person against his wiU, 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} CHILD V. AFFLECK Lsr THE King's Bench, Mat 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 per- son, who wrote to Mrs. Affleck for her character, and received the fol- lowing answer, which was the alleged hbel: " Mrs. A.'s compliments to Mrs. S., and is sony that in reply to her inquiries respecting E. Child, nothing can be in justice said in her favor. She lived with Mrs. 1 Johnson v. Evans, 3 Esp. 32; lowler 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 III. App. 567; Harper v. Harper 10 Bush, 447; Hyatt v. Lmdner, 133 La. 614; Bavington v. Robinson, 127 Md 46 124 Md. 85; Eames v. Whittaker, 123 Mass. 342; Wells v. Toogood 165 Mich 677; LaUy 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. Eraser, 29 W. R. 652. ButseePeakw.Taubman, 251Mo. 390; Vanloon w. 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. ' CHAP. VI. J CHILD V. AFFLECK 739 A. but for a few weeks, in which short .time she frequently conducted herself disgracefully; and J\Irs. A. is concerned to add she has, since her dismissal, been credibly informed she has been and now is a pros- titute in Bury." In consequence of this letter the plaintiff was dis- missed 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 privi- leged, and that, at aU events, that part of the letter and the state- ment 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. ' 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 impUed 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 mahce. 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 plain- tiff. The comnnmication 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. Black- burn, 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} ^ The argument for the plaintiff and the opinions of Lord Tenterden, C. J., Bayley, and Littledale, JJ., are omitted. 2 Servant cases. Edmondson ;;. Stevenson, Bull. N. P. 8; Weatherston v. Haw- kins, 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. Fundukhan, 2 T. L. R. 614 (re- versing s. c. 2 T. L. R. 215); Doane v. Grew, 220 Mass. 171; CarroU 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; Pol- 740 COXHEAD V. RICHARDS [CHAP. VI. COXHEAD V. RICHARDS In the Common Pleas, Januaby 31, 1846. Reported in 2 Common Bench Reports, 569. TiNDAL, C. J.i This was an action upon the case for the pubUcation of a false and maUcious libel, in the form of a letter written by one John Cass, the first mate of a ship called The England, to the defend- ant; 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 pubhcation 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 plaintifE 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; lasky 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 sub- scribers generally — is not privileged. Erber v. Dun, 12 Fed. 526; TrusseU 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; PoUasky 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. ChaJlands, 8 Car. & P. 234; Khne v. SeweU, 3 M. & W. 297; Hopwood v. Thorn, 8 C. B. 293; Rob- shaw V. Smith, 38 L. T. Rep. 423; Weldon v. Winslow, Odgers, Lib. & SI. (5th ed.) 255; Melcher v. Beeler, 48 Col. 233; Zuckerman v. Soimenschein, 62 El. 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 climt as to person with whom dierU 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. Woodgat^ 2 C. M. & R. 573; ScarU v. DLxon, 4 F. & F. 250; Stace f. 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 conununication 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. Mcin- tosh, 51 Ind. App. 365. 1 Only' this opinion and the dissentmg opinion of Creswell, J., are given. Erie, J., concurred with the Lord Chief Justice; Coltman, J., agreed with Cresswell J. CHAP. VI.] COXHEAD V. BICHAEDS 741 and, lastly, that the shipowner did not dismiss the captain by reason, and in consequence, of the conununication 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 un- der which the communication of this letter took place, were such, as, in my opinion, to furnish a legal excuse for making the communica- tion; 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 himseK 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 communica- tion was strictly honest on his part, and made solely in the execution of what he beheved 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 be- fore 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 fuU belief that he was performing a duty, how- ever 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 itseff being written for the professed purpose of obtaining his advice how to act, imder 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 con- tinually exposed to the same hazard, if the vessel should continue imder 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 conamunicate its contents to Mr. Ward, whose interests were so nearly concerned in the information; not commimicating it to the pubUc, but to Mr. Ward; and not accompanying such disclosure with any direc- 742 COXHEAD V. RICHARDS [CHAP. VI. tions or advice, but merely putting him in possession of the facts stated ia 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 imad- visedly, but consulted two persons well quahfied to give good advice on such an emergency — the one, an Elder Brother of the Trinity House — the other, one of the most eminent ship-owners 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 ia point of law, although it proceeded from an error in judgment only, not of intention, still it is xmdoubtedly 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 estabhshed 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 pubhcations — 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 hound to make it. A man who received a letter informing him that his neighbor's house would be plimdered or burnt on the night following by A. and B., and which he himself beheved, and had reason to beheve, to be true, would be justi- fied 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 mate- rially affecting the interests of another, and honestly communicating it, in the fuU belief, and with reasonable grovmds 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, imsolicited; he was therefore a volimteer in the CHAP. VI.] COXHEAD V. RICHARDS 743 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 un- privileged 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 com- munications are protected, for the common convenience and welfare of society; and the law has not restricted the right to make them, within any narrow hmits." 1 C. M. & R. 181. In the present case, the de- fendant 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, there- fore, 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 suffi- ciently irmninent to justify the communication — it is true, that the letter, which came to the defendant's hands about the 14th of Decem- ber, 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 insti- tuted some inquiry himself. But it is to be observed that every day the ship remained imder 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 imme- diate 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 dis- closure, not the defendant, but the owner, became liable to the plain- tiff, if the owner took steps which were not justifiable; as, by unjustly dismissing him from his employment, if the letter was untrue. And, 744 COXHEAD V. EICHAEDS [CHAP. VI. as all this was done with entire honesty of purpose, and in the full be- Hef of the truth of the iaformation, — and that, a reasonable beUef, ■^- 1 ajn 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. Cheswell, 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 re- peat 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 pubhsher of that letter, luiless the occasion on which it was pubhshed made the pubUcation of such letter a lawful act, as far as the plaintiff was concerned, if done in good faith, and without actual mahce. To sustain an action for a hbel or slander, the plaintiff must show that it was mahcious; but every unauthorized pubhcation of defamatory matter is, in point of law, to be considered as malicious. The law, however, on a principle of pohcy and convenience, authorizes many commimications, although they affect the characters of in- dividuals; and I take it to be a question of law, whether the com- munication is authorized or not. If it be authorized, the legal pre- sumption of mahce arising from the imauthorized pubhcation of defamatory matter, fails, and the plaintiff, to sustain his action, must prove actual mahce, or, as it is usually expressed, mahce in fact. In the present case, the existence of mahce in fact was negatived by the jury; and if my lord was right in telling them, that, in the absence of mahce in fact, the pubhcation 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 pubhcation of defamatory matter. Perhaps the best description of those limits and boundaries that can be given in few words, is to be foimd in the judgment of Parke, B., in Toogood v. Spyring: " The law considers such pubhcation as mahcious, imless it is fairly made by a person in the discharge of some pubhc or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is con- cerned." 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 con- duct of bis own affairs, nor was his interest concerned : the authority CHAP. VI.] COXHEAD V. RICHARDS 745 for the publication, if any, must therefore be derived from some moral duty, pubhc or private, which it was incumbent upon him to discharge. I think it impossible to say that the defendant was called upon by any pubMc 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 pubUc weal. Was there then any private duty ? There was no relation of principal and agent between the ship- owner and the defendant, nor was any trust or confidence reposed by the former in the latler; there was no relationship or intimacy be- tween tliem; no inquiries had been made; they were, untU 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 feUow-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 pub- lish 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 communica- tion ? Surely not. If the captain had misconducted himself, the mate was capable of observing it, and was as capable of conmiunicat- ing 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 beheved 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 win not attempt to comment upon the very niunerous 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 pubhcation of defama- tory matter imder 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 previ- ous conduct has been, that it may be well deemed the moral duty of former employers to answer inquiries to the best of their behef. 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 746 COXHEAD V. RICHARDS CCHAP. VI. 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 argimient of this case, that the protec- tion given to masters when speaking of the conduct of servants, was more extensive, and appUed 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 state- ment made in answer to the inquiry of the new master was mahcious. The same observation apphes 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 in- quiries 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 Dimman 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. Sar- raude, reported in M'DougaU 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 imder 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 estabhsh 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 estabhshed 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 com:t being thus divided in opinion, the rule for a new trial fell to the ground, and the defendant retained his verdict.^ 1 " If it had been necessary, I should have been fnUy prepared to go the whole length of the doctrine laid down by Tindal, C. J., in the case of (Doxhead v. Rich- ards," per Willes, J., in Amann v. Damm, 8 C. B. n. s. 592, 602. Blackburn, J., CHAP. VI.] JOANNES V. BENNETT 747 JOANNES V. BENNETT Supreme Judicial Court, Massachusetts, October, 1862. Reported in 5 AUen, 169. Tort brought on the 12th of June, 1860, in the name of " The Count Joannes (born ' George Jones ') " ^ for two Hbels 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 par- ents 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 jMay, 1860, being on a visit from his present resi- dence 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 plaiatiff, and their views with regard to his being an unsuitable match for their daughter, who, with a yoimg 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 coimt ^ was written, addressed to the daugh- 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, BuU. 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. BeU, [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 volimteered 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 pubUc board as to a candidate for an appointment). Indian Penal Code, § 499, exception 9. It is not defamation to make an impu- tation 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 pubUc good. ' As to this remarkable litigant, see the article by Irving Browne, " Count Jo- annes," 8 Green Bag. 435. ' Only what relates to this count is given. 748 JOANNES V. BENNETT [CHAP. VI. ter, 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 publi- cation 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 commimicating 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 defama- tory matter, which without such privilege would be libellous and ac- tionable. 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 mo- tives or inducements by which he was led to write the letter set out in the first coimt 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 char- acter, 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 discoun- tenance and prevent, could La 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 coimected with him by the ties of consanguin- ity or kindred. It is not shown that he had any pecuhar 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 commimication 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 impu- tations on private character. CHAP. VI.] BEALS V. THOMPSON 749 It is equally clear that the defendant did not write and pubhsh the alleged Ubellous 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 obhgation to write a letter contain- ing calumnious statements concerning the plaintiff's character. What- ever may be the rule which would have been apphcable under similar circumstances while he retained his relation of religious teacher and pastor towards the person to whom this letter in question was ad- dressed, 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 ren- der them a service was no greater or more obligatory than was his duty to refrain from uttering and pubhshing slanderous or libellous statements concerning another. It is obvious that if such communi- cations could be protected merely on the ground that the party mak- ing 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 conse- quences of uttering or pubhshing a slander or hbel under a privilege which could be readily made to embrace almost every species of com- munication. 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 justi- fication set up by the defendant under a supposed privilege which authorized him to write the letter set out in the first count, the instruc- tions of the court were correct.^ BEALS V. THOMPSON Supreme Judicial Court, Massachusetts, June 20, 1889. Reported in 149 Massachiiseits Reports, 405. Tort for a hbel contained in letters written by the defendant to the plaintiff's husband, and charging her with having been guilty of dis- honorable conduct, deception, and ingratitude and dishonesty towards the defendant, whereby she lost the comfort and society of her hus- band, who refused to live longer with her.^ The jury returned a verdict for the plaintiff in the sum of $30,000; and the defendant alleged exceptions. 1 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. 2 The statement of the case has been condensed. 750 TOOGOOD V. SPYEING [CHAP. VI. Field, J. The exceptions also state, that the court refused " to instruct the jury that each of the letters mentioned in plaintiff's dec- laration was a privileged communication, and that this action could not therefore be maintained," and " instructed the jury that no privi- lege 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 defend- ant, 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 defama- tory of the plaintiff, for the purpose of compeUing him or her to pay the debt. This is not a lawful method of collecting a debt, or of com- pelling 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 obUgation 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} TOOGOOD V. SPYRING In the Exchequer, Trinity Term, 1834. Reported in 1 Crompton, Meeson & Roscoe, 181. The judgment of the court was dehvered by Parke, B.^ In this case, which was argued before my Brothers Bol- LAND, Alderson, Gurney, and myseK, a motion was made for a non- suit, 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 defend- ant, 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 jour- neyman, was sent by him to do the work. He did it, but in a neghgent manner; and, during the progress of the work, got drunk; and some circumstances occurred which induced the defendant to beheve that he 1 In Simmonds v. Dunne, Ir. R. 6 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. ' Only the opinion of the court is given. CHAP. VI. J TOOGOOD V. SPYRING 751 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 pres- ence 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 re- turned and spoke to Taylor, m the absence of the plaintiff; and, in answer to a question of Taylor's, said he was confident that the plain- tiff had broken open the door. On the same day the defendant saw Brinsdon, and complained to him that the plaintiff had been negli- gent 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 co mm unication to Brinsdon was protected, and that the state- ment, 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 pubUcation affords a defence in the absence of ex- press mahce. In general, an action hes 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 pubHcation as mahcious, unless it is fairly made by a person in the discharge of some pubKc 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 mahce, which the law draws from unauthorized com- munications, and affords a qualified defence depending upon the ab- sence ofactual mahce. li fairly warranted by any reasonable occasion or exigency, and honestly made, such commimications 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 beheve, occurred; but one of the most ordinary and common instances in which the principle has been ap- phed 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 752 TOOGOOD V. SPYRING [CHAP. VI. construed, Child v. Affleck, 4 Man. & Ryl. 590; 9B. & 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 com- munications, and if, on every occasion in which they were made, they were not protected unless strictly private. In this class of communica- tions 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 cir- cimistance of the master exercising that right in the presence of an- other, 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 mah- cious 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 com- munication 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 influ- enced by malicious motives.^ 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 com- munication 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 imauthorized 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 opin- ion as to the statement to the plaintiff in Taylor's presence; and, as we think that at aU events it should have been left to the jury whether the defendant acted mahciously or not on that occasion, there must be a new trial. Ruk absolute for a new trial? 1 Jones V. Thomas, 34 W. R. 104; Pittard v. Oliver, [1891] 1 Q. B. 474; Brough- ton V. McGrew, 39 Fed. 672; Brow v. Hathaway, 13 AU. 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 ajfter termination of employment. National Cash Register Co. V. Sailing 173 Fed. 22. 2 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. CHAP. VI. J ^yILLIAMSON V. FREER 753 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 hfiving 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 wiU 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 evi- dence 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 tele- graph rather than by post. The jury found that the statements were hbeUous, and that it was not reasonable to send them by telegraph, and they returned a verdict for the plaintiff, damages £100. Tillinghast complained to the defendant that some of his men had stolen a putty knife and other property belonging to him. The defendant recompensed Tilling- hast for the property and testified that he was told by one of his men that the plaintiff had adinitted 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 dis- charged 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 de- fendant 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 maimer 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 communica- tion 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). 754 WILLIAMSON V. FREER [CHAP. VI. O'Malley, Q. C. (with him Merewether), pursuant to leave, moved to enter a verdict for the defendant.^ Bhett, J. I reserved the point because I thought it was a very im- portant one. It is whether, where a communication is to be made to a relative of a person against whom a charge is preferred, which com- mimication 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 pubHcation is hbellous. The question then is whether the character of an innocent person is to be destroyed because the hbeUer thinks fit to send the libel in this shape rather than in a sealed letter. I do not mean to say that there was mahce 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 mahce. I desire, however, to put this higher. I think that a communication which would be privileged if made by letter becomes imprivileged if sent through the telegraph office, because it is necessarily communicated to aU the clerks through whose hands it passes. It is hke the case of a Hbel contataed on the back of a post card.^ It was never meant by the Legislature that these facilities for postal and telegraphic conununication should be used for the purpose of more easily disseminating hbels. Where there is such a pubhcation, it avoids the privilege, because it is communicated through unprivileged persons. As to the damages, I am not at all dis- posed 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? ' The statement of the case is abridged; the arguments of counsel and the con- curring opinions of Lord Coleridge, C. J., and Denman, J., are omitted. ^ Robinson v. Jones, L. R. 4 Ir. 391 Accord. ■' Robinson v. Jones, L. R. 4 Ir. 391 Accwd. See also Smith v. Crocker, 5 T. L. R. 441; Muetze v. Tuteur, 77 Wis. 236. Statement in presence of third persons not interested. FowUe v. Cruse, 52 Mont. 222; Fields v. Bynum, 156 N. C. 413. Notice of discharge of employee posted on the premises. RamsdeU v. Pennsyl- vania 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) ; Common- wealth V. Featherston, 9 Phila. 594; Holliday v. Ontario Co., 33 Up. Can. Q. B. 558. General publicity with respect to candidate for local office. Buncombe v. Daniel, 1 WiUmore, W. & H. 101, 8 Car. & P. 222; Jones v. Vamum, 21 Fla. 431; State v. Haskins, 109 la. 656; Coleman u. MaoLennan, 78 Kan. 711; Bronson w. Bruce, 59 Mich. 467; Wheatonv. Beecher, 66 Mich. 307; BeUmap!). Ball, 83 Mich. 583; Al- drich V. Press Co., 9 Minn. 133 (but see, cmtra, 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 commimication 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 CHAP. VI.] MARKS V. BAKER 755 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 here- inafter 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 resi- dents and tax-paj'ers 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 com- plaint, 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 maUcious. The answer denies malice, aU 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 discrep- ancy in certain official reports tending to show that the plaintiff had failed to charge himself with the fuU amount of city funds which he had received from the county treasury, and with the view of obtaining an mquiry 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 obHgation as . . . editors and publishers." The reply puts these allegations of the answer in issue. Upon the trial it was admitted that, not-n-ithstanding the discrepancy, (which in fact, existed) the plaintiff had accounted for the fuU 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 ques- tions following, to which he made answeTs 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 pubhshing the article? Answer. I pub- lished it for the general pubUc interest. (3) " Did you have any other object in publishing the article ? Answer. I did not. V. Mascarich, 81 Cal. 302 (semble); Mott v. Dawson, 46 la. 533; Bays v. Hunt, 60 la. 251; State v. Baloh, 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 distmction 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. 756 MARKS V. BAKER [CHAP. VI. (4) " You have stated that you had no other purpose than doing a public duty ia publishing the article. I want to know what your object was, — to charge somebody with a crime, or whether you had some other object ? Arv- swer. 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 treas- urer, 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 com- plained of is a privileged communication. The rule is that a communication made in good faith upon any subject- matter in which the party communicatiag 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 re- butted, and the onus of proving actual maUce 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 Underlull on Torts, 146; Quinn w. Scott, 22 Minn. 456. That the subject-matter of the communi- cation is one of pubHc 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 com- munication, within the rule mentioned, if made in good faith.i Judgment affirmed.^ 1 The court found that the defendant acted in good faith. 2 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 vvblic office. Baker v. Warner 231 U.S. 588. Criticism of minister in a church convention. Dickson v. Lights. CTex Civ Ann ") 170S. W. 834. ' ■ ^^'' Criticism of member of association at a meeting to discuss the affairs of the asso- ciation. Caldwell v. Hayden, 42 App. D. C. 166. Reply to defamatory statements. Adam v. Ward [1917] A. C. 309; Preston » Hobbs, 161 App. Div. 363; Smith v. Kemp, 132 La. 943 CHAP. VI. J CARTER V. PAPINEAU 757 CARTER V. PAPINEAU Supreme Judicial Court, Massachusetts, January 27, 1916. Reported in 222 Massackusetts Reports, 464. Bralet, J.^ The evidence would have amply warranted the jury in finding that the defendant Papineau as priest in charge declined to adniinister to the plaintiff the rite of " Holy Communion " or to per- mit 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 rehgious 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 imder 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 Com- munion " 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 per- son to whom the Sacraments of the Chm-ch 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 be- cause of the insufficiency of the cause assigned by the Minister, to institute such an inquiry as may be directed by the Canons of the Dio- cese 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 plaiatiff 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 cere- monial 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. 1 Only part of the opinion is given. 758 PULLMAN V. WALTER HILL & CO. [CHAP. VI. But if an appeal had been taken properly and the decision had been adverse, the plaintiff would have been remediless, for in this Common- wealth her religious rights as a communicant are not enforceable in the civil coin-ts. Fitzgerald v. Robinson, 112 Mass. 371, 379. Canadian Rehgious 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 pubUcly declared to be " an open and notorious evil Uver," or to be a person who had done wrong to her neighbors by word or deed. The act of " passing her by " without conunent 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 faU. 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 exer- cised. 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." ^ 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 plain- tiffs 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 1 Critidsm of member of congregaticm in a sermon. Hassettt). Carroll, 85 Conn. 23. Statement by clergyman to congregation as to conduct of a trustee. Everett v. DeLong, 144 lU. App. 496. CHAP. VI. J PULLMAN V. WALTER HILL & CO. 759 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. PuUman & 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 what- ever; 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 short-hand 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 ofiice-boy, was sent by post ia 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 pubhcation, 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 mahce. He therefore nonsuited the plaintiffs.' LoKD EsHEK, M. R. Two points were decided by the learned judge : (1) that there had been no pubhcation of the letter which is alleged to be a hbel; (2) that, if there had been publication, the occasion was privileged. The question whether the letter is or is not a Ubel 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 wiU be open to the jury to consider whether there is a Hbel, and what the damages are. The learned judge withdrew the case from the jury. The first question is, whether, assuming the letter to contain de- famatory matter, there has been a pubhcation of it. What is the meaning of " pubhcation " ? 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 pubhcation of it; for you cannot pub- lish a hbel of a man to himself. If there was no pubhcation, the ques- tion 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, 1 The arguments of counsel and the concurring opinions of Lopes and Kay, L.JJ., are omitted. 760 PULLMAN V. WALTER HILL & CO. [CHAP. VI. 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 pubhcation. 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 pubhcation to the type-writer. Then arises the question of privilege, and that is, whether the occa- sion 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 privi- leged. 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 hbeUed; it is not a question of privilege as between the person who makes and the person who receives the communica- tion; the privilege is as against the person who is hbelled. Can the communication of the hbel 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 tjrpe-writer in hearing or seeing the communication ? Clearly, she had none. Therefore, the case does not fall within the rtile. Then again, as to the pubhcation at the other end — I mean when the letter was dehvered. 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 plain- tiffs' firm, and was seen by three of the clerks in their office. If the letter had been directed to the plaintiffs in theu- private capacity, in all probabihty it would not have been opened by a clerk. But mer- cantile 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 CHAP. VI. J STEVENS V. SAMPSON 761 addressed. I agree that under such circumstances there was a publi- cation of the letter by the sender of it, and in this case also the occa- sion was not privileged for the same reasons as in the former case. There were, therefore, two pubUcations of the letter, and neither of them was privileged. And, there being no privilege, no evidence of express mahce was required; the publication of itself implied malice. I think the learned judge was misled. I do not think that the necessi- ties 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 hable 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 .' 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 mahciously printing and publishing of the plaintiff certain words in certain newspapers. The libel set out in the claun was a report, published by the defendant, of certain proceediogs in a plaint of Nettlefold v. Fulcher, tried at the Marylebone county court, and brought to recover damages and costs sustained by Nettle- fold 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 1 Bohlinger v. Germania Ins. Co., 100 Ark. 477; GambriU v. Schooley, 93 Md. 48 Accord. See Central R. Co. o. 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 chants, although a pubhcation, is, nevertheless, privileged. Boxsius v. Goblet, [1894] 1 Q. B. 842. And the authority of Pulhnan 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. Mcllwaine, [1894] 2 Q. B. 54,61. A defamatory statement true of A. but published concerning B., by mistake, win 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. Broderiok, 14 Ir. C. L. R. 453, 459; Loibl v. Breidenbach, 78 Wis. 49. 762 STEVENS V. SAMPSON [CHAP. VI. plaintiff in the present action, who was a debt collector and employed by Pulcher as agent to recover possession of the premises. Statement of defence: That the words alleged to have been pub- lished 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 pubhc benefit, and without mahce. 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 mahce; and found a verdict for the plaintiff with 40s. 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.^ 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 prin- ciple which governs this case is plain. It is like that which governs most other cases of privilege. In order, in cases of Ubel, 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 mahce; if either of these is absent, the privilege does not attach; here the second element is absent, for bona fides is wanting, and mahce 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 al- ready laid down, and I find no authority for its extension. Judgment affirmed.^ 1 The concurring opinions of Bramwell and Brett, L.JJ., and the argument for defendant are omitted. 2 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. ' CHAP. VI.] CLARK V. MOLYNEXJX 763 CLARK V. MOLYNEUX In the Court of Appeal, December 4, 1877. Reported in 47 Law Journal Reports, Common Law, 230.^ 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 or- dained 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 Rec- tor of Sudbury, which is in the neighborhood of Assington, when call- ing 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 obHged to leave the army through cheating with cards, had Hved an irregular life at Cambridge, had been guilty of gross immorahty when curate at Horringer, and had boasted of it. The defendant, placing implicit rehance 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, com- municated 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 de- fendant 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 in- stead of " irregular," and " expelled the army," instead of " obUged to leave the army." The defendant also consulted Mr. Green, his curate, who was an- noimced to preach one of the same course of sermons as the plaintiff. Mr. Green had been with the plaintiff for twenty years, and was con- sulted by him on every ecclesiastical matter that came before him. 1 3 Q. B. Div. 237, s. c. 764 CLARK V. MOLTNEUX [CHAP. VI. 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 Ubel. The defendant reUed solely on the privilege of the occasions and the horm 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 aU 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 mahcious. But where the occasion is privileged, then you require something more, and you require what the law calls express mahce. I must tell you what express malice means." And again, at the close of the summing up : — " What you have to consider, then, is reaUy 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 behef that they were true — not merely that he be- lieved them himself, but honestly beheved them, which means that he had good grounds for beheving them to be true. I do not mean to say pig-headedly, f)ertinaciously and obstinately perhaps persuaded him- self of the matter for which he had no reasonable grounds, and of which you twelve gentlemen would say they were perfectly imjustified. 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 beUef they were true, and that there- fore there is what in law is called mahce in fact, which I have explained to you, then your verdict wUl be for the plaintiff." ^ 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 evi- dence; 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 summiag up, 1 The charge of the learned baron is abridged; the arguments of counsel and the concurring opinions of Bramwell and Cotton, L.JJ., are omitted. CHAP. VI.] CLARK ('. MOLYNEUX 765 really was, it may have materially misled them, and if it may, that is in law a misdirection. The sn mmi ng up is founded on the assumption that the occasions of the alleged slanders and hbel were privileged, and that the defendant was therefore excused in that which would otherwise have been action- able, if he used the occasions fau-ly. 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 hbel and slander really is. It is, I apprehend, this: When a defendant claims that the occasion of a hbel 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 mo- tive, 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 mahce of his own. By mahce here I mean, not a pleading expression, but actual malice, or what is termed mahce in fact, i. e., a wrong feeling in the defendant's mind. If this mahce 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 mahcious, 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 iaquiring 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 mahce, 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 simaming up as a whole, as I think we ought, he left the case as if the burden of proving there was no mahce lay on the defendant, but if the occasion be privileged, the rnius of showing mahce is at once thrown on the plaintiff. Further, in order to guide the jury as to what mahce was, he read the passage in Bromage v. Prosser; what he read there is not a definition of mahce in fact, at all, but of that mahce which is a technical term in certain pleadings, where it simply means " wilfuUy." It has been held, that 766 CAKPENTEH V. BAILEY [CHAP. VI. in such pleadings the absence of the word mahciously 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 sum- ming up is reaUy a recapitulation of the sense of the whole summing up, and might lead the jury to beUeve that, although they were of opinion that the defendant did beUeve 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 ques- tion, as I have stated, is, whether the defendant did, in fact, beUeve his statement,' or whether being angry or moved by some other in- direct motive, did not know, and did not care, whether his statement was true or false. Questions of pig-headedness and obstinacy may bs tests as to whether a man reaUy did honestly beheve or not, but Baron Huddleston left them as if they were of the essence of the definition of mahce. The direction was therefore wrong if the occasions were privileged. That they were I have a very strong opinion. The only occasion dis- puted 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 re- main 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 fmther evidence may not be forthcoming. Appeal allowed. CARPENTER v. BAILEY SUPEEME COUBT, 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.^ The declara- tion 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., pubhshed of him the following hbel: " To the Honorable the Senators and Members of ' Barry v. McCoUom, 81 Conn. 293; Bays v. Hunt, 60 la. 251, 255-6; Hem- mens v. Nelson, 138 N. Y. 517; Haft v. First Bank, 19 App. Div. 423 Accord. 2 The case is materially abridged. CHAP. VI.] CARPENTER V. BAILEY 767 the House of Representatives in Congress from New Hampshire: The undersigned, after much patience has been exhausted, beg to remon- strate 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 Demo- cratic ticket, throwing his patronage adversely to the friends of Gen- eral 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 rehef from such a burden ? Let the rebel sym- pathizer be exchanged for a man who will have office hours of a con- venient kind, and will be found there at least once a day to attend to those having business there, and officers and citizens wiU 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 beheved that the plaintiff had done the things charged in the petition and that he behaved 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 peti- tioned in order to procure the removal of the said plaintiff from said office at said naval station, the defendant, in good faith, and without mahce or iU-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 hbeUous words in the plaintiff's declaration mentioned, ' as he lawfully might have done, for the cause aforesaid, and this he is re^dy 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 pubhcation 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 ap- parently good, but upon a supposition which turns out to be un- founded. 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 occa- sion, 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 768 CARPENTER V. BAILEY [CHAP. VI. when the occasion is proper, one may be excused for stating what proves to be untrue, if he had probable cause to beheve 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 condition- ally, 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 assimiing 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 behef, founded on reason- able 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 beheved 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 shghtest credence; and a jury would readily find that a behef in that case was founded upon information which would not amount to probable cause for the behef of any man of ordinary capac- ity. The. question for the jury would be, not whether the defendant beheved it, but had he probable cause to beheve it ? There might be belief without probable cause for it; and hence it would not be suffi- cient to allege merely information and behef, because that might not, in a given case, amount to probable cause. The fourth plea is sub- stantially 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,} 1 Hanson v. West, 125 Ky. 457 (sembk); 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 pvhlic 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. & SI. (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; Mclntire v. McBean, 13 Up. Can. Q. B. 534; BeU v. Parke, 10 Ir. C. L. R. 279 {semhle); White v. Nichols, 3 How. 266; Vogelu. Gruaz, llOU. S. 311; Pearcet). Brower, 72Ga. 243; Young V. Richardson, 4 111. App. 364; Rainbow v. Benson, 71 la. 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. Bumham, 9 N. H. 34; Thorn v. Blanchard, 5 Johns. 508; Vanderzee v. McGregor, 12 Wend. 545; How- ard V. Thompson, 21 Wend. 319; Halstead v. Nelson, 24 Him, 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; CHAP. VI.] CAMPBELL ('. SPOTTISWOODE 769 CAMPBELL V. SPOTTISWOODE In the Queen's Bench, Apeil 18, 1863. Reported in 3 Best & Smith, 769. CocKBXJRx, C. J.i 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 pubUc the sacred cause of the dis- semination of rehgious truth among the heathen, he was acting as an impostor, and that his purpose was to put money into his own pocket by obtaining con- tributions 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 stiU further that, with a, view to induce persons to contribute towards his professed cause, he pub» lished a fictitious subscription hst. These are serious imputations upon the plaintiff's moral as well as pubUc character. It is said, on behalf of the defendant, that, as the plaintiff addressed himself to the pubhc in a matter, not only of public, but of universal interest, his con- duct in that matter was open to public criticism, and I entirely concur in that proposition. If the proposed scheme were defective, or utterly disproportion- ate to the result aimed at, it might be assailed with hostile critisicm. But then a line must be drawn between criticism upon pubhc conduct and the imputa- tion 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 behef in the truth of his statements, but that his behef was not without foundation. In the present case, the charges made against the plaintiff were unques- tionably without foundation. It may be that, in addition to the motive of re- ligious 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. BoviU 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 caimot 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 dis- honesty: and that is going further than the law allows. Kent V. Bongartz, 15 R. I. 72; Raid 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. IngaUs, 165 App. Div. 323. Compare McKee v. Hughes, 133 Tenn. 455 (petition to revoke merchant's license). 1 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. 770 CAMPBELL V. SPOTTISWOODE [CHAP. VI. It is said that it is for the interests of society that the public conduct of men should be criticised without any other Umit 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 pubUc 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 chatacter, 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.^ 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.^ 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 Ubel, — 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; other- wise 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, pro- vided 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 cir- cumstances 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 pos- sessed 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 maUce; and it is necessary to prove actual malice. But there is no such privilege here. It is the right of aU the Queen's subjects to discuss public matters; but no per- son can have a right on that ground to publish what is defamatory merely be- cause he beheves 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. • Hibbs V. Wilkinson, 1 F. & F. 608; Tumbull v. Bird, 2 F. & F. 508; Hunter v. ?,^?5S®,' t/J" ^- ^^^' Hunt V. Star Co., [1908] 2 K. B. 309; Walker v. Hodgson, [1909] IK. B. 239, 253; De IMestre v. Syme, 9 Vict. L. R. (L) 10; Davis v. Dun- can, L R. 9 C. P. 396; Queen v. Garden, 5 Q. B. D. 1, 8; Crane v. Waters, 10 Fed. 619; Kmyon v. Palmer, 18 la. 377; Bradford v. Clark, 90 Me. 298; People v. Glassman, 12 Utah, 238 Accord. J* Stuart V. Lovell, 2 Stark. 93; IMacleod v. Wakley, 3 Car. & P. 311; Green v. Chapman, 4 Bmg. N. C. 92; Parmiter v. Coupland, 6 M. & W. 105; Whistler v. Ruskm, Odgers, Lib. & SI., (5th ed.) 196; Wilson v. Reed, 2 F. & F. 149; IMorrison ». 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 i;. 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.; UUrich v. N. Y. Co , 23 Misc. 168 Accord. CHAP. VI.] C.iJIPBELL V. SPOTTISWOODE 771 Therefore it is necessary to confine privilege, as the law has always confined it, to eases of real necessity or duty, as that of a master giving a servant a char- acter, 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 " pri\Tlege " 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 gi\'ing 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 func- tionary, 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 mahce. 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; ^ and I take it to be certain that he has only the general right which belongs to the public to comment upon pubhc 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 in- \-ite 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 com- ment; 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 jur>'; and in the present case, as the article published by the defendant obviously imputed base and sordid motives to the plaintiff, that question de- pended 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. BovUl asked that a further ques- tion should be left to them, viz., whether the writer of the article honestly be- lieved 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 miti- gate the amount, but it cannot disentitle the plaintiff to damages. Rule refused.^ 1 See contra, WiUiams v. Spowers, 8 Vict. L. R. (Law) 82. 2 Honest beUef is no defense apart from privilege. Van Wiginton v. Pulitzer Pub Co., (C. C. A.) 218 Fed. 483; Brandt v. Story, 161 la. 451; Tanner v. Steven- son 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. PettingiD, 222 U. S. 452; Lowe v. News Pub. Co., 9 Ga. App. 103; Diener v. Star Chronicle Pub. 772 CAER V. HOOD [CHAP. VI. CARR V. HOOD Before Lokd Ellenbobough, 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, mahcious, and defamatory Hbels therein- after 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 cer- taiQ other book, entitled " A Northern Summer," a certain other book, entitled " The Stranger in Ireland," &c. which said books had been respectively pubhshed in 4to, yet that defendant intending to expose him to, and to bring upon him great contempt, laughter, and ridicule, falsely and mahciously published a certain false, scandalous, mahcious, and defamatory hbel, 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 hbel 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 allud- ing 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 hbel 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 caUed, " Frontispiece," and entitled " The Knight (meaning the said Sir John) leaving Ireland with Regret," and con- taining and representing in the said print, a certain false, scandalous and mahcious, defamatory, and ridiculous representation of the said Sir John, in the form of a man of ludicrous and ridiculous appear- ance, holding a pwcket-handkerchief to his face, and appearing to be weeping, and also containing therein a certain false, mahcious, and ridiculous representation of a man of ludicrous and ridiculous appear- ance, following the said representation of the said Sir John, and repre- senting 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 some- thing therein, with the printed word " wardrobe " depending there- 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 la. 730. CHAP. VI. 3 CARR V. HOOD 773 from, (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 con- tained, etc. &c. The declaration concluded by laying as special dam- age, that the said Sir John had been prevented and hindered from selling to Sir Richard Phihps 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 accoimt of a tour of him the said Sir John through part of Scotland, which but for the pubhshing of the said false, scandalous, malicious, and defamatory hbels, 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 whoUy unsold and undisposed of, and was greatly depreciated and lessened in value to the said Sir John. — Plea, not guilty. Lord Ellbnbohough, as the trial was proceeding, intimated an opinion, that if the book pubhshed by the defendants only ridiculed the plaiatiff 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 aU who might be disposed to discuss the merits of his works; but that criticism must be fair and Uberal; its object ought to be to enhghten the pubhc, and to guard them against the supposed bad tendency of a particular pubhca- tion presented to them, not to woimd the feelings and to ruin the prospects of an iadividual. If ridicule was employed, it should have some bounds. While a hberty was granted of analyzing literary- pro- ductions, and pointing out their defects, stiU he must be considered as a UbeUer, 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 natm-e and the means of dispersing it; but sm-ely he might support an action for damages against any one who should publish a book to make him ridiculous on accoimt of this infirmity, with a caricature print as a frontispiece. The object of the book pubhshed by the defendants clearly was, by means of immoder- ate ridicule to prevent the sale of the plaiatiff'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 pubhcation 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 ac- cused the plaintiff of pubhshing what he had never published. Here 774 CARR V. HOOD [CHAP. VI. 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. Ridi- cule is often the fittest weapon that can be employed for such a pur- pose. 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 plain- tiff'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 pubUc to the bad taste and inanity of his compositions ? Who would have bought the works of Sir Robert Fibner after he had been refuted by Mr. Locke ? but shaU 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 Hable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous; otherwise the first who writes a book on any subject wiU 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 maUce 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 afiixed to it, the trial proceeded. The Attorney-General having addressed the jury on behalf of the defendants — LoED Ellenborough said, Every man who publishes a book com- mits -himself to the judgment of the public, and any one may com- ment 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 iato domestic life for the purposes of slander, that would have been Ubellous; but no pas- sage 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 pubUc, who writes down any vapid or useless pubhcation, 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 CHAP. VI. J MERIVALE V. CARSON 775 has a right to pubHsh, 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 hberal 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 slan^ der, the action would not Ue; but if they could discover in it anything personally slanderous against the plaintiff, unconnected with the works he had given to the pubhc, in that case he had a good cause of action, and they would award him damages accordingly. Verdict for the defendants.^ MERIVALE V. CARSON In the Coubt of Appeal, Decembee 2, 1887. Reported in 20 Qmen'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 Ubel. 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." ' 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. Ander- son, 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; Eraser 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 P. & F. 608; TurnbuU V. Bird, 2 F. & F. 508; Strauss v. Francis, 4 F. & P. 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; Mulkem v. Ward, 13 Eq. 619, 622; Whistler t). Ruskin, Odgers, Lib. & Si., (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. (sembk); Adolf PhiMpp 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 circiimstances proved, the Ubel went beyond a fair comment on the plaintiff and on the system of medical enter- prise with which he associated himself, as a matter of pubhc interest treated by the defendant honestly and without mahce. The plea of fair comment does not arise if the plea of justification is made good, nor can it arise unlp«s there is an imputa- tion on a plaintiff. It is precisely where the criticism would otherwise be action- able as a hbel 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 hbel is not fair comment and cannot come within the region of fair comment." Lord Lorebum, L. C, in Dakhyl v. Labouchere, [1908] 2 K. B, 325, 326-27. 776 MERIVALE V. CAESON [CHAP. VI. The defendant was the edltolr 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 de- fendant'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 hmp 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 expHcable 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, mar- quis, or count than would, say, an Enghsh bOhard-marker or stable- lout. And so the Marqms 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 reconcUiation 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 impUed 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 summiag-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 mo- ment suggested by any one that the defendant is animated by the smallest possible mahce towards the plaintiffs. There is no ground for saying so, and no one has said so. . . . The malice which is neces- sary 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 foimd a verdict for the plaintiffs with one shilling dam- ages, and the judge entered judgment for the plaintiffs accordingly, and declined to deprive them of costs. The defendant appealed.^ 1 The arguments are omitted. CHAP. VI.] MERIVALE V. CARSON 777 Lord Eshek, 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 ques- tions which in such a case ought to be left to the jury ? The first ques- tion to be 13ft 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 con- sider 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 foimded. The defendant's article is alleged to be libellous in that it attributed to the plaintiffs that they had written a play founded upon adulterj-, 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 ia 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 privi- leged 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 Ubel 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 778 MERIVALE V. CAKSON [CHAP. VI. than that fair and full latitude of discussion should be allowed to writers upon any pubhc matter, whether it be the conduct of public men, or the proceedings in courts of justice, or in Parhament, or the publication of a scheme, or a hterary work. But it is always to be left to a jury to say whether the pubUcation has gone beyond the limits of a fair comment on the subject-matter discussed. A writer is not en- titled to overstep those Umits, 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 hbel." 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 hbel. What is the meaning of a " fair conunent " ? 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 judg- ment must say whether any fair man would have made such a com- ment 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 circiunstances 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 exag- geration, 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 crit- icised ? 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 fan man could have said that. There was therefore a complete misdescription of the plaintiffs' work, and the inevitable conclusion CHAP. VI.] MERIVALE V. CAKSON 779 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 ver- dict 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 con- tain 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 Ughtly in such a way as to tend to immorahty. These are the facts. "UTiat 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 as- simaption 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 inmiunity than the rest. But in the present case we are dealing with a common right of pubhc 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. Har- rison, Law Rep. 7 C. P. 606. That learned judge and the majority of 780 MERIVALE V. CARSON [CHAP. VI. 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 crit- icism, although there is no limit of the number of the persons entitled to make the criticism. With great respect to WiUes, 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 dif- ference 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 ordiaarily adopted, viz., to begin by asking them whether they think the limits of fair criticism have been passed. That imphes that there is no libel if those limits are not passed. It is only when the writer goes beyond the limits of fair crit- icism that his criticism passes into the region of hbel 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 them- selves, as connected with their works, is not actionable, unless it ap- pears 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 hbel." It must be assumed that a man is entitled to enter- tain 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 hterary 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 hmits of criticism altogether, and therefore beyond the hmits of fau- criticism. Campbell v. Spottiswoode was a case of that kind, and there the jury were asked whether the criticism was fau-, and they were told that, if it attacked the private character of the author, it CHAP. VI.] MEEIVALE V. CARSON 781 would be going beyond the limits of fair criticism. Still there is an- other 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 saymg 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 hmits 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 hbel stated that the story of the plaintiffs' play turned upon adultery. In a case of mani- fest misdescription such as this the judge is not bound to go into all the minutise as if the hbel had been of a different character, and his sum- ming-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 faU 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 cor- rectness 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 mahcious motive; that is to say, by some motive other than that of a pure expression of a critic's real opinion. Appeal dismissed. 782 THOMAS V. BRADBURY. AGNEW & CO. [CHAP. Tt. THOMAS V. BRADBURY, AGNEW & CO. In the Coubt 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 Ubel tried before Darling, J., with a jury. The alleged Ubel was the following review in Punch of the plain- tiff's book: — " Mangled Remains. " Extract from the Recess Diary of Toby, M. P. " Been reading ' Fifty Years of Fleet Street ' just issued by Mac- millan. Purports to be the ' Life and Recollections of Sir John Rob- inson,' 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 personaUty of the subject and the skill of the compiler. The former occasionally suffers from the inca- pacity of the latter. But at least his individuahty is scrupulously ob- served. Like Don Jos6, what he has said he has said, his observations and written memoranda not being mixed up with what his biographer thinks he himseM thought, uttered, and recorded. Mr. Thomas goes about the biographer's business in fresh fashion, complacently an- nounced 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, intro- duces it with the remark, ' the incident may be given in the diarist's own words.' The procedure is perhaps not unusual with earher biog- raphers. 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 cher- ished stories as if th^ 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 CHAP, yi.j THOMAS V. BRADBURY, AGNEW & CO. 783 reader, recognizing Mr. Thomas, hastily turns over half-a-dozen pages, and possibly misses a handful of the genuine ore. These are hard hnes, unjust to Robinson, unfair to the public. It is plain to see, from the few unmutilated extracts from Robinson's manuscript which iU\iminate the book, that the materials at hand for a delightful biog- raphy were abundant. For nearly forty years the manager of the Daily Xews Uved in the very heart of things. He was behind most scenes of public Ufe, was more or less intimately acquainted with the principal personages figuring ia it. His sympathies were bountifully wide, his observation alert, his sense of hirniom- 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 pubhcation in biographical form is \mdoubted. Mr. Thomas, impregnable in the chain armour of complacency, positively admits it. ' Robinson,' he says, ' did leave some diaries — om" diaries — more or less fragmen- tary, and a nimiber of thick, closely-written volumes of jottings in his own handwriting, descriptive of events of which he had been an eye- witness and people he had seen and known.' Where is this treasure trove ? Presumably portions the biographer was good enough to re- gard as worth adapting are filtered through the wordy pages of larger type. Happily the material is so good, its original hterary form so excellent, that even this imparaUeled atrocity cannot quite spoil the book. We who knew Robinson on his throne in Bouverie Street and at the weU-known table in the dining-room of the Reform Club, rich in recollections of W illiam 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 surpris- ing chance that has made possible this slight upon it." The defence admitted that the defendant Lucy wrote, and that the other defendants pubhshed, 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 to- wards the plaintiff, and were a fair and bona fide criticism and com- ment 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 784 THOMAS V. BEADBUEY, AGNEW & CO. [CHAP. VI. 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 inca- pable 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 300Z. damages. The defendants appealed.^ 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 Ubel, 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 pubhshers. The defence was fair comment. The learned judge refused to withdraw the case from the jury, who found for the plaintiff, with 300L damages. The defend- ants do not complain of misdirection other than that involved in hold- ing that there was any evidence fit for the consideration of a jury. They ask for judgment on the groimd 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 coimsel strenuously con- tended that there was extrinsic evidence of malice in the proved rela- tions 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 ' The statement has been abridged, and the arguments of counsel together with a small portion of the judgment are omitted. CHAP. ^'I.] THOMAS V. BRADBUKY, AGNEW & CO. 785 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 om- 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 mahce, which I have attempted to sum- marize, 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 in- volves 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 hbel, of which mahce, express or implied, has always been considered to be the gist. The basis of this contention, such as it is, appears to be a miscon- ception of the effect of the gloss, if I may so phrase it, first put upon the law of Hbel in relation to fair comment in the dicta of Cromp- ton, 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 un- changed and maUce remains exactly where it did. The dicta no doubt assert the etymological inexactitude of the word " privilege " as con- noting 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; ' but they in no degree affect the standard by which the fair- > 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; Will- iams V. Hicka 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 infer- ences of which it is composed, that is, whether it is a comment made honestly and bona fide, or a comment made mala fide and maUciously. . . . But where the words which are alleged to be defamatory allege, or assume as true, facts concern- ing the plaintiff which the plaintiff denies, and which either involve a slanderous imputation in themselves, or upon which the comment bases imputations or in- 786 THOMAS V. BRADBURY, AGNEW & CO. [CHAP. VI. ness of the comment is to be judged or relieve the commentator from liability, if the comment be malicious, if, indeed, it can then be de- scribed 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 individ- ual right whatever name it be called by, and comment by him which is colored by malice carmot 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 mahce, it is quite immaterial that somebody else might without mahce have written an equally damnatory crit- icism. 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. Spottis- woode, just as it always had been before, down to and since Merivale V. Carson. That case decided nothing inconsistent with the law of hbel 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 akeady pomted out m 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 "met&physical 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 Ubel, in respect of communications made on a privileged occasion and commvuiications made in the shape of crit- icism on a matter of pubhc 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 na- ferences injurious to the plaintiff, it is, I think, settled law that the defence of fair comment fails, unless the comment is truthful ia regard to its allegation or assump- tion 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 pubhc 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. GiUette, (C. C. A.) 229 Fed. 108; Jozsa v. Moroney, 125 La. 813; Hines v. Shu- maker, 97 Miss. 669; Patten v. Harpers Weekly Corp., 158 N. Y. Supp. 70; Hayden v. Hasbrouck, 34 R. 1. 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. Brad- shaw, 167 Ala. 199. CHAP. VI. J THOMAS V. BRADBURY, AGNEW & CO. 787 ture 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 inamunity, 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 inci- dents 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 com- mimications or criticisms f aUing prima facie within the right or privi- lege. 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 jiuy 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 pubHshed work the transaction begins by the admission, on the part of the plaintiff, implied from the aver- ment by him of pubHcation 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 maUce in fact. If he had veOed the fact that the writing criticised had become matter of public 788 THOMAS V. BRADBUEY, AGNEW & CO. [CHAP. VI. interest by publication it would have been prima facie HbeUous, and the defendant would have had to plead such a pubUcation 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 shghtest degree affect the place of malice in the law of Hbel, and that it is only by leaving out one step in the analysis that the public right, as distinguished from the privi- lege, 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 cer- tain circumstances, writing defamatory of another person may be pubhshed with impunity, because the presumption of maUce is nega- tived. 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 whUe to sift this contention somewhat elab- orately, as it is apparently based upon a misconception which seems to have a tendency to repeat itself as to the effect of Merivale v. Car- son, on the law of Hbel. 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, Camp- bell V. Spottiswoode, Blackburn, J., says: " Honest belief may be an ingredient to be taken into consideration by the jury in determining whether the pubhcation is a hbel, that is, whether it exceeds the lim- its 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 hbel would not be beyond the limits of fair criticism, and it could be shown that the defendant was not reaUy criticising the work, but was writing with an indirect and dis- honest intention to injure the plaintiffs stiU the motive would not make the criticism a hbel. I am inchned to t hink that it would, and for this reason, that the comment would not tTien really be a criti- cism 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 Cooperative 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 hbel, was admissible. The court decided that it was, following a previous decision of this court in a case of privilege strictly so called. Vaughan WiUiams, 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 CHAP. VI.] THOMAS V. BRADBURY, AGNEW & CO. 789 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 ques- tion 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 privi- lege 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 Uterary 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 mahce actu- ating the defendant was adroissible, 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 defend- ant Lucy says in the alleged hbel " it is plain to see from the few un- mutilated 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 pubhshed 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 hav- ing 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 averriag im- putations 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. 790 JACKSON V. HOPPERTON [CHAP. VI. Cozens-Habdy, L. J. I agree. Sib Goeell Barnes, President. I have had an opportunity of reading the judgment of the Master of the Rolls, and I agree with it. Appeal dismissed} JACKSON V. HOPPERTON In the Common Pleas, May 25, 1864. Reported in 12 Weekly Reporter, 913.^ 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-nuUiner, 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 dis- honest,' 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 cer- tain persons trading under the name and style of ' Capper, Son, & Co.' Mused to employ the plaintiff as saleswoman and sen^ant 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." 1 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. Dehnege, [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. New- castle 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 Mamey v. Joseph, 94 Kan. 18. " If proof of a malevolent motive would rebut the privilege, which we do not de- cide, nothing less than that would do, so far as maUce is concerned. It is true, as is said itt the very careful brief for the plaintiff, that in most connections mahce 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 de- fence 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 need- ful 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." Hohnes, 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. Weener, (Tex. av. 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. 2 16 C. B. N. s. 829, s. c. CHAP. VI.] JACKSON V. HOPPEKTON 791 Plea — Not guilty. The plaintiff entered the defendant's service on December 1st, 1862, and re- mained 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 10s., 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 JXlessrs. Capper, Son & Co., for a situation; and she in- formed 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 ■nill 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 ia the declaration, and said he would not give her a char- acter, 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 maHce ; or for a new trial, on the grounds that the verdict was against the evi- dence, and that the damages were excessive. Eble, 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 beheved the imputation of dishonesty, which he made against the plaintiff, was true or not, and they found he did not beheve it to be so, and the judge is satisfied with their answer. I think this was a neces- sary 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 probabUity that they were spoken malici- ously, 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 pre- sumption of malice, and that it is prima facie evidence of malice, but the occa- sion on which the defamatory words are spoken may rebut the prima facie in- ference 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. & 792 DAVIS V. SHEPSTONE [CHAP. VI. 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 com- munication was made rebuts the inference prima facie arising from a state- ment 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 communi- cation was made. In the present case, it became, in my opinion, incumbent upon the plaintiff to show maUce 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 iU-wiU." 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 steahng the £3 10s., and, not making that charge tiU 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 performiag 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 Btles, JJ., concurred. Rvle refused} DAVIS V. SHEPSTONE In the Peivy Council, Maech 5, 1886. Reported in 11 Appeal Cases, 187. The judgment of their lordships was delivered by Lord Hebschell, L. C.^ 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 pub- lished by the appellants in the " Natal Witness " newspaper in the months of March and May, 1883. The respondent was, in December, 1882, appointed Resident Com- missioner in Zululand, and proceeded in the discharge of his duties to the Zulu reserve territory. In the month of March, 1883, the appel- lants published in an issue of their newspaper serious allegations with reference to the conduct of the respondent whUst in the execution of his office in the reserve territory. They stated that he had not only 1 NeviU w. Fine Arts Co., [1895] 2 Q. B. 156; HoUenbeck v. Ristine, 105 la 488:; Children v. Shum, 168 la. 531; AtwiU v. Mackintosh, 120 Mass. 177- Wagner v Scott, 164 Mo. 289; McGaw «^amilton, 184 Pa. St. 108; Hellstem «. KatzSr, 103 Wis. 391 Accord. Compare Davis v. New England Pub. Co., 203 Mass 470; Doane v. Grew, 220 Mass. 171. ' ^ Only the opinion of the court is given. CHAP. VI.] DAVIS V. SHEPSTONE 793 himself violently assaulted a Zulu chief, but had set on his native policemen to assault others. Upon the assumption that these state- ments 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 rela- tions 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 seK-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 pubHshed a further ar- ticle, 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 respond- ent. 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 pubKc interest affecting the territory of Natal, and that the alleged hbels 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 dis- charge of the duties of his office, and a fair and impartial conament upon the conduct of the plaintiff in his public capacity pubUshed bona fide and without maUce. 794 DAVIS V. SHEPSTONE [CHAP. VI. 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 respond- ent, for £500. Application was afterwards made to the Supreme Court to grant a new trial, but this appUcation 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 dam- ages were excessive. Their Lordships are of opinion that the con- tention 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 pubhc 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 pubUc. But the distinction cannot be too clearly borne in mind between conunent or criticism and allegations of fact, such as that disgraceful acts have been committed, or discredit- able language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a pubhc man, and quite another to assert that he has been guilty of particular acts of misconduct.^ 1 Parmiter v. Coupland, 6 M. & W. 105; Odger v. Mortimer, 28 L. T. Rep. 472; Queen v. Garden, 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. Burn- side, 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. Town- send, 21 Fla. 431; Rearick v. Wilcox, 81 111. 77; Klos v. Zahorik, 113 la. 161; Ott V. Murphy, 160 la. 730; Bearce v. Bass, 88 Me. 521; Negley v. Farrow, 60 Md. 158; Commonwealth!). Clap, 4 Mass. 163, 169 {semhle); Curtis t). Mussey, 6 Gray, 261; Burt v. Advertiser Co., 154 Mass. 238 (compare SiUars v. CoUier, 151 Mass. 50); Hubbard v. AUyn, 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 CHAP. VI.] DAVIS V. SHEPSTONE 795 In the present case the appellants, in the passages which were com- plained of as libellous, charged the respondent, as now appears without foundation, with having been guilty of specific acts of misconduot, and then proceeded, on the assumption that the charges were true, to comment upon his proceedings in language in the highest degree offen- see, contra, Marks v. Baker, 28 Minn. 162); Smith v. Burrus, 106 Mo. 94; State v. bchmitt^ 49 N. J. Law, 579; Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613; Littlejohn v. Greeley, 13 Abb. Pr. 41; HamUton v. Eno, 81 N. Y. 116; Mattice v. AT°?; W ^- "^'- ^-^'' H°^y "■ New York Times Co., 138 App. Div. 149; UUrich r. 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 !'. Weakley, 2 Overt. 99; Banner Co. v. State, 16 Lea, 176; Democrat Co. i;. Jones, 83 Tex. 302; Sweeney v. Baker, 13 W. Va. 158; Spiering v. Andrae, 45 U IS. 330; E-siston 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 la. 533; Bays t>. Hmit, 60 la. 251 (but see State v. Haskins, 109 la. 656, 658, and Morse v. Printing Co., 124 la. 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 Tmies, 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. Li Burt !'. Advertiser Co., 154 Mass. 238, Holmes, J., said : " But there is an im- portant distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privilege existing lq 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 3 a person merely quoted or referred to a state- ment as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise Kbellous, he will not be privileged if those facts are not true. The reason for the distinction hes 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 per- son, 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 imintended injustice, confined as it generally is to one or two persons. But wha.t 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. SheckeU 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 AJlah 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 (church- warden); 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., 26 L. T. Rep. 44; Hogan v. Sutton, 16 W. R. 127; Wilson v. Fitch, 41 Cal. 363. See also Heame v. StoweU, 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. 796 DAVIS V. SHEPSTONB [CHAP. VI. sive 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 doc- trine that defamatory matter thus pubHshed is regarded by the law as the subject of any privilege. It was insisted by the counsel for the appellants that the pub- hcations were privileged, as being a fair and accurate report of the statements made by certain messengers from King Cetewayo upon a subject of pubhc importance. It has, indeed, been held that fair and accurate reports of proceedings in parUament 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 pur- poses 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 jmy 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 complaiat on their part. The only question that remains is as to the amoimt of damages. The assessment of these is pecuHarly 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 Lord- ships see no reason for saying that the damages awarded were excessive or for interfering with the finding of the jury in this respect. They wUl, 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.' The Appellate Division ^ has certified that the fol- lowing questions of law have arisen in this case, and ought to be re- viewed 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 defend- ants 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 al- leged 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 de- fendants, was engaged in a general milling business and in the man- ufacture 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 Hkenesses 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 comer in smaller capital letters, " Rochester Folding Box Co., Rochester, N. Y."; that upon the same sheet were other advertise- ments of the flour of the Franklin Mills Co.; that those 25,000 like- nesses 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 ^ Arguments omitted. * The decision of the Appellate Division, overruling demurrer to complaint, is reported in 64 App. Div. 30. 797 798 KOBERSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. people, with the result that plaintiff has been greatly hiuniliated by the scoffs and jeers of persons who have recognized her face and pic- ture on this advertisement and her good name has been attacked, caus- ing 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, pubhshing, cir- culating, or using in any manner any Ukenesses of plaintiff in any form whatever, for further rehef (which it is not necessary to consider here) and for damages. It will be observed that there is no complaint made that plaintiEf was Ubelled by this publication of her portrait. The Ukeness 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 ad- vertisements appear. Such pubUcity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants' imperti- nence 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 impHed 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 dam- ages to her feeUngs, 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 estabHshing her right to recover in this action." Nevertheless, that court reached the conclu- sion 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 commenta- tors 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 abihty in the Harvard Law CHAP. VII.] ROBERSON V. ROCHESTER FOLDING BOX CO. 799 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 enter- prises 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 pubhshed of him must not be spoken of him by his neighbors, whether the comment be favorable or othen\'ise. 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 pubUcation of that which purports to be a portrait of another per- son, 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 instrumentahty of a court of equity, the attempts to logically apply the principle wiU necessarily result, not only in a vast amount of htigation, but in Htigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the pubUcation of a likeness, but must necessarily em- brace as well the pubHcation 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 feehngs than would the publication of their picture. And so we might add to the hst 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 im- bedded 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 pro- vide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes with- 800 ROBEKSON V. ROCHESTER FOLDING BOX CO. [CHAP. VII. out his consent. In such event no embarrassment would result to the general body of the law, for the rule would be apphcable only to cases provided for by the statute. The courts, however, being without au- thority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by an extreme, and, therefore, unjustifiable apphcation 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 unequivo- cal principle of the common law which either directly or mediately governs it or which by analogy or parity of reasoning ought to gov- ern it. It is undoubtedly true that in the early days of chancery jurisdic- tion 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 chancel- lor disregarding absolutely many established principles of the com- mon law. " In no other way," says Pomeroy, " could the system of eqmty 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 re- garded 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 prece- dents, 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 meta- phorical term, designating the conmion 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 over- estimated, for, whUe 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 mis- chief which will finally result may be almost incalculable under oiu- 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 htigation and upon the development of the law which CHAP. VII. J EOBEKSON V. EOCHESTEE FOLDING BOX CO. 801 woiild 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 eq\iity 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 ana- lyzed, and, reasoning by analogy, the conclusion was reached that — notwithstanding the unanimitj- of the courts in resting their decisions upon property rights in cases where publication is prevented by in- jimction — in reahtj' 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 hke the right not t 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. 828 STONE V. CAHLAN [CHAP. VIII. 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 pro- tected against loss or damage by the responsibihty 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 defend- ants 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 fiuiiher reflection, think that the suit is well brought. The plaintiffs are the real parties in interest. It is possible that, owing to the general Uability of the pro- prietors, as innkeepers, for the loss of the property of guests, the pro- prietors 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 aU the defendants.^ 1 PrestoHte 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 Bis- cuit 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 Acc(rrd. In March v. Billings, 7 Cash. 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; Gushing, On Certain Cases Analogous to Trade Marks, 4 Harvard Law Rev. 321. Misleading similarity. Hanover Milling Co. v. MetcaU, 240 U. S. 403; Mo- Donald 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 CHAP. VIII.] HUGHES V. MCDONOUGH 829 HUGHES V. Mcdonough Sttpbeme Couht of Judicatuhe, 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 black- smith 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 in- jxire the plaintiff in his said trade, &c., " did wiKuUy and mahciously mutilate, impair and destroy the work done and performed by the said plaintiff upon the mare of the said Van Riper, without the knowl- edge 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 de- prive the said plaintiff of the patronage and custom of the said Van Riper." The second coimt charges the defendant with driving a naU 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 Jus- tices Scudder, Knapp and Reed. 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. MarshaUtown Mfg. Co., 167 la. 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 y. Fremont Undertaking Co., Q3 Wash. 52; J. I. Case Plow Works v. J. I. Case Machhie Co., Use of one's mm. name, see L. E. Waterman Co. ». Modem Pen Co 235 U. S. 88- Borden Ice Cream Co. v. Borden's Consolidated Milk Co., (C. C. A.) 201 Fed. 5l6- 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 Wh^e defendant passes off his -product as plaintiffs, recovery is allowed without proof of actual damage. Blofeld v. Payne, 4 B. & A 410; Singleton ^-^ Bolton 3 Doug. 293 (sembU); Sykes v. Sykes, 3 B. & C. 541; Morison v. Sahnon, 2 M. & G. 385- Crawshay v. Thompson, 4 M. & G. 357 (sembte); Rodgers v Nowill, 5 C. B. 109; Forster Co. v. Cutter Co., 211 Mass. 219. Compare Glendon Co. v. Uhler, 75 Pa. St. 467. 830 HUGHES V. MCDONOUGH [CHAP. Vlir. 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 inunediate 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 harm- ful 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 occur- rence 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 signifi- cance, 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 con- stituent 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 cbntracted. The ground of this decision was that this discharge of the plaintiff from his employment was Ulegal, 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 EUenborough 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 prin- ciple that a man is responsible only for the natural consequences of his own misdeeds, and that he is not answerable for detriments that CHAP. VIII.] HUGHES V. SAMUELS BROTHERS 831 ensue from the misdeeds of others. But this doctrine, it is to be re- membered, does not exclude responsibihty when the damage results to the party injured through the intervention of the legal and inno- cent 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 fore- seen, and where, in the usual course of events, it was Ukely to follow from the cause, the person putting such cause in motion wiU be re- sponsible, 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. . . } 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 fraudiilent 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 pic- tiu-es, it is plain the wrong could have been remedied, ia 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 circvunstances 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. Gatnor, 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 under- taking. Defendants are a copartnership. The plaintiff claims: That on the 6th day of October, 1914, the ' ' The learned judge here discussed McDonald v. Snelling, 14 AH. 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; BeU v. Midland Co., 10 C. B. n. s. 307 Keeble v. Hickeringill, 11 East, 574, n. 832 HUGHES V. SAMUELS BROTHERS [CHAP. VIII. defendants falsely and maliciously composed and published of and concerning the plaintiff the following : " Bear in mind our Undertaking Department. Satisfaction guar- anteed. (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 pubhshed said statement. That they com- posed and published it for the maKcious 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 pubhshed for the maUcious 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 beUeve that plaintiff sent the card, and for the further purpose of inducing the said Cattermole to refrain from patronizing the business of the plain- tiff. That the pubHcation was further made for the purpose of incit- ing 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 Hbellous per se, and no special damages are alleged to have been suffered by the plaintiff on accoimt of its publication. This demurrer was sustained by the court. Plaintiff elected to stand on his pleading and not to plead fvurther, 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 defend- ants 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 maUed by the defendants as to lead the receiver to beUeve 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 CHAP. VIII.] HUGHES V. SAMUELS BROTHERS 833 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 a,nd sent these cards to the sick and dying in the com- munity ? Was it not rather, as the petition says, to deprive him of pubhc confidence and esteem ? Was it not rather to expose him to pubHc 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 vultiu-e waiting to prey upon the dead ? A man without sym- pathy for the hviug 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 peti- tion charges, to wit, to injure the plaintiff in his reputation and busi- ness, 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, imder 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 confi- dence 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 pubhc hatred, con- tempt, or ridicule is libellous per se. Dressel v. Shipman, 57 Minn. 23, 58 N. W. 684. The general rule is, that when language is pubhshed concerning a person or his affairs, which, from its nature, necessarily must, or pre- sumably win as its natural and proximate consequence, occasion him pecimiary loss, its pubhcation is hbellous per se. See Townsend on Slander and Libel, (4th ed.) §§ 146 and 147; Fry v. McCord, 95 Tenn. 680, 33 S. W. 568. Pecuhar damages are required to be alleged only when the publica- tion, with its attending facts and circumstances, is such that damages do not naturally arise from the pubhcation. 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 con- 834 HUGHES V. SAMUELS BROTHERS [CHAP. VIII. sequence of the act complained of, then there is no occasion, in order to maintain an action, that the plaintiff allege or prove pecuhar dam- ages. If the nature and character of the pubhcation, with its attend- ing 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 pubhc contempt, hatred, or ridicule, then it is hbellous per se. If such injury can be said to be a natural proximate result or consequence of its pubhcation, then the plaintiff is presumed to have been damaged, and there is no need of any allegation of pecuhar damages. The extent of the damages is for the jury. It is the venom of poisoned speech that constitutes the hbel. 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 pub- lished, and the circumstances under which they were pubHshed, and the persons to whom a knowledge of the pubhcation 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 pubhshed ? 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 pubhca- tion 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 reputa- tion 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 vitaUty, the mind naturally inquires into the circumstances imder which they were published, the manner of their pubhcation, and the persons to whom a knowledge of the pubhcation was brought. This inquiry is pursued to ascertain the effect which the pubhcation, under the circumstances, would naturally have upon the mind of the person to whom a knowledge of the pubhcation was brought. If the words and the circumstances attending their pubhcation would not naturally affect the mind prejudicially against the person concerning whom the pubhcation is made, it must be alleged and shown, not only that they were used in a defamatory sense, but that they were so xmderstood 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 in- CHAP. VIII.] HUGHES V. SAMUELS BROTHERS 835 jury of his good name, fame, and reputation. The pubhcation 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 def amer and the defamed — to the pubhc may be such, considered in the light of the subject-matter concerning which the pubhcation 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 pubhcation and its injiu-ious 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 Kving. 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, hbel 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 hbel 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 hving 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 mahciously, 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 foimd in the publication, not merely in the wording of the thing published. The injury must flow from the pubhcation. The damage must be the natural and proxi- mate 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 836 HUGHES V. SAMUELS BROTHERS [CHAP. VIII. 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 Ubellous. " A liljel is the malicious defamation of a person made public by any writing," &c. It is the malicious defamation against which the inhi bition of the statute is raised; mahcious 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 pub- he hatred, contempt, or ridicule, or which deprives one of the benefits of public confidence and social intercourse, is libellous per se. Every written pubhcation, mahciously made, defamatory of an- other, 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 dehcate plant, withered by the breath of scandal. Any publication which imputes to another conduct which right-thinking men condemn, whether the conduct in- volve a crime, moral turpitude, or any conduct in Ufe, purpose, or manner of Hving which the common sense of right-thinking men con- demns, 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 Hbel is an assault upon character result- ing in some injury to reputation. The injury must be traceable to the assault, and the damage must be the proximate result of the in- jiuy. Every one recognizes the bUghtrng effect of scandalous utter- ances directed against the character, conduct, or reputation of men. Every one recognizes that such assaults, publicly made, tend injuri- ously 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 mahciously poisoning the minds of others against the party assaulted by printing, writing, &c., thereby bring- ing 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, vmder the protection of the law, by the use of pubhc 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 CHAP. VIII. J HUGHES V. SAMUELS BROTHEES 837 consequences that naturally flowed from the thing done. We think the pleading was suJBEicient to present the question to the jury. As supporting what we have said, see Call v. Larabee, 60 Iowa, 212, 14 N. W. 237; HoUenbeck 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 con- stitutes a hbel, 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 sugges- tion which, standing alone, they do not have. Thus, though the words here do not of themselves impute wrong, they might be pub- lished in such a place or imder such circimistances 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 with- holding payment of it. . . . What meaning they would naturally convey was for the jury to determine in view of the circumstances of their pubUcation." 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. Salingeb, J. There is language in the opinion which indicates there may be hbel 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 Hbellous is libel- lous jper 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.^ 1 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 axivertising 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 hLs 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 notmed a shipowner that the company would not insure the ship if plaintiff was employed as master. Defendant set up that he honestly bcUeved plaintiff unfit. See also Bowen v. Matheson, 14 All. 499. In Morasse v. Brochu, 151 Mass. 567, defendant in a sermon warned his congre- gation against a physician who had been excommunicated for remarrying after divorce. 838 WESTMINISTER CO. V. HESSE CO. [CHAP. VIII. WESTMINISTER LAUNDRY CO. v. HESSE ENVELOPE CO. St. Louis Coubt of Appeals, Missouri, May 6, 1913. Reported in 174 Missouri Appeal Reports, 238. NoRTONi, J. This is a suit for damages, in which plaintiff recov- ered 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 Com- pany are each corporations engaged in their respective callings in the city of St. Louis. Plaiatiff owns and is engaged in the business of operating a steam laimdry. Defendant is engaged in the business of manufacturing envelopes. The D'Arcy Advertising Company is en- gaged in the advertising business — that is to say, it places adver- tisement 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 peti- tion as follows : " The fundamental idea of same (the ' bHnd ' advertisement) being the use of some striking device well adapted to attract public atten- tion, 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 pubUc has been sufficiently piqued and the attention of the pubHc 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 " Stopur- kicken." The petition avers that plaintiff entered into a contract with the D'Arcy Advertising Company whereby it was to have the exclu- sive use of the word " Stopurkicken; " that the D'Arcy Advertising Company, in pursuance of plaintiff's plan, had the word " Stopur- kicken " pubUshed 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 advertise- ment 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 dis- tributed throughout the city of St. Louis a large number of cards bearmg the word " Stopurkicken " and followed by the name of the Hesse Envelope Company. Because of this use of the word by de- fendant, Hesse Envelope Company, plaintiff avers it is damaged and prays a recovery therefor. CHAP. VIII.] WESTMINISTER CO. V. HESSE CO. 839 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. 7-11.) 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 rehed 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 laimdry 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 840 WESTMINISTER CO. V. HESSE CO. [CHAP. VIII.. output of its laimdry. 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 ob- tained 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. lUmois 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 reUef, 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 pubUc 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, rehef against unfair competition is afforded upon the ground that one who has built up a good wUl and reputation for his goods or business imder 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 divert- ing 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 estabhsh a repute therefor m 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 user 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 vmfair competition, (SheUey v. Sperry, 121 Mo. App. 429, 99 S. W. 488.) CHAP. VIII.] THE MIDLAND INStTKANCE CO. V. SMITH 841 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 other- wise 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 beariag its name, as it did, no unfair competition appears when considered in the sense of the law on the subject and untU plaintiff had obtained a right thereto by actual user in connec- tion with the product of its laundry, the phrase " Stopurkicken " must be regarded as publid 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 pubhc 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 otir 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, Maech 23, 1881. Reported in Law Reports, 6 Qiieen's Bench Division, 561. Watkin Williams, J.^ This action is one of an extraordinary, and so far as I am aware of an imprecedented, 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 argimient are assumed to be true, are as follows: The plaintiffs, an insurance company, granted to the defendant, Charles Smith, a pohcy of fire insurance, dated the 26th of Jime, 1880, by which they agreed with him that if certain property in a certain house should be destroyed or damaged by fire 1 Only the opinion of the court is given. 842 THE MIDLAND INSUEANCE CO. V. SMITH [CHAP. VIII. they would pay or make good all such loss or damage during the currency of the policy. The defendant Mary, the wife of the defend- ant 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 pohcy 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 argiunent, 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 habUity on the ground that the loss, having been caused by the arson of the wife, was not covered by the pohcy, and that they had also set up a counter-claim 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 vaUdity 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 prin- ciple that " every husband is hable 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 indemhify. In sub- stance, 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 CHAP. VIII.] THE MIDLAND INSXJKANCE CO. V. SMITH 843 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 amoimted 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.^ Upon the first groimd of demurrer the defendants are, in my judg- ment, 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 poKcy, and by so doing entitled themselves to the benefit of any claims and causes of action vested in the assiu-ed; but it seems that even up to this moment the insurance company dispute the claim and deny the right of the assured to de- mand 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 inas- much 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 sus- tainable. 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 1 The opinion of the court on this point is omitted. The defendant's contention was not sustained. 844 THE MIDLAND INSURANCE CO. V. SMITH [CHAP. VIII. 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 ease 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 any- thing, can be recovered in specie of the thing insured — and by reason of the transfer of the thing insured an independent right in the under- writers 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 poUcy 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 wrongdoer. This proposition virtually aflBrms 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 apphcation 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 wrongdoer to a chattel, not only the owner of the chattel, but all those who by con- tract with the owner have bound themselves to obUgations 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 wrongdoer, 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 neghgence of a wrongdoer 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 CHAP. VIII.] THE MIDLAND INSURANCE CO. V. SMITH 845 asked, who had contracted to attend him and provide medicines for a fixed sum by the j'ear, 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 patient's 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 re- cover damages for that loss from the wrongdoer ? 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 Eng- land 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; ]\Iason 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 insvuance 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 hus- band a retiu"n indemnity or reimbiu'sement 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 pohcy. 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 pohcy. That question might be raised in the action brought by the assured against the company upon the pohcy, 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 ehcit 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 poHcy against loss caused by fire; under such a policy the company would be Hable 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 responsibihty for such a loss as the present the company ought to introduce into their pohcy an express exception. Judgment for the defendants. 846 KLOUS V. HENNESSEY [CHAP. VIII. KLOUS V. HENNESSEY Supreme Coubt, Rhode Island, June 14, 1881. Reported in 13 Rhode Island Reports, 332. DuHFBE, C. J.^ This is an action on the case for conspiracy. The declaration charges in effect that the defendants and one Patrick Ken- ney, said Kenney being then a debtor of the plaintiffs, conspired together to prevent the plaintiffs and the other creditors of said Ken- ney from getting payment of their claims out of his property, and that, in pursuance of the conspiracy, Kenney made fictitious mort- gages 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 pre- vented 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 hen 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 as- sured right, but simply a chance of securing his claim by attachment or levy, which he may or may not succeed in improving.^ It is im- • Only the opinion is given. ' " 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 Dic- tionary one of the definitions of ' chance ' is ' a possibiUty or probability of any- thing 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 httle 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 shiUing; 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 futy, and, as I imderstand 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 obvioxis 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 assess- ment." Farwell, L. J., in Chaplin v. Hicks, [1911] 2 K. B. 786, 798. CHAP. VIII.] HITTCHINS V. HUTCHINS 847 possible to find anj' 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 sup- port of it; and therefore, without reproducing them, we deem it suffi- cient simply to cite the cases themselves, all of which are accessible and can be readily consulted. Lamb v. Stone, 11 Pick. 527; Welling- ton 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; lumball 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} HUTCHINS V. HUTCHINS Supreme Couet, New York, January, 1845. Reported in 7 Hill, 104. By the Court, Nelson, C. J.^ 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 maKciously 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 defam- ing and calumniating the character of the plaintiff in several par- 1 Adler v. Fenton, 24 How. 407; Findlay v. McAllister, 113 U. S. 104 (sembk); Austin V. Barrows, 41 Conn. 287; Green v. Kimble, 6 Blackf. 552; Moody v. Bur- ton 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. KeUum, 66 Tex. 242 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 m 47 L. R. A. 433^40. , , ^ In Smith v. Tonstall, Carthew, 3, defendant was held hable for conspu'acy with plaintiff's debtor on scire facias to jjrocure a false judgment and anticipate plam- tiff by execution thereon and carrymg off of all the debtor's property. Findlay v. McAllister, 113 U. S. 104 (sembk); Adams v. Paige, 7 Pick. 541 Accord. See Pul- len V. Headberg, 53 Col. 502. , . , , ' Only the opinion is given, and it is somewhat abridged. 848 HUTCHINS V. HUTCHINS [CHAP. VIII. ticulars. 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, hberty and reputation, or to his rights of prop- erty, 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 tres- pass has been committed, but must aver and prove his right or in- terest 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 wiU, 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 obHgation; 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 gt'atuitous, such as the loss of cus- tomers, of a permanent home at a friend's, or advancement in life, and such hke, if the unmediate 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 re- garded 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. CHAP. VIII. J LEWIS V. CORBIN 849 But the law applicable to the cases referred to proceeds upon the ground that the plamtiff , by the wrongful act complained of, has been deprived of the present, actual enjoyment of some pecuniary advan- tage. No such damage can be pretended here. At best, the contem- plated 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 defend- ant, beyond a mere naked possibihty; 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} LEWIS V. CORBIN StrpHEME Judicial Cotjet, Massachusetts, May 15, 1907. Reported in 195 Massachusetts Reports, 520. Action of tort. Demurrer to declaration. Knowlton, C. J.^ 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 invahd. 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 com- mon law (see Maybank v. Brooks, 1 Brown Ch. 76; Dildine v. Dil- dine, 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 shaU take the gift imless the will requires a different disposition of it. We are of opinion that the purpose of the Legislature is best accom- plished 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. 1 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 mort- gage assigned to defendant and obtained an assignment and foreclosed without plaintiff's knowledge. ' Statement, and part of opinion, omitted. 850 LEWIS V. CORBIN [CHAP. VIII. 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 dam- age to the plaintiff resulting directly therefrom. Lamb v. Stone, 11 Pick. 527, 534, 535; Welhngton 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 de- prive and defraud Henry G. Lewis and his heirs of the sum of $5000, he advised and prociured 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 de- sire 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 defend- ant rehes 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 wiU 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 in- capable 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 dam- age, or damage without fraud gives no cause of action; but where both concur, an action hes. . . . The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift CHAP. VIII.] LEWIS V. CORBIN 851 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 inten- tions 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 re- ferred 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 Com- monwealth 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 prop- erty 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 sub- sequent 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 plain- tiff'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 prob- 852 DULIN V. BAILEY [CHAP. VIII. ability that these events would follow. In Hutchins v. Hutching, 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. WhUe 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 possi- bility 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 action- able 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 Massa- chusetts, and that the construction of the wUl is governed by the law of this State. Welch v. Adams, 152 Mass. 74, 79; SewaU v. Wilmer, 132 Mass, 131, 136. Demurrer sustained} DULIN V. BAILEY SUPHEME COUET, NoBTH 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 de- ceased 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 wiU has been admitted to probate. In the course of the proceeding the plaintiff asked for the appoint- ment 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 wiU that had been proven in common form was attacked and set aside by caveat, the plaintiff could • 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 withm the Statute of Frauds, but it was found that the third person would have performed but for defendant's act. CHAP. VIII] DULIN V. BAILEY 853 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 spohation by which she alleges the defendants have prevented her receiving the simi of money which was due her if they had not fraudu- lently altered and defaced the subsequent will. She alleges that she does not attempt to set up the second will because the evidence ac- cessible to her would not prove its entire contents. She prefers, there- fore, to bring this action against the defendants for their wrongdoing 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 en- tirely without precedent. In Tucker v. Phipps, 3 Atkins, 359; cited in Barnesly v. Powel, 1 Ves. Sr. 284, it was held that, the spoliation being clearly proven, the plaintiff could maintain his action without setting up the wiU by a probate. It was held that : " Where a will is destroyed or concealed, while the general rule is to probate the alleged wiU 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 spohation and sup- pression." In that case the spoliation was alleged to have been a destruction or concealment of the wiU by the executor. Such action against a stranger is even more appropriate than an independent action against the executor. Tucker v. Phapps is to be found in 26 Enghsh Reports (Reprinted) 1008. Another case very much in point is Barnesley v. Powell, 1 Ves. 119, 27 Enghsh 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 wiU, in which was a legacy to the plaintiff, so that it could not be proven in the Eccle- siastical Court [which cannot prove a will on loose parts of the con- tents 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 854 RATCLIFFE V. EVANS [CHAP. VIII. 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 wiU, and the measure of her damages wiU 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 pre- sented 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 wiU, 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 Couet of Appeal, May 26, 1892. RepaHed 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 FUnt, of an engi- neer and boiler-maker under the name of " RatcUffe & Sons," having become entitled to the good-wiU of the business upon the death of his father, who, with others, had formerly carried on the business as " RatcUffe & 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 mahciously publishing and printing of the plain- tiff in relation to his business, in the " Coimty Herald," certain words set forth which imported that the plaintiff had ceased to carry on his business of engineer and boUer-maker, and that the firm of RatcUffe & 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 in- jured in his credit and reputation, and in his said business of an engineer and boUer-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 pubUcation; but he gave no specific evidence of the loss of any particular customers or orders by reason of such pubUcation. In CHAP. AIII.] RATCLIFFE V. EVANS 855 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 pub- lished 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.'^ The following judgment of the court (Lord Esher, M. R., Bowen, and Fbt, 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 de- fendant 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 pubhcation in the " County Herald," a Welsh newspaper. It was treated in the pleadings as a defamatory statement or Ubel; 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 deter- mine is, whether in such an action such general evidence of damage was ad- missible and sufficient. That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously pub- lished, 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 hbel 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 iu 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 aU 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 dam- age (beyond the general damage), which results from the particular circum- 1 The arguments of counsel are omitted. 856 KATCLIFFE V. EVANS [CHAP. VIII. stances 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 sur- prise 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 ^Tong; 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 ease brought for a pubhc 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 en- courage 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 mahcious falsehood intentionally published in a newspaper about the plain- tiff's business — a falsehood which is not actionable as a personal hbel 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 imquestionably be alleged and proved. Every libel is of itseK a wrong in regard of which the law, as we have seen, imphes 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 reUed on by the plaintiff, such particular dam- age must of course be alleged and shown. But a loss of general custom, flow- ing directly and in the ordinary course of things from a hbel, may be alleged and proved generally. " It is not special damage " — says Pollock, C. B., in Harrison ;;. Pearce, 32 L. T. (0. 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, gen- eral evidence was received of a decline of business presumably due to the pubhcation of the Ubel, 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 hbel 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 CHAP. VIII.] RATCLIFFE V. EVANS 857 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 m print puts in circulation that which is more permanent and more easily transmissible than oral slander, ^'erbal 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 m such cases, the "law does not allow the plaintiff to re- cover damages which flow, not from the original slander, but from its un- authorized repetition: Ward v. Weeks, 7 Bing. 211; Holwood v. Hopkins, Cro. EUz. 7S7; DLxon 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 natu- rally 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 generahty must be taken, therefore, with the qualification that the words complained of must have been spoken under cncumstances 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 inn- keeper 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 dechne 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 slan- der, unless he is allowed to give general evidence of a loss of custom ? " Mac- loughlin V. Welsh, 10 Ir. L. Eep. 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 pro- duced. 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 Hbels 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 authori- ties 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 modem 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 858 RATCLIFFE V. EVANS [CHAP. VIII. 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 BuUer'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 slan- ders 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. Priar, 15 Q. B. 907; see Co. Litt. 303 d; Westwood v. Cowne, 1 Stark. 172; Iveson V. Moore, 1 Ld. Raym. 486. In aU 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 particu- larity 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 false- hoods affecting property or trade is only an instance of the doctrines of good sense appKcable 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 in- tended 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 injurj' 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 CHAP. VIII.] DUDLEY V. BRIGGS 859 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) beheved the circumstances imder which the falsehood was uttered to have brought it within the scope of a sunilar principle. In our opinion, therefore, there has been no misdirec- tion and no improper admission of evidence, and this appeal should be dis- missed with costs. Appeal dismissed.^ DUDLEY V. BRIGGS SxjPBEME 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 pubhsher 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 doiags 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. 1 See American Ins. Co. v. France, 111 HI. 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 at- tained, but it would be the certainty of injustice." Christiancy, J., in Allison v. Chandler, 11 Michigan, 542, 555. See also pp. 553-556. 860 DUDLEY V. BRIGGS [CHAP. VIII. " And the plaintiff says that, according to his usual and ordinary- custom ia the compilation and publication of the said ' The Bristol County Directory,' he would have compiled and pubHshed 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 compiUng and pubhshing said directory for said year of 1885, and thereafterwards, and receiving the gains and profits there- from, and to secure the same to the defendant, together with all the gains and profits arising therefrom, and otherwise to injure the plain- tiff 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 adver- tisers in said directory and the subscribers thereto throughout said Bristol County, that the plaintiff had gone out of the business of compiling and pubhshing 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 in- duced the plaintiff's said patrons, advertisers, and subscribers, in and throughout said Bristol County, to give to the defendant their adver- tisements 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 defend- ant 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, pubhshing, 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 pubhcation, till he learned of the defendant's said act and doings, and thereby he will be hereafter prevented from compUiag and publishing said directory except at an increased expense and with diminished profits." CHAP, yill.] DUDLEY V. BRIGGS 861 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 pubhshed 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; IMorison v. Sahnon, 2 M. & G. 385; and Sykes v. Sykes, 3 B. & C. 541. He does not allege that he had any copyright in the previous pub- hcations which the pubhcation of the defendant infringed; and the courts of the Commonwealth have no jurisdiction over infringements of copyright. If each pubhcation of a directory by the plaintiff every two years was a separate pubhcation, 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 pubhsh 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 ]\Ianure 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 dis- paraging the plaintiff's busiaess. We think that the declaration does not show that the business of the plaintiff, in publishing a new direc- tory every two years, was a continuous business. The directory to be pubUshed 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 tha< 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 cus- tomers 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 pubhcation every two years of a new directory. Such a directory could be published by any- body. It is perhaps a question of degree whether the pubhcation by 862 DUDLEY V. BEIGGS [CHAP. VIII. 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 allega- tion 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 pm-chase directories. Until the plaintiff had entered upon the compilation of the directory for 1885, we do not think that there was any business of pubhshing 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 wrongftil interfer- ence with the business of another are largely collected in Walker v. Cronin; but ui that case there was an actual business, with the carry- ing on of which the defendant wrongfully interfered. The declaration in this case, indeed, alleges that the plaintiff made his preparations for compiling and pubUshing a directory for 1885, but it does not allege what those preparations were, or that they were anything valu- able. The averment that he " has been put to great loss and expense in preparing for said compilation and pubhcation," near the end of the declaration, appears to be a part of the damages. The plaintiff cites Swan v. Tappan, 6 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 disparage- ment of the goods of another, manufactmred and kept for sale. The plaintiff rehes upon Benton v. Pratt, 2 "Wend. 385, which per- haps may be considered as an extreme case. See RandaU v. Hazelton, 12 All. 412. In Benton v. Pratt, Seagraves and Wilson, at AUentown, had orally agreed to purchase of the plaintiff two himdred hogs, at the market price, if dehvered within three or f om- weeks, and they had not been previously suppHed; and, " about the time for the delivery," the plaintiff was proceeding with his drove of hogs to AUentown for the purpose of deUvering 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 AUentown, 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 agree- ment, if there was an agreement, although not in writing, was an actual offer by Seagraves and WUson, not revoked, and which they CHAP. VIII. J GARRET V. TAYLOR 863 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 accord- ance with their offer. The fatal objection to the present case is, that it is entirely prob- lematical whether the plaintiff would actually have published a direc- tory if the defendant had not made the fraudulent misrepresentations alleged. The plaintiff abandoned his intention to compile and pub- hsh 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 weU 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 inqtiisition 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 weU enough. And adjudged for the plaintiff.' 1 Standard Oa Co. v. Doyle, 118 Ky. 662; Dickson v. Dickson, 33 La. Ann. 1261 Accord. Threats of vexatiotis 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; Ditt- gen 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. 864 HAET V. ALDEIDGE [CHAP. VIII. TARLETON v. M'GAWLEY At Nisi Prius, coram Lord ICenyon, 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 pm-pose 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 mali- ciously 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 hin- dered 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 de- fendant had expressed an intention not to permit any to trade, imtil a debt due from the natives to himseff 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.i 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 imder 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 _ 1 St. Johnsbury Co. v. Hunt, 55 Vt. 570 (arrest of plaintiff's engineer on a mali- cious and baseless charge, whereby the running of plaintiff's train was delayed) Accord. CHAP. Vin.] HAKT V. ALDRIDGE 865 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 measm-e carried on by this sort of servant. That the verdict had foimd 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. WiUes, contra. The single question is, whether the enticing away a journejrman 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 serv- ants; 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 joiu-neyman, 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 mas- ter; but the gist of the present action is that they were attached to this particular master. 866 EAGER V. GRIMWOOD [CHAP. VIII. 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.^ And even sup- posing, as my lord has stated, that the servant did hve 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 He. If not, it might be of very bad consequence in trade. He is a servant quoad }ioc, and though the seducer and enticer is much the worse, yet the law inflicts a penalty upon workmen leaving their work imdone. Mr. Justice Willes and Mr. Justice Ashhurst concurred. Per Curiam. Let the postea be delivered to the plaintiff.^ 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 plain- tiff 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 be- tween the defendant and the plaintiff's daughter took place for the ' 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); Smithy. Goodman, 75 Ga. 198; Bundy «. Dodson, 28 Ind. 295; Jones w. 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. Gulp, 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 wiU He 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. ^ 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. Defend- ant was held Uable for retaining the joumejonan 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 la. 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 UabiUty for the hiring of plaintiff's journey- man 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. CHAP. ^^II.J EAGER V. GRIMWOOD 867 first time two days after Christmas day, 1844. In June, 1845, the plaintiff's daughter gave birth to a child, which, according to the evi- dence 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 beheved 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 mis- direction, against which Humfrey showed cause. Prentice, in support of the rule.' Pollock, C.B. The case of GrinneU y. 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 dehvering 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. Aldehson, B., Rolfe, B., and Platt B., concurred. Rule accordingly.^ 1 The arguments of counsel are omitted. - " 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 appHes 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 produciag 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 circimastances, 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 preg- nancy or sexual disease. Vanhom 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 serv- ices is too remote a consequence of the criminal act, and the action cannot be maintained. Boyle v. Brandon, 13 M. & W. 738; Knight v. WOcox, 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, 868 EVANS V. WALTON [CHAP. VIII. 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 pubHcan 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 ser-vdce of the said Louisa Evans in his said business. Pleas: Not guilty; and that Louisa Evans was not the servant of the plaiatiff, 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 nine- teen years of age, who served in the bar and kept the accounts. On the 10th of November, 1866, the daughter, with her mother's permis- sion, 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 Man- chester, left the plaintiff's house and went to a lodging-house in the neighborhood of Birmingham, where she cohabited with the defend- ant, 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 sus- tain 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 Ue 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. 0. Griffits (June 11) showed cause, submit- ting that the action would he 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 conse- CHAP. VIII.] EVANS V. WALTON 869 quent 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. Grim wood ; 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 re- cover. 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 servi- tium 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 vahd and binding contract of service, which has been broken through the prociurement 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 un- doubted 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 marrymg her.^ 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, imless there be a valid contract of apprentice- ship; 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. BI. 511, that the objection " (that is, to the vaHdity 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 1 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. DeUinger, 126 N. C. 462. Unless the daughter was induced to marry the defendant by the latter's fraud. HiUs v. Hobert, 2 Root, 48; Goodwin v. Thompson, supra. 870 EVANS V. WALTON [CHAP. VIII. 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.' 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 par- ties. 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 au- thorities to show the contrary. It is said that the case of seduction is anomalous in this respect. There is, however, no foimdation 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 hving 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 pos- session 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 appren- tice here was no legal apprentice, if the indentures be not enrolled pursuant to the 5 EUz. 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, ' A part of the argument and the concurring opinion of Montague Smith J. with which Keating, J., agreed, are omitted. ' ' CHAP. VIII. J EVANS V. WALTON 871 " if a man ought to have toll in a fair, &c., and his servants are dis- turbed 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. TV. 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 prin- ciple 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. AU 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 in- ferences 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 Bram- well, B., in Thompson v. Ross, 5 H. & N. 16. That this kind of serv- ice 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 work- men 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 re- straint 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 invahdity. 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 ob- 872 EVANS V. WALTON [CHAP. VIII. jections 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 en- ticed 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 suffi- cient 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 de- prived of their fruits, and it is pointed out that the writ at common law ran, " qiiare un tiel servientem meum in servitio meo existentem cepit et abduxit," without alleging any contract or retainer. That runs so completely with the earher 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 BramweU, 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 fihal 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 xmder 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 m keepmg her away from the plaintiff's service ? I apprehend that, where the relation of master and servant exists, any fraud CHAP. VIII.] EVANS V. WALTON 873 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 main- tainable 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} 1 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 be- fore entering the service of the defendant. In Keane v. Boycott, 2 H. Bl. 512, the defendant, a recruiting oflBcer, officiously induced the servant to leave the plaintiff, in order to enlist as a soldier. In Speight v. OUviera, 2 Stark. 493; Morgan v. Molony, 7 Ir. L. R. n. s. 101, 240; Ball v. Bruce, 21 111. 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 win to leave the master, but the motive of the father does not appear. " PKeane 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. Bar- num, 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 maUce, 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 874 LUMLEY V. GYE [CHAP. VIII. LUMLEY V. GYE In the Queen's Bench, Teinity Teem, 1853. Reported in 2 Ellis & Blackburn, 216. Crompton, J.' The declaration in this case consisted of three counts. The two first stated a contract between the plaintiff, the pro- prietor 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 mahcious 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 aban- don her contract with the plaintiff and all service thereunder, whereby Miss Wagner wrongfully, during the full period of the engagement, refused and made defaiilt 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 plain- tiff, 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 imtil 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 con- tract; whereby damage arises to the plaintiff, the proprietor of the binding obligation. Per Willes, J., Evans v. Walton, L. R. 2 Com. PL, pp. 621- 622." Clerk and LindseU, 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 u. Martyn, 2 Esp. 732; Boston Manu- factory V. Binney, 4 Pick. 425. ' The statement of the case and the arguments of counsel are omitted. CHAP. VIII.] LUMLEY V. GYE 875 theatre. The third count differs, in stating expressly that the per- former had agreed to perform as the dramatic artiste of the plain- tiff, and had become and was the dramatic artiste of the plaintiff for reward to her; and that the defendant mahciously 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. Itwasnaid, 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, es- pecially 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 Ue 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 per- son 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 dur- ing 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 oper- ates to prevent the service during the time for which the parties have contracted that the service shall continue; and I think that the rela- tion of master and servant subsists, sufficiently for the purpose of such action, during the time for which there is in existence a binding con- tract of hiring and service between the parties; and I think that it is 876 LTJMIiEY V. GTE [CHAP. VIII. a fanciful and technical and unjust distinction to say that the not having actually entered into the service, or that the service not actu- ally 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. . . } 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 pres- ent case, was not of such a nature as to constitute the relation of mas- ter and servant, so as to warrant the apphcation 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 engage- ments under contracts for services of any particular description; and I think that the remedy, in the absence of any legal reason to the con- trary, may well apply to all cases where there is an unlawful and mah- cious 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 ex- clusive. . . } In decidmg 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 ih 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 reUes 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 mahcious injury might be calculated on a very different principle from 1 The learned judge here discussed and approved of Blake v. Lanyon, 6 T. R, 2 The rest of the opinion on this point is omitted. CHAP. VIII.] LUMLEY V. GYE 877 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 cov^d not be maintained, and that dam- ages, 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 con- spiracy would he for an injury inflicted by two, an action on the case in the nature of conspiracy will generally he; and in such action on the case the plaintiff is entitled to recover against one defendant with- out proof of any conspiracy, the maUcious injury and not the con- spiracy being the gist of the action.^ In this class of cases it must be assumed that it is the mahcious act of the defendant, and that mali- cious act only, which causes the servant or contractor not to perform the work or contract which he would otherwise have done. The serv- ant 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 unjugt, 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 imder 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 he 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 mmierous and uniform, that an action will lie by a master against a person who procures that a servant should unlawfully leave his serv- ice. 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; 1 See note (4) to Skinner v. Gunton, 1 Wms. Saund. 230. — Reporter's note. 878 LIJMLEY V. GTE [CHAP. VIII. 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 procure- ment 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 con- tract 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 appro- priate action for the wrong complained of. Where a right to the per- formance 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 recoiu:se is al- lowed; 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 con- tract, and as the act itself is not Ukely 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 dis- tinction in principle between this case and other eases of contracts is, that the wife is not Hable to be sued; but the judgment rests on no such grounds; the procuring a violation of the plaintiff's right xmder 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 Ke, because the battery, in the first case, and the Ubel, in the second case, upon the contracting parties were not shown to be with intent to cause those persons to break their contracts, ^nd 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 rehed CHAP. VIII.] LUMLEY V. GYE 879 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 viola- tion of his right ought to be made to indemnify; and that, whether he procures an actionable wrong or a breach of contract. He who pro- cures 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-pajrment of a debt where the damage may be bankruptcy to the creditor who is disap- pointed, but the measure of damages against the debtor is interest only; or, in the case of the non-dehvery of the goods, the disappoint- ment 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-dehvery 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 mali- ciously 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 estabhsh. 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 dam- ages directly and proximately consequential on the act of him who is sued; ' 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. 1 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 main- taining that the actress was not a servant. 880 LTJMLEY V. GYE [CHAP. VIII. 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 inten- tion, 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 in- jurious 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 mahce or without, if the act be after all sine damno, no action on the case will he. 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 declara- tion, 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 plain- tiff 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 voy- age to China, and C, however mahciously, persuades B. to break his contract, but in vain, no one, I suppose, would contend that any action would he 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 in- effectual; 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 maUce be added, and let C. have persuaded, not bona fide but mala fide and mahciously, 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 af- fected by the presence or absence of malice in C. Thus far I do not apprehend much difference of opinion : there would be such a mani- fest absurdity in attempting to trace up the act of a free agent break- ing a contract to all the advisers who may have influenced his mind, more or less honestly, more or less powerfully, and to make them re- sponsible 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 con- tended for seriously. This was the principle on which Lord Kenyon CHAP. VIII.] LTJMLEY V. GYE 881 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 merelya 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 distin- guished 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 hmtful to himself. Al- though 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 persuad- ing, may no doubt sometimes be actionable — as in trespass — even where it is used towards a free agent; the maxims, quifadt 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 tres- passer, and the damage, if proved, flows directly and unmediately 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 per- suasion to the breach of a contract, it has obviously a different mean- ing; the persuader has not broken and could not break the contract, for he had never entered into any; he cannot be sued upon the con- tract ; 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 con- tractor 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 mat- ter. 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 httle or no bearing on the present : a wife is not, as regards her hus- band, 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 pecuharity, 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 hes against the adulterer as for an assault on her, hchvever 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 882 LUMLEY V. GYB [CHAP. VIII. 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. pi. 46, 2 E. & B. 255), Judge Hankford ^ 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 con- tract 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 primoe 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 ia 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 contiauing 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 serv- ant 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 cloth- ing or lodging out of charity ? Yet these would have been equally 1 William Hankford, Justice of the Common Pleas in 1398, afterwards, in 1414 (1 H. 5), Chief Justice of England. — Reporter's note. CHAP. VIII.] LUMLEY V. GYE 883 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 pro- curement 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 mat- ter for the casuist rather than. the jurist; still less is it for the jury- man. 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 ad^dce 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 com- pensate 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 construc- tive, we will go back to the person who immediately persuades or pro- cures him one step, why are we stop there ? The first mover, and the mahcious 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 reaUy 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 occur- rence; they are not of sUght 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} I Cattle '«; 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. At- 884 BOWEN V. HALL [CHAP. VIII. BOWEN V. HALL In the Court op Appeal, Febritaey 5, 188L Reported in 6 Qveen's Bench Division, 333. Brett, L. J.' The Lord Chancellor agrees with me in the judg- ment I am about to read, and it is to be taken therefore as the judg- ment 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 estabhshed strictly for all purposes the relation of master and servant between the plain- tiff 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 never- theless the question, whether there was any evidence to be left to the kinson, 23 Fla. 206; Doremus v. Hennessy, 176 111. 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. Yarring- ton, 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); Cham- bers V. Baldwin, 91 Ky. 121; BourKer v. Maeauley, 91 Ky. 135; Kline v. Eubanks, 109 La. 241 {sembk); 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 mamtainable 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 mduced a third person to break his contract to marry the plaintiff. But compare Davis v. Condit, 124 Minn. 365 (seduction of plaintiff's fiancee). As to justification, see Leonard i;. 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; McGurkw. Cronenwett, 199 Mass. 457; Globe Ins. Co v Fire- man s Ins Co 97 M^s. 148; Biggers V. Matthews, 147 N. C. 299; Thacker Coal Co i;. Burke, 59 W Va. 253; Huffcutt, Interference with Contracts and Business in New York, 18 Harvard Law Rev. 423. '■ The statement of facts and the dissenting opinion of Lord Coleridge C J are omitted. & > ■ •> CHAP. VIII.] BOWEN V. HALL 885 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 httle 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 he. This is the proposition to be deduced from the case of Ashby v. White, 1 Sm. L. C. (8th ed.), p. 264. If these condi- tions 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 defend- ants' act. In many cases that may be so, but if the law is so to imply in every case, it wiU 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 conse- quence 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 EUenborough 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 ap- pKed 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 886 BOWEN V. HALL [CHAP. VIII. 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 rehed 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 dis- missed. 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, be- cause it is in fact the consequence of the cause, and there is no techni- cal 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 Lum- ley 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 sup- port Limiley 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. CHAP. VIII. J miners' federation V. GLAMORGAN COAL CO. 887 We think the case is better supported upon the first and larger doc- trine. 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.'- 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. GLA- MORGAN 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. 118.2 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 maHciously procuring and inducing workmen em- ployed in the plaintiffs' collieries to break their contracts of service with the plaintiffs. In the alternative the plaintiffs sued the defend- ants 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 1 " That t his 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 con- tractor would have completed his contract, and so earned these lands for the Por- tage 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 wrongdoer, in the face of such prob- abihties 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 Uabihty." Brewer, J., in Angle v. Chicago R. Co., 151 U. S. 1, 12. . , , ... 2 Statement abridged. Arguments omitted; also part of opmions. 888 MINEES' FEDERATION V. GLAMORGAN COAL CO. [CHAP. VIII. 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 deter- mination of the learned judge. The following facts {inter alia) were stated, in substance, by Big- ham, J., in his written opinion: — The plaintiffs are seventy-four limited liability companies associ- ated 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 colHeries 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 aU 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 aU, the men who work for the plaintiffs. In 1900 the federation was in the possession of funds amounting to 100,000Z. 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 work- men generally, and regulate the relations between them and em- ployers; 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 re- quested 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 hoUday 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 Stib- LiNG, 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. CHAP. VIII.] miners' federation V. GLAMORGAN COAL CO. 889 The manifesto purported to be issued by the sliding scale com- mittee, 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 sUding scale committee being used as a blind, with the purpose of secviring the funds of the federation from possible hability under the decision in the Taff ^'ale Case, [1901] App. Cas. 426. BiGH.^jM, 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 for- ward 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 mahce of any kind against the plaintiffs. " I have to decide, in these circimistances, whether an action in tort will lie against the defendants. The advice and guidance of the de- fendants was soUcited 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.] Homer, 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. Leathern [1901], A. C. 495, at p. 510, Lord Macnaghten said: " A violation of legal right com- mitted 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 mterference." 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 procure- ment of a violation of individual rights, contractual or other, assum- 890 miners' federation v. Glamorgan coal go. [chap. viii. ing 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 an- other 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 particu- lar 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 CoUins, M. E,., 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 conamon law by ' mahce.' 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 discus- sion." I respectfully agree with what Bowen, L. J., said in the Mogul Case, when considering the difficulty that might arise whether there was sufficient justffication or not: " The good sense of the tribunal which had to decide would have to analyze the circtimstances 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 depre- cate the attempt to define justification, I think it right to express my opinion on certain poiats in connection with breaches of contract pro- cured where the contract is one of master and servant. In my opinion, a defendant sued for knowingly procuring such a breach is not justi- fied 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 CHAP. VIII.] miners' federation V. GLAMORGAN COAL CO. 891 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 be- tween 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 findiogs 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 ad- vice, had arranged between themselves to break their contracts, and the federation had merely notified the men's intentions to the plain- tiffs. 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 coun- sel 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 fed- eration 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 wOl 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 federa- tion 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 justi- fied 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 justifica- tion 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 inunoral 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 892 miners' federation v. Glamorgan coal go. [chap. viii. 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 contiaually 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 circximstances 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 ex- pressly 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 defend- ants 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 soHcitor; and it is difficult to see how they can be in a bet- ter position simply because the advice on which they acted emanated from themselves. In my judgment the habUity 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 attempt- ing 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 shding scale, would be reduced. To coimteract this it was considered desirable by the men's advis- ers that prices should be sustained by diminishing the output of coal, and that this should be effected by the men taking the hoUdays com- CHAP. VIII. J MINEES' FEDERATION V. GLAMORGAN COAL CO. 893 plained 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 slidiag scale of wages existed was that notices of the determination of contracts of emplojTnent should only be given on the first day of a calendar month to terminate on the last day, and this prevented notices of de- termination 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 soimdness 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 them- selves 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 inter- est 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 judg- ment 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 Eael of Halsbuhy, L. C, gave an opinion in favor of dismiss- ing the appeal. LoBD Macnaghten. But what is the alleged justification in the present case ? It was said that the coimcil — 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 conse- quences of their action if they acted honestly in good faith and with- 894 miners' federation v. Glamorgan coal go. [chap. vin. out 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 constitu- ents. 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. LoKD 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 estabhshed by them. The intention of the defendants was directly to procure the breach of contracts. The fact that their mo- tives 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 Lord- ships 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 obUterated 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 aflarmed.^ ' As to the distinction between intent and motive, see Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 253, 256-259. CHAP. Vin.] miners' federation v. GLAMORGAN COAL CO. 895 Lord Lindley. My Lords, I agree so entirely with the judgments of Romer and Stiriing, 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. More- over, 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 em- ployment; and there is no legal presumption that it will be or has been imlawfully exercised in any particular case. Some illegal act must be proved to be threatened and intended, or to have been com- mitted, before any court of justice in the United Kingdom can prop- erly make such conduct the basis of any decision. These remarks are as applicable to trade unions as to other less powerfiil organizations. Their power to intimidate and coerce is un- doubted; 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 wUl be abused. In the case before yoxir Lordships there is proof that the members of the mining federation combined to break and did break their con- tracts 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 illegahty of a breach of con- tract. 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 dam- ages. 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 noth- ing 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 896 miners' federation v. Glamorgan coal co. [chap. viii. number of contracts entered into by workmen belonging to the federa- tion. This is clearly unlawful, according to Lumley v. Gye, 2 E. & B. 216, and Quinn v. Leathern, [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 hbel- lous 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 im- punity. 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 ele- ment 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 constitu- tion 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 inter- ests; but a legal duty to do what is illegal and known so to be is a con- tradiction 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 iU- wiU to the employers, their conduct was justifiable; and your Lord- ships were asked to treat this case as if it were hke a case of hbel 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, CHAP. VIII.J JERSEY CITY PRINTING CO. V. CASSIDY 897 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 " ma- lice." Bearing in mind that mahce may or may not be used to denote ill-will, and that in legal language presumptive or implied malice is distinguishable from express mahce, it conduces to clearness in discus- sing 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} JERSEY CITY PRINTING CO. v. CASSIDY CouKT OF Chancebt, 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 vmlawful interference with the complainant's business, the em- ployment 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 attempt- ing to cause by threats, offers of money, payment of money, offering to pay or the payment of transportation expenses, inducements or per- suasions 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 com- plainant with intent to coerce such persons to refrain from entering such employment; from addressing persons wilhng to be employed by complainant against their will and thereby causing them personal an- noyance with a view to persuade them to refrain from such employ- ment; from loitering or picketing in the streets near the premises of 1 Compare TunstaU v. Stems 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 per- son 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 per- son 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. 898 JERSEY CITT PRINTING CO. V. CASSIDY [CHAP. VHI. 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 com- plainant and with a view to cause persons so employed to quit their em- ployment, 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, in- sults, indecent talk, abusive epithets practiced upon any persons with- out 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 re- strained 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 emplojTuent for any reasons that he deems sufficient. It does not undertake to say that workmen may not refuse to be employed if cer- tain 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 employ- nient, to refuse to be employed, and to do that in conjunction with his feUow-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 comts, 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 corre- sponding 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 trans- action, appears as a unit before them. Any discussion of the motives, purposes or intentions of the employer in exercising his absolute right CHAP. VJIIO JERSEY CITY PRINTING CO. V. CASSIDY 899 to employ or not to employ as he sees fit, or of the free combination of employes m exercismg the corresponding absolute right to be em- ployed or not as they see fit, seems to me to be in the air. Ihus, there IS a wide field in which employes may combine and exercise the arbitrary right of " dictating " to their common employer ■ kT .1 T'"'^''"* ^^ business." The exact correlative of this rignt of the employe exists, in an equal degree, in the employer. He may arbitrarily " dictate " to five thousand men in his employ in re- gard to matters m 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 refram from being employed, as the case may be, no legal or eqmtable 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, m relation to this subject seem to me to be misleading. Union workmen who inform their employer that they will strilce 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 ba employed. All such terms necessarily relate both to " how the employer shall conduct his business " and how the em- ployes 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 emplo5^e, 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 deliver- ances 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 modi- fied. 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 ex- plain, 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 900 JERSEY CITY PRINTING CO. V. CASSIDY [CHAP. VIII. 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 recog- nized 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, imdertake to interfere with and disrupt existing con- tract 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 injiu-e 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 natu- ral and proximate cause of damage. The intentional doing of any- thing 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 con- tracting 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-Chan- cellor 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 combina- .tion 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 com- plainant. But the difficulty is still further increased where the pos- sible employes make no complaint to any court for protection, and the conduct of the molesting party does not afford a basis which the CHAP. VIII.] JERSEY CITY PRINTING CO. V. CASSIDY 901 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 con- tract 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 inter- fering 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 behaK 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 inter- fered 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 vmderlying 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 instrumentahty of an in- junction, 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 EUenborough, as a " probable expectancy." This underlying right has otherwise been broadly defined or described as the right which every man has to earn his Uving, or to pursue his trade or business, without undue interfer- ence, 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-recog- nized 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 Com- pany 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 de- pend more or less directly upon " probable expectancies." When they fail, civiKzation, as at present organized, may go down. As social and industrial life develops and grows more complex these " probable ex- pectancies " are bound to increase. It would seem to be inevitable 902 JERSEY CITY PRINTING CO. V. CASSIDY [CHAP. VIII. that courts of law, as our system of jurisprudence is evolved to meet the growing wants of an increasingly complex social order, will dis- cover, 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 com-ts 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 modem law is en- deavoring to insure to every dealer on either side of the market. The valuable thing to merchant and to customer, to employer and to em- ploye, manifestly is freedom on both sides of the market. The mer- chant, 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 supphes for his family, with money in his pocket and free to buy, might find his hberty 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 estabhshes a large factory where working people reside, tak- ing the risk of his being able to conduct his mdustry and offer these working people employment which they will be willing to accept. He takes the risk of destructive competition and a large nimiber 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 em- ploy 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 com- bination. What is the measure or test by which the conduct of a com- bination 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 CHAP. VIII.] JERSEY CITY PRINTING CO. V. CASSIDY 903 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 work- man 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 armoyingly conspicuous position, such conduct, the result of such combination, is held to be an invasion of the " prob- able expectancy " of his employer or contemplated employer, an invasion of this employer's right to have labor flow freely to him. With- out any regard to the rights and remedies which the molested work- man 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 com- bine 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 emplojdng 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 injunc- tions 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. 904 JERSEY CITY PRINTING CO. V. CASSIDY [CHAP. VIII. 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 com- bination 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 natiu-e of property), by means of such molestation or personal annoyance as would be hable to coerce the person upon whom it was inflicted, assuming that he is reasonably courageous and not imreason- ably sensitive, to refrain from employing or being employed, is illegal and founds an action for damages on the part of any person know- ingly injured in respect of his " probable expectancy " by such inter- ference, and also, when the other necessary conditions exist, affords the basis of an injunction from a com-t of equity. The doctrine which supports that portion of the restraining order in this case which undertakes to interdict the defendants from molest- ing applicants for employment as an invasion of a right of the com- plainant, 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 em- ploying 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 pecu- niary loss to the complaining party, by the interference with his en- joyment 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 pubHc 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 CHAP. VIII.] JERSEY CITY PRINTING CO. V. CASSIDY 905 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 pubhc 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 hght in construing and applying the exact terms of the order. What I have said may be foimd to be subject to modifications, without subjecting the terms of the order to any change. All generahzations on such a subject — such a novel subject as the one imder 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 at- tempted 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 t% complain that he is molested or annoyed by being subjected peace- ably to the judgment and criticism of pubhc 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 molesta- tion practiced to prevent new workmen from being employed. The conclusion was that, notwithstanding such denials, even when sus- tained 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 de- fendants were the only persons in sight apparently interested in hav- ing 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 threat- ened to do, should be retained until the final hearing. 906 MOGUL STEAMSHIP CO. V. MCGREGOK & CO. [CHAP. VIII. THE MOGUL STEAMSHIP COMPANY LIMITED v. McGEEGOR & COMPANY In the Court of Appeal, Jxjly 13, 1889. Reported in Law Reports, 23 Queen's Bench Division, 598. BowEN, L. J.' We are presented in this case with an apparent con- diet 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 then- 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 as- sumption, the defendants in the conduct of their commercial affairs have done anything that is unjustifiable in law. The defendants are a number of ship-owners who formed themselves into a league or con- ference 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 for- feit the entire rebate on all shipments made on behalf of any and every one of his principals diu-ing the whole year — a forfeiture of rebate or allowance which was denominated as " penal " by the plaintiffs' coun- sel. It must, however, be taken as estabhshed that the rebate was one which the defendants need never have allowed at all to their cus- tomers. 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 cir- cular 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. 1 Only the opinion of Bowen, L. J., is given. Fry, L. J., concurred, but Lord Esner, M. R., dissented. The decision was afterwards afl5rmed in the House of Lords, [1892] A. C. 25. CHAP. VIII.] MOGUL STEAMSHIP CO. V. MCGREGOR & CO. 907 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 oppres- sive and prejudicial to themselves. We were invited by the plaintiffs' counsel to accept the position from which their argimient started — that an action will he 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 " mali- ciously," " wrongfully," and " mjure " are words all of which have accxnrate meanings, well known to the law, but which also have a popu- lar 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. " Mahciously," in like manner, means and im- phes ah 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 earUer stages began with but an im- perfect 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 civU 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; nierely 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 agamst 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 908 MOGUL STEAMSHIP CO. V. MCGEEGOR & CO. [CHAP. VIII. which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse. Such in- tentional action when done without just cause or excuse is what the law calls a malicious wrong (see Bromage v. Prosser; Capital and Coimties 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 plain- tiffs 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 de- fendants 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 maimer 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 himseK 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 othej^. 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 pro- curement of a violation of individual rights, contractual or other, as- siuning 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 wUd fowl in decoys by the firing of guns, Carrington v. Taylor, 11 East, 571, and Keeble v. Hicker- ingill, 11 East, 574 note; the impeding or threatening servants or workmen. Garret v. Taylor, Cro. Jac. 567; the mducing persons under personal contracts to break their contracts, Bowen v. HaU, 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 plaintiifs than pursue to the bitter end a war of competi- tion 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 abeady pointed out) that there was here no personal in- tention 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 plamtiffs' share. I can find no authority for the doctrine that such a commercial motive deprives of " just cause CHAP. VIII. 3 MOGUL STKA.MSHIP CO. V. MCGREGOR & CO. 909 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, woiild 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 ship- owner. But over what period of time is the average of this reasonable remimerativeness 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 mer- chants were ever deemed to be boimd by law to conform to some im- aginary " 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 Eng- lish competition in this way would probably be as hopeless an en- deavor as the experiment of King Canute. But on ordinary principles of law no such fetter on freedom of trade can in my opinion be war- ranted. A man is boimd not to use his property so as to infringe upon another's right. Sic utere tuo ut alienum non Icedas. If engaged in actions which may involve danger to others, he ought, speaking gen- erally, 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 ? 910 MOGUL STEAMSHIP CO. V. MCGREGOR & CO. [CHAP. VIII. It is Tirged, 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 indi- vidual 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 pro- ceeded 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 pubUc; 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. Saimd. 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'ConneU v. The Queen, 11 CI. & 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 de- fendants combined to do an unlawful act ? Have they combined to do a lawful act by unlawful means ? A moment's consideration wiU be sufficient to show that this new inquiry only drives us back to the circle of definitions and legal propositions which I have already trav- ersed in the previous part of this judgment. The vmlawful 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 cap- itaHst only. The next point is whether the means adopted were unlaw- ful. The means adopted were competition carried to a bitter end. Whether such means were unlawful is in Uke maimer 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 myseff to acquiesce in the view that the EngUsh 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 capitaUst may inno- cently carry competition to a length which would become unlawful in CHAP, Vin.] MOGUL STEAMSHIP CO. V. MCGREGOR & CO. 911 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 par- nership 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 con- spiracy. 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 cap- ital may, apart from combination, be legitimately used in trade. To limit combinations of capital, when used for purposes of competition, in the maimer proposed by the argnment of the plaintiffs, would, in the present day, be impossible — would be only another method of at- tempting to set boundaries to the tides. Legal puzzles which might well distract a theorist may easUy 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 provi- sions in a market or district in times of scarcity: see Rex v. Wadding- ton, 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 ciistom 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 Kke 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 cal- culated to do harm to others. Then comes the question. Was it done -v\ath 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 Erie, 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 912 MOGUL STEAMSHIP CO. V. MCGREGOR & CO. [CHAP. VIII. 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 with- out just cause or excuse. One may with advantage borrow for the benefit of traders what was said by Erie, J., in Reg. v. Rowlands, 17 Q. B. 671, at p. 687, n., of workmen and of masters: " The inten- tion of the law is at present to allow either of them to follow the dic- tates of their own will, with respect to their own actions, and then- own property; and either, I beUeve, 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 associa- tion 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 valid- ity. 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 wiU lie or ever has lain against any indi- vidual 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 injm^ious to the public — a view which iavolves, perhaps, the disputable assumption that, in a country of free trade, and one which is not under the iron regime of statutory monopohes, such confederations can ever be reaUy 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 conunon-. sense principles some further remedy commensurate with the mischief. Neither of these assumptions are, to my mind, at aU evident, nor is it the province of judges to mould and stretch the law of conspiracy in order to keep pace with the calcxilations of poHtical 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 RoUs. The substance of my view is this, that competition, however severe and egotistical, if unattended CHAP. VIII.] PASSAIC PRINT WORKS V. ELY & WALKER CO. 913 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 peace- able 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} PASSAIC PRINT WORKS v. ELY & WALKER DRY GOODS COMPANY United States Ciecuit Cotxrt of Appeals, Eighth Ciecuit, November 14, 1900. Reported in 44 17. S. Circuit Court of Appeals Reports, 426, s. c. 105 Federal Re porter, 163. In U. S. CmcTJiT Cotjet of Appeals, Eighth Circuit. Before Caldwell, Sanborn, and Thayer, Circuit Judges.^ 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 alle- gations {inter alia) : — Plaintiff is a corporation engaged in the manufacture of prints or caHcoes which it sells to jobbers or wholesale dealers in St. Louis and elsewhere, who ia 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, com- biniag and conspiring among themselves and with others to the plain- tiff 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, mahciously 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 ' Payne v. Railroad Ck)., 13 Lea, 507 (Freeman and Turney, JJ., dissenting; South Royalton Bank v. Suffolk Bank, 27 Vt. 505; Delz "• Winfree, 80 Tex. 400, 405 (semble) Accord. See Lough v. Outerbndge, 143 M. Y. Ja. 2 statement rewritten. 914 PASSAIC PRINT WORKS V. ELY & "WALKER CO. [CHAP. VIII. 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 com- paratively small quantities; and upon information and behef 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] dehvered the opinion of the court. The complaint filed in the lower com*t, 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 de- fendant had such caUcoes 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 seU 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 infiuenced the defendant company to offer for sale such caUcoes 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. CHAP. VIII.] PASSAIC PEINT WORKS V. ELY & WALKER CO. 915 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 maUcious intent to iajure the person concerning whom the defama- tory 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 lawfxil 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 wiU not change its complexion, and render it unlawfiil, 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 in- dulge in fiuiher 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 in- quiry into the motives of men when their actions are lawful, except in those cases where it is well estabhshed that mahce is an essential in- gredient 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 un- doubted 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 quan- tity was great or small, for such a price as it deemed proper. This was 916 PASSAIC PKINT WORKS V. ELY & WALKER CO. [CHAP. VIII. the outward visible act of which complaint is made, and, being law- ful, the law will not hold it to be otherwise because of a secret pur- pose 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 stat- ing 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 aU 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 com- pany 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 ac- tion, as the trial court held, and the judgment below is therefore affirmed. Sanbobn, 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 piu-chasing goods of the plaintiff, and caused those who had agreed to purchase from it to cancel their orders tmless 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 mahcious intent or purpose of the defendants, but it is their wrongful act of interfering with the plaintiff's business, of pre- venting 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 with- CHAP. VIII. J PASSAIC PKINT WORKS V. ELY & WALKER CO. 917 out 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 pm-pose of selling them for gain for themselves, for the purpose of converting them into monej' 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 mflicting upon it the damages of which it complains, and these dam- ages would then have been damnum absque injuria. But, if they had advertised them for any of these purposes, this case would have con- stituted 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, ap- phes, 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 in- tent 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 hable 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 justi- fies 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 assimaes 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 presimiption that injury to one's business entitles him to compensa- tory damages, and the plain averment of the petition that the acts of the defendants were not done for any justiflable cause, but were com- mitted 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 918 TUTTLE V. BUCK [CHAP. VIII. 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 beheve it is sound, — that an action wUl 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 com- petition 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. Ill; Doremufe v. Hennessy, 62 111. 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 priuciples 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 ex- cuse, and for this reason the dem-urrer 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 sufiiciently states a cause of action for maU- ciously 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.' TUTTLE V. BUCK Supreme Couet, 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. AflBrmed. This appeal was from an order overruUng a general demurrer to a complaint in which the plaintiff alleged : — 1 See Boggs v. Duncan Furniture Co., 163 la. 106; Rogers, Predatory Price Cutting as Unfair Trade, 27 Harvard Law Rev. 139. CHAP. VIII.] TtTTTLE V. BUCK 919 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 herein- after 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 smn per annum, to wit, about $800. That the defendant, during the period of about twelve months last past, has wrongfully, unlawfully, and mahciously 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 mahcious reports and accu- sations of and concerning the plaintiff, by personally soliciting and urging plaintiff's patrons no longer to employ plaintiff, by threats of his personal displeasiu-e, 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 pur- pose 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 te 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 nomiaally conducting the shop thus fitted and furnished by the defendant, without pajdng any rent therefor, and under an agreement with defendant whereby the in- come 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 fon 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 920 TUTTLE V. BUCK [CHAP. VIII. thereof, and intends and threatens to destroy the same altogether, to plaintiff's damage in the sum of $10,000.^ 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 mo- tives 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 generahzations 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 iQustrations 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 sub- ject, or become entangled in the subtleties connected with the words " maUce " 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 commimity 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 ' The arguments are omitted. CHAP. VIII. J TUTTLE V. BUCK 921 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 foimd expression in the decisions of the courts as well as in statutes. But it has led to grievous and manifold wrongs to indi- viduals, 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 pre- serve the principle of competition and yet guard against its abuse to the unnecessary injiiry 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 con- crete. Men cannot always, in civilized society, be allowed to use their own property as their interests or desires may dictate without refer- ence 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 usiag his own property may thus sometimes determine his rights, and apphcations 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 Enghsh 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 gen- erality 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 posi- tive 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 wil- ful injury, to respect the property of others, and to use due diligence to avoid causing harm to others, are all alike of a comprehensive na- ture." 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." 922 TUTTLE V. BUCK [CHAP. VIII. In Plant v. Woods, 176 Mass. 492, SV 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 headnote in Allen v. Flood, as reported in [1898] A. C. 1, as fol- lows : ' An act lawful in itself is not converted by a mahcious 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 sinailar 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 dis- senting 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 wiU 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 condi- tions. 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 serv- ing 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 insuffi- cient. It is not claimed that it states a cause of action for slander. No question of conspiracy or combination is involved. Stripped of CHAP. VIII. J DTJNSHEE V. STANDARD OIL CO. 923 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 almount only to an ordinary every day business transac- tion. There is no allegation that the defendant was intentionally run- ning 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 un- able 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.^ 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 in- spiring 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 thmg which is other- wise 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 bound- ary 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 1 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 iU wiU 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.' 924 DUNSHEE V. STAND AED OIL CO. [CHAP. VIII. 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 black- smith 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, untU 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 seem- ingly unavoidable extreme there is no practical Hmit 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 pro- tection of human rights into engines of oppression and wrong. It is doubt- less 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; bhio Oil Company v. Indiana, 150 Ind. 698, 60 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 fre- quently applied in the decision of trade and labor controversies, though not without other instances in which it has been repudiated. See People v. Pethe- ram, 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., Ill Wis. 545, 87 N. W. 472, 55 L. R. A. 828; Graham v. Raikoad 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. CouncH, 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 lU. 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 re- dress. Nor does it matter whether the wrongdoer effects his object by persua- sion or by false representation. The court looks through the instrumentality CHAP. VIII.] DUNSHEE V. STAND AKD OIL CO. 925 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 assum- ing that injury has attended the doing of it." In Parkinson v. Council, 154 CaJ. 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 conspu-acy or not, is prima fade ac- tionable, 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 justi- fication, the plaintiff may offer evidence that the acts of the defendants were inspired by express mahce, and were done for the purpose of injuring the plain- tiff, and not to benefit themselves." Dealing with the perplexities arising in the effort to sustain, on the one hand, the widest practicable hberty 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 refer- ence to many of the decided cases, has lately said : " The more recent authori- ties 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 reahty, 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 deter- mination 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 rnider aU 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 lU. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203; Horan v. Bums, 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 quo- tation, 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 wiU 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 un- doubted 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 deaHng; but in so domg it was bound to conduct such business with reasonable regard and considera- 926 KUZNIAK V. KOZMINSKI [CHAP. VIII. tion for the equal right of the Crystal Company to continue supplying oil to Buch of its customers as desired to remain with it. If, however, there was no real purpose or desire to estabUsh a competing business, but, under the guise or pretence of competition, to accomplish a malicious purpose to ruin the Crys- tal Company or drive it out of business, intending themselves to retire there- from 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 OU Company had no intention of becoming a retaU 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 wiU 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 weU 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.^ KUZNIAK V. KOZMINSKI SUPBEMB COUBT, MICHIGAN, DECEMBER 17, 1895. Reported in 107 Michigan Reports, 444. Bill by John Kuzniak against Jacob Kozminski and Prances Koz- minski 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 dwell- ing 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 Une 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 ' 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. 86. CHAP. VIII.] KUZNIAK V. KOZMINSKI 927 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 Une, 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 re- move 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. De- fendants 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 mahciously, 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 coirrt 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 hght, that wovild not be a sufficient reason upon which to found a right in com- plainant 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 coiu-t below was in error in directing the removal of the build- ing. That decree must be reversed, and a decree entered here dis- missing complainant's bill, with costs of both courts to the defendants. The other Justices concurred. ' 1 See Faloon v. SchiUing, 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 isembk); Pickard v. Collins, 23 Barb. 444; Levy v. Brothers, 4 Misc. 48; Letts v. 928 HORAN V. BYRNES [CHAP. VIII. 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 defend- ant excepted. Kessler, 54 Ohio St. 73; Koblegard v. Hale, 60 W. Va. 37; Metzger v. Hochrein, 107 Wis. 267. Cmtra 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 Phjla. 502; McCorkle v. Driskell, (Tenn.) 60 S. W. 172. MaXiciovs 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 (sembk) ; Roath v. Dris- coll, 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 ;;. Baugh, 25 Pa. St. 528, 533 (semble); Haldeman v. Bruck- hart, 45 Pa. St. 514 (semble); Lybe's Appeal, 106 Pa. St. 626 (semble); WiUiams 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 la. 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 soD, 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 illus- trative cases endorsing the first theory, see Acton v. BlimdeU, 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. Salis- bury Mfg. Co., 43 N. H. 569 (where the question related to the right of the defend- ant to prevent water percolating \mder the surface of plaintiff's land from passing off through defendant's land); Katz v. WaUdnshaw, 141 Cal. 116, 140, 141. We are concerned here only to point out how the adoption of one or tlie other of the above conflicting views may affect the materiahty 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 Mable 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 (bear- CHAP. VIII.] HORAN V. BYRNES 929 Verdict for the plaintiff .^ Parsons, C. J. " Any fence or other structure in the nature of a fence, unnecessarily exceeding five feet in height, erected or main- tained for the purpose of annoying the owners or occupants of adjoin- ing property, shall be deemed a private nuisance. " Any owner or occupant, injured either in his comfort or the en- joyment 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 un- necessary 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 prohibi- tion 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 de- fendant'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 groimd, as being merely a small limitation of existing rights incident to property, which under the police power may be im- ing 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 Famham, Waters, § 935. Upon this view an owner who \ises more than his share, or who uses it for purposes outside those legally allow- able, would be liable entirely irrespective of motive. " Later American cases," says' Professor Huff cut, " transfer the emphasis from the showing of ' maUce ' 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 gratify- ing Ul will might not be deemed reasonable. On the general question of liability for malevolent acts in reference to percolat- ing 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. 1 Statements abridged. Portions of opinion omitted. 930 HORAN V. BYRNES [CHAP. VIII. posed 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 grovmd. 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 pres- ent are within the constitutional exercise of the pohce power, involv- ing 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 pubHc 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 woiild be to annoy or injin-e another." Lovell v. Noyes, 69 N. H. 263. The primary question, therefore, is whether one's right to use prop- erty 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 pin-pose of annoying and injur- ing the adjoining owner or occupant, is a nuisance which can in the absence of statutory authority be abated by an injimction, 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 CHAP. VIII.] HOEAN V. BYRNES 931 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, sufra, 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 gen- erally 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 circum- stances, including the necessity and advantage to one and the unavoid- able 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 ab- solute 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 ia its application in reference to surface waters. See "Fra nklin 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. Now- len, 72 X. Y. 39, in which the principle of the maxim rehed upon is appKed to waters in the soil, are not authority here, where a contrary \-iew 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 com- plained 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 enjoy- ment 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, 932 HORAN V. BTENES [CHAP. VIII. 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 land- owner has the right to build on his land as he conceives may best sub- serve 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 main- tained 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 pur- pose of putting an end to the hcense, and without any maHce or in- tentional wrong, the defendant would not be liable; but if the pipe was cut " wantonly, imnecessarily, 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, Uke the bringing of a sixit upon a vahd claim (Friel v. Plumer, 69 N. H. 498), cannot be made actionable by the motive which accompanies it. But as apphed 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 injiu'e another, except upon the theory of absolute dominion, for the char- acter 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 founda- tion 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 lasdas. 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 erectioas, 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, tmrestricted dominion, but as an aggregation of quaUfied privileges, the limits of which are prescribed by the equahty of rights and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors. . . . The chap: VIII.] HORAN V. BTRNES 933 soil is often called property, and this use of language is sufficiently accurate for some purposes. But the proposition that the soil is prop- erty conveys a very imperfect idea of the numerous and variously limited rights comprised in landed estate; and it is sometimes neces- sary 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, with- out 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 cor- relative of R.'s duty of abstaining from such a use of air and water, and from such an interference with their quaUty and circulation, as would be vmreasonable and injurioiis 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 r. 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 hght 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 apphes in both cases, and that the law will interpose and pre- vent 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 injiu-e 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 can- not, 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 Ught 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 mahce towards his neigh- bor." 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 itseK unlawful, his neighbor has the same right to the undis- turbed enjoyment of his adjoining property. . . . What standard does the law provide ? . . . Whatever may be the law in other jiu-isdic- tions, it must be regarded as settled in this state that the test is the reasonableness or unreasonableness of the business in question under 934 HORAJsr V. byrnes [chap. viii. 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 imder all the circum- stances. In such case the purpose of the use, whether understood by the landowner to be necessary or useful to himself, or merely in- tended to harm another, may be decisive upon the question of right. It cannot be justly contended that a purely mahcious use is a reason- able use. The question of reasonableness depends upon aU the cir- cumstances — the advantage and profit to one of the use attacked, and the tuiavoidable injmy to the other. Where the only advantage to one is the pleasure of injuring another, there remains no founda- tion 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 soimd 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 imder it, ex- cept the fact that the use of land for buildings necessarily cuts off air and light from the adjoining estate. The fact that the improve- ment of real estate in this way for a useful purpose, universally con- ceded to be reasonable, may affect the adjoining owner's enjojnnent 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 sur- face itself. Jurisdictions which reject the doctrine of reasonable necessity, reasonable care, and reasonable use, which " prevail in this state in a hberal 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 mahcious motive immaterial upon the rightfulness of a particular use; but in this state, to do so would be to reject the principle annoimced in Bassett v. Company, 43 N. H. 569, and repeatedly reaffirmed dur- ing the last forty years. It is to be conceded that the maxim sic utere tuo ut alienum non loBdas is to be apphed as forbidding injury, not merely to the property, but to the right of another. Ladd v. Brick Co., 68 N. H. 185; Pitts- burg, &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. Wil- liams, 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 CHAP. VIII. J KEEBLE V. HICKERINGILL 935 infringed because, by the noxious use made by another, the air com- ing 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 fin-nishing all the elements necessary to maintain an action qiuire 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; Thomp- son 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 ruUng as to the admission of evidence.] ^ KEEBLE V. HICKERINGILL In the QrrKEN's Bench, Trinity Teem, 1706. Reported in 11 East, 574, note. Action upon the case. Plaintiff declares that he was, 8th Novem- ber 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 sk 1 In Rideout v Knox, 148 Mass. 368, where a similar statute was held consti- tutional it was held error to charge that defendant could not justify building the fence unless his sole motive was a legitunate use ; maUce must be the donunant mo- tive See also Ingwerson v. Barry, 118 Cal. 342; Gallagher v. Dodge, 48 Conn. 387- Holmes v. Fuller, 68 Vt. 207; Kara,sek v. Peier, 22 Wash. 419; Jones u. 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. 936 KEEBLE V. HICKERINGILL [CHAP. VIII. guns laden with gunpowder, and with the noise and stink of the gun- powder did drive away the wUd fowl then beiag 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 him- self 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 he. It seems to be new in its instance, but is not new in the reason or prLuciple of it. For, first, this using or making a decoy is lawful. Secondly, this em- ployment 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 dis- pose of for his profit; this is his trade; and he that hinders another in his trade or Hvelthood 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 natiu:e 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 RoU. 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 employ- ment. Now there are two sorts of acts for doing damage to a man's employment, for which an action hes; 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 fan-, market, or ferry, if another shall use the like hberty, 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 hberty in which the pubhc hath a benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15. The other is where a violent or mahcious act is done to a man's occu- pation, profession, or way of getting a hveUhood; there an action lies in all cases. But if a man doth him damage by using the same employ- ment; as if Mr. Hickeringill had set up another decoy on his own CHAP. VIII. J IBOTTSON V. PEAT 937 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 Kke 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 he 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.' IBOTTSON V. PEAT In the Exchequer, May 1, 1865. Reported in 3 Hurlstone & Coliman, 644. Beamwell, B.^ 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 com 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 can- 1 The rest of the opinion is omitted. This case was foUowed in Carrington v. Taylor, 11 East, 571. See Lamprey v. Danz, 86 Minn 317; Whittaker v. Stang- vick, 100 Minn. 386; Meredith v. Triple Island Gun Club, 113 Va. 80. ^ Only the opinion of Bramwell, B., is given. PoUock, C. B., Martm and Pigott, BB., concurred. 938 FISHER V. FEIGE [CHAP. VIII. not 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. Jydgment for the plaintiff. FISHER V. FEIGE SUPBEME COUET, 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 de- fendants from their repetition of the alleged wrongs.^ 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 dimin- ished 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 dimin- ished by evaporation." 1 Statement rewritten. Only so much of the case is given as relates to a single point. CHAP. VIII.: ALLEN V. FLOOD 939 Defendants appealed from the judgment. McFakland, J . [After discvissing 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 law- ful act, which cannot be restramed 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 dam- num absque injuria. Judgment reversed. Temple, J., and Henshaw, J., concurred. ALLEN V. FLOOD In the House of Lords, December 14, 1897. Re-ported in [1S98] Ay-peal Cases, 1. The plaintiffs (now the respondents), Flood and Taylor, are members of the Shipwrights' Provident Union.^ The defendant (now the appellant), Al- len, 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 mem- bers to work either in wood or iron. The members of the boUermakers' 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 boUermakers' union.^ In April, 1894, about forty men of the boUermakers' society were engaged at the Regent Dock, MUlwaU, in repairing an iron ship, on the employment of the GlengaU Iron Company. Flood and Taylor were at the same time em- ployed by the GlengaU 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 GlengaU Company might, at the close of any day cease to employ them further. The ironworkers were employed on simUar terms.^ 1 Statement rewritten. Arguments omitted. Some of the opinions are entirely omitted, and none are given in fuU. 2 . . . " 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 an- other trade union." . . . Lord Ashbourne, ibid. p. 109. " Each party had the financial support of their union." Lord Macnaghten, p. 147. 2 As to the terms of the ironworkers' employment, see Lord Watson, pp. 90, 99, and Lord HerscheU, p. 130, 940 ALLEN V. FLOOD [CHAP. Vin. The boilermakers, on discovering that Flood and Taylor had shortly before been employed by another firm (MiUs & Knight) on the Thames in doing iron- work on a ship, became much excited, and began to talk of leaving their em- ployment. One of them telegraphed for AUen, 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. AUen 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 (AUen) 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 boUermakers' society would be " called out " or " knock off " work that day; that Halkett had no option; that there was no ill-feeling towards the GlengaU Company or towards Flood and Taylor personally,^ 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 iron- work, the boilermakers would cease work, — in every yard on the Thames. If the boilermakers had been called out, it would have stopped the Glen- gall 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.'' The plaintiffs' allegations were : that the defendants, mahciously and wrongfully and with intent to injure the plaintiffs, procured and induced the GlengaU Company to break their contract with the plaintiffs and not to enter into new contracts with them; and also, mahciously, etc., intimidated and coerced the GlengaU Company to break their contract with plaintiffs and not to enter into new contracts, and also un- lawfuUy 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 aU; " that there was " no evidence of anything amounting to intimidation or coercion in any legal sense of the term; " ^ and that there was no breach of contract. The foUowing questions, among others, were put to the jury: — 1. Did the defendant AUen mahciously induce the GlengaU Iron Company to discharge the plamtiffs or either of them from their employment ? 2. Did the defendant AUen mahciously induce the GlengaU Iron Company not to engage the plaintiffs or either of them ? In puttmg these questions to the jury, Kennedy, J., gave some explana- tions, portions of which are, m substance, as foUows: * " The word 'maUce' is a word of art in law, and it does not mean in this case a personal dishke, a personal feeling of resentment against the two plaiatiffs. It is clear from the 1 See Lord Macnaghten, p. 146. J It was held, both by Kennedy, J., and by the Court of Appeal, that Jackson and Knight were not hable. Upon this branch of the case there was no appeal to the House of Lords. ' See Lord Macnaghten, p. 148. * The statement here given is compiled from extracts recited in the opmions of Lord Shand, p. 162, Lord Halsbury, p. 82, and Lord Macnaghten, p. 149, CHAP. VIII. J ALLEN V. FLOOD 941 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 GlengaJl 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 injiu-ing 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 jiuy answered both questions in the affirmative; and also found that each plaintiff had suffered 201. damages. After consideration, Kennedy, J., entered judgment for the plaintiffs against Allen for 40Z. This decision was affirmed by the Court of Appeal (LoKD EsHEE, 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 i at the second argument: Hawkins, Mathew, Cave, Nohth, Wills, Grantham, Law- rence, 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 afiSrmative. 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 suf- fered is that no right of the plaintiffs was infringed, and that the right con- tended 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 wiU 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 school- master who complained that his scholars were being assaulted and brought an action, the quarry owner who complained that his servants were being men- aced 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 ^ See Veeder, Advisory Opinions of the Judges in England, 13 Harv. Law Rev. 358. 942 ALLEN V. FLOOD [CHAP. VIII. existence of the right. It was not the schoohnaster who was assaulted; it was not the quarry owner who was assaulted or threatened; but, nevertheless, the schoohnaster 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 appUed to others. My Lords, in my view these are binding authorities to show that the pre- Umiuary question, namely, whether there was any right of the plaintiffs to pursue their caUing unmolested, must be answered in the affirmative. The question of what is the right invaded would seem to be reasonably answered, and the universaUty 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 Uberty 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 win be observed that Kennedy, J., draws a distinction between the con- duct 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 beheved 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 favor- able 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 " mahcious " adds nothing; that if the thing was lawful it was lawful abso- lutely; if it was not lawful it was unlawful, — the addition of the word " ma- licious " can make no difference. The fallacy appears to me to reside in the assumption that everything must be absolutely lawful or absolutely unlaw- ful. There are many things which may become lawful or unlawful according to circumstances. CHAP. VIII. J ALLEN V. FLOOD 943 In a decision of tliis 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 neigh- bor'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 Bo wen, 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 Bo wen, 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 coUoquy 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 differ- ence between the lawfulness or unlawfulness of what he did. I see it is suggested by one of your Lordships that the action for maUcious 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 win 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 944 ALLEN V. FLOOD [CHAP. VIII. 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 in- jured: 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 com- pany'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 ig also obvious that the char- acter 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 " mali- ciously," — 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 civQ 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 civQ rights of another person is in itself a legal wrong, carrying with it habUity to repair its necessary or natural consequences, in so far as these are injurious to the per- son 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, wiU 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 some- times been referred to as evidencing that a bad motive may be an element in the composition of civU wrong; but in these cases the wrong must have its root in an act which the law generally regards as illegal, but excuses its per- petration in certain exceptional circumstances from considerations of public pohcy. 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 consid- erations 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 m order to raise the privilege and entitle hun 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 per- son, 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. CHAP. VIII. 3 ALLEN V. FLOOD 945 [After quoting from Bowen, L. J., in Mogul Steamship Co. v. McGregor, and Batlet, J., in Bromage v. Prosser.] The root of the principle is that, in any legal question, malice depends, not upon e\-il 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 afBrm 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 pro- cures 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 there- fore not wrongful iu 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 Liunley 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. Asssuming that the Glengall Iron Company, in dispensing with the further services of the respondents, were guilty of no wrong, I am wOling to take it that any person who procured their act might incur responsibihty 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 respond- ents. Its result might be prejudicial to the respondents, but its efficacy whoUy 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 coer- cion 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 946 ALLEN V. FLOOD [CHAP. VIII. 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 particu- lar deed. The commimication 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 havrug circulated a Kbel which was false and injurious, if he honestly believed it to be true. The law applicable in cases of that description is, I apprehend, be- yond 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 proposi- tion, that the presence of an evil motive wiU convert a legal act into a legal wrong. [The opinions of Loed Ashbotjene, and Lord Moebis, concurring with Lord Halsbtjey, are omitted.] Lord Heeschell. Great stress was laid at the bar on the circumstance that in an action for maliciously and without reasonable and probable cause puttiug in motion legal process an evil motive is an essential ingredient. I have always understood and I think that has been the general imderstanding, that this was an ex- ceptional 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 liabDity 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 liabiKty de- pends on the presence or absence of mahce. 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. Be- cause 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, illogi- cal 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 CHAP. VIII.] ALLEN V. FLOOD 947 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 an- other which are otherwise lawful, or that it does so in cases like the present utterly dissimilar from those -nithin 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 he 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 ex- pense. 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 aU cases conclusive against the right to maintam an action. It is the function of the Courts to apply estabUshed 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 caimot be maintained. I now proceed to consider on principle the proposition advanced by the re- spondents, 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 caUing, 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 com- petition was pursued were all lawful acts, that they were acts not in themselves 948 ALLEN V. FLOOD [CHAP. Vm. 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 busi- ness 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 callmg. What is the difference between this case and that of a imion 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. LoHD Macnaghtbn. 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 GlengaU Iron Com- pany 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 " mali- ciously." 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 AUen, I should like to ask what there was wrong in AUen's conduct. He had nothing to do with the origin of the Ul-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 hk 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 man- ager, or they might have gone to him all together (if they went quietly and CHAP. VIII.] ALLEN V. FLOOD 949 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 them- selves. 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 thouglit 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. Cer- tainly 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 imderstood the finding of the jury. But I do not think there was any mis- representation on AUen'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 kiduced 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 " mali- ciously," 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 action- able ? It would be very singular if it were. No action would he against the company for discharging the two shipwrights. No action would lie against the iron-men for st rikin g against them. No action would He 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 ver- dict 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 judg- ment 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 950 ALLEN V. FLOOD [CHAP. VIII. 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 con- duct, 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 puUs 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 mal- ice, why is the immediate agent to escape ? Above aU, 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 bank- rupt 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 be- cause he is offended with the servant for leaving, — suppose a person of posi- tion 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 seUing, — 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 custoin. 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 mahce the best safeguards are to be found in self-interest and pub- lic 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 "boy- cotting," and other forms of oppressive combination, seems to me to depend CHAP, vni.3 ALLEN V. FLOOD 951 on considerations which are, I think, in the present case, conspicuously absent. LoED 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 " mahcious " 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 iron- work on the vessel at the time, the case would have been different.' I eaimot 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 Hnes of business, to take a practical measure in their own de- fence. Their object was to benefit themselves in their own business as working boilermakers, and to prevent a recurrence in the future of what they con- sidered 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 ma- jority 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 with- out hindrance, a trader has a right to trade without hindrance. That right is 1 . . . " 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 be- tween the two sets of men in the circumstances under which they were then work- ing, 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 over- stepped those limits, and induced their employers to dismiss them by way of punishment, his action was without just cause or excuse, and, consequently, mah- cious 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 m their room." Lord Ashbourne, p. HI. 952 QUINN V. LEATHEM [CHAP. VIII. 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 Da vet 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 vrith costs here and below including the costs of the trial: cause remitted to the Queen's Bench Division,^ LEATHEM v. CRAIG Qttekn'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.' 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 mahciously and wrongfully enticing and procuring certain workmen in the employ- ment of such persons to leave the service of their employers and to break thek contracts of service, with intent to injure the plaintiff, 1 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 repre- hensible manner is bound to compensate the other for the damage See also Digest, xxxix^ 3 1, § 12, xxxix, 3, 2, § 9; l. 17, 55; Doiiiat, Civil Law (Cushmg s ed.) § 158; Erskine, Institutes of the Law of Scotland, Bk. II, tit 1 § 2; BeU, Prmciples of the Law of Scotland, § 966; Planiol, Traits El^mentaire de djoit civil, (4 ed.), II, §§ 870-72; Wmdscheid, Lehrbuch des Pandektenrechts, h lP\' ^^-^i S°^ ^^I ?° ^•'^ ^^y Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411; Walton, Motive as an Elemaat m Torts m the Common and in the Civil Law, 22 Harvard Law Rev 349 2 Some opinions are omitted. None are given in full. Arguments omitted CHAP. VIII. J QXJINiSr V. LEATHEM 953 and to prevent such persons from carrying out their contracts with the plaintiff, and from entering into other contracts with the plain- tiif; 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 \mlawfully 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 pubhcation 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 amoimt 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 un- der the Trade Union Acts, 1871 and 1876, under the title of " The Belfast Jom-nejonen 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 de- fendants' society threatened to withdraw the plaintiff's men from his service. A deputation was sent down to meet the plaintiff at Lisburn, and a rneeting 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 954 QUINN V. LEATHEM [CHAP. VIII. the plaintiff from their Ust; 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 Mimce's, if the plaintiff would not comply with their wishes. The plaintiff still re- fused. The defendants then called out some of the plaintiff's em- ployees. Edward Dickie, a servant of the plaintiff, was brought to a meeting of the defendants' society, held over Dornan's shop in Lis- burn, 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 undertak- ing 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 respon- sible 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 Mimce 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 Uberty 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. Mimce repUed 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 pur- chase 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 CHAP. VIII.] QUINN V. LEATHEM 955 bear on Mr. Leathern 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. Leathern 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 im- mediately Leathem's beef arrives." On the 19th September Munce telegraphed to Leathem : — " Unless you arrange with society you meed not send any beef this week, as men are ordered to quit work." Munce ceased to deal with the plaintiff, and the plaintiff was obUged to seU 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 coimsel 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 evi- dence of pecvmiary 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 legiti- mate, 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 con- tinue in his employment; and were such persons so induced not so to do ? Answer: Yes. 3. Did the defendants Davey, Doman, and Shaw, or any of them, publish the " black Hsts " with intent to injure the plaintiff in his business; and, if so, did the pubUcation so injure him ? Answer. Yes. FitzGibbon, L. J., in smnming up, told the jury that pecuniary loss, directly caused by the conduct of the defendants, must be proved in order to estabUsh a cause of action; and he advised them to require 956 QXJINN V. LEATHEM [CHAP. VIII. 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 sub- stantial 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 amoimt 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 hberty in assessing damages to take all the circimi stances of the case, including the con- duct 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 distin- guished 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 hberty 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 jmy 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 plain- tiff 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 mahciously — 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 CHAP. VIIIO QUINN V. LEATHEM 957 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 hst," and £200 for damages on the other causes of action and judgment was thereupon entered for the plaintiff for £250 dam- ages 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 hve by labor. Physical hindrances, or prevention of labor by physical means, it was conceded, would be the invasion of a right, and that would cer- tainly be the case whether the restraint was apphed 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 foimded in this respect is op- posed 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 judg- ments 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 mahcious motive, what, without such motive he could do lawfully. In fact there are cases in law in which the mahce makes the distinction of what is lawful or unlawful, as in mahcious prosecution, or takes away the right that otherwise exists, as in the instance of privileged communication. But that is not the pres- ent 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 consti- tutional objection, that the law could not enter into a man's mind, has 958 QXJINN V. LEATHEM [CHAP. VIII. no place. The same point meets the case of the butler and the cook that was put in the argiunent. 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 can- not 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 Hable for mahciously exercising a right which he possesses. The action here is for maliciously causing another per- son to exercise a right which that other person possessed. In one case, the right may be said to absorb the malice, though there are excep- tions 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, correla- tive to the wrong. What right can be more sacred than the right to hve 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 ia 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 maUcious 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.) pi. 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 distmction between CHAP. VIII.] QTJINN V. LEATHEM 959 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 Eng- lish 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 apphed in a mul- titude of instances where the law gives no remedy against an indi- \adual, which was the utmost that was determined by Allen v. Flood, [1898] A. C. 1. ... a maUcious design to deprive a person of his hvelihood, the mahce being compoimded 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 groimd of privilege like that which excused the act in The Mogul Steamship Co. v. M'Gregor, [1892] A. C. 25, where the defend- ants merely waged a war of rivalry in their trade. However, if " civil wrong " be imderstood 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 main- tained 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 mahce alone. The act was not done in exercise of any right the defendants possessed. It was done through the agency of another per- son by improperly influencing his wiU; and that wiU was moved solely by their act, and would not otherwise have been exercised. It was done by nmnbers, to which the law attaches a new and altered quahty of more formidable wrong — the f oimdation 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 maUcious. For the case put, of a person mahciously digging on his own land, and draining the well of his neighbor, is no exception, and demon- 960 QUINN V. LEATHEM [CHAP. VIII. strates the weakness of the argument which is founded on it. In that case the act could not be prohibited without interfering with the in- herent 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 co-exist 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 be- tween employers and employed — to proceedings conducting, by in- evitable 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 ftmdamental laws on which civU order rests." SiE P. O'Brien, L. C. J., and Andrews, J., deKvered 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 AUen v. Flood. . . ." The defendants' motion was refused with costs. The case was then carried to the Irish Court of Appeal. In accord- ance with the opinions there deUvered by Lord Ashbourne, Chan- cellor, 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 as- sessed 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 Halsbtjry, Lords Macnaghten, Shand, Brampton, Robertson, and Lindley deUvered opinions in favor of dismissing the appeal. Earl of Halsbtjrt, 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 ut- tered nor carried into effect any threat at all: he simply warned the plaintiff's employers of what the men themselves, without his per- suasion 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. CHAP. VIII.] QUINN V. LEATHEM 961 "^Tiat was alleged to be done was only the independent and single ac- tion of the defendant, actuated in what he did by the desire to express his own views in favor of his feUow-members. It is true that I per- sonally 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 fm-therance 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 wilhng 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 Mxmce 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 Lindlet.^ My Lords, the case of Allen v. Flood, [1898] A. C. 1, has so important a bearing on the present appeal that it is neces- sary to ascertain exactly what this House really decided in that cele- brated case. It was an action by two workmen of an iron company against three members of a trade imion, namely, Allen and two others, for maliciously, wrongfidly, and with intent to injure the plaintiffs, procuring and inducing the iron company to discharge the plaintiff s.^ The action was tried before Keimedy, 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 ob- tained a verdict and judgment against AUen 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 foimd 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 1 Read by Lord Davey in Lord Lindley's absence. 2 [1895] 2 Q. B. 22, 23; [1898] A. C. 3. 962 QUINN V. LEATHEM [CHAP. VIII. Your Lordships' House, all that AUen did was to inform the employers of the plaiatiffs that most of their workmen would leave them if they did not discharge the plaintiffs.' There being no question of con- spiracy, 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 ma- jority of the noble Lords held that the action against Allen would not he; 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 mahciously and with intent.to injure the plaintiffs did not, without more, entitle the plaintiffs to maintain the action. My Lords, this decision, as I imderstand it, establishes two propo- sitions: 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 mah- ciously 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 AUen v. Flood, [1898] A. C. 1; it had been gaining ground for some time, but it was never before so fuUy and authoritatively expounded as in that case. In applying this propo- sition 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 crimi- nal responsibiUty for conduct never depends on intention. Secondly, it must be borne in mind that even in considering a person's liabihty to civil proceedings the proposition in question only appHes 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 inteUigible, and indeed unavoidable. Truly, to inform a person that others will annoy or injiu-e 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 AUen had more power over the men than some of their Lordships thought, and whether AUen 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 1 [1898] A. C. p. 19, Lord Watson; p. 115, Lord Herschell; pp. 147-150, Lord Macnaghten; pp. 161, 165, LordShand; p. 175, LordDavey; p. 178, Lord James. CHAP. VIII. J QUINN V. LEATHEM 963 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 hberty involved liberty to deal with other persons who were wiUing to deal with him. This hberty 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 Hberty of action may justify him in so doing. But a person's liberty or right to deal with others is nugatory, imless they are at liberty to deal with him if they choose to do so. Any interference with their hberty 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 aU who suffered from such wrongs. But if the interference is wrong- ful 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 un- foreseen, 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 imder 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 prin- ciple involved in it cannot be confined to inducements to break con- tracts 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 964 QUINN V. LEATHEM [CHAP. VIII. 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' liabihty 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 unjus- tifiable 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 foimd that the defendants wrongfully and maliciously induced the customers of the plaintiff to refuse to deal with him , and maUciously 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 imion workmen of the plaintiff and of his customers if he would not dis- charge some non-imion 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 be- cause 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 be- tween 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 con- duct of the defendants. That they acted as they did in furtherance of what they considered the interests of imion 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 fist. 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 ex- ercising their own rights: they were dictating to the plaintiff and his customers and servants what they were to do. The defendants were CHAP. VIII.] QtriNN V. LEATHEM 965 violating their duty to the plaintiff and his customers and servants, which was to leave them in the undisturbed enjoyment of their lib- erty 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 ques- tion 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 prin- ciples of law is present ia this case. As regards authorities, they were all exhaustively examiaed in the Mogul Steamship Co. v. MacGregor, [1892] A. C. 25, and AUen v. Flood, [1898] A. C. 1, and it is unneces- sary 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 AUen 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 ac- tionable, 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 AUen 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 AUen said he would call the men out or not. This may have been so in that particular case, as there was evidence that AUen had no power to caU out the men, and the men had determined to strike before AUen had ans^thing to do with the matter. But if Lord HerscheU 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 call- ing 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 AUen 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 \mpleasapt consequences to those who are not persuaded. Call- ing 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 966 QUINN V. LEATHEM [CHAP. VIII. 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 belong- ing to the imion and willing to work with him is a form of coercion, intimidation, molestation, or annoyance to them and to him very dif- ficult 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 sup- posed to do. But ntimbers 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 discus- sions and decisions in America and this country. Amongst the Ameri- can cases, I would refer especially to Vegelahn v. Gimtner, 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. AUen v. Flood, [1898] A. C. 1, emphasizes the same doctrine. The principle was strikingly illustrated in the Scottish Cooperative 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 con- tinued to sell meat to the plaintiffs, they, the butchers, would not buy from the salesmen. There was nothing imlawful in this, and the learned judge held that the plaintiffs showed no cause of action, al- though the butchers' object was to prevent the plaintiffs from buying for cooperative societies in competition with themselves, and the de- fendants were acting in concert. The cardinal point of distinction between such cases and the present is that in them, although damage was intentionally infficted on the plaintiffs, no one's right was infringed — no wrongful act was com- mitted; 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. CHAP. VIII.] QUINN V. LEATHEM 967 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 indi- viduals, but between associations, and between them and individuals, is permissible, provided nobody's rightp 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 weU 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, niunbers cannot be disregarded. I conclude this part of the case by saying that, in my opinion, the direction given to the jiiry by the learned judge who tried the case was correct, so far as the Kability of the defendants turns on princi- ples of conamon 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 serv- ice, 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 wiU 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 ovu- 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 I^ordships 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. Ord&r appealed from affirmed, and appeal dismissed with costs} 1 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, " An act done in pursuance of an agreement or combination by two or more 968 VEGELAHN V. GUNTNER [CHAP. VTII. VEGELAHN v. GUNTNER Supreme Judicial Court, Massachusetts, October 26, 1896. Reported in 167 Massadmsetts Reports, 92. Bill in equity against fourteen individual defendants and two trades unions.' The following decree was entered at a preliminary hearing upon the biU: " This cause came on to be heard upon the plaintiff's motion for a temporary injunction; and after due hearing, at which the sev- eral 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, re- straining the respondents and each and every of them, their agents 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 contempla- tion 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 dis- pute shall not be actionable on the ground only that it induces some other per- son 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 shah affect the habUity of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871, sec- tion nine, except in respect of any tortious act committed by or on behaK 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 meanmg as in the Trade Umon Acts, 1871 and 1876, and shall include any combination as therem defined, notwithstanding that such combination may be the branch of a trade imion. (3) In this Act ana m 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 aU persons employed ill trade or industry, whether or not m the employment of the employer with whom a trade dispute arises; and, m 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 o. ' 1 The statement has been abridged. CHAP. VIII. J VEGELAHN V. GUNTNEE 969 and servants, from interfering with the plaintiff's business by patrol- ling 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 ob- structing 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 annoy- ing, hindering, interfering with, or preventing any person or persons who now are or may hereafter be ia 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 com- pelling 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 pur- pose was lawful, and for that reason refused an injunction against the employment of them. If the ruling was wrong, I find that an injunc- tion ought to be granted. " (2) I find also, that, as a further means for accomplishing the desired end, threats of personal injury or imlawful harm were con- veyed 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 ap- peared 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 httle inclination to stop the plaintiff's door, which was not serious, but seemed to me proper to be enjoined. The patrol 970 VEGELAHN V. GUNTNER [CHAP. VIII. 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 prob- ability 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 hmited 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, adjydged, 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 phys- ically interfering with any persons in entering or leaving the plain- tiff's premises numbered 141, 143, 145, 147 North Street in said Boston, or by intimidating, by threats, express or impHed, 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 boimd so to do by lawful contract." Allen, J. The principal question in this case is whether the de- fendants should be enjoined against maintaining the patrol. The re- port 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 un- lawful 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 haff-past five in the afternoon, on one of the busiest streets of Boston. The nvunber of men was greater at times, and at times showed some httle 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 Usten; and it was found that the patrol would probably be continued, if not enjoined. There was also some evidence of per- suasion 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, CHAP. VIII.] VEGELAHN V. GUNTNER 971 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 unlaw- ful interference with the rights both of employer and of employed. An employer has a right to engage all persons who are wilUng 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, 147 111. 66, 71; Ritchie v. People, 155 lU. 98; Low v. Rees Printing Co., 41 Neb. 127. No one can law- fully interfere by force or intimidation to prevent employers or per- sons 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 prop- erty. It has a broader signification, and there also may be a moral intimidation which is illegal. Patrolling or picketing, under the cir- cumstances stated in the report, has elements of intimidation like those which were foimd 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 imlawful 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; Coeur 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; Lj^ons 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 com- pelhng the plaintiff to accept their schedule of wages. This motive or purpose does not justify maintaining a patrol in front of the plain- tiff's premises, as a means of carrying out their conspii'acy. A com- 972 VEGELAHN V. GUNTNER [CHAP. VIII. bination among persons merely to regulate their own conduct is within allowable competition, and is lawful, although others may be indi- rectly affected thereby. But a combination to do injurious acts ex- pressly 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. Himt, 4 Met. HI; Heywood v. Tillson, 75 Maine, 225; Cote v. Murphy, 159 Penn. St. 420; Bohn Manuf. Co. v. HolUs, 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 eqioity 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 & Poto- mac Railroad v. Fifth Baptist Chinrch, 108 U. S. 317, 329; Cranford V. TyreU, 128 N. Y. 341, 344; GHbert 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 boimd 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 plain- tiff's business by means of threats and intimidation, and by maintain- ing 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 injimction should not be so hmited as to relate only to persons who are bound by existmg 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. CHAP. Vino VEGELAHN V. GUNTNER 973 ^^ [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 Kke the present, it seems to me that, what- ever 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 defend- ants are enjoined by the final decree from intimidating by threats, express or imphed, 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 faU within the injunction as it now stands, and are liable to summary pimishment. The important difference between the pre- liminary 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 in- cludes refusal of social intercourse, and even organized persuasion or argument, although free from any threat of violence, either express or imphed. 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 de- cree. I wish to insist a httle that the only point of difference which involves a difference of principle between the final decree and the preliminary injimction which it is proposed to restore, is what I have mentioned, in order that it may be seen exactly what we are to dis- cuss. 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 974 VEGELAHN V. GUNTNER [CHAP. VIII. reasons which I have given. Furthermore, it cannot be said, I think, that two naen 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 organ- ization 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 intel- ligent workingmen beheve 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, imless 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 ac- tionable, 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 inten- tional 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 rea- soning seems to me often to be inadequate. The true grounds of de- cision 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 lajv which nobody disputes. Propositions as to pubhc 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 inteUigent 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 b\isiness in a country town too smaU 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. CHAP. VIII. J VEGELAHN V. GUNTNER 975 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. Ill, 134. Yet even this proposition nowadays is disputed by a considerable body of persons, including many whose intelKgence is not to be denied, Uttle 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 pohcy 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 instnunentaUty in reaching the end of victory in the battle of trade. In such a case it cannot matter whether the plain- tiff 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 aU agree that it cannot be done by force or threats of force. We all agree, I presimie, 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 advan- tages 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. Conunonwealth v. Hunt, 4 Met. Ill, 132, 133; Bowen v. Matheson, 14 Allen, 499; Heywood v. Tillson, 75 Mame, 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 unlaw- ful 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,' that is, give warning of your 1 " 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. Gumming, 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 abso- lutely 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 ri^t to quit an employment which is terminable at wUl 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 con- dition 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 mamtain an action 976 VEGELHAN V. GUNTNER [CHAP. VIII. intention to do in that event, and thus allow the other person the chance of avoiding the consequences. So as to " compulsion," it de- pends on how you " compel." Commonwealth v. Hunt, 4 Met. Ill, 133 So as to "annoyance" or "intimidation." Connor y. Kent, Cur- ran't) Treleaven, 17 Cox C. C. 354, 367, 368, 370. In Sherry v. Per- kins 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 causmg fear of it. . , i 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 compe- tition, 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 appUes to all conflicts of temporal interests. So far, I suppose, we are agreed. But there is a notion which lat- terly 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 propo- sition. But in the general form in which it has been presented a.nd accepted by many courts, I think it plainly untrue, both on authority against a laborer for annexing such conditions. The employer is not legally dam- aged 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 aimexed 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 aimex 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 insti- gated the commission of the battery ? Could B escape Uability 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 caimot infringe a legal right of A. " 2. It overlooks the distinction between imconditionaUy 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 responsibUity by putting the instigation in the form of a conditional offer to exercise, or to refrain from exercising, a right which he bad against the second person." 20 Harvard Law Rev. 269, CHAP. VIII.] VEGELAHN V. GUNTNER 977 and on principle.^ Commonwealth v. Hunt, 4 Met. Ill; 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 suc- cess achieved. But it is not necessary to cite cases; it is plain from the sHghtest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combina- tion, and that the organization of the world, now going on so fast, means an ever increasing might and scope of conibination. It seems to me futUe to set our faces against this tendency. Whether bene- ficial on the whole, as I think it, or detrimental, it is inevitable, unless the fundamental axioms of society, and even the fundamental condi- tions of life, are to be changed. One of the eternal conflicts out of which hfe 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 lea,st possible rettmi. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable coimterpart, 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 foUow 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 re- turn, it must be true that when combined they have the same Kberty 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 organ- ized refusal by workmen of social intercourse with a man who shaU 1 " In many of the cases the element of combmation 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 imlawful, the combination to commit it may render its com- mission 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 combmation being charged merely for the purpose of fixing joint Uabihty 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. 978 PLANT V. WOODS [CHAP. VIII. 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 pos- sible 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 neces- sarily 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 differ- ence 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 deahng 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.^ PLANT V. WOODS Supreme Judicial Couet, Massachusetts, Septembeb 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 affihated with a national organization of the same name, with head- quarters 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 affihated 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 1 Intimidation. See Springhead Co. v. Riley, 6 Eq. 551 (intLmidating placards); Southern R. Co. f. Machinists Union, lllFed.49; Knudsen w. Benn, 123 Fed. 636; Atchison R. Co. v. Gee, 139 Fed. 582; Pope Motor Co. v. Keegan, 150 Fed. 148 (collection of large crowd); AEis Chahners Co. v. Iron Molders" Union, 150 Fed. 155 (crowds) ; Goldfield Consohdated Mines Co. v. Goldfield Miners' Union, 159 Fed. 500; KoUey 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; Underbill v. Murphy, 117 Ky. 640; Sherry v. Perkins, 147 Mass. 212 (intimidating banner); Ideal Mfg. Co. v. Lud- wig, 149 Mich. 133 (crowd); Baltic Mining Co. v. Judge, 177 Mich. 632; Minne- sota Stove Co. V. Cavanaugh, i31 Minn. 458; Jones v. Maher, 62 Misc. 388; O'Neil V. Behanna, 182 Pa. St. 236; Jensen v. Cooks' Union, 39 Wash. 531; Com- mercial 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 CHAP. VIII.] PLANT V. WOODS 979 association from securing employment or continuing in their employ- ment. 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 de- creed 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, conspir- ing, or attempting to interfere, with the employment of members of the plaintiffs' said association, by representing or causing to be repre- sented 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 em- ployers will suffer or are likely to suffer some loss or trouble in their business for emplojdng or continuing to employ said members of plain- tiffs' 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 ser\-ices 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 impHed, of loss or trouble in business, or otherwise, any person or per- sons or corporation who now are employing or may hereafter employ or desire to employ any of the members of the plaintiffs' said associa- tion; or by attempting by any scheme or conspiracy, among them- selves 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 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, Inducingiemvioyer to break contracts. Read v. Friendly Society, [1902] 2 K. B. 732; Jona^ 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 X ' J Eq. 219; Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279. 980 PLANT V. WOODS [CHAP. VIII. 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 de- termination of this court. The facts appear in the opinion. Hammond, J. This case arises out of a contest for supremacy be- tween two labor imions 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 de- fendant union is affihated with a similar organization having its head- quarters 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 imion 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 " aU painters not affihated 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 aU the members of the craft subjected to the rules and disciphne 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 comphed 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 re- hearsing 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 apphcation for reinstatement in_ the defendant union. As to the general nature of these interviews the master finds that the defend- ants have been courteous in manner, have made no threats of personal CHAP. VIII. J PLANT V. WOODS 981 A-iolencc. 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 reinstate- ment in the defendant union. The master, however, further finds, from all the circxmistances 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 beheve 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 em- ployees 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 mas- ter also foimd 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 proprie- tors 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 compiilsory discharge of the plaintiffs in case of non-compUance 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 " ex- 982 PLANT V. WOODS [CHAP. VIII. pect 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 wUl, by strong, persistent, and organized persuasion and social pressure of every description, do aU 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 wiU 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 imder 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 con- duct of the turbulent among them or of their sympathizers be not such as to make them Uable criminally or even answerable civilly in damages to those who suffer, stiU with fuU 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 natm-e 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 plaiotiffs 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 CHAP. VIII. J PLANT V. WOODS 983 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 Erie 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 descrip- tion — 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, 664: " 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, vM 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 in- tention 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, re- sult in great loss to the employer and his other employees, and that 984 PLANT V. WOODS [CHAP. VIII. such a result was intended. In a general sense, and without refer- ence to exceptions arising out of conflicting pubHc and private inter- ests, 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 foUows: "An act lawful in itself is not con- verted by a malicious or bad motive into an unlawful act so as to make the doer of the act Hable 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 lawfiil when done under any conceivable mo- tive; or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circmnstances, 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 circum- stances 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 appHcation 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, mahce, 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 AUen v. Flood, whatever may be their meaning. Stni standing for solution is the question, Under what circum- stances, 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 occa- sion 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. CHAP, nil.] PLANT V. WOODS 985 In Bowen v. Matheson, 14 Allen, 499, it was held to be lawful for persons engaged in the business of shipping seamen to combine to- gether 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 bj' 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 injtirious 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 coiu't (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 foUows from a course of proceeding that the law permits." The primary object of the de- fendants was to build up their own business, and this they might lawfully do to the extent disclosed in that case, even to the injm-y of their rivals. Similar decisions have been made in other courts where acts some- what coercive in their nature and effect have been held justifiable xmder the law of competition. Mogul Steamship Co. «). McGregor, [1892] A. C. 25; Bohn Manuf. Co. v. HolUs, 54 Minn. 223; Macauley V. Tiemey, 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 obhgation 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 hable 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 sub- stance, 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. 986 PLANT V. WOODS [CHAP. VIII. Without now indicating to what extent workmen may combine and in pursuance of an agreement may act by means of strikes and boy- cotts to get the hours of labor reduced or their wages increased, or to procure from their employers any other concession directly and imme- diately affecting their own interests, or to help themselves in compe- tition with their fellow-workmen, we think this case must be gov- erned by the principles laid down in Carew v. Rutherford, ubi supra. The piu-pose 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 Hb- erty of the body shoiild be restrained. Restraint of the mind, pro- vided it would be such as would be Hkely to force a man against his will to grant the thing demanded, and actually has that effect, is suffi- cient in cases hke this. As stated by Lord BramweU 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 Hberty was not hberty of the body only. It was also a liberty of the mind and will; and the hberty of a man's mind and wiU, to say how he should bestow himself and his means, his talents, and his industry, was as much a subject of the law's pro- tection as was that of his body." It was not the intention of the defendants to give fairly to the em- ployer the option to employ them or the plaintiffs, but to compel the latter against their wiU to join the association, and to that end to mo- lest 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 com- pared 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 prin- ciples of trade competition. Such acts are without justification, and therefore are mahcious and unlawful, and the conspiracy thus to force the plaintiffs was imlawful. Such conduct is intolerable, and incon- sistent 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 pecuharly offensive to CHAP. VIII.] PLANT V. WOODS 987 the free principles which prevail in this country; and if such prac- tices 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." ^ee, in addition to the authorities above cited, Commonwealth v. Hunt, 4 Met. Ill; Sherry v. Perkins, 147 Mass. 212, 214; Vegelahn v. Guntner, 167 Mass. 92, 97; St. 1894, c. 508, § 2; 1 State v. Donaldson, 3 Vroom, 151; State v. Stewart, 59 Vt. 273; State v. Ghdden, 55 Conn. 46; State v. Dyer, 67 Vt. 690; Lucke r. Clothing Cutters & Trimmers' Assembly, 77 Md. 396. As the plaintiffs have been injiired by these acts, and there is reason to believe that the defendants contemplate further proceedings of the same kind which wiU 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, vM 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 ma- jority of the common law judges who had occasion officially to express an opinion. There must be, therefore, a decree for the plaintiffs. We think, how- ever, that the clause, " or by causing or attempting to cause, any person to discriminate agaiiLst 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 per- suasion 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 injimction 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 1 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." 988 PLANT V. WOODS [CHAP. VIII. 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 hesi- tated 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 approach- ing 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 jus- tified. 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 in- tended to raise w^ages 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 con- tend 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 justifica- tion, 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 imme- diate object and motive was to strengthen the defendants' society as a preliminary and means to enable it to make a better fight on ques- tions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this pre- liminary 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 lawfiilly 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 concep- tions, I think it well to add that I cherish no illusions as to the mean- ing and effect of strikes. ^Tiile I think the strike a lawful instrument CHAP. VIII.] MARTELL V. WHITE 989 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 in- finitesimal deduction for the luxuries of the few, is directed to con- sumption 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 or- ganized 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.^ MARTELL v. WHITE SxiPBEME Judicial Court, Massachusetts, March 1, 1904. Reported in 185 Massachusetts Reports, 255. Tort for alleged conspiracy to injure plaintiff's business. In the Superior Court, Bishop, J., ordered a verdict for defendants, and plaintiff excepted. Hammond, J. The evidence warranted the finding of the follow- ing facts, many of which were not in dispute. The plaintiff was en- gaged 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 1 In accord with the prevailing opinion, see Tunstall v. Stearns Coal Co., 192 Fed. 808; Folsom v. Lewis, 208 Mass. 336; Bumham 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 Proof- ing Co. V. Mason Builders' Ass'n, 169 Fed. 259; GUI Engraving Co. v. Doerr, 214 Fed. 111. Contra, Kemp v. Division No. 241, 255 111. 213. Purpose of gaining control of the labor market. New England Cement Co. v. McGivem, 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. 990 MAKTELL V. WHITE [CHAP. VIII. of them were on the executive committee. The association was com- posed 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 busi- ness 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 poHshers 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 pur- chased 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 smns ranged from $10 to $100. Only the contribution of f 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 ac- tion on their part was due to the course of the association in com- pelling 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 ex- pression " 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 biU 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 cus- tomers as were members, and that no pressure was brought to bear upon the plaintiff except such as fairly resulted from action upon his CHAP. VIII. j MAETELL V. WHITE 991 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 busi- ness 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 in- tended the natural result of their acts. Here, then, is a clear and dehberate 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 accomphshed 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 mean- ing of the term as appUed to the subject, then the conspiracy is imlaw- ful. 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 con- cerns the interests of the business world and indeed those of all or- ganized 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 can- not be necessary to enter upon a course of reasoning or to cite authori- ties in support of the proposition that while a person must submit to competition he has the right to be protected from mahcious interfer- ence 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 mahcious and wanton interference, disturbance or annoyance. If disturbance or loss oome 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 mahcious 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 hke 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 action- able. Bowen, L. J., in Mogul Steamship Co. v. McGregor, 23 Q. B. D. 598, 613; Plant v. Woods, 176 Mass. 492. The justification must 992 MAETELL V. WHITE [CHAP. VIII. 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 consider- ing 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 plain- tiff 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, pro\'ided they conomit 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 sound- ness of each principle is supposed to rest, by a process of elimination and comparison to estabUsh 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 ex- pressly 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 Uable 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 in- terests of the members in that way. The oral testimony tends to show that one object of the association is to see that agreements made be- tween its members and their employees and between this association and similar associations in the same line of business be kept and " hved 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 CHAP. VIII.] MAKTELL V. WHITE 993 desire to injure the plaintiff except so far as such injury was the neces- sary 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 wrong- ful 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 civi- lized life and of the increased facility and power of organized com- bination, 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, vbi 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 Stirhng, L. J., in Giblan v. National Amalgamated Labor- ers' 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 fovmd 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 con- test 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 pubUc are best subserved by permittmg 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 ad- 994 MAKTELi V. WHITE [CHAP. VIII. vantageous 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 unfruit- ful 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 rehes 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 moles- tation. In the case before us the members of the association were to be held to the pohcy of refusing to trade with the plaintiff by the im- position 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 fuie 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 bene- fit 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 per- sons fined were members of the association. The words of Munson, J., in Boutwell v. Marr, 71 Vt. 1, 9, are appUcable here: " The law cannot be comp>eUed 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 volun- tary 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 proc- esses deemed essential to a recovery are brought within the member- ship 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 pres- sure. If this were not so, men could deprive their fellows of established CHAP. VIII. J MAKTELL V. WHITE 995 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 injtirious and unjustifiable is unlawful. We do not mean to be understood as sajdng 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 illegahty 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. HoUis, 54 Minn. 223; Macauley Bros. v. Tierney, 19 R. I. 255, and Cote v. Mxurphy, 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 siistaining 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 996 PICKETT V. WALSH [CHAP. VIII. 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, 176 111. 608; Inter-Ocean Pub. Co. v. Asso- ciated Press, 184 lU. 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 Plumb- ers, 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 ease should have been submitted to the jury. Exceptions sustained} PICKETT V. WALSH Supreme Judicial Couet, Massachusetts, Octobee 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.^ One ground of complaint was that the defendants prevented the employ- ment 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 defend- ants in effect say we want the work of pointing the brick and stone laid by us, and you must give us aU or none of the work." ' The court held that this con- duct, although disastrous to the plaintiffs and damaging to the building con- tractors, 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." * 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 contrac- tors 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 bricklajdng and masonry on these other buildings were being done by members of the defend- ants' 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 1 See majority and minority opinions in the later case of WUlcut & Sons Co. v. DriscoU, 200 Mass. 110, also Booth v. Burgess, 72 N. J. Eq. 181. Compare Rhodes V. Musicians' Union, 37 R. I. 281. 2 The following condensed statement is taken from 20 Harvard Law Review, 445^47. 3 Loring, J., p. 583. « Ibid. CHAP. VIII.] PICKETT V. WALSH 997 work was being done by pointers, employed not by the L. P. Soule & Son Com- pany 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 build- ing 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 neu- tral third person to exert a pressure on the plaintiff's employer was not a lawful means of competition. LORING, J.^ That strike has an element in it like that in a sympathetic strike, in a boy- cott, 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 com- pelling 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 caUing as they think best. In our opinion organized labor's right of coercion and compulsion is limited to strikes on persons with whom the or- ganization 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 inter- ference with the right of A to pursue his caUing as he thinks best.^ 1 Only a part of the opinion is given (pp. 587-88). „ . 2 Bossert v Dhuy, 166 App. Div. 261, 221 N. Y. 342 Accord. But see Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279. ^ . . ■, i u In Bohn Mfg. Co. v. HoUis, 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 seU lumber directly to consumers not dealers, at any pomt where a member of the association was carrying on a retail yard; and they provided m their by-laws that, whenever any wholesale dealer or manufacturer made any such sale, the secretary should notify aU the members of the fact. The plaintiff, a wholesaler having made such a sale du-ectly to a consumer, the secretary threatened to send notice of the fact, as provided in the by-laws, to aU the members of the association^ (This state- ment 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 send- ine 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 then- own conduct. They did not threaten to induce outsiders to refram from working for or selling goods to, the wholesalers. And even as to their own conduct, they did not threaten to ab- stain from deahngs with wholesalers in ah matters, but only m the purchase of lumber. Much iL did they threaten to abstam from deahng with persons who dealt with the wholesalers. In a subsequent case the same court said : It is to be notWd that the defendants in the Bohn case had similar legitimate interests to W^t wS were menaced by the practice of wholesale dealers in sellmg lumber TconSorsInd c^S^ers;'^and that the defendants' efforts to mduce parties 998 BAKE V. ESSEX TRADES COUNCIL [CHAP. VIII. BARE V. THE ESSEX TRADES COUNCIL CoTJKT OF Chancery, New Jeesey, October Term, 1894. Reported in 63 New Jersey Equity Reports, 101. On order to show cause why injunction should not issue.^ 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," em- bracing 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 pubhc, states : — " The Essex Trades Council has for some time past been concen- trating 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 annoimce that it is abeady 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 consimiing pubhc, the Essex Trades Council will shprtly issue a series of cards for free display in aU business establish- ments especially deserving the patronage of organized fair consumers, their famUies, 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 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 Ex- change 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 Wy- man, 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 dbjectionahle Joreman. De Minico v. Craig, 207 Mass. 593. ' Statement abridged. Portions of opinion omitted. CHAP. VIII.] BAKU V. ESSEX TRADES COUNCIL 999 required at stated periods to fill out a blank slip furnished for that purpose, stating the amount expended by him in purchase, the char- acter 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 coun- cil. 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 estinaate, 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 CouncU and a tradesman, by which the latter, " in retxirn for the patronage of united fair consumers," prom- ises 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 particxilar imion and endorsed by the councU of consumers of the Essex Trades Council. Cards are then issued to the tradesmen, imder 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 en- titled 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, imder date of March 31, 1894, " by the Essex Trades Cormcil and auxihary circle bodies," a small pamphlet of con- venient size to be carried in the pocket, which is entitled " The Fan- 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 m 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 1000 BARR V. ESSEX TRADES COUNCIL [CHAP. VIU. 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 wilHng to stay. Some of the employees determined to remain, others, how- ever, 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 pubUc, which, after giving its version of the dispute, concludes with this appeal: — " Friends, ' one and all, leave this council-boycottiag ' Newark Times ' alone. Cease buying it! Cease handling it! Cease advertis- 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 boy- cotters of organized fair labor. To promote the pubhc welfare by the diffusion of common cents, urging aU to carry these in trade only to those who will return them to the people in the shape of Hving wages." The whole paper is devoted to the controversy between the unions and the " Newark Times," no other object being considered. It re- fers 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 adver- tisers, remember that plate matter means forty-five cents a day, and imderstand why the ' Newark Times ' is an unfair office." Then fol- low 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 beUeve that a portion of our honestly-earned money CHAP. VIII.J BAKR V. ESSEX TRADES COUNCIL 1001 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 publica- tions, 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 " untU 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 con- tinue to advertise in the ' Times ' merely succeed in making them- selves conspicuous as persons to carefully and studiously keep away from." These resolutions foimd their way into the hands of the advertisers in the " Times." The various trades unions, afloliated 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 afore- said 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 Coimcil, as to the signification of the word " boycott," as used in the circular and pubHcations.] From which it is to be gathered that the use of the word " boycott " in the pubHcations, as applied to the " Times," would be regarded by the members of the various unions to mean only that they should re- frain from trading or dealing with the complainant, and with those 1002 BAKB V. ESSEX TRADES COUNCIL [CHAP. VIH. who oppose the organizations in their actions and doings with refer- ence 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 pub- lic 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 pubUc 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 un- derstood 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 intercom^e, through threats that, unless those others do so, the many wiU 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 pubUc 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 in- gredient of crime, necessarily presupposes personal injury or the fear thereof. The clear weight of authority vmdoubtedly 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 dispfute 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, aU the organizations represented in the trades council and the individual members thereof, in strict conformity with the pur- pose 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 CHAP. VIII. J BARK V. ESSEX TRADES COUNCIL 1003 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 organiza- tions. He no longer uses his own judgment, but, by entering into the combination, agrees to be bound by its decree. As is said in Temple^ ton 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 feUow-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 vmder such circmnstances cannot be expected. Next as to the advertising public. Tradesmen advertise in news- papers for the sole purpose of drawing customers to their stores. An authoritative annoimcement, 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 Im-ks the threat of the withdrawal of such a volume of busi- ness, could have no other effect than to intimidate and coerce, as it did in fact make several change their judgment, which had previ- ously 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 Ught 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 de- fendant's own trade, viz., carrying goods on a steamship Hne, 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 pubhsher of a newspaper. Members of the typo- 1004 PIEECE V. stablemen's union no. 8760 [CHAP. VIII. graphical 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 trade^en's places of business. ITiis 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 en- dorsements, but whether this is so or not, it is in no sense a competing business with the pubhcation 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 organi- zations], they having all disclaimed any participation in the acts com- plained 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 resolu- tions, bulletins, or other pubUcations containing appeals or threats against the " Newark Times," or the complainants, its publishers, with the design and tending to interfere with their business in pubUsh- ing 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.^ PIERCE V. THE STABLEMEN'S UNION LOCAL NO. 8760 Supreme Cotjet, California, Jxily 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 Uvery, board and feed stable in the city and county of San Francisco. The officers and representatives of defend- 1 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; McCor- miok V. Local Unions, 32 Ohio Cir. Ct. R. 165 Accord. Compare Ex parte Heffron, 179 Mo. App. 639. CHAP. VIII.] PIERCE V. stablemen's UNION NO. 8760 1005 ant 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 plaintiff's place of business was established, and, under the findings, these representa- tives of the defendants, the pickets, " called forth in loud, threaten- ing, and menacing tones to the patrons and customers of plantiffs not to patronize plaintiffs in their said business; defendant, the Stable- men'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 con- tinued to patronize and do business with plaintiffs, said Stablemen's Union would cause them respectively to be boycotted in their busi- ness." Menacing terms and threatening language were made use of by the agents, representatives, and pickets of the union toward the employees of the plaintiff, 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 rmfair. 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 win 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 in- terfering 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 mmiber 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 em- ployees of plaintiffs; or from intimidating, harassing, or interfering with any customer or customers, patron or patrons of plaintiffs in con- nection 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 induc- ing, or seeking to induce, any customer or customers, patron or pa- trons, of plaintiffs to withdraw their patronage or business from them, or from stationing or placing in front of said plaintiffs' place of busi- ness any picket, or pickets, for the purpose of injuring, obstructing, or in any wise interfering with, the business of plaintiffs, or for the pur- pose 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 intimi- 1006 PIERCE V. stablemen's union no. 8760 [CHAP. VIII. date 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 in- voke the interposition of a court of equity. It is in this respect simi- lar to the complaint considered in Goldberg-Bowen Co. v. Stablemen's Union, 149 Cal. 429. The complaint alleges specific acts calhng for preventive reUef , and is not confined to mere generahties, as wa^ 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 wiU refuse to restrain them. WhUe 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. Gtmtner, 167 Mass. 92.) In Mke manner, while equity wiU 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 injunc- tions as appUed 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 injimction should not issue to restrain its use or threat- ened 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 coiixt 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 ac- quire, possess, enjoy, and protect property, but as well would it be obnoxious to the constitution iii creating arbitrarily and without rea- son a class above and beyond the law which is apphcable to all other individuals and classes. It would legaUze a combination in restraint of trade or commerce, entered into by a trades imion, which would be illegal if entered into by any other persons or associations. It would CHAP. VIII.] PIERCE .t;. stablemen's UNION NO, 8760 1007 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 at- tempting 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 combinaton 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 " combina- tion " 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 Ulegahty; or a boycott may employ legal means and methods, and thus be merely a legitimate combination by a num- ber 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 obhgation 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 con- certed 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 Coimcil of Santa Clara, 36 Cal. Dec. 445. The right of united labor to strike, in furtherance of their trade interests (no contractual obhgation 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, 1008 PIEECE V. stablemen's union no. 8760 [CHAP. VIII. 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 pubUcation, and fair oral or written per- suasion, 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 hke boycott against him if he refuse so to do. This last proposition neces- sarily 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 com-ts, the federal courts, and by the courts of many of the states of this nation. With- out 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 p)ersons, 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 Maga- zine, 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 nimierous courts upon the subject-matter, this court, after great deliberation, took what it believed to be the truer and more advanced groimd above indicated and fuUy 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 tmquestioned right to notify such third person that they will withdraw their patronage if he con- tinues so to deal. However opposed to the weight of federal authority CHAP. VIII.] PIEECE V. stablemen's UNION NO. 8760 1009 the views of this court are, that they are not unique may be noted by reading National Protective Association v. Gumming, 170 N. Y. 315; Lindsay r. 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 imphes 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 accom- plish a certain end. As we have vmdertaken 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 defi- nition is given to a boycott which imports illegality the injunction will of coxirse lie against boycotting as such. In this state the injunc- tion 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 pubHcation, written and oral per- suasion 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 fm-ther than this. It is the equal right of the employer to insist before the law that his business shaU 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 rela- tionship 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 en- joyed by any other individual or association. The two classes of per- sons 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 pubUc. It is the abso- lute, unqualified right of every employee, as well as of every other person, to go about his legal business unmolested and unobstructed 1010 PIERCE V. stablemen's UNION NO. 8760 [CHAP. VIII. and free from intiinidation, force, or duress. The right of a labor association to strike is no higher than the right of a non-union work- man to take employment in place of the strikers. Under the assur- ance 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 Uberty 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 toU. (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 boy- cott 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 aceompHsh, 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 busi- ness 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 alwayfe deterred by physical trepidation from entering places of business so under a boycott patrol. It is idle to spHt hairs upon so plain a proposition, and to say that the picket may consist of nothing more than a single individual peacefully en- deavoring by persuasion to prevent customers from entering the boy- cotted place. The plain facts are always at variance with such refinements of reason. Says Chief Justice Shaw in Commonwealth V. Hxmt, 4 Met. Ill : " 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 ob- structing, without there being any express words used by which a man should show violent threats toward another, or any express intimida- tion. 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. CHAP. VIII.] PIEKCE V. stablemen's UNION NO, 8760 1011 The boycott, having employed these means for this unquestioned pur- pose, is illegal, and a court will not seek by over-niceties and refine- ments to legalize the use of this unquestionably illegal instrument. (Vegelahn v. Guntner, swpra, 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 pubUcation, reasonable persuasion, and threat to withdraw patronage, is legal and such as defendants could employ. So, also, was the injxmction too broad in restraining defendants from " intimidating any customer by boycott or threat of boycott," since, as has been said, the secondary boycott is hkewise 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 afiirmjed. We concur: Lorigan, J.; Beatty, C. J.; Melvin, J. Shaw, S. I agree with aU 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 pro- duced 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 ia 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 vohtion in his own business, to the detriment of the person toward whom the main boycott or strike is directed; in other words, when- ever the means used constitute duress, menace, or undue influence. Whether this coercion or compiilsion 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 aife declared void, because procured by duress, menace, or undue influence. There should be none whei* actual injury is produced or threatened through such means acting upon third persons. Nor do I believe any well-con- sidered case authorizes any such distinction. The opinions in the case of National Protective Association v. Cummings, 170 N. Y. 315, are 1012 PIERCE V. stablemen's union no. 8760 [CHAP. VIII. 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 direct- ing a modification of the injunction. I beheve that it should stand in the form as given by the com-t 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.^ 1 Bossert v. Dhuy, 221 N. Y. 342; Cohn & Roth Electric Co. v. Bricklayers' Union, 92 Conn. 161 Accord. See Iron Holders' Union v. A His 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. INDEX ABAXDOXMEXT, of action, if voluntary, equivalent to termination in defendant's favor, 629. of action, by way of compromise, not equivalent to termination in defend- ant's favor, 629. ABSTRACTER OF TITLE, liability to third party injured by mistake or omission, 262 n. ABUSE OF PROCESS, malicioiis, 653. ACCIDENT, ■R-ithout negligence, excuses trespass to person, 29, 30, 35, 40. excuses trespass to pereonalty, -12. through negligence, no excuse for a trespass, 29, 30, 35. ACTION (see Malicious Institution op Civil Action). AD^'ERTISING, blind, interference with, 838. ADVICE, of counsel, probable cause for prosecution of plaintiff, 634. ADVOCATE, statements by, when privileged, 697, 709. ANIM.\LS, 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. Uability 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 pastiu-age 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 negUgence 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 trespa-ssmg 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. 1013 1014 INDEX ANIMALS (continued) 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. AEREST (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. insultiug 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 scuflBe," 18 n. INDEX 1015 BEES, liability of owner of, for injuries, 425 n. BLASTING, injuries by, 40 n. BOYCOTT (see Competition, Maliciotjs iNjtmT to Plaintiff by iNFLtr- EicciNQ 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. fate 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, 1016 INDEX 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, 695. 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. INDEX 1017 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 buDding 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, 558, 556, 569, 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 knowl- edge, 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. 1018 INDEX DECEIT (continued) 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 Ubel, 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. vise 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. oflScial statements of administrative oflficers, 710 n. INDEX 1019 DEFAMATION (continued) 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 ofRcer, 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. voliinteered 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 pubUc 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 typewriter, whether justifiable, 758, 761 n. publication of, to wrong person, by mistake, whether excused, 761 n. maUce 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. 1020 INDEX DEFAMATION {continued) 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 aito 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 Contributort Negligence). INEVITABLE ACCIDENT (see Accident). INFANT, liable for torts, 96, 97 n. negligence of, 88, 88 n., 90, 93, 93 n. INJUNCTION, maUciously 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). INDEX 1021 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 op 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 op 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. 1022 INDEX MALICIOUS INJURY TO PLAINTIFF BY INFLUENCING CONDUCT OF ANOTHER {continued) 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 circum- stances, 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 seU 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. INDEX 1023 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 seizmre 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 volimtary 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. conunitment for grand jury, evidence of, 632, 633 n. finding of indictment evidence of, 632, 633 n. advice of coimsel 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. 1024 INDEX 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 InFLTTENCING CONDUCT OF ANOTHER; SlANDER OF TiTLE). MANUFACTURER, Uability 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 wiU to leave master, 873 n. MENTAL OR NERVOUS SHOCK, action for causing, 45, 49 n., 60 57 n., 68, 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; Tres- passers; 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. INDEX 1025 NEGLIGENCE (cmtinued) 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 pecuUar privilege in defamation, 732. NOLLE PROSEQUI (see Malicious Prosecution). NONFEASANCE, 127, 129, 131, 134, 137, 142 n. NTTISANCE (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 "; Land- lord 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. Hability to Ucensee, 177, 179, 183, 183 n., 186, 191. injury to licensee by " trap," 179. liability to children licensees, 183 n. hability where known permissive use by public, 183 n. liability in case of gratuitous carriage, 183 n. liability to hcensee for negUgent 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. UabiUty 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. hability for injury to invitees by thu'd persons, 204. who are invitees, 207, 214, 220 n. liability to social guest, 222, 225 n. liabiUty in case of Ucense conferred by law, 225, 227 n. hability to trespasser or licensee in case of breach of statutory duty, 520. PARTY, statements by, privileged, 709 n. PEACE, malicious exhibition of articles of, «2b. PHYSICAL IMPACT, necessity of, 45, 50, 58, 62 n. 1026 INDEX 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 Mamcious Pkosecution). 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 negli- gence, 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 Maliciotts 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. INDEX 1027 SEDUCTION, of daughter, 866. of plaintiff's fiancee, 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 Dispakagbment of Pkopebtt), differs from slander of person, 813. ■nhat 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. SALiSHING RATES, is fair competition, 906, 913. SPECL\L 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 (Enghsh), 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, 7.-)8. communication to, not privileged, 758. communication to, privileged, 761 u. 1028 INDEX 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 op Land). WITNESS, no action against, for perjury, 712. action for subornation of, 710. statements of, privileged (see Defamatjon) WORDS, insulting, no assault, 11, 11 n., 12 n. malicious (see Malicious Words). construction of, in defamation, 661.